Lords Sitting of 17 April 1967

Preamble
The House met at half past two of the clock. The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Wakefield

NIGERIA
2.36 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 there is a chance of successful mediation by other Commonwealth Governments in the dispute between the Nigerian Federal Government on the one hand and the Eastern Regional Government on the other, and if so whether they will use their good offices to bring about this mediation.]
THE PARLIAMENTARY UNDER-SECRETARY OF STATE FOR COMMONWEALTH AFFAIRS (LORD BESWICK): My Lords, we want to see Nigeria and her people emerge peacefully united from their present difficulties, and are very ready to do anything reasonable to help. We would not, of course, attempt
2
to use our good offices uninvited. I cannot speak for the position of other Commonwealth Governments.
LORD OGMORE: My Lords, is it possible to do something through the Secretariat of the Commonwealth Conference? Is it possible that the Secretary-General might be able to arrange mediation, not necessarily from us, but from one of the other Commonwealth countries?
LORD BESWICK: My Lords, I am sure that the Secretary-General is greatly concerned, as we all are, at any situation of this kind in any member State of the Commonwealth. I know that he is well informed of what is happening. Mr. Adu, his assistant, was there recently. However, it is not for me to say what the Secretary-General may or may not do.
LORD BROCKWAY: My Lords, in view of the fact that our Government are part of the Commonwealth Secretariat, is it not possible for them to take the initiative in urging upon the Commonwealth Secretariat that they should use their good offices in this matter?
LORD BESWICK: My Lords, our good will, and the good will of the Commonwealth generally, is well known; but, as my noble friend is well aware, Nigeria is an independent country. We do not necessarily help by appearing to be interfering in the affairs of another country.

CHILD MAINTENANCE ORDER PAYMENTS
2.38 p.m.
LORD WELLS-PESTELL: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government why money which has been paid into the West London Magistrates' Court under a matrimonial order—part of which was for the maintenance of a child of the marriage—and has accrued owing to the death of the mother—cannot be paid to the East Suffolk County Council, as the child is in their care.]
THE JOINT PARLIAMENTARY UNDER-SECRETARY OF STATE, HOME OFFICE (LORD STONHAM): My Lords, the death of the person to whom payments must be made under a matrimonial order brings to an end any further liability under that order. The disposal of payments made to the clerk of the court after such a contingency is the responsibility of the clerk. It is not for me to determine a legal issue, but I am advised that, under the existing law, the County Council has no title to this money.
LORD WELLS-PESTELL: My Lords, while thanking my noble friend for his reply, may I ask him, first, whether his Department would assist the County Council in trying to trace the father, as they have the child in care, at considerable cost to the ratepayers; and, secondly, whether the Department would consider legislation to make possible the payment from the court to a local authority where the child is in care?
LORD STONHAM: With regard to my noble friend's first supplementary question, steps have been taken which will make it possible in the future to get in touch with the father. Extensive inquiries have already been made, and are continuing. The position of the existing law relating to the disposal of money in the hands of the clerk has been noted for review, but it is not possible for me to hold out any prospect of early legislation.
LORD DERWENT: My Lords, was not this question brought up in the debate the
4
other day? The child has no right in the money; the right is the mother's. Was it not brought out in the debate that we should get nearer to the Continental system, where the child has the right? Are the Government starting to consider this question?
LORD STONHAM: My Lords, the noble Lord is quite right. In this case the order has been discharged because of the death of the mother. As I indicated in my reply to my noble friend, this loophole, as it were, has been noted and is being considered for future legislation.
LORD ROYLE: My Lords, could my noble friend say what the situation is if it is not a question of a child in the care of the local authority, but of a an aunt or grandparent? Who maintains the child in those circumstances?
LORD STONHAM: My Lords, so far as actual money paid in is concerned—in this case an accumulation of money which was paid out after the death of the mother—the position would be exactly the same for a relative as it is for a local authority. The remedy under present law would be exactly the same; in other words, to seek in court a maintenance order for the child against the father.
LORD OGMORE: My Lords, could the noble Lord explain what happens to the money? Where does it go?
LORD STONHAM: My Lords, the disposal of the money rests entirely with the clerk of the court. The rules which he has to follow are that the first title to the money is to the beneficiary under the order, so long as that person is still alive. But in a case like this, where the order has been discharged, disposal depends on the circumstances. If any of the money relates to obligations which arose before the discharge of the order, the estate of the beneficiary may be able to lay some claim to it; but where the money related to the period after the discharge of the order, the only person with title is the payer himself.
LORD WELLS-PESTELL: My Lords, bearing in mind that this child went into care within a matter of five weeks of his mother's death, if the father is not found within a reasonable time, could something

