Lords Sitting of 12 May 1966

Preamble
The House met at three of the clock, The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Exeter
Several Lords—Took the Oath.

THE LORD CHANCELLOR'S VISIT TO WASHINGTON
3.6 p.m.
THE LORD CHANCELLOR (LORD GARDINER): My Lords, may I ask for the indulgence of the House to make a short personal statement? I have been invited by the American Law Institute to make the principal address at the concluding function of their annual meeting in Washington on Friday, May 20. To do so, I should have to leave London in the early afternoon of the preceding day, and I should therefore not be in my place for what, I am sure, will be a very interesting debate on gambling. The American Law Institute is the principal law reforming agency of the United States and its meeting is being opened by the Chief Justice of the Supreme Court. It is a considerable honour to have been invited to give this address. I should be back in my place on the Monday. I have Her Majesty's approval of my acceptance of the invitation, and I hope that I shall have your Lordships'.
SEVERAL NOBLE LORDS: Hear, hear!

FERRY BRIDGE COOLING TOWERS
3.8 p.m.
LORD FERRIER: 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 when they expect to receive the Report of the Electricity Board's Committee of Inquiry into the collapse of three cooling towers at Ferry Bridge last November.]
THE JOINT PARLIAMENTARY UNDER-SECRETARY OF STATE, HOME OFFICE (LORD STONHAM): My Lords, the Committee of Inquiry have made an interim report, and the Central Electricity Generating Board has told my right honourable friend that it expects to receive the Committee's final report towards the end of the summer. The Committee's preliminary findings were announced by the Board in December. The Committee were unable, on the evidence available at that time, to identify with certainty the cause of the failure and recommended a comprehensive programme of research which is now in progress. They indicated the basis on which they thought it would be reasonable to put in hand the work of rebuilding the fallen towers and reconstructing the standing towers. This work is now being carried out and no delay is expected in the commissioning of the station as a result of the accident. The Committee say that the standards of construction and materials of the towers appear to have been generally satisfactory and consider it unlikely that deficiencies in either materials or workmanship were prime causes of the collapse.
LORD FERRIER: My Lords, I thank the noble Lord for his full reply, and I can only inquire whether he can say that when the report comes out it will be made public?
LORD STONHAM: My Lords, the C.E.G.B. were very prompt in publishing the interim report, and I feel sure that the Board will give the same degree of publicity to the findings and recommendations of the final report as they did to the interim one.
LORD DERWENT: My Lords, as I motor through Ferry Bridge past the cooling towers probably once a week, may I take it that it is safe to continue to do so?
LORD STONHAM: I think that the noble Lord can be fairly well assured of that. The position is that the towers only fell down under the Labour Government. They were put up under the Conservative Government. They are now being reconstructed under a Labour Government, so the noble Lord is quite safe.
THE EARL OF BESSBOROUGH: My Lords, may I ask the noble Lord what

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progress is being made in the redesigning of cooling towers to replace the present hyperbolic type
LORD STONHAM: My Lords, this is one of the objects of the detailed and careful research which is being carried out, but so far as the recommendations made by the Committee in their interim report are concerned, they largely concern greatly thickening the concrete all the way up. There has as yet been no decision about any major alteration in the actual design which, as the noble Earl will be fully aware, is merely a prolongation upwards of the same type of tower which has been used very successfully in quite a number of other stations.
LORD AMPTHILL: My Lords, are Her Majesty's Government aware that since the accident the C.E.G.B. have asked the Cement and Concrete Association to test the construction at their experimental station at Wexham, near Slough, and are they aware that they have in fact built two or three model towers which, in due course, will be tested to destruction?
LORD STONHAM: My Lords, I am grateful to the noble Lord for that information. It is an example of the careful way in which the matter is being gone into. We hope that this most unfortunate accident will eventually have good results.

SELECTIVE EMPLOYMENT TAX AND FORESTRY INDUSTRY
3.13 p.m.
THE EARL OF DUNDEE: My Lords, I beg leave to ask the first Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether they will state the number of workers employed by the Forestry Commission on whom the selective employment tax will be charged, and whether the amount paid will be refunded to the Forestry Commission, or whether their expenditure will be reduced by the amount of the tax.]
THE PARLIAMENTARY SECRETARY, MINISTRY OF HOUSING AND LOCAL GOVERNMENT (LORD KENNET): My Lords, the number of staff at present employed by the Forestry Commission on whom the new selective employment tax will be charged is about 13,500. The cost of the tax to be charged to the Commission will be taken into account in reviewing estimates of the annual grants-in-aid of the Forestry Fund.
THE EARL OF DUNDEE: My Lords, as I think this is the first Question which the noble Lord has answered in this House, may I take the opportunity of congratulating him upon his appointment to office? May I also say that I am glad to hear that the Forestry Fund, if I understand his answer right, will not be diminished as a result of this tax. Could the noble Lord say how this is done? Do the Forestry Commission pay the tax and does the Chancellor then send a cheque for an equivalent amount, or do they just agree to call it quits?
LORD KENNET: My Lords, the Forestry Commission pay the tax, and the fact that they have paid the tax will be taken into account in assessing the level of grant.
THE EARL OF DUNDEE: My Lords, I hope that that means they will get back as much as they give, and not merely part of it. I should like to ask the noble Lord to make it clear that the tax will not be cut down. Would he also say whether the Forestry Commission have been given this good news, because last week they did not know?
LORD KENNET: My Lords, I am afraid that I cannot commit the Chancellor of the Exchequer to any specific level of grant for this year to the Forestry Commission.
LORD BYERS: My Lords, does not this involve something like £750,000? Is not somebody going to lose the interest on this amount for something like six months? Who loses it?
LORD KENNET: My Lords, it is not clear at the moment what will be the position about payment of interest in the meantime.
3.15 p.m.
THE EARL OF DUNDEE: My Lords, I beg leave to ask the second Question

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which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government what is the estimated number of foresters in private employment on whom the selective employment tax will be charged, and what action will be taken in furtherance of the statement in paragraph 17 of the White Paper, that account will be taken of the effect of the tax in the determination of the grants to private woodland owners.]
LORD KENNET: My Lords, the best rough estimate of the number of employees in private forestry on whom the selective employment tax will be charged is about 7,000. Some account will be taken of the effect of the tax when the next review of the level of the forestry grants takes place, and the Forestry Committee of Great Britain, representing private woodland owners' organisations, will be fully consulted about the method of doing so.
THE EARL OF DUNDEE: My Lords, may I ask the noble Lord whether the Government are aware that forest labour for forestry schemes in the Scottish Highlands is exceedingly hard to get and very scarce? The Government, as part of their Highlands policy—with the support of all the forestry societies in Scotland—are urging owners of land to do more planting in supplementation of the Forestry Commission's work. Is the noble Lord aware that this tax will be a very serious impediment to the carrying out of the Government's Highlands development policy?
LORD KENNET: My Lords, these factors will be taken into account during the review.
LORD INGLEWOOD: My Lords, may I ask the noble Lord two questions? The first is this—and since he has referred to the question of the grants, I hope it is not unreasonable to assume that he has given this point some thought.
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Could he tell us, approximately, what increase in the management grant would have to be made in order to recompense woodland owners for this charge? Secondly, would the noble Lord bear in mind that the Forestry Commission and the private woodland owners are, as it were, both friendly partners and competitors in the same industry, and it would therefore be grossly unfair if one of those partners had to carry a charge of which the other was free.
LORD KENNET: My Lords, my answer to the first question is: Not without further notice. My answer to the second question is that this is precisely the kind of thing which will be discussed in the review of the grant in the public sector and in the review to which I have just alluded as regards the private sector.
LORD AMPTHILL: My Lords, are Her Majesty's Government aware that many privately owned woodlands have to operate sawmills as an integral part of their forestry operations? Can the Minister confirm that the workpeople employed in these sawmills—which includes sawyers, mechanics, lorry drivers and labourers—will be treated as industrial workers for the purpose of the selective employment tax?
LORD KENNET: My Lords, not without notice.
THE EARL OF DUNDEE: My Lords, may I ask the noble Lord, seriously, whether the Government have thought out these matters in relation to this tax; or are they just making it up as they go along?
LORD KENNET: My Lords, of course the Government are in the process of thinking out these matters, and they are in close and continuous touch both with the Forestry Commission and with the Forestry Committee of Great Britain.
LORD CARRINGTON: My Lords, would it not have been better to think it out before bringing in the tax?

RUGBY FOOTBALL TOURISTS' SALARY PAYMENTS
3.18 p.m.
LORD OGMORE: 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 their attention has been drawn to the decision of the Monmouthshire Education Committee that two school masters in the employment of the Monmouthshire County Council, namely Mr. Alun Pask and Mr. Brian Price, who are distinguished members of the British Isles Rugby Football Touring Team (commonly known as "The British Lions"), shall be paid only their salaries as schoolmasters for the eight weeks of the tour which fall within the school summer holidays, and whether, in view of the contribution that these two gentlemen are making to the sporting reputation of Britain, and to the warm friendship between Britain and our fellow Commonwealth countries of Australia, New Zealand and Canada, Her Majesty's Government would be prepared to make good the deficiency.]
BARONESS PHILLIPS: My Lords, my right honourable friend the Secretary of State for Education and Science was not aware of this decision. The matter appears to be entirely one for the authority to decide at their discretion. On the second part of the Question, Her Majesty's Government, while fully recognising the importance of this tour, would be unable to make good the deficiency in the salaries of the teachers concerned.
LORD OGMORE: My Lords, while I thank the Minister for the charm of her Answer, I am not so grateful for its content. May I ask her whether, in view of the importance of this whole subject, particularly to Commonwealth relations with the three countries mentioned, she will do her best, and her Minister will do his best, to persuade the Monmouthshire County Council to reverse the decision of the Monmouthshire Education Committee and to pay these gentlemen their salaries?
BARONESS PHILLIPS: My Lords, I think I may tell the noble Lord that Her Majesty's Government are very conscious
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of the importance of this tour, but this matter must of necessity, I think, remain a matter between the authority and the teachers concerned.
LORD OGMORE: My Lords, all I am asking the Minister is whether she or her superior Minister would try to persuade the Education Authority (I appreciate that it is a matter for the Authority's decision)—because, after all, they pay a substantial contribution towards the Education Authority's expenses in Monmouthshire—to do what I ask. Furthermore, may I ask the Minister whether she is aware that the Government, quite rightly and properly, are paying in full the salaries of their employees who are on this tour? Is this not a very mean, parsimonious and small-minded attitude on the part of the Monmouthshire County Council?
BARONESS PHILLIPS: My Lords, I am sure your Lordships would not wish me to comment on the behaviour of the Monmouthshire County Council, but I recognise the feeling of the House on this matter. I give the noble Lord the assurance for which he asks. I will certainly pass his comments on to the Minister and see that the noble Lord has a reply.
LORD OGMORE: I thank the noble Baroness very much.

GLASGOW CORPORATION (CARNOUSTIE STREET) BRIDGE ORDER CONFIRMATION BILL
Considered on Report (according to Order).

JUDICIAL OFFICES (SALARIES) ORDER 1966
3.22 p.m.
THE LORD CHANCELLOR: My Lords, I beg to move that the Judicial Offices (Salaries) Order 1966 be approved. The Judicial Offices (Salaries and Pensions) Act 1957 provides that, if it appears to the Lord Chancellor that any of the salaries which are the subject matter of that Act ought to be increased, he may with the consent of the Treasury make an Order accordingly, provided that a draft of the Order has been laid before Parliament and approved by Resolution of each House. Those whose salaries are affected by this Order are the recorders

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of Manchester and Liverpool, the county court judges and the metropolitan magistrates.
For many years successive Governments have taken the view that those considerations which are relevant to any increase in the remuneration of those affected by the Act are the same as those considerations which are relevant to the question of an increase of remuneration for the higher Civil Service. As your Lordships know, the remuneration of the higher Civil Service is periodically examined by the Franks Committee, who report with recommendations, and it has been usual for successive Governments to accept the recommendations of the Franks Committee in this sphere. Then, the higher Civil Service remuneration having been provided for, it has been usual for the Lord Chancellor, with the approval of the Treasury, to apply to those who are the subject matter of this Order increases exactly proportionate to those granted to the higher Civil Service.
In this case, that course was not followed because the Government did not at first accept the recommendation of the Franks Committee in relation to the remuneration of the higher Civil Service, for they were not sure that it was in line with their prices and incomes policy. Accordingly, as they had done in the case of the remuneration of the Armed Forces, they referred the Report to the Prices and Incomes Board; but when the Prices and Incomes Board said that the recommendations were in accordance with the prices and incomes policy, the Government accepted and implemented the recommendations so far as the higher Civil Service was concerned. The Draft Order before the House is therefore one which would increase, precisely proportionately to the increases granted to the higher Civil Service, the salaries of those who are the subject matter of the Order. The mean annual rate of increase is in fact 3½ per cent.
There is only one difference between the position of the higher civil servants and that of those who are the subject matter of this Order—namely, it has been usual in the case of the higher civil servants to make any Order for an increase, or any decision to increase their remuneration, retrospective to about the date of the Franks Committee Report. That
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was done this time, so the increases of remuneration in the case of the higher Civil Service have been made retrospective to September 1 of last year. But under the Act there is no power for me to make an Order making any increases covered by the Order retrospective. So—and it has always been a matter of some complaint, I think, on the part of those who are covered by this Order—they always lag about six months behind the Civil Service. I think that on this occasion it is nine months, probably owing to the reference to the Prices and Incomes Board. I have ventured to say so much merely because we live in days when an increase in anybody else's remuneration is not uninteresting to the rest.
I think I need only conclude by reminding your Lordships that the Special Orders Committee of your Lordships' House, having examined the Order, have reported that in their opinion the provisions of the Order do not raise important questions of policy or principle, that the Order is founded on the precedents of previous Orders relating to these officers, and that in the opinion of the Committee the Order can be passed by the House without special attention. My Lords, I beg to move.
Moved, That the Judicial Office (Salaries) Order 1966 be approved.—(The Lord Chancellor.)
VISCOUNT COLVILLE OF CULROSS: My Lords, with the possible exception of the next Motion that the noble and learned Lord who sits on the Woolsack is to move, in the debate on which I see I have the most improbable precedence, I think this will be the least controversial of the legal matters that are before the House this afternoon. I hope that I may speak on behalf of all noble Lords behind me in saying that we welcome this move. We consider that it is entirely suitable that the salaries of those who are covered by this Order should go up in the way that the noble and learned Lord has described.
With the importance of the work that they do increasing all the time, it is, I am sure, most important that the salaries they receive should be sufficient to attract people of the highest calibre, and that there should not be at any rate more than nine months' lag before they are awarded these increases. In view of the fact that

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the Order cannot be made retrospective, I am sure that noble Lords will be glad that it can be given quick approval this afternoon, and I hope it will be put into effect very soon indeed.
THE LORD CHANCELLOR: My Lords, I am grateful to the noble Viscount, Lord Colville of Culross, for the kindly way in which he has received this Motion, which I will now put to your Lordships.
On Question, Motion agreed to.

CONSOLIDATION BILLS
3.28 p.m.
THE LORD CHANCELLOR: My Lords, I beg to move the Motion standing in my name on the Order Paper. This is the common-form Resolution for appointing certain noble Lords to the Joint Committee on Consolidation Bills. I beg to move.
Moved, That in the present Session a Committee of twelve Lords be appointed to join with a Committee of the House of Commons as a Joint Committee on Consolidation Bills (whether public or private), Statute Law Revision Bills and Bills prepared pursuant to the Consolidation of Enactments (Procedure) Act 1949:
That the Memoranda laid and any representations made with respect thereto under the said Act be referred to the Joint Committee:
That the Lords following be named of the Committee:—

V. Colville of Culross,

V. Brentford,

L. Rathcreedan,

L. Cawley,

L. Meston,

L. Guest,

L. Ilford,

L. Upjohn,

L. Royle,

L. Segal,

L. Haire of Whiteabbey,

L. Lloyd of Hampstead.

That such Committee have power to agree with the Committee of the House of Commons in the appointment of a Chairman.—(The Lord Chancellor.)
On Question, Motion agreed to: Ordered, That a Message be sent to the Commons to acquaint them there-
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with and to request that they appoint twelve Members of that House to be joined with the said Committee.

GUYANA INDEPENDENCE BILL
House in Committee (according to Order).
House resumed.
Bill reported without amendment; Report received.
Then, Standing Order No. 41 having been dispensed with (pursuant to the Resolution of yesterday), Bill read 3a.
THE PARLIAMENTARY UNDER-SECRETARY OF STATE FOR COMMONWEALTH RELATIONS AND FOR THE COLONIES (LORD BESWICK): My Lords, both in this House and in another place this Bill has had very full discussion, and on narrow points it has had a somewhat critical discussion. But I am sure that, now it has reached this stage, we all of us, without exception, should like to send our best wishes to Guyana for successful and happy celebrations on May 26, at which I hope to have the privilege of being present. I am sure we all look forward to a successful and satisfying future for this new country. I beg to move that this Bill do now pass.
Moved, That the Bill do now pass.—(Lord Beswick.)
On Question, Bill passed.