5
be done to see that instruction is given to the Senior Chief Clerk of the West London Magistrates' Court to pay the money over to the East Suffolk County Council? Otherwise, if the father is not found, the County Council cannot take action against him, and this money so far as one can see, will remain indefinitely with the West London Court.
LORD STONHAM: My Lords, my right honourable friend the Home Secretary has no power under existing law to instruct the Clerk of the Court to pay this money over to the County Council, and, as I said in my first reply, the County Council have no title to it. Therefore, in a case of this kind it is a matter for the Clerk to dispose of the accumulated monies in the way that I mentioned in my reply to a supplementary from the noble Lord, Lord Ogmore. The only way of dealing satisfactorily with a case of this kind is further legislation.
LORD WELLS-PESTELL: My Lords, am I not right in saying that if money accrues in a magistrates' court for a period of six months or more the clerk of the court is bound to return that money to the Home Office?
LORD STONHAM: My Lords, certainly not in all cases; because this is a case where he is not bound to return the money to the Home Office. In fact, he can dispose of it only in exactly one of the ways I mentioned in my reply to the question of the noble Lord, Lord Ogmore.

GIBRALTAR: AIR TRAFFIC RESTRICTIONS
2.44 p.m.
LORD MERRIVALE: 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 be in a position to announce the effect that the restrictions, recently announced by the Spanish Government, will have on civilian air traffic to and from Gibraltar; and what measures, if need be, will be taken to guarantee the right of our airlines to land at and take off from Gibraltar Airfield.]
LORD BESWICK: My Lords, I regret that I cannot yet inform the noble Lord
6
when it will be possible to make the further statement that I promised on April 13. We are urgently considering all aspects of the latest Spanish action and the consequential measures we need to take.
LORD MERRIVALE: My Lords, would the noble Lord not agree that this country has a very strong case to put before the I.C.A.O.? Also, is it not a fact that, according to the Convention, any ban by the Spanish Government must not unnecessarily or unreasonably disrupt communications? Therefore, is it not a fact that any ban would have to provide for some air corridor?
LORD BESWICK: My Lords, I quite agree with the noble Lord that we should have an extremely strong case if we took this matter to the I.C.A.O. The actual words of Article 9 of the Convention call attention to the fact that any zone must be of—and I quote:
"reasonable extent and location so as not to interfere unnecessarily with air navigation."
That, obviously, would give us a very good case; but it is still a matter for decision as to whether our course of action, or intention to uphold our right, would be better pursued with the I.C.A.O. or elsewhere.
LORD MANCROFT: My Lords, is it not clear that, whatever may be the effect of the present inhibitions instilled by the Spanish Government, it is their ultimate intention to impose complete interference with all civil communications with Gibraltar; and would it not be safer for Her Majesty's Government to base their plans on that assumption?
LORD BESWICK: My Lords, I know of no indications to suggest that we are basing our plans on any other assumption.
LORD ROWLEY: My Lords, in view of the threat to air safety, to which reference was made last week, may I ask my noble friend whether Her Majesty's Government have now received the charts which are so vital in connection with this problem?
LORD BESWICK: My Lords, I quite agree with my noble friend. It is a fact that we thought it was not possible to come to any further conclusion until we had seen the charts on which the zones were actually marked. We have now received these charts. The de-limitation

7
of the zones ends at the point at which they reach the Spanish coast. The lines are not extended over the waters of the bay, and, of course, it is precisely the extent of our waters that is the matter of dispute. We are therefore not very much further advanced by having the charts to which I referred last Thursday.
LORD MERRIVALE: My Lords, could the noble Lord confirm one point in a statement made by a senior Royal Air Force officer recently in Gibraltar? His statement was to the effect that, as there are a large number of navigational aids on the Rock which aircraft can use to cross-check their equipment, any violation of Spanish territory could only possibly occur if there were an unlikely combination of bad weather, pilot error and last-minute technical failures on the ground as well as in the aircraft, under present arrangements.
LORD BESWICK: My Lords, I can conceive that there might be a combination of circumstances of trouble with aircraft and bad weather conditions under which some violation of air space might well take place. This is possible in any part of the world, and I should have thought that any civilised country would accept this kind of contingency. But otherwise, in ordinary operation, we maintain that there has been no deliberate violation of Spanish air space.
LORD OGMORE: My Lords, is the noble Lord quite right? It has been said that when there is an easterly wind blowing it is dangerous for a civil airliner to try to get in on the airstrip at Gibraltar. If this is so, does it not put a completely different complexion on the Spanish attempt to make a zone, even though that zone does not extend into the sea?
LORD BESWICK: My Lords, there are difficulties in getting into this airstrip in Gibraltar. As I said before, it was my job at one time to go in there two or three times a week. It is not the most simple of operations, but it can be done quite safely and without violating any Spanish territory. We propose to continue to carry out operations so far as both civil airlines and military aircraft are concerned.
LORD AILWYN: My Lords, may an ignoramus ask what those queer letters, "I.C.A.O." refer to?
LORD BESWICK: International Civil Aviation Organisation.

ABINGDON GASHOLDER
2.49 p.m.
THE EARL OF LINDSEY AND ABINGDON: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government why the Minister of Housing and Local Government decided not to confirm a direction which would have given the Berkshire County Council planning control over the building by the Southern Gas Board of a 128 ft. high gasholder in the centre of Abingdon.]
THE PARLIAMENTARY SECRETARY, MINISTRY OF HOUSING AND LOCAL GOVERNMENT (LORD KENNET): My Lords, my right honourable friend has to-day confirmed the direction submitted to him by the Berkshire County Council.
THE EARL OF LINDSEY AND ABINGDON: My Lords, I thank the noble Lord for that very encouraging reply. But, in view of the intense public interest shown in this particular case, will the Government in future consider introducing legislation whereby statutory undertakings are brought under the same stringent planning control as private undertakings?
LORD KENNET: My Lords, the present arrangements governing the duty of statutory undertakings to obtain planning permission are, as the House knows, some years old, and, like other aspects of the planning system which are some years old, they are under continuous review.
LORD CONESFORD: My Lords, may I ask the noble Lord, whose own concern for matters of architectural beauty we all recognise, whether he is aware that the Answer he has given to the Question will give great satisfaction? May I further ask him whether he recognises that the present proposals of the Gas Board would do great injury to a lovely old town of outstanding value, and that,

9
no matter what anybody else thought about it, that could not be a matter of indifference to Her Majesty's Government? May I ask him, finally, whether they have sought the advice in this matter of the Royal Fine Art Commission?
LORD KENNET: My Lords, the pros and cons of the particular case of the gasholder at Abingdon are complicated and rather nicely balanced. I think I am right in saying that so far as my right honourable friend is concerned he has not himself sought the advice of the Royal Fine Art Commission.

PRICES AND INCOMES
BARONESS PHILLIPS: My Lords, at a suitable moment after 3.30 p.m. my noble friend Lord Shepherd will be making a Statement on prices and incomes powers.

HOUSING SUBSIDIES BILL
2.53 p.m.
Order of the Day for the House to be put into Committee read.
Moved, That the House do now resolve itself into Committee.—(Lord Kennet.)
On Question, Motion agreed to.
House in Committee accordingly.
[The EARL OF LISTOWEL in the Chair.]
Clause 1 [New provisions for financial assistance towards provision of dwellings]:
LORD KENNET: This is essentially a drafting Amendment which is designed to relate the wording of the retro-spective paragraph (3)(c) more precisely to the qualifying tests announced by the Minister in reply to a Parliamentary Question in another place on December 20. I am not sure into how much detail the Committee would like me to go, but if the Committee is content to take it as a drafting Amendment on a matter already known and agreed, I am happy to move it shortly.
Amendment moved—
Page 2, line 25, leave out "there is" and insert ("at that date, on the information which
10
had by then been made available to the Minister, there was").—(Lord Kennet.)
LORD BROOKE OF CUMNOR: I see no objection at all to this Amendment. It seems to me to add precision to what the Minister is actually undertaking to do here. In passing, I must express some regret that the Government have not at the same time seen their way to alter the wording of another passage in this same subsection—subsection (3)(c) of Clause 1—where on Second Reading I criticised the use of the words "unreasonable" and "unreasonably", here as elsewhere in the Bill. But all these are in fact retrospective matters, as they are dealing with what is to happen about things that have occurred in the past; and as the Minister has already published a list of the local authorities that are to benefit under this wording, whatever the final wording may be, I certainly should not wish to press the matter further.
On Question, Amendment agreed to.
Clause 1, as amended, agreed to.
Clause 2 agreed to.
Clause 3:
Ascertainment of approved cost of dwelling
3.—
(5) The Minister may determine that the approved cost of any dwelling shall be reduced by deducting from the cost incurred as aforesaid in respect thereof as determined in accordance with the foregoing provisions of this section an amount not exceeding the amount, if any, by which the part of that cost referred to in subsection (3) of this section exceeds what in the opinion of the Minister, having regard to all the circumstances of the case, should be the reasonable and appropriate cost (apart from any cost attributable to the acquisition of a site) of providing an adequate dwelling in those circumstances.
LORD BROOKE OF CUMNOR LORD BROOKE OF CUMNOR moved, in subsection (5), after the words, "providing an adequate dwelling", to insert, "of similar character". The noble Lord said: This is a small point arising on Clause 3, which provides for the ascertainment of the approved cost of a dwelling. It is important, under the new scheme embodied in the Bill, to arrive at the approved cost in order to calculate what the appropriate amount of subsidy should be. In subsection (5) of the clause it says that the Minister may in certain