TRIBUNALS AND INQUIRIES BILL [H.L.]
3.30 p.m.
Order of the Day for the Second Reading read.
THE LORD CHANCELLOR: My Lords, I beg to move that this Bill be now read a second time. Your Lordships will remember that it is a good many years now since a different Franks Committee reported on the growing number of administrative tribunals and inquiries held by Ministers, and considered whether citizens had all the protection they ought to have before this growing number of tribunals and inquiries. Your Lordships, in the Tribunals and Inquiries Act 1958, constituted the Council on Tribunals to act, in effect, as a watchdog for the public in relation to tribunals and

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inquiries. They have, of course, functions to perform relating to the membership of tribunals: Ministers are under obligation to consult the Council when they make rules, and the Council themselves are the proper repository of any complaint by any member of the public who thinks he has been wrongly treated at such tribunals.
In addition, they go round the country —as their Scottish Committee do in Scotland—hearing the cases which are heard by different kinds of tribunals and, with the consent of the chairman, retire with the tribunal so that they can see and hear how they arrive at their conclusion. I am sure that your Lordships will agree that we all ought to be very grateful to the many men and women under the chairmanship of the noble Viscount, Lord Tenby, who devote a very considerable amount of time to this public work.
This is a Bill to make two or three relatively small alterations in this field. The first arises in this way. The Council have, in fact, rather more trouble about inquiries than they have about tribunals, and by the terms of the legislation they are restricted in relation to inquiries to what the Act calls "statutory inquiries" which were so defined as to apply only to inquiries which Ministers are bound to hold. They do not apply to what I might for convenience call discretionary statutory inquiries; that is to say, inquiries which a Minister has a right to hold but which he is not bound to hold. In one or two of their Annual Reports the Tribunal have complained—your Lordships may think, rightly—that this is quite illogical. They say, "If a Minister can and does hold an inquiry, and it is the same sort of inquiry as many of the statutory inquiries which he is bound to hold, we ought to be able to survey it in the same way as we can the inquiries which a Minister is bound to hold."
I rather fancy that the reason for this tight definition in the 1958 Act was that when one goes into this point one finds that many of the discretionary statutory inquiries are of a character similar to those which a Minister is bound to hold, and one would say that as a matter of common sense they ought to come under the surveillance of the Council just as
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much as the others do. There are some inquiries which a Minister may hold which are held purely for his own information, which do not affect the rights of the citizen and as to which it would not be sensible to give the Council the same powers as they have in relation to statutory inquiries which a Minister is bound to hold. Therefore, one might think the legislation which would be necessary to enact that would be a form of words which would define which of the discretionary statutory inquiries were to come under the Act and which were not. But it has, in fact, been found quite impossible to define the difference in that way. It is perhaps not easy to define an elephant although we all know one when we see one.
That is why Clause 1 provides:
"In section 1 and section 7A of the Tribunals and Inquiries Act 1958, the references to a statutory inquiry shall include references to any such inquiry or hearing, or any inquiry or hearing of any such class, as may be designated by order under this section."
And it is proposed that as to England and Wales the designation should be made by the Lord Chancellor, and as to Scotland by the Secretary of State. I do not think it matters which Ministry one takes: in nearly every Ministry it will be found that there are many discretionary statutory inquiries which might very properly be made subject to the Council on Tribunals, and some which should not be. For example, there are some of the first class in the case of the Ministry of Labour, but the Franks Committee themselves excluded altogether inquiries in relation to relations between employers and employees. The Ministry of Labour has, of course, a conciliating function here, and it has always been considered that the rules and regulations of a class quite appropriate to other forms of inquiry would not be appropriate to that kind of inquiry.
If one looks at the Home Office, one finds there are many discretionary statutory inquiries which might well be made subject to the Act. But then you have, for example, the power of the Secretary of State for Home Affairs to hold an inquiry if there is a fire or explosion in a garage. He does this not in order to blame anybody; it is entirely for his own personal information, because he is responsible for making the safety regulations for those who store petroleum products and he just wants to see how the accident

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happened and whether he ought to make any alteration in his regulations. Similarly with the Ministry of Transport. While there are many inquiries of the first class there is also, for example, the inquiry which is really a dispute between two highway authorities. The Minister's function is largely an arbitral function. Whether he takes the chairmen to lunch to discuss the dispute with them, or whatever course he takes, I do not suppose matters. He wants to try to get agreement between them and obviously the deliberations should be as informal as possible. As the number of inquiries may increase or decrease, this is another reason for keeping the position flexible and therefore for giving, I suggest, a power to the Lord Chancellor and the Secretary of State from time to time to designate which kind of inquiry is which. It is roughly estimated—and it surprised me—that there appeared to be about 200 different kinds of discretionary inquiries in all the Ministries, and it looks as though about 150 are appropriate to include under the Act, and the other 50 are not.
Clause 2 deals with an entirely different point, which arises in this way. Under the existing legislation such rules and so forth as are made are laid down by the Lord Chancellor as to England and Wales and by the President of the Court of Session as to Scotland. It has been thought, and I hope your Lordships will agree, that this is the sort of field where there should be ministerial responsibility, so that any Member of either House can say to the Lord Chancellor, "Why on earth did you make a silly rule like that?". No such question can be addressed to the President of the Court of Session, and, accordingly, with the consent of the President of the Court of Session, it has been thought better that the Secretary of State should perform that function in relation to Scotland. The second subsection of Clause 2 has the effect of treating all the rules which now exist as if they had been made by the Secretary of State, so that any questions on past rules, as well as on future ones, can be addressed to him.
The only other matter which I think I need mention is the not very self-explanatory or illuminating subsection (3) of Clause 3 which says:
"This Act and Section 7A of the Tribunals and Inquiries Act 1958 as amended by this
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Act, shall extend to Northern Ireland; but nothing in Section 1 of this Act, or in the said Section 7A as so extended, shall apply to any inquiry or hearing held or to be held in Northern Ireland which relates only to matters with respect to which the Parliament of Northern Ireland has power to make laws."
The second half of the subsection is, of course, common form, because we do not legislate here for Northern Ireland except in relation to reserved matters.
What the first part relates to is this. Originally in the 1958 Act there was no power to make rules as to inquiries, only as to tribunals. In the following year, while considering the Town and Country Planning Act 1959, which provided for certain inquiries, Parliament took the view that there ought to be a power to make rules as to those inquiries. Parliament then said: "While we are doing that, ought not there to be a power to make rules as to all inquiries?". So it put a new section, Section 7A, into the Act of 1958. That is why, since 1959, the Tribunals and Inquiries Act 1958 contains this new section, Section 7A, which empowers rules to be made in relation to inquiries. But the Town and Country Planning Act 1959, which did that did not itself extend to Northern Ireland (perhaps it was one of those things which were just overlooked), and advantage has therefore been taken of this opportunity to provide for Northern Ireland the benefit of power to make rules as to inquiries, as it has already in relation to tribunals.
My Lords, I suggest that this is a short but helpful piece of law reform, and I trust that your Lordships will give the Bill a Second Reading accordingly. I beg to move.
Moved, That the Bill be now read 2a.—(The Lord Chancellor.)
3.43 p.m.
VISCOUNT COLVILLE OF CULROSS: My Lords, I also hope that the House will this afternoon give this Bill a Second Reading. As the noble and learned Lord has said, it is not perhaps very often that we in this House have an opportunity to pay tribute to the work of the Council on Tribunals, with my noble friend Lord Tenby and his colleagues; and the Scottish Committee, too. But if your Lordships have read the Annual Report of the Council for any particular year (the one I happen to have before me

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is for 1964), the enormous amount of work which they do will become apparent at once. The work is done largely behind the scenes, and to the considerable benefit, I think, of the administration of this country, as well as of the rights of the individual who may in some cases consider that he has a grievance under the quasi-administrative tribunals which, but for the Council, he would not be able to remedy.
I am glad that the noble and learned Lord has told your Lordships that about 150 new types of discretionary inquiry are likely to be brought within the purview of the Council by means of the regulations that he makes under this Bill. But I hope that when he is considering inquiries which, as he described them, are largely for the information of the Minister he will not draw his net too narrowly, because there are inquiries of this sort which may be, on the face of them, largely for the information of the Minister but which may also affect the rights of individuals, and over which I think the Council on Tribunals may properly have surveillance. A further point on this is that there seem all the time to be springing up new forms of inquiry which, though they may not have any specific statutory background, may nevertheless be of great importance. There is one going on at the moment into the future of the Broad Sanctuary site in Parliament Square. The inquiry's terms of reference, as I understand them, are purely for the information of the Minister of Housing and Local Government, but matters of great public importance and certain private rights may well be affected. The noble Lord, Lord Mitchison, doubtless remembers this particular matter very well from the debates we have had in the last six months on that subject.
As the noble and learned Lord has said, there are these strange distinctions in many Acts of Parliament between the statutory inquiry as defined in the 1958 Act and the discretionary sort which hitherto has not been capable of being dealt with by the Council on Tribunals. And, of course, the distinction between these two types is in many cases ludicrous. For instance, the power to hold an inquiry into the making of a tree preservation or building preservation order is a discretionary power, whereas the power
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to hold an inquiry into the granting of consent to pull down a building or cut down a tree is a statutory one; so at the moment the Council on Tribunals can deal with the latter but not with the former. There are throughout recent legislation many distinctions of this sort with which I will not weary your Lordships. Clause 1, therefore, has, I think, a particular significance and I welcome it, especially after the slight contretemps which happened at the end of last year, when the right honourable gentleman the Minister of Housing and Local Government seemed to have got "agin" the Council on Tribunals to some degree. I think it is timely that the Government have brought in this Bill at this stage, to renew the pledge of confidence they place in this important Tribunal.
There is another point in the Bill which was perhaps not very fully dealt with by the noble and learned Lord. That is the separate jurisdiction under Section 7A of the 1958 Act, the Section which was put in a little later on. Under this section the noble and learned Lord and the Secretary of State for Scotland have power to make rules for certain inquiries for which they think such rules are suitable. In effect many tribunals are governed by rules made under specific regulations produced under the Acts which set up the tribunals in the first place, but there are a number of inquiries which are held by tribunals for which there are no set rules at the moment. Indeed, as I understand it, only two set of rules have been made specifically under Section 7A by the noble and learned Lord and his predecessors: that is to say, the one dealing with compulsory purchase by local authorities and the other dealing with the procedure at ordinary planning inquiries.
I feel that there may be scope for a widening of rules of this sort. I do not know to what degree it is suitable to make suggestions this afternoon, but there have emerged over the course of time, for example, certain quite clear courses of conduct for the purpose of inquiries under the New Towns Act into the designation or extension of areas of New Towns. There was a great deal of difficulty about the procedure in the first place, but I think it has now settled down, and it might be suitable for rule-making. There is also likely to be a considerable increase in the number of inquiries which are to be held within

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a fairly short time under the Water Resources Act, not only regarding licences for abstraction but for various other matters as well. It may be that this is a matter into which the noble and learned Lord and his partner will wish to look. At any rate, I am sure that there is wide use for this particular rule, and I hope that the regulations will come forth under this particular Section as extended in the Bill.
The noble and learned Lord dealt with the question of accessibility to the Council by and on behalf of members of the public. As I understand it, the Council either can start looking at a matter on its own motion, or can have referred to it a certain matter by the noble and learned Lord or the Secretary of State for Scotland. I am not sure whether it is not timely this afternoon to ask the noble and learned Lord to reinforce the impression I have: that is, that it is not necessary for members of the public to write to the noble and learned Lord; they may approach the Council on Tribunals direct, even though it may be that the Council, in exercising its jurisdiction to look at these matters of its own motion, may not think it suitable to do so. The Act is perhaps a little unclear about this, and the impression might be gained that it could be approached only by means of the noble and learned Lord—although I am sure that he is no very terrible barrier.
My Lords, I am glad that the noble and learned Lord has taken this opportunity of explaining why the Scottish rules are now to be dealt with by the Secretary of State instead of the Lord President of the Court of Session. I confess that this puzzled me a little at first, because the ordinary rule-making procedure seems usually to be in charge of the Lord President of the Court of Session; and I recall that this applies to the Solicitors (Scotland) Act. I hope that your Lordships will accept the reasons given for this change, which seem to me to be entirely admirable.
I come now to the only matter of criticism that I have about the Bill, and I think it is one of substance. In the 1964 Annual Report of the Council there is a paragraph (paragraph 21) on the matter to which the noble and learned Lord referred—namely, the question of
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members of the Tribunal and its Scottish Committee going to see how the tribunals of which they are in charge are working. There are at least four categories of tribunals which are set out in this paragraph (the National Health Service tribunals, although I believe that is not now much in evidence; the National Insurance tribunals, and this is a most important body; the Betting Levy Appeal Tribunal, and I believe another one—it may well be the case of a surcharge being made by the district auditor), where members are not permitted, either by a specific rule in the rules governing the inquiries or by some interpretation of the law governing the inquiries, to attend either the meeting at all, or at least to go behind the scenes with the tribunal itself so that the members of the Council on Tribunals may see how the decision is arrived at.
They set out the problem, and then at the end of this paragraph they say:
"This is a thoroughly unsatisfactory state of affairs, and we consider that the position of members who visit tribunals on behalf of the Council and the Scottish Committee should be put beyond doubt by legislation which should apply to all the tribunals under the supervision of the Council or Scottish Committee."
I do not know whether there may be the exceptional case where it may still be considered suitable by the Government that one of these tribunals should sit in private. Nevertheless, the point made by the Council in their Report seems to me to be a valid one. I do not know when we are going to get another Bill on this matter, and I suggest to the noble and learned Lord that we might, on the Committee stage, look at this matter more thoroughly, and possibly insert a provision in the Bill—if indeed it be necessary; and I believe it is—to put right this matter of disquiet which has been drawn to the attention of Parliament in this way. Subject to that one minor criticism, which I hope we may deal with, I welcome the Bill, and I hope that your Lordships will give it your approval this afternoon.
3.54 p.m.
LORD SILKIN: My Lords, I should like to join the noble Viscount, Lord Colville of Culross, in offering my thanks to the Government and to the noble and learned Lord the Lord Chancellor for

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introducing this Bill. I regard the Council on Tribunals and Inquiries as a valuable safeguard in the conduct of these public inquiries. Even if this Council did nothing else but exist, they would still be a valuable safeguard: but we know from the reports which they publish that they are doing far more than that; and from the number of cases to which they have drawn attention we know that they have served a most valuable purpose. I should like to join the noble Viscount in extending our thanks to the Council, and particularly to the noble Viscount, Lord Tenby, who presides over it, and who, I know, puts in a tremendous amount of work personally on these matters.
I do not think I want to add anything to what the noble Viscount, Lord Colville of Culross, has said about the Bill. It may mean a great deal, or it may mean very little. It just depends upon how many of the inquiries to which the noble and learned Lord on the Woolsack has referred will be designated for the purposes of the Bill; and that we do not know. I should, however, like to ask the noble and learned Lord his views on one type of case which is fairly common. I think it comes within what he described to us as the anomaly, and it is in connection with town planning. The local planning authorities are the authorities who are able to decide on planning applications: and this they do. Where there is considerable public opposition to a particular planning application and the local planning authority are proposing to grant the application, then the objectors have no rights whatever. However valid or serious their objections may be, that is an end of the matter unless the Minister can be persuaded to call in the application. In such a case, if he does call it in, the Minister is under no obligation to hold an inquiry. If he does hold an inquiry, it brings such an inquiry within the scope of the powers and functions of the Council on Tribunals.
I imagine that it would be going beyond the intention of this Bill to compel the Minister to hold an inquiry in such a case. I should be grateful if the noble and learned Lord on the Woolsack could say whether such a case, if the Minister decides to hold an inquiry, would come within the scope of this Bill. The
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inquiry would be in exactly the same form as if it were an appeal against the decision of the local planning authority. It is really in form taking it out of their hands and leaving the decision to the Minister. But, as I have said, the Minister is under no obligation in such a case to hold a public inquiry. My question is: if he does, would such an inquiry come within the scope of this Bill?
3.58 p.m.
VISCOUNT DILHORNE: My Lords, I am not in the least surprised that the noble Lord found it impossible to distinguish between the type of discretionary inquiry which should come within the purview of the Council on Tribunals and the type which should not. I think the purposes of this Bill are desirable. I should like to join in the tribute that has been paid to my noble friend Lord Tenby and his colleagues for the excellent work they have done, and are doing.
I feel a little anxiety in one respect. They do this work, and, of course, it is their duty to report to the noble and learned Lord on the Woolsack. I am quite certain that he pays great weight to what they have to say, as, indeed, his predecessors did. But I am a little troubled about the situation that can arise if some of the noble and learned Lord's colleagues do not view the activities of the Council on Tribunals with quite the same favour as he does. It is not much use, I think, extending the powers of supervision of the Council on Tribunals unless we can receive some assurance that regard will be had to the recommendations they make to the Lord Chancellor—recommendations which affect the activities, or it may be inactivities, of some of the noble and learned Lord's colleagues. I hope that the noble and learned Lord may be able to say a word or two about this when he comes to reply, because some of us feel a little anxiety about whether or not the recommendations of the Council on Tribunals receive sufficient attention from other members of the Government.
My noble friend Lord Colville of Culross referred to the fact that members of the Council on Tribunals were not able to attend the sittings of certain kinds of tribunal; and he gave one instance—that of the National Insurance tribunal.

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I think it is desirable that we should discuss this issue carefully in Committee. I believe I am right in saying that the noble and learned Lord the Lord Chancellor cannot himself authorìse members of the Council to attend sittings of such tribunals, and in particular to be present when members of the tribunals are considering how they should decide a particular case. That, I gather, is what the Council on Tribunals wish to do. I do not think it is a very easy question. I remember the criticism there used to be about the clerk of the magistrates retiring with the magistrates when they were considering their decision. But the proposal here is that any member of the Council on Tribunals should be entitled to be present when members of that particular tribunal are considering how they shall decide a particular case.
It is obviously right that the Council on Tribunals should have full power to execute the task that Parliament has imposed upon them. At the same time, I think it will be useful, not to-day, but on the Committee stage, to discuss whether there should be power for their members to be present, when no other person is entitled to be present, when the members of the tribunal are coming to a decision on the evidence that they have heard. If it is right that they should be present, then it may well be—I do not know—that some Amendment will be necessary to some Acts of Parliament which are already on the Statute Book. I think that this is a good Bill, and I certainly should not wish to delay its passage. But I hope that before it leaves this House we can have an opportunity of fully discussing the matters to which my noble friend Lord Colville of Culross and I have referred.
4.3 p.m.
VISCOUNT STUART OF FINDHORN: My Lords, I will not detain your Lordships for more than one minute. I am certainly not trying to oppose the Bill, but I thought that the noble and learned Lord the Lord Chancellor might be able to set my mind at rest—indeed, I am sure he can. My reason for intervening is merely that the Title of this Bill interested me, for the good reason that, as the Lord Chancellor will know, there is a Royal Commission sitting at the moment on Trials by Tribunal under the 1921 Act—I refer to such cases as the Budget leak and the Vassall cases. I
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have read this Bill, and it makes no reference to the 1921 Act. I should like to be assured that it in no way affects the operation of the 1921 Act.
4.4 p.m.
THE LORD CHANCELLOR: My Lords, I am extremely grateful to your Lordships for the kindly reception which you have given to this Bill. I am particularly appreciative of the views which have been expressed as to the quantity and value of the work done by the Council on Tribunals. I do not think many people realise how extensive its work is, or the degree to which it serves the public weal.
The noble Lord, Lord Silkin, asked me whether I would include the particular form of inquiry in relation to a planning application. I am sure the noble Lord will understand if I say that I am reluctant to decide at a moment's notice which particular kind of inquiry should come under this Act. But I shall give very careful consideration to what he has said. The Bill does not in any way affect the 1921 Act.
The noble and learned Viscount, Lord Dilhorne, referred to the attitude of Ministers towards the Council on Tribunals. I do not think that this is at all a Party matter. If one is to be realistic, one cannot, I think, suppose that Ministers generally are wildly enthusiastic about the Council on Tribunals. In the event of the Council's coming in any sense into conflict with a Minister, it will, of course, be for Parliament to see that right is done.
The noble Viscount, Lord Colville of Culross, hoped that I should not draw the net too narrowly. If it is proper for me to say so, I am a fan of the Council on Tribunals, and played a small part in relation to the Act which constituted it. I hope that I shall not draw the net too narrowly, and I will bear carefully in mind what he said on that point. It is quite right, as the noble Viscount said—and I feel that it should be more widely known—that it is quite unnecessary for anybody who has a complaint to make about a tribunal or an inquiry to write to me. Such people can, and I think do, write to the Council on Tribunals, which I am sure will explore fully their case, and see whether anything has been done that ought not to have been done.