11
circumstances determine that the approved cost of the dwelling shall be reduced, in particular if the original tender cost exceeded the
"reasonable and appropriate cost … of providing an adequate dwelling"
in the circumstances.
I think it is common ground on all sides of the House that we want local authorities to go forward with the building of different types of dwelling. Indeed, I should have thought it was hardly possible to contemplate that the local authorities would reach the kind of target which the Government has set before them unless they were prepared to order buildings of industrialised or non-traditional type as well as the traditional type of brick house. We know, however, from past experience, that, at any rate in the first instance, the tenders they will receive for new and non-traditional types may well be higher than for the tried traditional types. So far as I am aware this has been the experience ever since the war, when various manufacturers have been seeking to get non-traditional types accepted. Until a stage is reached where very large orders can be placed and the manufacturer knows that he has a long run to go ahead with, it may be inevitable that he will have to quote a somewhat higher price for the new type of non-traditional house than for the accepted traditional type.
It seems to me that unless the Government are prepared to accept an Amendment such as I have put down there may be a deterrent to local authorities interesting themselves in non-traditional building. My Amendment suggests that the criterion should be not the "reasonable and appropriate cost of providing an adequate dwelling" but
"the reasonable and appropriate cost of providing an adequate dwelling of similar character."
The reason why I have chosen those words is to give an assurance to the local authority that if it decides to place an order for some new type of house it need not fear that the Minister will deduct from the approved cost on which he pays subsidy any excess by which that new type of house may exceed the cost of the traditional type.
I do not know whether the Government are going to accept this Amendment or
12
whether they see some other way of meeting the difficulty, but I think it must be common ground between us that nothing should be done to deter local authorities from experimenting with new types of building if by this means they are going to increase their chance of reaching their housing targets, which in certain circumstances they might not be able to do if they had to rely entirely on types of building to which they have been accustomed hitherto. I think my Amendment would overcome the difficulty. I do not intend to press it if the noble Lord, Lord Kennet, can explain whether there is any other way in which this genuine difficulty can be met.
Amendment moved—
Page 5, line 33, after ("dwelling") insert ("of similar character")—(Lord Brooke of Cumnor.)
LORD LEATHERLAND: On this day above all I hardly think that the noble Lord will expect me to be much in harmony with the views he has expressed. Nevertheless, I realise the great importance of the contribution which industrialised building can make to municipal housing schemes. A few weeks ago, it was my pleasure to unlock the first door on a housing estate that had been erected by industrialised methods by a company with whom I happen to enjoy friendly personal relations, and I sincerely hope that every possible encouragement will be given to local authorities to switch over from traditional methods to industrialised building, particularly those who have orders for only 100 or 200 houses to place. If arrangements can be made for them to organise consortia, all the better. But they will not take that step so long as they find that the cost of industrialised building exceeds the cost of building traditional houses, as it must inevitably do in the early stages of industrialised building.
That is not the main reason why I rose to my feet. It is to draw attention to the phraseology of this clause. Those of us who operate in local government circles—I suppose I should almost say those who still operate in local government circles—sometimes find difficulty in interpreting these measures. May I read the subsection? It says:
"The Minister may determine that the approved cost of any dwelling shall be reduced by deducting from the cost incurred as aforesaid in respect thereof as determined in accordance with the foregoing provisions of this