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The final point, to which both the noble Viscount, Lord Colville of Culross, and the noble and learned Viscount, Lord Dilhorne, referred, is this somewhat more difficult question of retiring with the tribunal. There is no doubt at all that anybody who wants to see whether a tribunal is working properly is very much assisted if he can retire with the tribunal, without, of course, taking any part in it, and merely to see what goes on. I know that the Council on Tribunals feels this very strongly, and feels that there should be a legal right to retire with any tribunal. In point of fact, with what used to be, I think, three exceptions, no practical difficulty arises, because the Council asks the chairman of the tribunal concerned whether he has any objection, and in nearly every case the chairman says that he has no objection.
I have not had an opportunity of considering this matter in detail, and I am speaking from memory, but I think I am right in saying that the three difficulties which have arisen are, first, with National Health Service tribunals. But that, I think, after being taken up by the Lord Chancellor, was dealt with last year in the National Health Service (Service Committees and Tribunal) Amendment Regulations, so there is no difficulty now I think in respect of those tribunals. The question of National Insurance tribunals is, I think, in process of being cleared with the Minister of Pensions and National Insurance, and I do not think any difficulty need be anticipated there.
The third source of difficulty is the betting levy appeal tribunals. The difficulty here, as was pointed out by the Council on Tribunals in its Report, is that in enacting the Betting Levy Act Parliament thought it fit to provide that it should be an offence to disclose to any person other than the parties information concerning the appellant without his consent in writing. Therefore, not unnaturally, I think, chairmen of those tribunals take the view that they have been prohibited by Parliament from disclosing the information in question without the consent in writing of the appellant. If, which of course is not the case, income tax matters were dealt with by tribunals which are subject to the Act, there would, I imagine, be the strongest
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possible objection from most people to having to disclose their incomes to anybody except the Inland Revenue.
It is, of course, possible, as the noble Viscount, Lord Colville of Culross, intimated, to consider a point of this kind on the Committee stage of the Bill. But in substance I think that in practically every case a member of the Council on Tribunals is allowed by the chairman to retire with the tribunal. Almost the only case which now remains is that of the betting levy appeal tribunal, where there is a difficulty because Parliament has provided that the information must not be given to anybody outside except the appellant, and then only with his consent. But no doubt we can, if necessary, consider this point further at the Committee stage. I am very grateful to all noble Lords who have taken part in this debate.
On Question, Bill read 2a, and committed to a Committee of the Whole House.

CRIMINAL APPEAL BILL [H.L.]
4.10 p.m.
Order of the Day for the Second Reading read.
THE LORD CHANCELLOR: My Lords, I beg to move that this Bill be now read the second time. This Bill relates to the Court of Criminal Appeal. For some years some measure of dissatisfaction has been expressed in relation to the Court of Criminal Appeal, not in the least by reason of any action of members of that Court but because of its constitution and powers. It is, after all, over half a century since the Court was constituted by the Criminal Appeal Act 1907, so it is not unnatural, perhaps, that some review should take place.
Most of your Lordships are not old enough to remember, but as a matter of history it is interesting to recall the long fight there was to get a Court of Criminal Appeal at all, as I am afraid it was rather the habit in the first half of the twentieth century to find the most extraordinary reasons to oppose any proposal for law reform. It was said that everybody would appeal because there would be nothing to lose; that numerous courts would have to work day and night throughout the year; that the costs would be astronomical; that juries would

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convict quite happily, because they would say, "It doesn't matter what we do; if we are wrong the Court of Criminal Appeal will put us right", and it really took a hard fight to get the Court established at all.
Now, half a century having gone by, it is the fact that, among those who practise before many Courts, the Court of Criminal Appeal has never had the high reputation which the Court of Appeal has had. It is, after all, only those who practise before different Courts who can compare one Court with another or one Judge with another, and the principal objections which were made, were, first, that the Court is not a real court of appeal. Of course, the Court of Appeal is staffed by Lords Justices who are of superior status to that of the Judges from whom the appeals come, but the Court of Criminal Appeal is staffed by the Lord Chief Justice, when he is not on circuit, and two puisne Judges who are of the same status as most of the Judges from whom the appeals come.
In view of these expressions of opinion, in February, 1964, the noble and learned Viscount, Lord Dilhorne, and Mr. Henry Brooke appointed a Committee, of which the noble and learned Lord, Lord Donovan, was the Chairman, to consider and report whether it would be in the public interest to transfer the hearing of all or some of the cases now heard by the Court of Criminal Appeal to the Court of Appeal or some other Court, and, if so, as to the manner in which that Court should be constituted, the powers it should have and the procedure to be followed; and, if not, to say what changes should be made in the powers, practice and procedure of the Court of Criminal Appeal and of the Criminal Appeal Office.
That Committee, which I hope the noble and learned Lord, Lord Donovan, will not mind if henceforth I call it the Donovan Committee, reported in 1965. They heard very large numbers of witnesses and received memoranda. Their Report is unanimous, and I am sure all members of your Lordships' House would wish me to acknowledge our great indebtedness to that Committee for the very careful consideration which they have given to the whole of this subject.
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As far as the constitution of the Court is concerned the Committee accepted the views which I have indicated of most of those who gave evidence before them. It is perhaps only fair to say that, on balance, the Judges did not see that anything much was wrong, but all those who practise before the Court—the Bar Council, the Law Society, Justice, individual chairmen of quarter sessions, and so forth—expressed the view, first, that it is not satisfactory to have an Appeal Court where the Judges are not of higher status than those from whom come the decisions they are reviewing. No doubt it is felt quite unconsciously, but it is felt, that one cannot expect such a high standard of review where one day A is reviewing the summing up of B, and the next day B is reviewing the summing up of A.
It was felt, further, that as the Court consists of the Lord Chief Justice, when present, and two puisne Judges, and there were constant changes in the composition in the Court, one might find, and in some cases did find, Courts of Criminal Appeal within comparatively short periods coming to quite contrary conclusions in law because they were differently constituted, and one cannot expect the same consistency of decision. It was thought, further, that appeal Judges, like Lords Justices, acquired a technique of hearing appeals which is not maintained by a constantly changing Court; and if, as is so desirable for the Court of Criminal Appeal, we are to arrive at a consistent sentencing policy it is additionally desirable that the Court should, as far as possible, be a Court continuously composed of the same people.
The Donovan Committee, accepting these views, has proposed the abolition of the Court of Criminal Appeal and a transfer of its powers to the Court of Appeal, so that the Court of Appeal would now have a civil division and a criminal division, and the intention would be that two Courts would be able to deal with criminal matters. This would give one an increase in judge power—there is one spare Lord Justice. The Lord Chief Justice has pointed out recently that the Court of Criminal Appeal is losing ground. Appeals are being sent down faster than they can be heard, which is not desirable, and the intention would be that the first Court which would hear the appeal would be composed of

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the Lord Chief Justice, a Lord Justice and a puisne Judge, and the second Court, to hear applications, perhaps, of a Lord Justice and two puisne Judges. This must vary according to the Judges available and the quantities and nature of the work. It is not precisely laid down in the Bill, because in these regions it is desirable that the position should be a fluid one. The Committee said it is desirable to have a puisne Judge because it is desirable that the Appeal Court should be in touch with the state of crime in the country, and the prevalence of particular types of crime in particular parts of the country.
Those are the provisions which are contained in Clause 1 of the Bill. Clause 2 deals with sittings and the practice of the Court, and it would exclude the trial Judge from sitting on appeal. Your Lordships may be surprised to hear that a trial Judge can himself sit on an appeal from a decision of his own. The answer is that in practice this does not happen to-day, but it is still the law that he can. I do not think to-day anybody would take the view that that would be right, and certainly it is proposed to provide by law that the trial Judge shall not be able to sit on appeal.
Clause 3 deals with the Criminal Appeal Office, and in general it transfers the office of Registrar of the Court of Criminal Appeal to the Court of Appeal. One further change is being made, in that hitherto the senior posts of the Criminal Appeal Office have been ones which could be filled only by barristers. There appears to be no reason to-day why that should be so, and therefore it is being provided that in future solicitors, as well as barristers, shall be eligible for those posts.
Clause 4 deals with the powers of the Court. I need not, perhaps, go into detail about this, but it was widely felt that the powers of the Court to allow an appeal were not quite wide enough. There may be a case in which identity is in question, and if any innocent people are convicted to-day (and it is probably impossible ever to have any system of justice which ensures that that can never happen), I should think that in nine cases out of ten—if there are as many as ten—it is on a question of identity. The tendency of the Court of Criminal Appeal
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has been to approach these cases with some hesitation, because, even if there was only one witness to identity, they say, "After all, the jury heard and saw the witness, and it is not for us to supplant the verdict of the jury. It is a very odd thing that they convicted on this, but there it is: they did".
There has been a general feeling in the legal profession that if you go to the Court of Criminal Appeal for an obviously guilty client who has some technical point, if the technical point is good, then the guilty man gets off; but that if your only complaint is that your client is entirely innocent and had nothing at all to do with the crime, then it is much more difficult. The recommendation of the Donovan Committee provides an additional ground on which the appeal may be allowed; namely, that the Court is of the opinion that, on the whole, the verdict is too unsafe or unsatisfactory to be allowed to stand.
Another change which is proposed—and this, I realise, is a matter of opinion, though personally I am in agreement with the recommendation of the Committee—is the removal of the power to increase sentences. I quite understand that it may be said, "Is it not the job of a criminal appeal court, if there has been a wrong sentence, to substitute a right one? If the sentence was too much, it ought to be reduced, and if it was too light it ought to be increased". If one were trying to evolve a perfect system of always getting the right sentence, there might be much to be said for allowing the prosecution to appeal whenever they thought the sentence was too light. But to allow the prosecution to appeal would be quite contrary to our traditions. So, in practice, the question arises only where an accused person appeals because he thinks his sentence is too heavy, and accordingly it is very rarely that the Court of Criminal Appeal would say, "We think it is too light".
Moreover, since the man whose sentence may be altered ought to be legally represented, when the Judge who reads the papers on an application for leave to appeal sees that there is an appeal against sentence, and takes the view that a sentence is too light, it is thought only fair that the man should be legally represented; and in order that the grant of leave should not be a trap,

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it is sometimes intimated to counsel that the reason leave is being given is that the Court thinks that the sentence is too light; whereupon, of course, the man abandons his appeal. So the number of cases in which sentence is increased is very small indeed, and on a balance of all the different considerations the Committee were of the opinion that the power to increase sentence should be abolished.
The next Clause, Clause 5, deals with the computation of time. The law has always been—I am not putting it quite accurately but broadly, in lay language—that the time spent awaiting appeal does not count as part of the sentence unless the Court makes a special order to that effect. The justification advanced for this is that if that were not so, everybody would appeal, because the people concerned have nothing to lose. The original justification for it, I think, was rather different, because at the time the law was made there was a considerable difference between the prison conditions of those who were serving their sentence and those who had given notice of appeal. But these privileges have gradually been abandoned and, apart from the right to see a solicitor and, it may be, to receive one letter a week, there is little difference to-day between the conditions in which the people are kept.
If I may respectfully say so, I feel very strongly that the Committee were right. It has always seemed to me that it cannot be right that a man should, in effect, be sent to prison for what may be six weeks because he dared to exercise a legal right; and that, if the answer is that frivolous appeals must be discouraged, the matter should be put the other way round. We should say that, ordinarily, the time spent pending appeal is to count towards somebody's sentence, but that if the Court finds the appeal to be a purely frivolous one, if you like, the time spent pending appeal shall not count. In substance, that is what Clause 5 does.
I ought perhaps to add, my Lords, that the Court has been very reluctant ever to make an order that the time is not to count. I remember a case in which a well-known civil servant, Miss Fell, showed some documents, which did not matter materially, to somebody she should not have shown them to, and on
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prosecution under the Official Secrets Act she was given the maximum sentence of two years. The general body of opinion, as expressed by the Press, was that this was far too much. I express no opinion about that at all. But it was a case in which the length of the sentence gave considerable concern, and in which nobody could possibly have said that her appeal was frivolous. At the same time, the Court refused to make an order that the time waiting for appeal was to count, so she got an additional six weeks for having dared to exercise that legal right.
Clause 6 contains a matter which is not dealt with in the Report of the Donovan Committee, and this is to give me an opportunity to implement a report which I have recently received from a committee on mechanical recording. I do not wish to exaggerate the position, but I am sure that the time is coming when, gradually, we shall move over from shorthand writing to mechanical recording. We all owe a great debt to the shorthand writers in the courts, who have great skill in their profession; but, of course, it is getting more and more difficult to get shorthand writers. Mechanical recording has this advantage: that of course any copy typist can type straight from it, whereas with a shorthand writer he may do a shorthand note of a trial at the Central Criminal Court and then, by the time a copy of it is wanted, he is doing a shorthand note at Derby Assizes, and it is necessary to wait till he comes back. In the last six courts which have been built in the Royal Courts of Justice tape recorders have been installed and are now being used, and therefore the object of Clause 6 is to make it possible, but not obligatory, to use tape recordings. Further experience will no doubt be required before this system is widely and generally extended.
The remaining clauses of the Bill can be taken very shortly. Clause 8 and Schedule 1 bring the Courts-Martial Appeal Court into line with the new powers and so forth of the Criminal Division of the Court of Appeal, as it will be: Clause 10 brings the powers of the Court of Criminal Appeal in Northern Ireland into line. There is no need to deal with the constitution of the Northern Ireland Court, because that is a Court of Appeal which now includes all Judges of the Supreme Court. Clause

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11 provides that the Bill shall come into force for different parts on an appointed day or different parts on different appointed days.
In moving the Second Reading of this Bill, I submit that it is a vitally important piece of machinery for dealing with crime. It is, in a sense, technical, but it improves the law itself. It will relieve what is an existing strain on administration in the Court of Criminal Appeal, and some sense of grievance which exists. So far as I know, this is not in any way a Party political matter. The Donovan Committee, to whom we are so much indebted were, as I have said, appointed by the last Conservative Government; they reported in the lifetime of the last Parliament, and the last Government said that they would accept all the recommendations of the Committee and would implement them as soon as possible. My Lords, to-day is that day. I beg to move that the Bill be now read a second time.
Moved, That the Bill be now read 2a.—(The Lord Chancellor.)
4.31 p.m.
VISCOUNT COLVILLE OF CULROSS: My Lords, the noble and learned Lord who sits on the Woolsack has described to your Lordships how this Bill is based upon the Report of the Donovan Committee, and in dealing first with the question of the persons who should sit as a Court of Criminal Appeal in one form or another, that Committee dealt with various suggestions that were put forward on this particular subject. One of them was that puisne Judges should sit. These Judges would be selected, says the Report, on their aptitude for criminal work. It goes on, fortunately, to add:
"whether obtained at the Bar or acquired on the Bench."
I must say that when I look at the list of speakers who have put down their names to speak on this Bill this afternoon, I feel that if that description is suitable for most of them, in the non-derogatory sense, I am afraid it is not suitable for me. Nevertheless, I will certainly try and deal with this Bill on a non-Party basis, because I believe that although controversy may arise on some of the provisions, this controversy will not be based upon any Party issue.
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I think I should begin by welcoming the new composition of the Criminal Division of the Court of Appeal. It seems to me that the Donovan Committee have fully made out a case for the change and, since their reasons are set out so fully and have also been touched upon by the noble and learned Lord, I think I need say little more than perhaps just to thank him for his explanation of the intended personnel who are going to sit on the Court of Appeal when it sits as a Criminal Division.
Paragraph 85 of the Donovan Committee Report in fact sets out certain suggestions in this matter. From what the noble and learned Lord said, I believe that those suggestions have been accepted. I believe that there is considerable advantage in having the noble and learned Lord the Lord Chief Justice sitting in charge, when he is not on circuit, so that there shall be the advantage of his presence to direct the policy of the criminal division, as he has done with what is the Court of Criminal Appeal. I should also like to welcome the change to which attention was drawn, in Clause 3, by which solicitors are now to be entitled to join the staff of the registry that will service this particular Court.
When we get on to Clause 4, I have, I must confess, a quibble with the noble and learned Lord. I recall so well the debate in June, 1964, on the question of law reform, which is so dear to the heart of the noble and learned Lord. He was, perhaps not surprisingly, rather critical of our Statute Law, and he said:
"…on almost any subject, to find the law on some particular point one might have to look at twenty different Acts of Parliament all dealing with the same subject matter."—[OFFICIAL REPORT, Vol. 258, col. 1080; 11/6/64.]
He went on to refer to the scientific revolution and the need for efficiency. If ever there was a thoroughly deplorable case of legislation by reference I would suggest that it is subsection (1) of Clause 4. I do not believe it would have been any longer if it set out the relevant section of the 1907 Act as amended, and certainly it would not then have been necessary to go through the exercise entirely on one's own on a piece of paper. As I understand it, the amended section will in fact read like this:
"The Court of Criminal Appeal, on any such appeal against conviction, shall allow the

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appeal if they think that the verdict of the jury should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory or that the judgment of the court before whom the appellant was committed should be set aside on the ground of a wrong decision on any question of law or that there was a material irregularity in the course of the trial, and in any other case shall dismiss the appeal."
Then there is the proviso, but of course under this Bill we leave out the word "substantial".
I should be the last person to be critical of the noble and learned Lord, as a rule, on this matter. But he is going to America on a distinguished occasion dealing, I believe, with law reform. I hope that when he comes back he will be so inspired with the zeal of the occasion that he may see fit to write out again subsection (1) of the clause, or at any rate will accept an Amendment from me to that effect; and deal likewise with the provision in Schedule 1, which amends the Courts-Martial (Appeals) Act 1951, the Army Act and the Air Force Act of 1955, because, unless he is going to live up to his past principles, it is quite ludicrous that this sort of drafting should go into a Bill which is introduced into this House by the noble and learned Lord.
I will come back in a moment to subsection (2) of that clause, and perhaps go through the less controversial matters first. I am grateful to the noble and learned Lord for his explanation of Clause 6, because I had thought that I was right in failing to find it in the Donovan Committee Report. I suspect that a great deal of experiment will be necessary in this particular matter, because I cannot anticipate that the transcript will be required any the less often simply by reason of having a mechanical recording. I wonder whether there might not have to be someone there to work it; and I wonder also whether there will be any great lessening in cost. I am not sure that I fully understand the purport of Clause 6(2). I wonder whether it may indicate some restriction of the availability of a transcript which is going to be made by a mechanical means, whether by a tape recorder or whatever it may be. I hope there is no indication of that sort to be derived from that particular subsection.
I think that one of the clauses which the noble and learned Lord did not comment on was Clause 7. I believe that the contents of it are important, because any
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provision by which a witness who is going to come and give evidence in a particularly narrow sphere—as it so happens in this case, but it applies generally—should, I would think, be encouraged so to do by the proper provision of expenses and repayment for his loss of time. It must be a common experience that a would-be witness, if he has ever had to give evidence before, will be the most reluctant person on earth to be dragged along to court, at any rate because of his experience in the lower court of the time wasting and inconvenience that was caused him. I am glad to see in this Bill a provision which, so far as the new Division of the Court of Appeal is concerned, will at least do something to recompense him for his trouble. I believe that this is a good provision, and one which should be copied whenever the occasion arises.
I now come on to three matters which I think require a certain amount of consideration. The first of them is, of course, the provisions of Clause 4(2). On the whole, it seems to me that the arguments which are set out in the Donovan Committee Report, and which have also been adumbrated by the noble and learned Lord, are convincing. But what I think the noble and learned Lord did not tell the House was that, although the Donovan Comittee recommended the change that appears in the Bill, they recommended it with some degree of tentativeness. They were worried on this provision, as I think committees who have considered the question of criminal appeal have always been worried, about the possibility of increasing the flood of criminal appeals to what will now be the Division of the Court of Appeal. They went so far as to say that they would consider that, even if the prevention of such a flood was not the prime purpose of the power of the Court of Criminal Appeal to increase the sentence, if it did have that effect it would be a fairly good argument for retaining it. They say that there is no reliable evidence on which judgment can be based whether or not it is likely that an increased number of appeals will arise as a result of the change proposed by this Bill.
I suppose the only reasonable way in which one can discover any such evidence, if indeed it exists at all, is to try it; but I hope that, notwithstanding the predilection which the noble and learned Lord

819
has said he entertains for this reform, the matter will be treated as being one of experiment. If this or any other provision of this Bill results in the new Division of the Court of Appeal being overwhelmed by appeals, I am sure the Government of the day, if indeed it is the same one, will not hesitate to look at this again. I say this because I am afraid it may be that I speak as a lone voice on this matter. So often provisions which ameliorate the lot of somebody who has been convicted for an offence are put forward and carried enthusiastically, but if they do not work it is much more difficult to get them reversed.
If noble Lords want an example of this they can see what happened in Scotland about the question which is raised in Clause 5: this is set out in the Donovan Committee's Report. In this case we are not dealing with the abstract point of what is proper for the criminal as against the protection of society. Here we may well be dealing with an extremely practical matter of how much work the Court of Appeal will be able to get through. If it emerges that this reform is going to unloose a great flood of work upon it which mostly turns out to be unmeritorious, then I believe that there will be rather different considerations than the usual ones for looking at this matter again.
In some degree the same principle applies to the provisions in Clause 5(1). I am all for trying the experiment—and the Donovan Committee calls it an experiment—of adopting the system which is now in force in Scotland. But, again, this is a matter which may conceivably lead—and there was evidence that it did or may have done in Scotland—to an increase in unmeritorious appeals. If so, I hope that the same principle will apply and that the Government will keep a very close eye on the matter and, if necessary, will not hesitate to put back the situation as it is now, particularly as, so far as this one is concerned, there is power in the present Act for the Court to say whether or not the time spent in prison should count towards the sentence. It is perhaps only because they have not done so very often that the problem has arisen in the form in which it has.
I do not think that the noble and learned Lord again was quite complete
820
in his description of the privileges which an appellant obtains. Your Lordships will find them in Rules 57 to 61 of the Prison Rules 1964. There are rather more than the noble and learned Lord set out. I assume that they will now become available automatically to all appellants, as before; and, if that is so, and if the evidence which the Donovan Committee received on this matter has any degree of truth in it, it may well be that here again more appellants will put in appeals simply for the sake of gaining these privileges than would previously have done. And they will expect that the Court will not, as it has not hitherto, give any direction as to the inclusion of the time spent on appeal in their sentence. I believe that both these matters have to be looked at and kept under supervision for the next year or so in order to see whether the statistics give any guidance as to their working.
Finally, there is one matter in the Donovan Report which causes me a certain amount of trouble. It is not dealt with in the Bill and it may be that it is not necessary to deal with it, but I should be grateful if the noble and learned Lord, the Lord Chancellor, could give some guidance to the House on it. I believe that the noble and learned Lord, Lord Parker of Waddington, would be able to do so as well. This is the question of the hearing of fresh evidence, and it is dealt with in paragraphs 131-136 of the Donovan Committee's Report. As I understand the situation, there is power in the Court to quash a conviction on a variety of grounds, and among them on the grounds that there was a miscarriage of justice. It also has power to hear evidence under Section 9 of the 1907 Act, if it thinks fit to do so. There has, however, been a fairly strict rule employed by the Court of Criminal Appeal that it will not allow any such new evidence to be admitted if such evidence was available at the time of the trial, and there has been a fairly strict interpretation of the word "available".
Then, by the Criminal Appeal Act 1964, both on an ordinary appeal and in the case of courts martial, there was a new provision that, instead of quashing the conviction, as there was a power to do under the old Act, on an appeal against conviction the Court of Criminal Appeal could order a new trial. One of the

821
reasons why it might order a new trial was that the convicted person produced new evidence which it thought justified such a course. An assurance was given, at the time when the 1964 Act was going through another place, that any rule which the Court had adopted about what evidence it would treat as admissible for these purposes was not to bind it in future and that it would take a new look at this matter and deal with each case upon its merits.
At the end of paragraph 136 the Committee drew attention to a recent case of The Queen v. Kelly, which indicated that the Court might already be acting upon the line that the Committee itself recommended should be adopted. That was that they thought evidence should be admitted if it was relevant and credible and that the previous rule should be abandoned. I imagine that the Committee intended that the Court of Appeal, in future, should admit new evidence under this particular jurisdiction for the purpose of deciding whether it would quash the conviction at once—that is to say, in a case where it has very little doubt but that if the new evidence had been before the jury they would have had some doubt and would have acquitted the person—and should also use the same new rule, the relevant and credible rule, when deciding whether or not to order a new trial. This they would do presumably in cases where they could not be so sure of what effect the new evidence would have had on the jury.
What concerns me is this. I looked at the case of Kelly—this was in fact a court martial appeal, but the same principle applies—and I saw that the noble and learned Lord said that before the Criminal Appeal Act 1964 empowering the Court to grant a retrial, this would have been a hopeless application. In fact, because they were empowered to consider ordering a new trial, the Court dealt with the evidence which it was proposed to lay before it on the proposition that it should be both relevant and credible before it was acted on, and they found that it was not credible. What concerns me is that, if the recommendation of the Donovan Committee is to be implemented, there should not now be any difference as to whether it is a new trial which is concerned or a straight quashing of the conviction. In other words, the
822
passing of the 1964 Act is not the point; it is the adoption of the new rule which the Home Secretary, as he then was, said would be adopted by the Court of Criminal Appeal in the future.
I wonder whether the noble and learned Lord the Lord Chancellor is satisfied that there has been a complete implementation by the courts of the principle which was endorsed by Mr. Brooke in 1964, both on the question of retrial and on the question of the old jurisdiction to quash the conviction, because I have found a little difficulty in seeing that this is quite clear—at any rate, from the trend which appears from the Kelly case. I am sure that this matter can be resolved, if not this afternoon then on another occasion. But it is important, and it gave cause for considerable discussion on the 1964 Bill. There has been time for things to change a little since then, and I should be very glad indeed to know that the situation is now entirely satisfactory. With those remarks I would commend this Bill to your Lordships, and hope that you will give it a Second Reading this afternoon.
4.51 p.m.
LORD PEARSON: My Lords, for several good reasons I shall be short. I have been converted to the view that, on balance, it is desirable to introduce a new constitution in the Court of Criminal Appeal. At the same time, it is fair to recognise that this Court has been in existence for 50 years and, in the opinion of at any rate most of us, throughout all that period has rendered good service to the cause of criminal justice. It is right to point out, also, I think, that in the Report of the Committee it is stated that no lay witness came forward to make any complaints about the Court, or to suggest that it should have any new constitution. The complaint about the Court and the suggestion of a new constitution came solely from the legal profession. I hasten to add that I am not saying that it is any worse for that. But there are those facts.
Moreover, I think it is important, and would be of assistance, to read two sentences from the Report on a matter which is, of course, of considerable importance to the legal profession. The Report says:
"No witness went the length of asserting that puisne judges sitting in the Court of Criminal Appeal had a bias, unconscious or

823
otherwise, in favour of their brother judge who presided In the case under review. Nevertheless, in case that view is held in any quarter we should say at once that in our opinion it is wholly without foundation."
I have, however, been convinced by what is said in the Report that there are good reasons for making the change, and that if the change were made it would constitute an improvement on the present position. One reason, of a rather formal kind, is that it seems more reasonable administratively, or more logically consistent, that appeals in criminal cases should be heard at the same level of the judicial hierarchy as appeals are heard in civil cases; and, therefore, that they should be heard before the new Criminal Division of the Court of Appeal, rather than in an adjunct of one Division of the High Court, which can be said to be the present position.
Secondly, there are some good reasons shown in the Report which have arisen in recent years. The Court is overwhelmed with work; there has been a great increase in the number of appeals and applications for leave to appeal; not infrequently, there have had to be three Courts of Criminal Appeal sitting, and all staffed by Queen's Bench Judges who spend a large part of their time on circuit. The inevitable result of that is that these Courts of Criminal Appeal have had a fluctuating membership, and there has therefore been a lack of continuity and a serious risk of inconsistent decisions being given. Indeed, examples have been set out in the Report of certain rather striking inconsistent decisions. As the Report says, if the new system were instituted, there would be certain improvements in that respect; there would be less fluctuation in the membership, more continuity, less risk of inconsistency and less overloading of that list. So, having regard to those considerations, and also to the proposed new constitution itself, I should be in favour of the change.
I am in favour of the new constitution because, while introducing a true Court of Appeal element into this new Division, in that there will be one Lord Justice sitting in each Court, it also preserves a large—indeed, a predominating—element of the same Queen's Bench Judges, who can speak and consider questions from recent practical experience of themselves
824
trying criminal cases on circuit at the Old Bailey. It was for that reason that earlier I was opposed to the suggestion of a change, because I think it very important and desirable that those who are themselves in the swim, so to speak, who have been recently actually doing the work themselves, should be there to consider whether anything has gone wrong with other criminal trials which have taken place. In view of that new constitution, I support this Bill.
The next two points I want to raise are points of principle, which I think arise on Clause 4(1). I would also agree that this is obscurely drafted, and could be more plain. I realise that it is not in order at this stage to discuss mere points of exact wording, as we are not concerned to-day with the wording but only with more important major points. However, there are two major points embodied in that subsection. As to the first, I am in favour. The first one provides, in effect, that the Court shall have more power to set aside a jury's verdict if they think it is not right. At the moment, broadly speaking, the Court of Criminal Appeal can set aside the verdict given by a jury only if the Court take the view that there was, in substance, no evidence to support it. But under what is proposed there will be a further power to set aside the verdict of a jury if it seems to the Court that the verdict was unsafe or unsatisfactory. I regard that as a reasonable change. To some extent, I think, it is true to say that the existing Court of Criminal Appeal would sometimes tend to act on that principle, but if they did it would not be easy to bring their action within the words of the existing Section 4. So, in my view, that change is a reasonable and good change.
The other point, if I have understood this subsection correctly, is one which I think will need very careful consideration indeed, and one that gives me considerable anxiety. I may not be right in my construction of the amendments proposed, but it seems to me, when one reads the other two proposed amendments of Section 4, that it is proposed to weaken what we call "the proviso". The proviso is very important. It has the effect that if it appears to the Court that some particular argument produced by the appellant is a sound argument, but one that has no real merits

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in it, and that no substantial miscarriage of justice has occurred, then it is open to the Court, in spite of the fact that the unmeritorious point has been shown to be sound as an argument, nevertheless to dismiss the appeal.
As I read the two proposed amendments, it is proposed to make that power smaller, and to diminish the Court's power to act under the proviso. For that purpose one should take the two proposed amendments together. One is to put in the first part of the original Section 4 that it shall be a further ground of appeal that "there was a material irregularity in the course of the trial". The other way in which it is proposed to weaken the proviso is to say that the proviso cannot be applied if it is thought that there was any miscarriage of justice. In other words, it is proposed to omit the word "substantial", which I think is a very important and vital word.
Again, I may be wrong—I hope I am wrong—but the effect of those amendments, as I read them, is that those who appeal to the new Criminal Division will find it easier to rely on purely technical points of an unmeritorious character. They can always say that some irregularity is a material irregularity, and then, when they come to the Court of Criminal Appeal and that Court wishes to apply the proviso, we no longer have the word "substantial", which indicates that a broad, sensible view is to be taken. On the contrary, if any irregularity can be shown to constitute in some way a miscarriage of justice, however small and trivial it may be, then the proviso cannot be applied. I wish to bring that to the notice of those who are responsible, because I feel anxiety on that point and I hope that either it is clear on a true construction, or it will be made clear, that there is no intention of weakening the powers of the Court to act under the proviso to Section 4.
I would mention very briefly the two points which arise, I think, under Clause 4, subsection (2), and Clause 5, under which the existing safeguards against frivolous appeals, although not entirely ceasing, are almost ceasing. Having read what is in the Report, I recognise that it is difficult to uphold those two existing safeguards. There is a good deal to be said against them. But if we eliminate those two safe-
826
guards almost entirely there will be hardly anything left to stop a flood of appeals swamping the Court. If we are going to get rid of those two existing safeguards almost entirely, it is very important to consider what other safeguards we can put in their place. At the present time I have no ideas on the subject myself, but I think it important to consider whether it might be possible to introduce some useful safeguard for this purpose.
5.2 p.m.
VISCOUNT DILHORNE: My Lords, I regard myself as very fortunate to-day in following my noble and learned friend Lord Pearson and in having this opportunity to congratulate him on having so successfully surmounted the ordeal—and it is an ordeal, I think, to everyone—of speaking for the first time in this House. Having this opportunity to congratulate him gives me particular pleasure because there were present listening to his maiden speech in this House two former members of his chambers when he was a junior member of the Bar. There was my noble friend Lord Conesford, who was senior in those chambers to the noble Lord, Lord Pearson, by a matter of several years. I well remember joining those chambers as a pupil, and the many kindnesses that the noble Lord, Lord Pearson, extended to me as a young and extremely ignorant pupil. I will not say to what degree he is responsible for my legal training and legal knowledge, because that might prove a cause of embarrassment to him, but it gives me great pleasure, as I am sure it does my noble friend Lord Conesford, to have been able to be present to hear Lord Pearson's speech and to have this opportunity of extending my congratulations to him.
I hope that Lord Pearson will frequently participate on future occasions in this House. I hope in particular that he will be present when we come to discuss the Committee stage of this Bill, and will take part in the debates on the points arising on Clause 4 to which he has drawn our attention in the course of his speech. I recollect that the Donovan Committee thought that the omission of the word "substantial" from the proviso would make no difference at all because the existence of that word really had no significance, but I do think

827
that we ought to consider the relationship of that change to the change from "a miscarriage of justice" to "a material irregularity", which I for my part think is the more important change of the two.
My Lords, I should like to join in the tributes that have been paid to my noble and learned friend Lord Donovan and his Committee for the work that they have done in producing this Report. It must have taken them a great deal of labour, and I do think they have produced a very useful Report. Mr. Henry Brooke and I thought that the time had come when the whole working, powers and constitution of the Court of Criminal Appeal should be reviewed, and I am glad that our decision has led to the production of such a valuable Report by the noble Lord, Lord Donovan, and his colleagues. I must confess that I feel some doubt about certain of the recommendations, but I hope that what I am about to say with regard to them will not create the impression that I do not value greatly the work that they have done; and I can assure my noble friend that I agree with the vast majority of the recommendations made.
The first matter the Committee recommends is the transfer of the functions of the Court of Criminal Appeal to the Criminal Division of the Court of Appeal. I am glad that the noble Lord, Lord Pearson, drew attention to the passages in the Report indicating that there have been no criticisms at all from members of the public or laymen of the functioning of the Court of Criminal Appeal. Such criticism as there has been has come more from lawyers, and I personally have never felt it had all that amount of substance in it, particularly when you remember that the vast majority, I think, of appeals and applications for leave to appeal which came before the Court of Criminal Appeal did not come from cases presided over by High Court Judges but from cases which were dealt with at quarter sessions.
The change that is proposed will at any rate remove that ground of criticism, whatever weight should be attached to it, but what bothers me is the fact that, so far as I can see, the heavy burden now borne by the Judges of the Court of Criminal Appeal will simply be trans-
828
ferred, not entirely away from Judges of the High Court and not at all away from the Lord Chief Justice, but transferred also on to the shoulders of some of the Lords Justices. I must say I feel very concerned about the weight of that burden. One sees from the Report that, compared with pre-war, there has been a fivefold increase in the number of cases coming to the Court of Criminal Appeal. In 1963 there were 22,000-odd convictions on indictment and 26,000 sentences passed from which appeals might have been brought to the Court of Criminal Appeal. If my mathematics are correct, there were in that year 2,927 applications for leave to appeal and appeals, and that figure compares with some 600 in 1938. Is that number of appeals and applications for leave to appeal not likely to increase and to go on increasing, and does that not mean that the already heavy burden borne by Her Majesty's Judges will become increasingly heavy? I feel very anxious about that, and I must say that I see nothing in this Report, apart from the transfer of responsibility from some Judges to others, which will contribute to the alleviation or to the prevention of the increase of this heavy burden of work which now falls on Her Majesty's Judges.
In that connection I want to say something in reference to the recommendation that the power to increase sentence should be abolished. The noble and learned Lord the Lord Chancellor said that he agreed with that recommendation. I also agree with it to some extent. I certainly think that the power to increase sentences is most sparingly used, but I feel that under the present law it is rather an unsavoury trap for a man who is appealing against his sentence, in the hope that he will have it reduced, to find when he comes to the Court that the Court are really hearing his application because they intend to increase his sentence. I think that is wrong.
I should like, however, to approach this matter on a somewhat broader basis. Should not the Court of Appeal, a High Court, have power to increase a sentence when it appears to them that the sentence passed by the lower court is obviously and clearly wrong? I should have thought that that Court ought to have that power and, furthermore, that the right to exercise that power should not depend upon whether there has been an