13
section an amount not exceeding the amount, if any, by which the part of that cost referred to in subsection (3) of this section exceeds what in the opinion of the Minister, having regard to all the circumstances of the case, should be the reasonable and appropriate cost (apart from any cost attributable to the acquisition of a site) of providing an adequate dwelling in those circumstances."
I think that it would be simpler if we could think of a number, double it, and take away the first one! I am not criticising the Parliamentary draftsmen or my noble friend, but I would add my appeal to many that have been made in this House in recent months, that when legislation is brought before us we should have it in a form in which simple people can understand it.
LORD KENNET: If I may address myself to my noble friend's plea, I sympathise with him—I am sure we all do—in his difficulty in understanding these clauses as they have to be drafted. If he wishes—and perhaps he would inform me afterwards privately—I will try my hand at interpreting the clause and give the result to the House at the next stage of our discussions.
The purpose of the clause, in simple language, is to enable the Minister to reduce the amount on which subsidy will be payable, other than land costs, of any dwelling by any sum by which the total cost of that dwelling in his opinion exceeds what is a reasonable and appropriate cost for providing an adequate dwelling in all circumstances. It is very permissive. If I may address myself to the noble Lord's Amendment, it is true that some industrialised systems may cost more than traditional methods, particularly if used on a short run, which does not permit the economies of scale possible on a long run, but for some types of building, particularly for high and medium rise flats, industrialised building tends to be cheaper than traditional.
In general, industrialised building is well established, and it is reasonable that it should compete on level terms with traditional construction. The new cost limits to which local authorities will have to work as a result of this Bill are based on recent tenders and include a proportion of industrialised schemes. Good systems, efficiently used and in the right place, should come within the cost limits in the same way as economically
14
designed and well-organised traditional schemes. In all forms of construction, the inherent cost of the materials and methods used is only one of the factors which determine cost. Another is the ability of the contractor to organise the work economically. Therefore, we think that in general it would be wrong to discriminate against traditional construction by permitting higher subsidies to be paid for non-traditional construction. By helping to weed out the less efficient industrialised systems, we can ensure that the better ones get a bigger share of the market, which is public policy, and so realise the economies of scale which are potentially inherent in system building.
I suspect that an unintended consequence of the Amendment would be to limit the Minister's power to reduce costs by requiring him to have regard to the design and standards of the dwellings submitted for subsidy. This would mean that the Minister would not be able to reduce the cost of a dwelling approved for subsidy to take account of what in his opinion was uneconomic design or excessively high standards. In other words, he could operate control over costs but not over standards, which is a different matter. The new subsidy has the characteristics of a percentage grant and therefore increases as the cost of a house increases. Consequently, it is only reasonable and prudent that the Minister should have discretion to reduce costs which he considers to be excessive in order to safeguard the taxpayer. For this reason I cannot advise the House to accept this Amendment.
There is a general point of which it is important not to lose sight. The cost of housing generally throughout the country has to be sensibly limited because, unless this is done, some authorities may consume a larger share of the available resources at the expense of others, with the result that there will be fewer houses built. The characteristic of this new grant is that if a local authority were to do this, it would automatically decrease the amount of money available to others. Let me remind the Committee of what my noble friend Lord Sorensen said on Second Reading, that the new cost yardstick tables will be based on the high modern standards which were recommended in the Parker Morris Committee's Report. I appreciate the constructive