829
application by the accused to appeal against sentence. I think it is archaic and anomalous to preserve the distinction between appeals against conviction and appeals against sentence, giving the Court different powers, depending upon which kind of appeal it is. If there is an appeal against conviction, I can see no reason why the Court should not have the same power as they have on an appeal against sentence to do what they think right.
I am confirmed in the belief that that is the change that ought to be made by the fact that this has been the position in Scotland since 1926, and in Northern Ireland since 1930. I know of no criticism of the Scottish Courts having that power, or of the Northern Ireland Courts having that power; and, while I would certainly do away with the right to increase sentences where an appeal is lodged against a sentence in the hope that it will be reduced, I should like to see this new Court of Appeal, of higher status, given a power, on any appeal, to review the sentence: to increase it if they thought fit, or to reduce it if they thought fit.
When one reads this Report of the noble and learned Lord, Lord Donovan, one finds that he quotes the words written by Lord Darling in 1928:
"Inadequacy of punishment for criminal offences is as great an injustice to offended society as is undue severity unfair to him who has to bear it…"
It is interesting to read that Lord Darling at that time expressed the view that on every appeal the Court should be empowered to revise the sentence itself, whether the convict has asked it to do so or has cunningly refrained. I hope that it is not too late to ask that that point should be considered in relation to the courts of this country.
The argument put forward in the Donovan Committee Report is that if that power is given, it may discourage some people from bringing meritorious appeals. I do not myself regard that argument as very convincing. People can get good advice now—there is legal aid —and they should assess their prospects; if they decide to take a chance and appeal, and if then it is clear that the sentence imposed on them has been unduly light, I cannot see why it should
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be thought that this Court of Appeal should not have the power to put that sentence right and to remedy the "injustice to offended society." It seems to me that if the Court of Appeal are not able to do that, the scales are tilted too much, not in favour of the accused person, but in favour of the person who has been convicted.
I do not put forward this argument on the ground that it may discourage appeals; I do not take that point at all. I take the view—and on this I go further than the noble and learned Lord who sits on the Woolsack—that you ought not to use the power to deprive a man of his liberty as an inducement to him not to exercise his right to appeal. I know that the Donovan Committee recommended that the period spent awaiting an appeal shall count towards sentence unless the Court of Appeal say it should not, and the inference is that the Court should say that it should not because the appeal is frivolous. What does that mean? That means that the Court of Appeal will, in fact, be extending a man's sentence, depriving him of his liberty, keeping him in prison, not because of any criminal conduct but because of his foolishness in bringing an appeal which they consider frivolous.
I am afraid that I do not agree with my noble friend Lord Colville of Culross about the need to keep this matter under review, with a view to increasing the possibility that persons awaiting the hearing of their appeals will not have the time spent in prison counted towards their sentence. Since 1962, I think it is, we have made provision that periods spent in prison awaiting trial shall count towards sentence. It seems to me wrong that the Court of Appeal, as proposed by this Bill, should have the power to increase a man's sentence, to keep him in prison—for that is what it means—just because they take the view that the appeal should not have been brought.
One reason for this rule was that prisoners awaiting hearing of an appeal were given especially favourable treatment. I do not know to what extent that is true to-day; though I think it is true to a greater extent than the noble and learned Lord the Lord Chancellor indicated. I think that they get facilities to write many more letters. I should be in favour of saying that if the period awaiting an appeal is to count towards their

831
sentence, they should not get any privileges just because they have appealed, apart from the privilege of having all the necessary facilities for the preparation of their appeal.
LORD STONHAM: That is all they get.
VISCOUNT DILHORNE: No, my Lords: I think they get the freedom to write many more letters. I do not want to go into this matter in detail, but from the Donovan Committee Report there are indications that a number of prisoners put in applications for leave to appeal, and give notice of appeal, solely for the purpose of getting these privileges. The point I am seeking to make is that if we are going to count towards sentence the period spent in prison awaiting the hearing of the appeal, or an application for leave to appeal, it seems to me to be inconsistent with that that the prisoner should enjoy any advantage, apart from the advantage of facilities necessary for preparing his appeal.
LORD AIREDALE: My Lords, may I ask the noble and learned Viscount a question? Does it not follow, from what he has said, that if the appeal is allowed the person kept in prison will have been kept there under rather severe conditions unnecessarily?
VISCOUNT DILHORNE: The noble Lord says "rather severe conditions". I do not think that is necessarily so. Obviously, if a man is sentenced to imprisonment and does not get bail, he will be kept in prison in the ordinary way. All I am saying is that if he is to have that period counted against his sentence, as I think it should, it seems to me that he should not have privileges other than those necessary for the preparation of his appeal.
VISCOUNT COLVILLE OF CULROSS: My Lords, I hesitate to interrupt my noble and learned friend. But, as I understand it, the difficulty is that the four or five prison rules which deal with this matter are ostensibly such as to give privileges for the purpose of preparing the appeal and for no other purpose. What happens in practice, I think, is that they are sometimes misused, without it necessarily being apparent at the time that they are being misused, and are not being used solely for the purpose of preparing the appeal.
LORD STONHAM: My Lords, before the noble and learned Viscount answers that, I would say that I could not possibly accept what the noble Viscount, Lord Colville of Culross, has said, because that means that to a large extent the prison officers and governors are being bamboozled in this way and I do not believe that in the case.
VISCOUNT DILHORNE: My Lords, may I now resume my speech? I am grateful for the intervention and the little time that I have had to consider what further points I shall try to make as shortly as I can. If a deterrent against frivolous appeals is necessary, and it may well be, I think we ought to put out of our minds the question of extending the length of time that people stay in prison as a deterrent. It seems to me that when you really examine it you simply cannot justify it. You are not punishing a man for his crime or holding a threat of imprisonment over him for his crime. You are merely seeking, if this is the argument, to deter a frivolous appeal by saying, "If you appeal frivolously you will stay in prison longer". I feel that if we are to have a deterrent to prevent a flood of appeals—and I think that there is a very real risk of that—we shall have to look for it in some other way.
I do not find it easy to see what deterrent there could be and that makes me think whether we should seek to devise a system whereby frivolous and unmeritorious applications and appeals could speedily be weeded out from the others. When I look at the figures of convictions in a year and of the sentences, I must say that I wonder when the limit of the increase of appeals in criminal cases will be reached. If sentences are not likely and cannot be increased by the Court of Appeal, if all that is to happen is either that the conviction will be upheld or quashed, then there is a very real risk that every single person sentenced to a long term of imprisonment will appeal to come before the Criminal Division of the Court of Appeal. After all, he will have nothing to lose, and so I think that there is a very real risk that the burden of this work on Her Majesty's Judges will appreciate considerably.
We ought to try, even now, to think of some way in which, as I say, the unmeritorious applications and appeals can

833
be weeded out. I wonder whether it is really necessary that a Judge should have to consider which are frivolous and which are not. I quite agree that the function of determining an appeal or application which has any merits at all must be a function of one of Her Majesty's Judges.
But surely any barrister or solicitor of experience, on looking through and reading the applications and the notices of appeal, would not find it difficult to say that these ones are clearly frivolous, these ones have some merits, and these are obviously substantial points. I should like it to be considered whether you could not enlarge the staff of the Criminal Division of the Court of Appeal, have some more Assistant Registrars and give them power to say, in relation to applications and appeals which were clearly frivolous, that they were frivolous, and give them power to refuse to allow those proceedings to go forward. It is true that you would not have a deterrent to the starting of appeals, but you would have a filter which would operate at an early stage, and that I think would contribute to alleviating the increasingly heavy burden which I fear is hound to fall on the shoulders of Her Majesty's Judges unless something is done.
LORD SILKIN: My Lords, would the noble and learned Viscount have an appeal against the decision that an appeal was frivolous?
VISCOUNT DILHORNE: My Lords, I do not think I should because once you do that you have the same chain on. But I certainly think that in any case of doubt the Registrar could show that to a single Judge, and if need be the Judge could himself say if he thought it was doubtful. But I do not think we want a formal chain of appeal in this connection because we shall have the same situation over again and everyone exploiting it. I think we are in the difficulty that, unless we accept that there should be a power to send to prison, or keep a person in prison because of a frivolous appeal, the flood of appeals may become overwhelming. If you reject that, then I think you are driven—this is my present thought—to thinking of an alternative system whereby you can relieve the Judiciary of some of the burden. The only way I can see that
834
being done is by giving Registrars powers which, after all, would not be wholly dissimilar to the powers exercised by Masters of the High Court in certain cases of saying that this application is frivolous and has no merit.
LORD SILKIN: My Lords, I would remind the noble and learned Viscount that there is an appeal from the Master as a matter of course.
VISCOUNT DILHORNE: My Lords, I am aware of that. I am not seeking to provoke interventions. I would merely point out to the noble Lord that if once you do that in the criminal field, where there is no penalty of costs to be incurred, you may as well not have it at all.
I have drawn attention—I hope that I have not spoken for too long—to what I believe are two very serious matters in relation to the hearing of criminal appeals. I should like to see the Court of Appeal having a general power to increase sentences and to reduce sentences whether or not there is an appeal against sentence. I am not at all in favour of the Court of Appeal having power to say that the time spent before the hearing of an appeal shall not count towards a man's sentence, so that he will stay in prison longer if the Court of Appeal thinks that his appeal is frivolous or unmeritorious. My Lords, apart from those two main points I am substantially in agreement with the proposals contained in this measure, and I hope that we shall be able to explore these points and the points made by my noble and learned friend Lord Pearson more fully during the Committee stage.
5.29 p.m.
LORD PARKER OF WADDINGTON: My Lords, may I begin by voicing no fewer than three sets of congratulations. First, may I add my congratulations to the noble and learned Lord, Lord Pearson. I certainly hope that we shall hear him many times, not merely on this Bill but on many other matters, because I am sure that he has a great deal to contribute to the deliberations of this House. Secondly, may I add my congratulations to my noble and learned friend Lord Donovan and all the members of his Committee for their most excellent Report, which I for one wholeheartedly

835
support in almost all its recommendations. Thirdly, may I voice my congratulations to the Government for finding time to deal with this Bill, which, from my point of view, is a matter of urgent importance.
Having said that, I am afraid (and I know that the noble and learned Lord the Lord Chancellor will forgive me for saying so) that I do not wholly approach the matter in his way, and I do not wholly agree with certain alleged criticisms of the Court of Criminal Appeal. But I do welcome this Bill and, if I may, I will give my reasons in my own words. The Court of Criminal Appeal, constituted in 1907, until comparatively recently had a mere fraction of the applications and appeals with which it now has to deal. Indeed, for years and years one court sitting on a Monday only was fully able to cope with all the work. The position to-day is that the number of applications has increased; and not only the number but their complexity—these long conspiracy cases, lime frauds and the like—so that there really is enough work for two Courts to sit almost continuously, and on occasions three Courts.
As your Lordships know, there are not at any one time in London enough Judges to man two Courts continuously. It would mean six Judges being occupied all the time. The result is that the work can only be kept under control by one Court sitting continuously, and then from time to time having perhaps three or four Courts at a time, when Judges have returned from circuit and there are a great number in London. The effect of that, inevitably, is that not only are there occasions when there are four presiders, because there are four Courts, but because Judges change in their rota going out on circuit, those four Judges will vary from term to term. Therefore, it is possible that all the Queen's Bench Judges—at any rate, all the senior Queen's Bench Judges—will in time take their turn at presiding. I say that because I think this is the only valid criticism of the Court of Criminal Appeal as it exists to-day. It is the multiplicity of presiders as a result of which you cannot get the consistency and uniformity which is so desirable.
Under this Bill two things are achieved. First, it will be possible to have two Courts sitting almost all the time; and
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secondly, the presiders will be much fewer in number, and can consult together and adopt a consistent policy, whether it be on sentencing or on the approach to conviction. That is the first point I would make.
The second point is that I think the Bill introduces a happy compromise between two contending views. There are those who say that members of a Court of Appeal dealing with crime should be, as in civil cases, as it were remote from trials and the atmosphere of trials. On the other hand, there are those who say that in crime, at any rate, and when one is dealing with sentencing, it is imperative that there should be on the Court the knowledge and experience of those who are currently trying cases, travelling about the country and seeing the conditions from place to place. This Bill, as I say, enables a happy compromise to be achieved whereby in each Court there will be at least one Judge of superior status—if I may put it that way; of appeal status—and at least one Judge who is currently trying cases and has the necessary experience and knowledge.
Thirdly, the suggestion has been made, and is made from time to time, that as at present constituted the Court of Criminal Appeal less readily interferes with trials where Judges have presided, as opposed to those where chairmen or deputy chairmen of quarter sessions have presided. The Donovan Committee, in their Report, have completely exposed that suggestion as quite unjustifiable: and, indeed, if one looks at the figures, it is perhaps rather remarkable at first sight, but in fact they show that the Court has been more ready to interfere with trials presided over by Judges than trials presided over by others. Looking at it a second time, I think one finds that that is perhaps only natural, because they would lean over backwards to avoid being accused of favouring their brother Judges. Still, there is that suggestion, and it is one that is made from time to time. It is a natural suggestion to come from the layman, and many would say: "Well, let justice be seen to be done." Under this Bill it will be possible to constitute a Court with at least two members of superior status sitting in judgment in connection with a trial presided over by a trial Judge. In those circumstances, that possible criticism is met.

837
Lastly, my Lords, this Bill gives what I may call a face-lift to the existing appellate court: it puts them into a division of the Court of Appeal. Not only will the Court have the benefit of being manned by many members of that Court, but it will be part of the Court of Appeal, a Court than which there is none with any higher reputation in the country or in the world.
This Bill gives the opportunity to clear up legislatively a number of matters which for years have required to be dealt with. A small matter is that the time within which to apply for leave to appeal is laid down in the existing Statute as ten days. Ten days is obviously too little, and the Court for years has extended the time in proper cases. But instead of its being left merely to the direction of the Court to extend the time, there is the opportunity to enlarge the time, as the Bill proposes. To take another example, there is the very necessary power that is given to remunerate witnesses who are brought to the Court.
Then an opportunity is taken of elaborating or changing the grounds which entitle the Court to set aside a conviction. I would join issue with the noble and learned Lord on the Woolsack on this point. It is not, in my view, an innovation. I am afraid that for years on many occasions I have used these words: "In all the circumstances of the case, the Court has come to the conclusion that it is unsafe for the verdict to stand." This is something which we have done and which we continue to do, although it may be we have no lawful authority to do it. To say that we have not done it, and we ought to have power to do it, is quite wrong. It is done every day, and this is giving legislative sanction to our action. That, and a number of other matters of detail which will give the practice of the Court legislative sanction, now appear in this Bill.
As to the criticisms, there is undoubtedly room for criticism at the abolition of the power of the Court to increase sentences. I fully appreciate that it would be a great advantage for a Court of Appeal dealing with criminal cases to be able to raise sentences in such a way as to secure a general uniformity of sentences throughout the country. I appreciate that it would be most valuable, particularly in the age in which we now live, to see
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that the criminal does not get off too lightly. Those matters I fully appreciate; and if the continued existence of the powers that we have could possibly achieve either of those objects, I should be violently against Clause 4(2) of the Bill. But the real trouble to-day is that the incidence of the exercise of such powers as we have is completely capricious.
I took out the figures for ten years—1955 to 1965. They show that during those ten years (these are round figures) a quarter of a million sentences were imposed at assizes and quarter sessions. During those same ten years there resulted 17,200 applications for leave to appeal involving sentences. And in that same period of ten years, 30 sentences only have been increased. That is, an average of three sentences in a year, or 0.17 per cent. of the applications, let alone what percentage it would be of the total sentences imposed. The reasons, of course, as has been pointed out, are, first, that none of the 250,000 prisoners who have been sentenced will apply for leave to appeal if they have received a lenient sentence; and, of the cases that do come before the Courts, in those where the sentence is thought to be lenient, leave to appeal is given and counsel is instructed to appeal for the appellants, with the result that when the appeal comes on it is abandoned. It is a fact to-day—and this shows how capricious the situation is—that the only prisoner who has his sentence increased is either the completely obstinate prisoner who will not take counsel's advice, or the unfortunate man with an inexperienced counsel who does not realise what is going to happen. That is all so unsatisfactory that, quite clearly, the existing power in the Court is one which serves no useful purpose and, indeed, is rather abhorrent to one's ideas of justice.
Whether something can be devised is quite another matter. I personally think that if one wants to deal with this the only possible way is to give the prosecution—the police, or the Director of Public Prosecutions—power, perhaps with leave of the Court, to appeal themselves. In that way I think that one could achieve the consistency of sentencing throughout the country. But that is a very major question; it would require very careful consideration. At first sight, it is contrary

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to all our ideas of justice, since in this country the prosecution have never taken any active part in the question of sentencing.
VISCOUNT DILHORNE: Before the noble and learned Lord leaves that point, might I ask whether he would be in favour of allowing the Court to have power to increase sentence where the appeal is against conviction?
LORD PARKER OF WADDINGTON: I rather sympathise with the suggestion that the distinction between appeals against conviction and those against sentence should be avoided. It seems to me that the real difficulty is that one would still find that it would be such a small percentage involved. If one takes ten years and 250,000 convictions and sentences, it means something like 10 per cent. of all people tried at assize and quarter sessions who at the moment apply for leave to appeal. Therefore, although you would enable the power to be exercised more often within the realm of that 10 per cent., it would not touch the other 90 per cent. who never appealed at all.
When one comes to Clause 5 I, for one, would strongly retain it, and retain it in its present form. It does no more than put the position the other way round. The position at the moment is that a great number of people, whether their appeals are frivolous or not, are, if one may use the word, being punished "extra" by losing time. This is merely saying that they shall not lose time unless the Court looks into the matter and says that they should. That, as it seems to me, is a perfectly right approach. The only slight quarrel I have is with the idea as to punishing the frivolous applicant. It results in his punishment, but I venture to think that the reason for making him lose time is that he is depriving others who have a perfectly justified ground of appeal from having those appeals heard. He is delaying the whole machine unjustifiably.
The other comment I would make on Clause 5 is that it is bound to be wrapped up with whatever is done in connection with legal aid. If the recommendations of the Widgery Committee are adopted, then every prisoner will receive advice by counsel on his chances in his appeal. If
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he is told firmly by counsel, "You have not a hope", and he goes on, then I do not see why he should not lose time. But if he is advised by counsel to go on and fails, then the Court would not think of making an order that he should lose any time. In fact, as I see it, a prisoner always ought to have, as it were, one bite, either as at present, the view of the single judge, or, as I should hope in the future, the advice of counsel. If he goes on in spite of that advice, then I think he should be at risk of losing time. As I see it, that is the only safeguard that could be employed to prevent the machine from being completely flooded.
THE MINISTER WITHOUT PORTFOLIO (LORD CHAMPION): My Lords, I beg to move that the House do now adjourn during pleasure for the Royal Commission.
Moved accordingly, and, on Question, Motion agreed to.
House adjourned during pleasure.
House resumed.

ROYAL COMMISSION
6.0 p.m.
The following Bill received the Royal Assent:
Guyana Independence.
House adjourned during pleasure.
House resumed.

CRIMINAL APPEAL BILL [H.L.]
6.11 p.m.
Debate on Second Reading resumed.
LORD MORRIS OF BORTH-Y-GEST: My Lords, I should like to join with those in your Lordships' House who have expressed praise in regard to the work of the Committee presided over by the noble and learned Lord, Lord Donovan. I feel, as other noble Lords have felt, that the Report that they have presented is an extremely valuable, comprehensive and

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thoughtful Report. I sometimes wonder whether the public have any real appreciation of the work done by the Court of Criminal Appeal, and of the immense burden—a burden not only of responsibility, but of labour—that devolves upon the noble and learned Lord the Lord Chief Justice and upon his colleagues who sit in that Court. Those sitting on a Monday probably have to devote the entire weekend to studying the transcripts of the cases that they are to consider. Those sitting on the other days likewise have hours and hours of hard work out of court in order that they may properly discharge their duties.
It has been so valuable and important that it has been brought out in this debate in your Lordships' House, that the changes now proposed are not being made as the result of any serious criticism of the way in which the Court of Criminal Appeal has in all the past years discharged its duties. Though the work that devolves upon the Judges has indeed been heavy, how well worth while it has all been? Some of us have the privilege from time to time of sitting in the Judicial Committee of the Privy Council and hearing applications for leave to appeal, and hearing appeals in criminal cases, from various parts of the Commonwealth. Sitting to hear those applications and those cases one discerns the great respect in which the Court of Criminal Appeal, sitting in London, is held throughout the Commonwealth. They not only lay down principles, they not only decide questions of law, but I think it is right to say that they set the tone for the administration of the criminal law in far-flung parts of the English-speaking world. They have created, in all that sphere, an image of fair play and fair dealing.
It might well have seemed illogical in 1907, when the Court of Criminal Appeal was established, that it should be manned by Judges of the King's or Queen's Bench Division who would be sitting, quite often, to consider the work of their colleagues in the Division. As a rule, appellate work is heard by Judges who normally and regularly sit in an appellate court. But, in spite of the way in which that might have seemed to be illogical, I think it is important to remember that the careful inquires made by the Donovan Committee have not revealed anything seriously amiss. My
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noble friend Lord Pearson made one quotation from the Report. May I just make another, from paragraph 15:
"The structure of 1907 was, and remains, sound. No member of the public, and no lay body, came before us and criticised either the constitution of the Court, or the way in which it discharges its duties within the limits of its powers, as the court has conceived those limits to be. The criticism was of some of the powers themselves, and of the Court's interpretation, in certain instances, of their extent. Nor did any witness from the legal profession criticise the probity of the Court or call in question the sincerity of its efforts always to do justice."
One heard at one time vague suggestions as to whether appeals coming from some courts were not examined as critically as appeals from other courts. Any such suggestion has been proved to be completely false and without foundation. In another part of the Report it is said
"No witness went to the length of asserting that puisne judges sitting in the Court of Criminal Appeal had a bias, unconscious or otherwise, in favour of their brother judge who presided in the case under review. Nevertheless, in case that view is held in any quarter, we should say at once in our opinion it is wholly without foundation. There is no evidence whatever that judges of the court have any hesitation in correcting a brother judge who they consider has given an erroneous ruling or gone wrong in a material respect in the conduct of a trial. If it were otherwise, one would expect to find it reflected in the proportion of appeals from quarter sessions which are allowed as compared with the proportion of appeals from assizes which are allowed; but there is no appreciable difference."
So the conclusion of this powerful and influential Committee was, after careful inquiry, that there was nothing seriously amiss and I think it is right that it should be known that the changes now proposed are not suggested on the basis of setting right things that were wrong, but on the basis of trying to make better something that was already good.
At this stage of the debate, I will confine my observations to just one or two points. I welcome the introduction of the words "unsafe and unsatisfactory", but I was very glad to hear the noble and learned Lord the Lord Chief Justice say that the Court of Criminal Appeal had always proceeded on the basis of those words. I had always so understood, but I am sure that in all past years the approach of that Court has been not to allow conviction to stand if it was thought, "It is unsafe to have this man convicted and detained in prison— it is

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not satisfactory."It may well be that the wording is now improved as compared to the wording that previously existed, but I respectfully agree with the Lord Chief Justice that this is not a change in the approach of the Court.
I wish to ask about the attitude of Her Majesty's Government on one point. In 1964 your Lordships considered the question whether extended powers should be given to the Court of Criminal Appeal to order new trials. This matter has been a controversial one for many years. As the noble and learned Lord, Lord Donovan, said in his Report, it was not for his Committee to go into this matter; it had recently been considered, and whenever it had been considered there was not unanimity. I think that in your Lordships' House a Division resulted in a majority of one. I believe that when the Bill went to another place no Amendment was in fact moved. It is, therefore, admittedly a controversial matter. It may be that Her Majesty's Government feel that the present is not the opportune time to raise the matter again, but the emphasis in more than one place in the Act as it now stands, and in the Bill which will amend the present Act, is upon the interests of justice and upon miscarriage of justice.
Under the 1964 Act, if new evidence is either admitted or available the Court of Criminal Appeal has power to order a new trial, if the interests of justice so indicate. The new powers, under Clause 4, require the Court to allow an appeal as to whether a verdict should stand, first, if it thinks that the verdict of the jury is unsafe or unsatisfactory; secondly, if there is a wrong decision in law; and thirdly, if there is a material irregularity. May there not be some cases—cases in which there has been some irregularity, some irregularity that could be called material; some wrong decision of law, or an inability to invoke the proviso, whether in its existing form or proposed form—in which it would be fair and in the interests of justice that there should be a new trial? The very measure of confidence that has been reposed in the Court of Criminal Appeal would indicate that, if there is this power, it would doubtless be exercised sparingly and would be exercised (for it would be in the discretion of the Court) only when it was thought
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fair and reasonable to do so. I should like to raise that inquiry, as to whether Her Majesty's Government think it right to consider that matter afresh, at a time when Parliament is dealing with a Bill relating to the powers of the Court of Criminal Appeal.
The early parts of the Report of the Committee would perhaps have led one to the view that there was no strong case made out for any change. But the later parts of the Report, I think, show that there is much to be said for having a consistent policy and for having it laid down by a Court with all the authority of the Court of Appeal. The fact that that approach commends itself to the noble and learned Lord the Lord Chief Justice persuades me that it is, on the whole, a good thing to make this change. There are other matters which have been touched upon which may be considered at another stage, but, in general, I add my support and welcome to this Bill.
6.25 p.m.
LORD CONESFORD: My Lords, after the very eminent Judges who have spoken it would be wrong for me to detain the House for more than a few minutes, but perhaps I might start by adding my warm congratulations on his maiden speech to my old friend Lord Pearson. My noble and learned friend Lord Dilhorne has already indicated that I had been in chambers some five years when he arrived there. I can only say for all those who knew him then that his subsequent distinguished legal career did not surprise them at all. When I think of how many I saw pass through those chambers to the Woolsack, to the ranks of the Lords of Appeal in Ordinary, to the Court of Appeal and to the High Court, I think perhaps it is my duty to disclose to the House that it is not my present intention to write my reminiscences.
I think that the discussion on this Bill, which has been generally welcomed, when it reaches the Committee stage will be mainly, as has been clearly indicated, on the provisions of Clause 4. On that some very important observations have been made by many of the Law Lords who have spoken; and I very much hope that the points raised will be thoroughly considered in Committee and that Lord Pearson will be present to take part in those discussions.

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I myself will add only two things. The first is about the proposed addition, in Clause 4(1) (a), of the words "unsafe and unsatisfactory". That has been generally approved by, I think, every speaker. But nobody has pointed out by whom those words were first used. I was very glad that the noble and learned Lord, Lord Donovan, for whose admirable Report I should like to add my congratulations, brought out in paragraph 146 and the following paragraphs that those words were proposed at the time the original Bill to establish the Court of Criminal Appeal was going through Parliament. They were proposed from the Conservative Benches in the House of Commons by F. E. Smith and, although that is admirably brought out in the Report, I think it is perhaps worth recording on this occasion.
I now come to the other matter about which I should like to give my own reaction to the Report, which I carefully read. I thought that the discussion in the Report of the noble and learned Lord, Lord Donovan, in which the arguments were most equally balanced, was on the problem of whether there should be a power to increase the sentence. I am not convinced that the proposal to abolish that power is wise, though I do not wish to commit myself at this stage to either view. I listened with very great care to what my noble and learned friend the Lord Chief Justice said about how very rarely this power had been used, but that does not seem to me at all conclusive. If it is used very rarely but in very notorious cases where the sentence has been wrong, that may have, I should have thought, some educative effect on the lower courts. However, I do not wish to say more on that, except that I think the matter needs most careful consideration when this Bill reaches Committee.
6.30 p.m.
LORD CHORLEY: My Lords, perhaps I might, as a chairman of quarter sessions, add a word in this discussion. We have had speeches from very eminent Members of your Lordships' House on the Judicial side, who have of course been promoted from the ranks of the working Judges and who have dealt with criminal trials with juries in the courts. As a chairman of quarter sessions, I am very happy indeed—and I am quite sure
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that I am reflecting the views of the vast majority of my colleagues—to welcome this Bill and to add my tribute to what has already been said about the Report of the Donovan Committee.
I was interested to hear the noble and learned Lord, the Lord Chief Justice, say—and his view was reinforced by the noble and learned Lord, Lord Morris of Borth-y-Gest—that the researches of that Committee had shown that, if anything, quarter sessions came out rather better than High Court Judges at the hands of the Court of Criminal Appeal. I am sure there is not very much in it, but it may be that the slight balance in favour of the courts of quarter sessions is due to the fact that there one has the advantage, particularly in the sentencing, of very experienced magistrates. It has always seemed to me, when discussing problems of sentences with my fellow magistrates, that I have a tremendous advantage over the normal judge who goes on circuit and has to make up his mind on these extraordinarily difficult problems. From many points of view, problems of sentencing are much more difficult than problems arising out of the actual substantive law, and it is a tremendous advantage to have a number of experienced men and women, experienced in the ordinary affairs of life, to help one in deciding, what is the proper sentence to mete out to the prisoner who has just been convicted by the jury.
In spite of what has been said about the work of the Court of Criminal Appeal over these last years—and, by and large, undoubtedly the Court has done spendid work—it is perfectly clear, from what the noble and learned Lord, the Lord Chief Justice has said, that there were a number of very obvious defects in the arrangements, particularly those which underlined the difficulty of manning the Court—Judges going on circuit—and making matters very difficult, indeed. Undoubtedly, this Bill will result in a substantial improvement in the arrangements. in that the Court of Appeal will not be in this difficult position.
I think, also— and this is a matter which comes to the notice of those of us who are not necessarily judges in courts of quarter session, but who teach the subject of criminal law in the law schools—that there has been a certain unevenness in the work of the Court of Criminal Appeal,

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because of this difficulty of staffing. Judges who have had very little experience of the work of administering the criminal law are often available, and may take their seats in the Court of Criminal Appeal. Undoubtedly a certain unevenness in the laying down of the rules of substantive law, which has been noted by many eminent professors of criminal law in the universities, is largely due to that fact. So that this Bill, by putting the administration of the criminal law into the hands of Judges who are sitting permanently and who will soon become specialists, if they are not already, will certainly lead to a quite pronounced improvement in that way. This patchiness will disappear.
I agree with the noble and learned Lord, Lord Morris of Borth-y-Gest, that in the Commonwealth the work of the Court of Criminal Appeal has been followed with very great attention, and usually with approval. But there have been quite a number of cases, particularly in recent years in Australia, when the very distinguished Judges who now sit in Australia—notably Sir Owen Dixon, who was until recently Lord Chief Justice, and who is regarded by many as one of the greatest common lawyers of the present century—have found it necessary to point out what they regarded as the defects in the work of our Court of Criminal Appeal. I think that the new arrangements should enable us to get over that, and it seems that this will be a very great advantage.
LORD PARKER OF WADDINGTON: My Lords, would the noble Lord not agree that Sir Owen Dixon's criticisms were not of the Court of Criminal Appeal, but of the Law Lords in your Lordships' House?
LORD CHORLEY: I should say both, my Lords. The Law Lords in your Lordships' House have, on the whole, graduated from the Court of Criminal Appeal, and I think I could find one or two cases covering the Court of Criminal Appeal. At any rate, this is very right and proper, and one of the really splendid things about the growth of the Commonwealth in recent years has been the fact that we have Judges of distinction and outstanding ability.
I found myself to a considerable extent in agreement with some of the remarks
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of my noble friend Lord Conesford in regard to the question of increasing sentences, even if the power has not been much used. I have no doubt whatever that a very large number of prisoners would have made applications for leave to appeal if it had not been that they felt there was a danger of an increased sentence. I am afraid that there will be a flood which it will be very difficult for the new Court to handle if, as the noble and learned Viscount, Lord Dilhorne, said, some sort of arrangements cannot be found for checking this.
I also have a slight qualm about the removal of the word "substantial". On the face of it, and immediately, it seems that if there is a miscarriage of justice a conviction ought to be quashed whether or not the miscarriage is "substantial". But there are cases where there is a miscarriage of justice of a rather trivial character; and it would be a mistake (and I hope the new Court will take a common sense view of the matter), if the Court found that there had been a miscarriage of justice, although of a rather trivial character, to put the emphasis on the triviality rather than on the miscarriage of justice. But, in effect, what has been done by the Court of Criminal Appeal in the past, where there has been a real miscarriage of justice, is that the conviction has been quashed. I do not think too much importance should be attached to the word "substantial", and I am rather sorry to see that it will disappear. But by and large this Bill will undoubtedly bring about a very great improvement in the arrangements for the administration of the criminal law in this country, and I hope that it will go through fairly rapidly.
6.39 p.m.
THE LORD CHANCELLOR: My Lords, I am extremely grateful to all noble Lords who have taken part in the debate, and particularly, if I may say so, to the noble and learned Lords of Appeal, whose advice on a law reform Bill which has nothing to do with politics is of the greatest value to us all. I was particularly pleased, of course, to hear from the noble and learned Lord, Lord Pearson, and glad that he should have given us the benefit of his opinion on the questions raised by this Report. I hope very much that we shall often hear from him in the future.

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The noble Viscount, Lord Colville of Culross, first of all raised an awful question about Parliamentary drafting. The fact is that I shall be delighted to have a private conversation with the noble Viscount about it, but this is a very delicate subject. We have, after all, a very old school of a particular kind of Parliamentary drafting by men of the highest possible ability; but the Law Commission are at the moment considering what are really two sides of a coin. One is Parliamentary drafting and the other is the interpretation of Statutes. I think that these questions are among the most important which we may at some time have to consider. But the subject is a difficult one, and I should prefer to say no more about it at this moment. I am sorry I did not refer to Clause 7 on the expenses of witnesses, but I quite agree as to its importance.
As to time of appeals counting against sentence, the noble Viscount hoped that this would be only experimental, because he feared the Court might be flooded out with appeals. I think the main point was that which was touched on by the noble and learned Lord the Lord Chief Justice, and it is this. The main reason why there are as many appeals as there are now is that we have a first-class system of legal aid in criminal cases until the man leaves the dock. Then the whole thing completely breaks down. The barrister who appeared for him and the solicitor who acted for him are under no obligation to advise him whether he has any chance on appeal or not, and he can get no legal aid at all unless he gets leave to appeal. But his difficulty is to get leave to appeal without legal aid.
Most of the notices of appeal are filled in by these men themselves, as they have to be, sometimes with the aid of a sea-lawyer prisoner; and, of course, they do not know what is a ground of appeal and what is not a ground of appeal. What is urgently needed is legal advice at that stage, as to whether they have any chance on appeal or not. This, I think, will do more than anything else to reduce the present number of appeals. Of course, the period of ten days during which a notice of appeal can be given is in any case too short. That is being extended by the first paragraph to the Second Schedule of the Bill. I am not in a position yet to state what attitude
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my right honourable friend the Home Secretary will adopt towards the Report (which personally I would describe as an admirable Report) made by the Committee of which Mr. Justice Widgery was the Chairman, which is a Committee which has gone very fully into the whole question of legal aid in criminal cases.
My Lords, I agree with the noble and learned Lord, Lord Pearson, that criminal appeals ought to be on the same level in the judicial heirarchy as a civil appeal. I do not know whether the noble and learned Lord will remember, but a little time ago a number of appellate judges came here from the United States for a week or two, looking at all our Appeal Courts. I happened to see some of them at the end of their visit, and I asked them what had struck them most in what they had seen of the English system. They said, "The thing which struck us most was that all your judges seem to think that criminal appeal work is rather inferior work, and nothing like as good or respectable as civil appeal work; whereas we, doing both civil and criminal appeals, always think that criminal appeals—where, after all, a man's liberty is at stake—are much more important than civil appeals, which are, in the main, only about money".
I appreciate that there is a difference of opinion about the wording of Clause 1, and particularly the word "substantial". It may be that we shall be considering this at the Committee stage. It shows the difficulties when the noble and learned Lord, Lord Pearson, says that he regards the word "substantial" as a vital word, whereas the Donovan Committee, in paragraph 164 of their Report, say:
"It seems to us to be devoid of practical significance".
So, obviously, there is a wide difference of opinion as to what is the effect of the word "substantial". The noble and learned Viscount, Lord Dilhorne, does not agree with the abolition of the power to increase sentences. This is a question of time, but I would venture to hope that before considering an Amendment he will re-read the 21 paragraphs in which the Donovan Committee consider the pros and cons of this point before unanimously recommending that it should be abolished.
VISCOUNT DILHORNE: My Lords, if the noble Lord will forgive me, he has not quite put what I said. I entirely agree that the present right to increase the sentence on an appeal against sentence should go. The part I disagree with is that there should be no power to increase the sentence on an appeal against conviction. I think that our system should be brought into line with that of Scotland and of Northern Ireland.
THE LORD CHANCELLOR: This was not a point expressly dealt with, I think, by the Committee. As to time, if he will forgive me for saying so, it really is not the case that there is any material difference between the conditions under which a man serving his sentence is confined and those under which a man awaiting appeal is confined, except for the purposes of the appeal. The original rule expressly referred to what were called "the special privileges of an appellant", but the Report itself says:
"The special treatment accorded to an appellant in pursuance of Rules 57 to 61 of the Prison Rules 1964 means no more than that he is allowed additional letters and visits for the purposes of his appeal and is entitled to be examined in connection with the appeal by a doctor of his choice."
That is all that it now comes to.
The noble and learned Lord the Lord Chief Justice regards the Bill as a happy compromise, and I would respectfully agree. I thought, if I may say so, that his support of the recommendation that the power to increase sentences should be abolished by the figures which he gave was of considerable assistance to that view. The noble and learned Lord, Lord Morris of Borth-y-Gest, asked the Government's views about extending powers as to new trials. I am not in a position to say whether the Government would favour any further alteration of the law in this field. I must confess I have always felt that more use might be made of the power to order a new trial, particularly, perhaps, in the kind of case in which somebody has not called the evidence because he was advised not to. After all, it is not unreasonable that a man should be told, "We know there is only one witness as to identity, and the case will probably collapse at the end of the prosecution's case. If you call these three people to prove where you were, that is quite enough, Why call
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another half-a-dozen?" If the jury convict and if in fact the man is completely innocent, if he is given a retrial he can call the others.
My Lords, if I appear worried about identity, I think we all have cause, looking to the future, to think that our worries in this field will increase, because I really do not think that most policemen can tell the difference between one coloured man and another. It is not at all easy ourselves. I remember a meeting at which an overseas student wanted me to go and thank a certain Judge for something he had done for him. I said, "Well, there he is over there; why don't you thank him yourself?" He said, "You know, we find it very difficult to distinguish one white man from another".
The noble Lord, Lord Conesford, has, I appreciate, a reservation on this question of abolishing the power to increase sentences; and the noble Lord, Lord Chorley, referred to the quality of courts of quarter session. It has often seemed to me that the choice which we give to people, whether in criminal law or in civil cases—and in civil cases more particularly—when we say, "Would you like the facts decided by one lawyer or twelve laymen?", is a very extraordinary choice. We do not realise it because we are so used to it, but usually any sensible man would say," I do not think I should like either. I think I should like it to be decided by one lawyer and two laymen sitting together, or one lawyer and four laymen ". This, in fact, is the nature of a court of quarter sessions, and everybody would agree on the value of the assistance the chairman of quarter sessions gets from the lay justices.
Finally, my Lords, may I say how much I agree with the noble and learned Lord, Lord Morris of Borth-y-Gest, in what he said about the work done by the Judges in the Court of Criminal Appeal. One cannot too often point out, because I do not think it is altogether realised, the burden, particularly in the last two or three years, which has fallen on those Judges, the amount of work they have to do at night and the amount of work they have to do on Saturdays and Sundays. If that is true, as indeed it is of the members of that Court, it is one of the reasons why I suspect many of them prefer not to have to do it for

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too long. But the noble and learned Lord, the Lord Chief Justice has not only that burden but the burden of the whole of the administration of what is to-day a very much larger Division than it used to be, the Queen's Bench Division. And, if I may say so on your Lordships' behalf, I think you, and everyone else in this country, have every reason to be grateful to the Lord Chief Justice for the very heavy burden he carries to-day in having to preside over this Court regularly, in having occasionally to go out on circuit, and, on top of that, bearing the very big administrative burden that he does.
There will no doubt be one or two matters we can consider on Committee. If I may respectfully say so, I rather agree with the noble Viscount, Lord Colville of Culross, that the position about fresh evidence is not altogether clear and that it might warrant further discussion. Again, may I thank all noble Lords who have taken part in this debate.
On Question, Bill read 2a, and committed to a Committee of the Whole House.