15
frame of mind in which the noble Lord advanced this Amendment, and if he would agree to withdraw it, I think that another method may be found to achieve the purpose he has in mind.
LORD BROOKE OF CUMNOR: I am grateful to the noble Lord, Lord Kennet, for what he has said, although he has not gone so far as I should have liked. I know he appreciates that I put this Amendment down in order to draw attention to the point, and that I never believed for one moment that the wording was sufficiently exact to avoid having some unintended consequences in other directions, as he suggested. I certainly was not desiring to provide loopholes for local authorities to obtain subsidies on houses of extravagant design.
I wonder whether the noble Lord would consider this suggestion, among other courses: that when the Minister sends out a circular expounding the provisions of the Bill after it has become an Act of Parliament, as is the normal course when Housing Bills reach the Statute Book, he would make the point I was seeking to make, that local authorities should not be deterred from considering the placing of orders for industrialised buildings by the feeling that on that account alone they might bring themselves within the mischief of subsection (5). It may be that the noble Lord has in mind some other means of doing this. I appreciate his kindness in recognising that there is a point of substance here, and if he will continue to think about the matter I shall be happy to ask leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 3 shall stand part of the Bill?
LORD ROYLE: I cannot refrain from saying a few words in support of my noble friend Lord Leatherland in his renewed protest against the phraseology of subsection (5). A fortnight ago I took the opportunity to make a similar protest with regard to the Road Safety Bill when it was in Committee. Since I first entered another place, 22 years ago, I have heard this protest made time and time again, calling for the simplification of Acts of Parliament and Orders of various kinds. We live in a time when there is some criticism about your Lordships' House
16
as to the contribution we make to Parliamentary life in general, and it seems to me that the time has now come when one of the contributions we might make is consistently and constantly to point out the necessity for simplification in the drafting of our Bills and Orders. I want to support my noble friend in this, and I think that perhaps the more often we say it the greater is the chance that there will be simpler language in our legislation.
LORD LEATHERLAND: I shall be brief in dealing with one small point. In our discussions on this clause we have referred to the qualities of houses and whether a house that is built in substitution for another shall be necessarily of the same quality. In dealing with that point my noble friend touched on the Parker Morris standards, and said that houses to be built in the future would be built to those standards. A few days ago I saw in one of the less reliable of our newspapers a suggestion that the Minister was going to abandon the Parker Morris standards, and was going to tell local authorities that in future they could build below those standards, with his blessing. I rather gathered from my noble friend that in fact the Parker Morris standards are to be upheld, and I should be delighted if he could give me an assurance to that effect.
LORD KENNET: Willingly, my Lords. The yardstick at present under preparation and discussion with the local authority associations is based on the Parker Morris standards.
Clause 3 agreed to.
Clause 4 agreed to.
Clause 5 [Subsidies for dwellings provided to meet special needs]:
On Question, Whether Clause 5 shall stand part of the Bill?
LORD BROOKE OF CUMNOR: There is one question I should like to raise on Clause 5. Here again we have the ambiguous word "unreasonably" which occurs in subsection (1)(b), and again in subsection (2)(b). I regret that we have to use words of this kind in housing legislation, although I am quite sure that I was frequently guilty of it myself and was no doubt criticised by the other side

17
at the time. I believe I am right in saying that the Minister has circulated to the local authority associations his draft proposals for determining the criteria for these discretionary additional subsidies. The question of "unreasonable" or "reasonable" is in effect a question between the Minister and the local authorities. Those are the parties concerned, and if in fact the Minister and the local authorities have reached agreement as to what is reasonable or what is unreasonable, it certainly would not seem to me necessary for Parliament to seek to substitute a different word.
If I am right in thinking that conversations have been initiated by the Minister with the local authorities as to the principles on which the criteria in Clause 5 are to apply, could the noble Lord, Lord Kennet, tell us whether those discussions have been concluded amicably or otherwise, and whether there is agreement between the Minister and the local authority associations as to the application of this clause? I think that is the information which your Lordships would most like to have.
LORD KENNET: It is true that there are discussions in progress (I am not informed that they have yet been concluded) between the Department and the local authority associations, and I understand that the word "unreasonably" as compared with another word such as, for instance, "unduly" does not give rise to difficulty.
LORD BROOKE OF CUMNOR: I am grateful to the noble Lord. As this will not be the final stage of the Bill, perhaps he could take steps to keep your Lordships' House informed at later stages of the Bill here as to whether these conversations have been concluded, because it is quite an important matter so far as this clause is concerned.
Clause 5 agreed to.
Clauses 6 to 8 agreed to.
Clause 9 [Contributions between authorities]:
LORD KENNET: This is the first of four related drafting Amendments which I propose to move formally, if the Committee are willing. I beg to move.
Amendment moved—
Page 8, line 24, leave out ("1964") and insert ("1965").—(Lord Kennet.)
On Question, Amendment agreed to.
LORD KENNET: I beg to move Amendment No. 4.
Amendment moved—
Page 8, line 35, leave out ("1964") and insert ("1965").—(Lord Kennet.)
On Question, Amendment agreed to.
Clause 9, as amended, agreed to.
Clause 10 [Expensive site subsidies]:
Lord KENNET Lord KENNET moved, in subsection (1), to leave out from "on the ground that otherwise the", to the end of the subsection, and to insert:
"cost to the recipient authority of providing dwellings on the site would, in the opinion of the Minister, be unduly high in the circumstances of the case."
The noble Lord said: I can perhaps best explain the reason for this Amendment by explaining what is the general provision which we want to secure. The last few lines of subsection (1) of Clause 10 provide that the expensive site subsidy payable shall not exceed a certain limit unless the Minister determines that it should be higher. The limit is set out in subsection (2): it is the point at which the expensive site subsidy plus the basic land-cost subsidy would exceed 75 per cent of the loan charges.
The need for the Amendment has arisen because when we came to working out the detailed rules for administering the Minister's discretion under subsection (1) we found that it really was not practical and sensible to relate the cost of providing dwellings on a particular site which might be quite small, although expensive, to the total rate fund or the general level of rents charged by the recipient authority. Any other case would have bound the Minister to have evidence before him of how the high cost of a site, which might have been quite small—only a few acres, with ten or even fewer houses—would show up on the total rate burden of what might be a very large housing authority. In practical terms, this was an impossible proposition and therefore we came to the conclusion that the wording in the Bill ought to be changed. The new wording gives the Minister freedom to help on an expensive