THE F 111A AIRCRAFT
6.53 p.m.
THE EARL OF KINNOULL THE EARL OF KINNOULL rose to ask Her Majesty's Government whether they are aware of the concern felt at the true cost and performance of the F 111A Aircraft; and whether they can now announce if further orders are likely to be placed in the near future; and what proportion of the existing orders will have British equipment installed. The noble Earl said: My Lords, may I say at the outset that when I put down this Unstarred Question some weeks ago I was unaware of the debate that was to take place in another place yesterday on the same subject, but on studying the report of that debate I think it is fair to say that it concentrated more on the variable and geometric performance of the Minister of Aviation than on the true value of the aircraft. I have put down this Unstarred Question to-night because of the growing suspicion and criticisms among British aircraft designers that not only was this aircraft originally considered and ordered at a time when it was hardly off the drawing board and at a
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time when there were no guaranteed performance figures available, but also that there is a strong suspicion that the manufacturer's claims for the capabilities of this aircraft will never be achieved. If these criticisms were based solely on the opinions of British designers it would be fair to say that they could be considered biased, but when one learns of the doubts about this aircraft which exist in the minds of some senior American Service chiefs—the very people who should be the best judges of the matter—then, I think, one can take them extremely seriously.
It is no secret that this aircraft, the brain-child of Mr. McNamara, has caused some of the most bitter controversies in the Pentagon and has led to resignations. It is also no secret that the aircraft is dubbed by those in America who oppose it as Mr. McNamara's second Edsel. The point I should like to make here is that should Mr. McNamara resign or retire from the position he at present holds, are the Government fully satisfied that the opponents of this aircraft will not force its cancellation and so leave us with a second Skybolt disaster?
THE MINISTER OF DEFENCE FOR THE ROYAL AIR FORCE (LORD SHACKLETON): My Lords, may I interrupt the noble Earl? It would be helpful if he could inform the House what these particular criticisms arc. I know that he himself has some technical ones. We should like to know the sort of criticisms that have been made, as he says, by senior officers of the United States Air Force.
THE EARL OF KINNOULL: My Lords, the criticisms are very similar to the British criticisms to which I shall be referring later. Perhaps I could ask the noble Lord at this point whether he could clarify a recent misunderstanding over an article that appeared in the Daily Express on April 25, which recorded critical reports on this aircraft by a sub-committee of the House of Representatives. The following day I understand that Whitehall dismissed this article as inaccurate. I wonder whether the noble Lord could take this opportunity to enlarge on that statement.
LORD SHACKLETON: My Lords, I should find it easier to do so if I knew

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to which aircraft the noble Earl was referring.
THE EARL OF KINNOULL: My Lords, I am talking about the F 111A and F 111B.
Turning now to specific criticisms and doubts of the operational performance of this aircraft, the chief criticism, as I understand it, is of perhaps the one thing, above all others, that decided the British to order the aircraft: its long-range capabilities. This feature was emphasised by the noble Lord on March 8, during the debate on the Defence Estimates. He then stated that the aircraft had an immense range-potential and was to be used as protection for all three Services; that it was to used in conjunction with the new Commando ships which would supersede the aircraft carriers, and also that it was to fulfil a rÔle as a tactical strike reconnaissance aircraft to provide reconnaissance information, while, at the same time, acting as a conventional deterrent. Thus we see that this aircraft will become by 1970 the linch-pin of our Far East military strategy. Its success will be vital to us, and our dependence on it will be enormous.
But, my Lords, let us suppose, for one awful moment, that its practical range under operational conditions proves far less than has been claimed. What then do we fall back on? It may be of interest to the noble Lord to learn that some of the British designers feel that while they are impressed with the tests that this aeroplane has gone through (the 22,000 hours of wind tunnel testing and 25 million man hours of design development), they are not so impressed with the claims by the manufacturers that the range of the aircraft will be over 7,000 miles.
I should like to ask the noble Lord now whether he would answer some of the points I wish to raise in regard to the specific performance of the aircraft. First, could he advise the House when he expects the first practical demonstration to take place of the range capabilities of this aircraft with a full military load aboard? And how soon will the model of this aircraft be available for the Royal Air Force to ascertain its performance? Secondly, can the noble Lord comment on the report that a serious drag problem has arisen—I am told that it is something
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like 25 per cent. of the original calculation; and would he also confirm that when this aircraft is used as a conventional bomber, with armed bombs strapped under its wings, it is quite true to say that the wings cannot be folded back more than 26 degrees, therefore again causing excessive drag? Thirdly, can the noble Lord confirm whether the aircraft has now flown its supersonic speed at sea level and whether such tests have proved satisfactory? Lastly, would the noble Lord comment on the criticism that the present design of the aircraft has caused it to become overweight to the extent that the military payload will suffer on operational flights?
To turn briefly to the cost of these 50 aircraft, the House will recall that on March 8 it was advised by the noble Lord that the cost of the basic aircraft had been agreed with the American Government at £2·1 million. But the loophole which then appeared was that the cost of the modifications had not been agreed, and although the noble Lord did venture a guess that the total cost would be £2½ million, I should like to ask him why the Royal Air Force could not have been given time to specify the exact modifications required, and the manufacturers given time to arrange for some definite estimates to be given. What will happen, for instance, if the total cost of each aircraft rises eventually to, say, £4 million? Will this, say, reduce the number of the aircraft in order to keep within the £280 million programme? It is perhaps interesting to recall the experience of the Royal Australian Air Force with this aeroplane. I believe that since 1962, when 24 of the F 111A aircraft were ordered, their costs have risen by 64 per cent.
I should like to ask the noble Lord one further point on the question of the cost of spares. I have noticed that the Government have tried to stabilise the cost of spares by linking the cost to the same cost that the American Air Force will suffer, or will have to pay for their spares. What 'happens as a result of the modifications?—because surely there will be many spares which will not be the same as those used for the American aircraft. Will there be some stabilisation figure there as well?
To turn, lastly, to the question of the British equipment being fitted to this aircraft, I very much hope that the noble

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Lord will be able to give some hope to British manufacturers. Perhaps he could say whether the Spey engine has been considered as an alternative to the TF 30 engine. I am sure he realises, perhaps, more than anyone, that any orders British manufacturers receive not only encourage incentive but also keep them abreast of the sophisticated equipment that is required to-day. My Lords, may I finish by saying that I realise that the noble Lord has great faith in this aircraft, and is in the unique position of knowing all the facts—or perhaps one might say all the facts which General Dynamics have allowed him to know. I hope that this evening he will go beyond his natural gift for persuasion and will be able to give some real grounds for reassurance in respect of the genuine doubts and suspicions, some of which I have tried to raise this evening, that exist about this aircraft.
7.5 p.m.
LORD ST. OSWALD: My Lords, I am grateful to my noble friend for having put down this Question and I hope that the noble Lord, Lord Shackleton, may be grateful, too, for the occasion it offers hint to explain at least part of the conundrum set by some of, his colleagues. Frankly, I found it very hard to follow through the pages of Hansard, in both Houses, the course of reasoning which has kept Defence Ministers and Aviation Ministers apparently still happy that they did the right thing in scrapping the TSR 2 in favour of the F 111A.
In order to sell this unpalatable decision to Parliament, and to the British public, the Government first provided a concept of 150 F 1l1As instead of 150 TSR 2s. We are now down to 50 F 111As, or we shall be when they are delivered; and no one, I think, can suggest that they represent the equal of 150 TSR 2s. In trying to follow the Government's reasoning for this dramatic run-down I found Mr. Denis Healey on July 21 last year saying:
"One of the major differences since the last Election"—
that was the Election of nine months earlier—
"is that the requirement for a long-range strike aircraft for a strategic nuclear role is no longer accepted by Her Majesty's Government so far
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as the Soviet Union is concerned."—[OFFICIAL REPORT, Commons, Vol. 716, col. 1553–21/7/65.]
Ten months later, in paragraph 8 of the White Paper, we learned that 50 instead of 150 F 111s were to be bought. The majority of these, it was made clear, would be kept in the Far East. This number was estimated by my right honourable friend Mr. Enoch Powell, without any Government dissent, to be 35. Of these 35, again without ministerial contradiction, he suggested that 25, at most, would be operational at any one time. That was before any wastage occurred. I readily concede that it is not customary to give estimates of the rate of wastage, but this is a force of only 35 planes of this kind, of this capability, in the Far East; that is, East of Suez. Can the noble Lord, Lord Shackleton, tell us precisely how these will be used and what their rôle will be? This obviously must have been carefully thought out, but we are not privy to that thinking, and have not yet been told when they will be delivered and when they are expected to be in service in the Far East.
LORD SHACKLETON: My Lords, if I may interrupt the noble Lord, I have no intention of giving this information. It does not arise on the terms of the Question on the Order Paper. If the noble Lord wishes to debate this subject, he can put down a Motion, but we have a very precise and very narrow Question. I should have been very happy to give the information, but we have to respect our own Rules of Order.
LORD ST. OSWALD: My Lords, I was looking upon this Question, as I said, as giving an opportunity to the noble Lord. If he does not want to take that opportunity, of course I cannot force him to do so.
LORD SHEPHERD: It would be out of order.
LORD ST. OSWALD: My Lords, I am in order in saying that these aircraft will have to continue at least in a reconnaissance role for ten years, and my noble friend, in his Question, is interested in the efficacy of this aircraft in the role for which it is required, since the problems of maintenance in the Far East are one of the major headaches of any Air Force commander.

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I wonder how these 35 aircraft are expected to compose an effective force, and endure as an effective force for ten years, once they are placed in service. I use this period of ten years because it has been mentioned ministerially as the expected life span, and because, again so far as I know, the Anglo-French VG aircraft will not have any reconnaissance capability. I believe that talks regarding this aircraft have been taking place in France during this week and I had thought, though I think it no longer, that the Minister might be ready to give a little more information on this, as it has a bearing on what the TSR 2 will be called upon for.
LORD SHACKLETON: The F 111.
LORD ST. OSWALD: What the F 111 will be called upon for—it was wishful thinking.
My Lords, I am sure that the noble Lord will not think that I am exaggerating the problem of maintenance in the Far East, and he, as well as I, will have spoken to senior officers in the Far East, in places such as Singapore and other military airfields in South-East Asia, and will have had vividly brought home to him the circumstances of the continual fight against corrosion, for instance, in virtually every part of the aircraft, including the most delicate parts, which can be made accessible for examination and replacement only by an elaborate dismantling. These maintenance problems in Singapore and other Eastern bases are superimposed upon the increasing demands which the new highly sophisticated American aircraft make upon those who maintain them.
I believe it is right to say that the F 104 Starfighter, which has earned a bad name by reason of the number of accidents suffered while in service with the German Air Force, is not at all a bad plane. The fact is that the German Air Force completely underestimated the maintenance requirements they would have to face. I am not asking the noble Lord to corroborate what I have said, but simply to agree that, as American aircraft increase in sophistication, their upkeep becomes a matter of increasing expense, both in time and in money. I should like him to say whether this expense in money has been fully taken
860
into account in the estimates so far made, and whether the expense in time has been taken into account in supposing that 33 F 111s stationed in the Far East can really comprise an effective force, over a period of ten years, with a reserve of only fifteen to call upon from home. I find it extremely hard to see how this can be.
The noble Lord, Lord Shackleton, has at all times, as my noble friend said, spoken very highly of the capabilities of the F 111A, and we know well that, allowing for his natural optimism and ebullience, he would certainly not mislead the House or anyone else on this matter. His faith in its future is sincere. What would be interesting to know is how close and continuous his supply of information may be. For instance how many R.A.F. pilots have so far flown the F 111A? How often have they flown it, and how often do they report?
I have in mind the fact that on July 21 of last year Mr. Healey said
"We are in close touch with the Department of Defence on the progress of the F 111 programme."
LORD SHACKLETON: If I may interrupt the noble Lord, I should like to know how many R.A.F. pilots he thinks ought to fly it so that we may know about it.
LORD ST. OSWALD: I must say that the noble Lord would never have let me get away with a question like that from that Bench a year or two ago. I have never heard such nerve. It is the responsibility of the Government and the Minister to make these decisions, and not that of the Opposition. The noble Lord's face is very red, and I am happy to see it.
On March 3 this year Mr. Healey was asked how many R.A.F. pilots had flown the F 111, and whether they had evaluated the aircraft's performance. Mr. Healey's reply was:
"A senior R.A.F. test pilot is currently being given the opportunity to fly the F111 during its development test programme. He has already flown the aircraft at least twice and his reports have been included in our evaluation of the aircraft."—[OFFICIAL REPORT. Commons, Vol. 725 (No. 60), col. 351;3/3/66].
Clearly, the noble Lord himself is as interested as any of us in the opinion of

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the R.A.F. officers on the performance and handling of the aircraft upon which they will have to depend for some years ahead.
I should also like to ask the noble Lord two further questions, of which I have given him notice; they are of a technical nature. First, has there been any compressor stall difficulty in the flight tests of the F 111A? Secondly, has there been any instance of excessive stick-loading in pitch during variable geometry tests?
My Lords, this aircraft, the F 111, was the subject of debate in another place yesterday in the context of cost and, in particular, the offset of that cost by dollar earnings. Particular attention was focused on that portion of the offset provided by collaborative sales with third countries; that is to say, deals in which the Americans stand back to allow us an open field for our salesmanship. It would be entirely improper and un-Parliamentary to seek to continue that debate in this Chamber to-day, even if it had not been, as it was, a Censure debate on a Minister sitting in that House. But I do not see how we can divorce the question of cost from any discussion of the F 111A purchase, because the alleged difference in cost between this aircraft and the TSR 2 was made the whole basis of the Government's apologia for cancelling the latter and purchasing the former, to the undisguised, uninhibited and understandable jubilation of the American aircraft industry. Therefore, in spite of, and not because of, yesterday's debate in another place, I feel it imperative to say something on this aspect of the purchase and offset arrangements, as did my noble friend.
Of yesterday's debate all I will say is that it made it more impossible than before, especially in the closing moments of the Secretary of State's speech, to follow the Government's reasoning, and even the order of events. There can scarcely ever have been a more anachronistic and contradictory chronicle of events over a short period of months. It seemed that Ministers understood it as little as the rest of us. Yesterday we had the spectacle, described or revealed to us, of Ministers who should be working in the closest harmony tripping over each other's pretensions and panegyrics.
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One was immensely proud of having persuaded the Americans to step back"— that was the phrase—to enable our salesmen to obtain a £100 million contract in Saudi Arabia. Another was equally pleased by the fact that, with his encouragement, of course, those same salesmen had obtained the contract in the teeth of American opposition. We saw Ministers trying to persuade Parliament that both claims were equally true. Not surprisingly, they made a pretty muddled and unconvincing job of it. Consequently, I think it is only fair to give the noble Lord, Lord Shackleton, an opportunity to explain this evening the real value and application of this offset, more than ever in the light of one particular deal, that with Saudi Arabia, because I dare swear that nobody understood the value and validity of that arrangement as a result of listening to Ministers' protestations yesterday.
LORD SHEPHERD: My Lords, I think what the noble Lord is now doing is a gross abuse of this House. This is not a Motion. This is a specific Question which has been put on the Order Paper. The noble Lord has gone well beyond the terms of this Question. I suggest to him that this is an abuse of the Rules of the House.
LORD ST OSWALD: I do not follow the noble Lord's argument. I do not think I have spoken outside the terms of this Question. I have mentioned matters referred to in the Question as set down on the Order Paper. Everything that I have said is related to the terms of that Question. The noble Lord the Chief Whip must have heard that my noble friend referred to the cost, and I am referring to the cost. Our ability to undertake this cost was, in fact, excused and described by the Government in relation to their own achievement in obtaining an offset in the form of dollar earnings. I cannot see how the noble Lord does not think that this is directly connected with the Question.
LORD SHEPHERD: No.
LORD ST. OSWALD: The noble Lord and I differ. But if this were submitted to any objective judge of Parliamentary procedure, I am sure the decision would go my way.
LORD SHEPHERD: I will certainly take note in the Report to-morrow of what the noble Lord has said and see what steps should be taken in this matter.
LORD ST. OSWALD: Now I will relate briefly to what I understand to be the bewildering characteristics of this particular deal—and I am afraid I insist that I have a right to speak of this in the context of the cost of this aircraft.
THE EARL OF KINNOULL: Hear, heara
LORD ST. OSWALD: I should like the noble Lord to follow me carefully, since it was more than a prototype of the sort of advantage which the Government claim to obtain from their offset arrangement with the United States Government. It represents £100 million—280 million dollars; the major part of the 400 million dollars—for collaborative sales to third countries. Moreover, these sales to third countries form a major part of the arrangement as a whole. The story of what I understand to have happened calls into question the whole advantage in concrete terms of these arrangements, and I relate this again to the mention of cost made in my noble friend's Question.
Before December 14 the contract had in fact been agreed between our own salesmen and the Saudi Arabian Government, and as a result the former have been rightly praised and congratulated on both sides of Parliament for their success. On December 14, a delegation of 22 very high-level salesmen, mostly from Lockheed and Raytheon, were flown to Saudi Arabia, led again, according to report, by Mr. Gross, the chairman of Lockheed, and Mr. David Rockefeller. Accompanied by the United States Charge d'Affaires in Rhayad, and backed by a goodwill message from President Johnson, they presented a revised version of the American contract aimed at undercutting and scuppering ours. To that end, they were prepared to cut the price of their own Starfighter sale, in competition with our Lightnings, by no less than 70 million dollars.
Happily, this reported last minute and desperate attempt by the Americans to scoop the contract from under our noses failed. This sort of activity one might say is typical of American high-pressure
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salesmanship. It is widely admired and envied by their competitors. But how Her Majesty's Government can regard it, or describe it, as the Americans "standing back" to make way for us the noble Lord will have to explain, unless he can assure us that the whole report is totally untrue.
7.22 p.m.
LORD SHACKLETON: My Lords, I am grateful to the noble Earl, Lord Kinnoull, for raising this subject and for giving me an opportunity of setting at rest some of the anxieties to which he referred. My speech will relate mainly to the technical points that have been put forward and, indeed, to the Question on the Order Paper. I shall deal rather more briefly with the noble Lord, Lord St. Oswald, at the end.
It would be a disappointment if, following the quite unprecedented amount of information the Government have provided on the reason for and the costs of adopting the F 111A as the Canberra replacement, there were still public concern about the true cost and performance of this aircraft, but after hearing the performance of the noble Lord, Lord St. Oswald, I really rather despair of giving information that will be intelligible to certain members of the Opposition. It is a little trying when a Government have given as much information as we have—information of a kind which was never given by the previous Administration. We have given all the detailed information on cost and performance that we could consistent with security restrictions. If I may say so, we have gone very much further than the previous Administration in giving actual numbers. The noble Lord's Government never gave numbers of purchases of this kind.
I will deal first of all with the particular anxieties that have been expressed. I am not quite clear how far the noble Earl, Lord Kinnoull, is concerned about Press articles and the reports of the United States Congressional examination of a proposal to introduce the FB 111 into the U.S.A.F., and I asked him to which specific aircraft he was referring. He preferred to use the generic title "F 111". Of course, the FB 111 is a totally different aircraft. The rôle in which it is to be employed, and the bomb

865
load which it is to carry, is different. It is not the aircraft we are buying, and the discussions on the FB 111 as a military aircraft to meet the needs of the United States strategic role are not relevant to our situation. I am sure the noble Earl will accept my point.
Having made that point, I will say something about costs. Once again I shall make an attempt to set this forward in terms that may be intelligible, even to the noble Lord, Lord St. Oswald. It is a very difficult problem, because this information has all been given once, but I will give it again and I will try to underline the particular points the noble Earl specifically raised. First of all, as regards the cost of each aircraft, the unit cost, as it is called. Here we have negotiated with the United States a ceiling price, including a contribution to the United States "R and D" costs, of 5.95 million dollars: in other words, £2·1 million for the basic FIIIA. If the average cost over the United States programme works out lower than this, we shall pay that lower price. If it is higher, we shall pay the 5·95 million dollars.
In addition to the basic aircraft—and this was the point about which the noble Earl expressed concern—there are certain special British items we want installed, either instead of United States items, for instance, British communications equipment, or in addition to the United States configuration; in other words, the ability to carry the Anglo-French Martel, or the AJ 168, weapon. On present estimates, the extra costs arising from these special British items will raise the unit cost to around £2½ million. It is hoped—and this is where I should like to come to the noble Earl's fear—to agree on a ceiling price for these extra costs as soon as practicable. But I can only say that his anxiety about escalation—he mentioned a figure of £4,000 million—in my judgment—
THE EARL OF KINNOULL: Four million.
LORD SHACKLETON: I beg the noble Earl's pardon. In my opinion that is quite unjustified. We are hoping to negotiate a ceiling price with regard to this relatively small part of the total package of costs.
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In addition to this present unit cost—and I have given the value of the total capital cost of the buy—there are what we call the programme costs. These are all figures which only two or three months ago no Government had ever given. The programme covers the cost of the aircraft and their support in terms of capital and running costs over the next ten years, and the figure for this comes to about £280 million. I agree that this may need re-reading in order to appreciate it. Out of the £280 million programme costs—and this is over a period of ten years—some £240 million, including United States loan interest, is in dollars. Further dollar payments outside the ten-year support cost period raise the total dollar cost of the programme to the £260 million figure, with which your Lordships are already familiar.
The noble Earl made a point about further orders. As was indicated in paragraph 10 on page 11 of Part I of the Defence White Paper, a total of two orders was envisaged. The first was to be for ten aircraft, and this has now been placed. The second, for a further 40 aircraft, has to be placed not later than April, 1967. The question, therefore, of a further order in the near future does not arise at all. All 50 aircraft will be to the same standard, but because the total order is small and the delivery time scale is tight—the first one is due to come in about 1968, and they should all he in service by the end of 1969 or the beginning of 1970—the scope for substituting British equipment is limited. There will definitely be a British communications fit and there will be a reconnaissance pod which will have at least 85 per cent. British equipment. I should be surprised, however, if the total of British equipment for the whole aircraft were to rise above 10 per cent.
Then the noble Lord referred specifically to the Spey. The installation of the Spey was considered very carefully, but it would have added enormously to the cost for a relatively small order. Noble Lords will recall that a heavy penalty is being paid for installing the Spey into the Phantom. It is not just a question of putting in the engine it means a large amount of special flight testing and some redesign—and let me say in this context that Rolls Royce with the Spey engine, and indeed with other

867
engines, is certainly not short of orders, and also I am satisfied that their position is not endangered by not having had the F 111. Naturally we should have preferred to have the Spey, but it was not economic.
Let me now turn to performance and deal with some of the points made by the noble Earl and also by the noble Lord, Lord St. Oswald. We are already agreed that we are not discussing the FB 111, which is an American strategic aircraft. But I think at this point it might be as well (I had not been aware in what terms the noble Lord was going to raise this) if I said something about the criticism to which he referred as emanating from the United States Forces. It is a fact that in this field of aircraft procurement there is a degree of controversy, carried, if I may say so, in the case of the advocacy for certain other aircraft—and I am not now referring to the F 111A—almost beyond the bounds of decency.
Great pressures have been brought to bear to argue for certain aircraft. I am not saying this in respect of the controversy in the United States of America; and I am not really in a position, nor would it be desirable for me, to comment very much about it. But—and on this I am speaking without being able to check my facts but I hope what I say will give some indication—my impression is that the criticism springs from two main sources. First of all, the United States Navy, I understand, were not very keen on standardisation, and we have had the same thing in this country in relation to the P 1154. Secondly, the United States Air Force do not want to give up their advanced manned supersonic bomber for strategic bombing and rely on the FB 111 for this purpose.
As I understand it, there has been no criticism of a serious kind in relation to the F 111A for tactical strike reconnaissance. If there is any such criticism I have not seen it, and that is why I asked whether the noble Lord could give me a little more information. I am not trying to evade this one; it is a difficult area on which to comment and criticise opinions expressed in other areas, but when I go on to describe some of the developments which have been going on, and our views and how they are based, I hope they will
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to a large extent meet the criticisms which may be in the noble Lord's mind some of which he has specifically mentioned.
During our consideration of the F 111A we paid particular attention to the problems which the prototype aircraft were at that time experiencing in respect of drag and engine performance. Noble Lords will, of course, understand that in any major development programme—I must apologise to your Lordships for speaking for so long, but I have been given a lot of questions to answer—snags will arise and that their solution can often lead to new and different snags. What we had to do was to assess the problems in two main ways: first, to see whether in our view they were likely to be susceptible to a satisfactory solution; and, secondly, to find out what effect they had on our own operational requirement, which one might in rough terms say was the TSR 2 requirement.
We have had the utmost assistance and frankness from the Americans in informing us what steps they have been taking, and I greatly regret the suggestion of the noble Earl, Lord Kinnoull, that General Dynamics have been holding back information from us. As I go on I hope to be able to show that we have access to all the information we need. They have informed us stage by stage of the steps they have been taking to overcome the two main problems connected with engine performance and drag.
So far as the engine performance is concerned, I think I can say that in respect of the R.A.F. requirement the problem has been solved. The noble Lord, Lord St. Oswald, was good enough to give me some advance information on questions of a very technical kind. I trust that he understood them before he asked them, but at any rate I think we shall both understand these ones. He asked in particular about one of the problem areas—compressor stall. There has been trouble with compressor stall, but this is by no means unusual in the early stages of the flight testing of new aircraft and engines, and it should be viewed against the background that the F 111A engines must be capable of effective operation throughout a very wide speed bracket, ranging from as low as 100 knots to a maximum performance in excess of twice the speed of sound. We have full information on the compressor stall problem,

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as on all matters connected with the F 111A flight tests, and the steps which are being taken to remedy it. In short, the problem has been identified and the solution to it is in sight.
Indeed, the modifications the Americans are carrying out already cover the whole of the flight envelope with which we are concerned. "Flight envelope", the noble Lord will recall, is a shorthand technical term which is intended to embrace the type of sorties which the aircraft will be required to carry out; and, of course, these envelopes vary as between different rôles. That is why I can say with great confidence that these engine modifications which are already being carried out or are planned should solve the problem entirely satisfactorily so far as the flight pattern which the R.A.F. requires is concerned. There is still a residual problem in extreme aspects of the United States Air Force profile, but these do not actually concern us in relation to the flight patterns that we want—although here again there is great confidence that they will be solved.
So far as drag is concerned, of course we have known about this for some while, and this is an area where modifications for other reasons (and I refer back to some of my previous remarks) can temporarily add to the problem, because hurried engineering changes may have the unintentional by-product of adding to the drag. This is roughly the position which had been reached a few months ago—noble Lords will recall the Hustler, for instance, which had a similar drag problem at this stage—but more refined designing as the aircraft progresses down its development path is already reducing the drag problem. Wind tunnel tests of further modifications give rise to further optimism. Naturally, we should welcome the complete solution of any drag problem, but I should make it clear that the performance of the aircraft is such that even if none of the drag were recovered the F 111A as at present would fully meet the R.A.F. requirement for range.
The noble Lord asked a question about the 7,000-mile range. This is not a figure with which I am directly familiar. It is one that I think was raised in the Congressional inquiry, and I am not sure whether this was intended to include
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flight refuelling as well, so I cannot make a useful comment. But I would emphasise that already in fact the F 111A meets our requirements in relation to range, and the steps already taken or tried out in wind tunnel tests show how a large proportion of the drag can be eliminated and the aircraft's performance improved.
I was asked a number of other specific questions in relation to performance. The noble Earl asked whether the aircraft would be 6,000 lb. overweight in the operational condition and whether the military payload would have to suffer. The noble Earl is of course well aware that weight growth is a special problem with new aircraft. So far as the United States Air Force variant of the aircraft is concerned—this is the one we are interested in—there is no question of the current weight adversely affecting payload. I believe that the United States Navy are embarking on a weight-saving exercise because they have a special problem in relation to carrier operation.
The noble Lord, Lord St. Oswald, asked whether there had been any excessive stick loading in pitch during variable geometry tests, during the swing. The answer is wholly to the contrary: trim changes during wing sweeping have proved to be negligble and in fact are much smaller in magnitude than the trim changes that occur with undercarriage or flap lowering on most aircraft. On this subject of wing sweeping, the noble Earl asked, when the F 111A was being used in the conventional rôle, what the effect of the bomb load would be on the sweeping wings. It is true that when the F 111A is carrying the maximum possible bomb load—and the number of bombs the Americans are proposing to hang on it is quite staggering—the wings cannot be swept. But this must be set in context. The aircraft's maximum bomb load is enormous. Even with the wings fully swept a high load of conventional armaments can be carried, nearly as much as the maximum conventional load of the Vulcan. And in this swept position a significant number of bombs can be carried externally—presumably the pylons swivel with the wings in addition to any fixed pylons—in addition to those carried internally.
The noble Earl asked whether there had been any practical demonstration of the F 111A's ability to achieve at full

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military load the range which had been claimed for it. I think it is a little naive to expect this to be done before the aircraft has been developed to this stage. Obviously everybody will wait for it to carry out the fullest possible trials. New aircraft have to be progressively tested up to the extent of their design capability. The performance trials on the F 111A have not yet reached the stage where full range performance has been tested; but long-range flights have already been undertaken and they give no reason to suppose that the aircraft design range will not be achieved, and analysis of flight data to date supports this view. So there are good grounds for confidence.
I should like to say something about our confidence in this project generally. We have all had bitter experiences in relation to aircraft. Confidence at this stage of development is, I feel, compounded of judgment, experience and assessment of the scientific and industrial effort; and of course there is an enormous industrial effort going into it. I do not think I should be painting an unduly optimistic picture if I said that the Royal Air Force has firm confidence in the outcome of the F IIIA programme. This confidence is derived from the very great success of the flying programme so far. I have already referred to the tremendous industrial effort and expertise and the way in which the various stages—and this is one of the most impressive things—of the programme are being ticked off right tip to schedule.
I should like to give some figures on this which will give some idea of the magnitude of the American effort. At the end of last month, no fewer than 13 F 111 aircraft were flying. The majority were F 111As and a few were F IIIBs, (which is the United States Navy version, and not, of course, the FB-IIIs). These 13 aircraft had made over 561 flights, 51 of which were at Mach. 2 or more, and the designed low level speed of Mach. 1.2 had been achieved. I should say here that in flying at supersonic speeds the F 1I1A has a high fuel consumption rate. I cannot remember whether the noble Earl referred to that—he had given me notice. I might perhaps mention that the figure of 1,000 lb. of fuel per minute, which to a layman seems staggering, is not exces-
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sive with modern aircraft flying supersonic at sea level. It is comparable to the sort of fuel consumption the TSR 2 would have had.
As the project develops, we are keeping closely in touch with the progress through a team of specialists working with the F IIIA project in the United States and based on the Wright Patterson airfield, the headquarters of the F 111 project office. As an integral part of the aircraft's intensive development programme, one R.A.F. pilot, an experienced wing commander, has flown and reported on the F 111A twice to date. I should have liked the noble Lord to tell me how many R.A.F. pilots he thinks it necessary to have in order to assess the performance of this aircraft when we know about its progress. We thought that further flights by R.A.F. pilots would be unlikely to advance the test programme. The test programme is advancing rapidly. Flights by the 13 F 111 aircraft totalled some 918¼ hours by the end of April, of which 39 hours were at supersonic speeds. Flight time is being added at approximately 10 hours a day. These are impressive figures.
The Government's aim is to give as much information as they can. Perhaps I should now turn to the noble Lord, Lord St. Oswald. I think I should like to treat him kindly. I must say I am astonished that, without giving notice on a specific narrow Question, he should raise these rather wider questions, but I will try to give a little information. First of all, he had some comments on deployment. I really cannot discuss on this Question the deployment of the F 111A; somebody must have regard for the custom of the House in this matter. But there was an interesting point he made in this context in regard to serviceability, and this, I appreciate, is a very great problem. We have had, and we are continually having, problems of serviceability and corrosion in certain areas; but one of the great virtues of the F 111A as compared with the TSR 2 (and this is something I have mentioned in another debate) is the ease and accessibility of the F 111A for servicing. Much of the equipment has built-in test facilities, and access can clearly be got with just a screwdriver. One of the striking things is the development of

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serviceability and maintainability which has gone on under contractual conditions in the United States Air Force.
There was a further point that was raised by the noble Lord, Lord St. Oswald, or it may have been the noble Earl, with regard to spares. Of course we have this satisfactory arrangement with the United States by which, through their co-operative logistic systems, we get spares at the same price as the United States Air Force do. With regard to British equipment we shall make appropriate arrangements for servicing, and of course some of the equipment which we are putting in will be common to equipment in other aircraft which the R.A.F. will be flying, so that it will not unduly strain this remarkable organisation which is concerned with maintenance to provide the necessary support.
I am doubtful about going further into this question of the offset agreement tonight. The noble Lord and I both sat through the debate in another place. I think that perhaps he reacted a little more vigorously under his breath to some of the remarks than I did. I can only say—I say this quite sincerely—that I do not find the inconsistencies he finds. I am not saying that we should not give all this information. There are those who advise Ministers to give no information to Parliament because it only means they will get into trouble. But I think it is the duty of Government to give as much information as possible. If the noble Lord really wishes to pursue this matter further, after yesterday's debate in another place, I shall be glad to give some further information.
LORD ST. OSWALD: My Lords, I, as a friend, do not wish to see the noble Lord continuing to labour under this invisible and, I hope, unnecessary burden. He keeps protesting against charges which I have never made. I never said, I think, in the course of my speech that too little information was given by the Government. What I said, and what he put his finger on a moment ago, was that so much of the information they gave was contradictory.
LORD SHACKLETON: I find all this most difficult. A point comes in life when you give up and say, "It is no good explaining; the boy just has not
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got it". I am not worried about the invisible burden. I am conscious that I have spoken for the best part of half-an-hour on what I had thought originally was intended to be a narrow Question. I do not wish to go further into this. I should be quite happy, however, to provide a private tutorial for the noble Lord, and to take him through it stage by stage. I find that occasionally private tutorials do what lectures often fail to achieve.
LORD ST. OSWALD: My Lords, the noble Lord's difficulty will be that he will not be able to have his course cleared by what his colleagues in the Government say, because they have all been saying different things.
LORD SHACKLETON: My Lords, the noble Lord has, I think, made the best he can out of this, and I do not think I will take it any further.
There is one final point—namely, whether it is possible that this aircraft will be cancelled on the Skybolt basis. The situation is in no way comparable. Skybolt was not funded. These aircraft are funded, and large numbers have been ordered. If there is one thing that is going to be certain, whatever else is in issue, it is that, unless there is an astonishing change in the world situation, the F111A will go into service in large numbers in the United States Air Force.
My Lords, I have said enough. I have done my best with regard to the questions of the noble Lord, Lord St. Oswald, and I hope that I have answered the noble Earl's points.
LORD MERRTVALE: My Lords, I did not wish to interrupt the noble Lord, but on a point of clarification, as I have not spoken—
LORD SHACKLETON: My Lords, may I interrupt the noble Lord to say that I shall have no right of reply, and it is a most unusual thing—
LORD MERRIVALE: This is on a point of clarification.
LORD SHACKLETON: All right.
LORD MERRIVALE: It is purely a question of clarification, on the number of aircraft to be ordered. I did not wish to interrupt the noble Lord in the middle of a sentence. He said that 10 F111As had been ordered and that 40 are to be ordered. His right honourable friend the Under-Secretary of State for Defence for the Air Force said in another place yesterday that these F 111As were to fill an operational gap. Is it the intention of Her Majesty's Government to go beyond the 50 which have been mentioned in the Defence White Paper?
LORD SHACKLETON: My Lords, I thought the noble Lord took part in some of the Defence debates, and this information has been given. It has been made perfectly clear that we have bought these 50 aircraft; but the future main combat aircraft is going to be the Anglo-French aircraft.

LEEDS CORPORATION BILL [PETITION FOR ADDITIONAL PROVISION]
Examiners Certificate that the Standing Orders have not been complied with: referred to the Standing Orders Committee.
SCOTTISH UNION AND NATIONAL INSURANCE COMPANY BILL [H.L.]
  HUYTON-WITH-ROBY URBAN DISTRICT COUNCIL BILL [H.L.]
  Reported, with Amendments.

PROCEDURE OF THE HOUSE
First and Second Reports from the Committee made, and to be printed.
House adjourned at five minutes before eight o'clock.