19
site, however small it is, even when the cost would not show up in the total rate burden of the housing authority concerned. I beg to move.
Amendment moved—
Page 9, line 42, leave out from first ("the") to the end of line 2 on page 10, and insert the said words.—(Lord Kennet.)
LORD BROOKE OF CUMNOR: This Amendment concerns another of the passages in the Bill which I criticised on Second Reading for the use of the word "unreasonably". I do not know how much satisfaction I can draw from the fact that "unreasonably" is now replaced by "unduly", but at any rate I feel that I have achieved something, some return to myself, and I hope some return to the Government, because, as I understand what the noble Lord has just said, further examination of that passage as it stood revealed that the wording was not wholly satisfactory and would have been difficult to apply. So in that respect, too, I claim some small credit for having directed attention to this passage, and I am happy that the Government have devised this new form of words.
On Question, Amendment agreed to.
Clause 10, as amended, agreed to.
Clause 11 [Advances on account of expensive site subsidies]:
LORD KENNET: I beg formally to move Amendment No. 6.
Amendment moved—
Page 10, line 4, leave out ("1964") and insert ("1965").—(Lord Kennet.)
On Question, Amendment agreed to.
Clause 11, as amended, agreed to.
Clauses 12 and 13 agreed to.
LORD BROOKE OF CUMNOR LORD BROOKE OF CUMNOR moved, after Clause 13, to insert the following new clause:
Subsidies under Part I not payable in certain circumstances
" . In respect of any year during which a local authority fails to satisfy the Minister that it grants rent relief only to those of its tenants who need it and to the extent that they need it, no subsidies shall be payable under this Part of this Act to that local authority."
The noble Lord said: I beg to move the Amendment standing in my name, to
20
insert the new clause. This is a more important point. The whole reasoning that underlies housing subsidies is that the Exchequer should provide cash grants to those local authorities which would not otherwise be able to proceed with their housing programmes without either seeking to charge the tenants rents higher than they could pay, or having to add to a rate burden, which in all the circumstances would be unreasonable. It certainly seems to me, and I think it is widely accepted, that the subsidy from the Exchequer—that is, from the taxpayer—should be a kind of topping-up operation, after it has been ascertained that without an Exchequer subsidy it would be unavoidable for a local authority to impose unreasonable burdens either on its tenants or on its ratepayers.
Its tenants must be considered, because if would be wrong for a local authority to hop about up and down its waiting list and refuse to rehouse those whose needs were greatest, simply on the ground that they could not afford to pay the rents which the local authority felt it necessary to charge. With respect to the ratepayers, again there might be strong pressure from them on a local authority to slow down its housing programme, if the rates were being so excessively raised that it was going to drain the ratepayers of their resources or alternatively cause great difficulty to the other essential services which the local authority has to provide.
I think that over the years some of us have tended to forget the original reasoning underlying the housing subsidies. Housing subsidies are a good thing if they relieve need. But they should not be paid if it is not necessary for them to be paid, in the sense that there is no need waiting to be relieved. The purpose of the new clause which I am moving is that the new and substantial subsidies payable under this Bill should be payable to a local authority only if, in effect, it proves need; that is to say, it should be required to satisfy the Minister that it grants relief only to those of its tenants who need that relief and to the extent that they need it. If a local authority fails to satisfy the Minister about this, then it is clear proof that the need is not there to the extent originally envisaged, and therefore there is less necessity for the

21
Exchequer—that is to say, the taxpayer—to provide subsidies.
Under my new clause, bearing in mind that these subsidies are payable on an annual basis, I am proposing that in respect of any year during which a local authority fails to satisfy the Minister of this, no subsidies under this Bill should be payable. Of course, all existing subsidies would go on—there is no question about that; there is no interference with what has been arranged in the past. My new clause concerns only the new subsidies which are payable under this Bill. And they are very large indeed.
The Joint Parliamentary Secretary, Mr. Mellish, in another place, winding-up the debate on the Third Reading of the Bill, said:
"To-day, subsidies are running at £86 million a year. Under the Bill, they go up this year to £100 million, and by 1970 they will rise to £140 million. We are determined to give aid to those in genuine need."— [OFFICIAL REPORT, Commons, 8/3/67, col. 1711.]
Everybody is determined to give aid to those in genuine need; but the rate of increase which I have mentioned is so high that it is incumbent on the Government to examine whether this vastly increased subsidy bill is in full required for the purpose of relieving need. There is no merit in paying subsidies out of the Exchequer. There is no social merit in that, though it almost seemed as if Mr. Mellish was laying a claim to that. There is social merit in relieving need, and subsidies from the Exchequer are required, as everybody agrees, for the purpose of helping local authorities to relieve need.
I am not here proposing that any local authority should be obliged to adopt a rent rebate scheme, or a differential rent scheme, or a lodger charge, or an extra earner charge, or anything like that. The local authority can decide what policy it will pursue. But may I remind your Lordships of a most important circular which was issued to local authorities in the time of a former Labour Government in 1930, when, if I remember rightly, the late Mr. Arthur Greenwood was the Minister in charge of Housing? It was Circular No. 1138 of 1930, and it referred to:
"the clear intention of Parliament that the new grant shall not inure to persons for whom it is not needed. The grant, together with the prescribed rate charge, should be regarded
22
as a pool out of which such abatements or other special arrangements in regard to rent as the local authority propose may be financed. Rent relief should be given only to those who need it, and only for so long as they need it."
Your Lordships will see from where I have taken the phrase "rent relief" in this new clause.
I am, of course, aware that other attempts to provide similarly have broken down on the ambiguity of the words used or the difficulty of defining what the criterion shall be, but there can surely be no ambiguity about the phrase "rent relief", because it has been used by a previous Minister in a circular to local authorities on this very subject, and by a Minister of the same Party as the present Administration. From my ministerial experience, I know that Ministers do not use words in important circulars which may be liable to different interpretation by local authorities. Circulars tend to be very exact in their drafting and their wording.
So this is the proposition which I seek to commend to the Committee. I believe the underlying purpose is now widely accepted—accepted by all Parties in Parliament and in local government. The purpose is that housing subsidies should be used to give help to those tenants who need help and to the extent they need it, and not otherwise; because if they are extended to tenants who do not need rent relief, or are extended more generously to such tenants than they really need, then clearly public money is being wasted. I hope noble Lords will consider that this will be an improvement in the Bill, and I commend the new clause to the Committee.
Amendment moved—
After Clause 13 insert the said new clause.—(Lord Brook of Cumnor.)
LORD LEATHERLAND: When the noble Lord, Lord Brooke of Cumnor, began to move his Amendment, I had a fear that if any council failed to conform with the provision which he wants to insert it would lose all its subsidies under all subsidy Bills and not merely the new subsidies which are provided by this measure, but he made it clear as he went on that that was not to be the case and that it was only the subsidies under this Bill which were to be interfered with.

23
In other words, he is introducing a sliding scale of virtue: any subsidies which might have been paid under a Tory Act of Parliament are wise and should continue; any subsidies which are now introduced by a Labour Government are unwise, extravagant and wasteful and should not be allowed to continue. It is a great pity if we are to interfere with the freedom of mind of local authorities and try to bulldoze them into accepting policies in matters of housing which they do not consider to be in the interests of their own local inhabitants, whose needs they are much more capable of interpreting than we are sitting here at Westminster.
Superficially, the idea that one should try to encourage rent rebate schemes is very good indeed. It is part of the Labour Party's official national policy. I do not like to see big motor cars parked outside houses on council estates when I am driving by in my modest Ford, nor, I suppose, does anybody else. It is undoubtedly a matter of much discussion in neighbourhoods where there is a council housing estate. But we must be fair. Every one of the arguments used by the noble Lord against council house tenants could be used equally against that portion of the Bill which proposes subsidies for would-be house purchasers who are buying their premises on mortgages. So if the noble Lord is to pick out the house tenants and to deny subsidies to them, he ought in fairness to pick out the people buying their houses on mortgage—and that is something which none of us would like to see. We are all warmly in favour of house ownership and would like to see it encouraged. One of the blessings of the Bill is that it will make it much easier than it has been in the past for the small man to buy his own house. This is a very good thing indeed.
When we talk about subsidies, ought we not to look at them through neutral-coloured spectacles and not through red or green ones, as we are in the habit of doing? Whenever we talk about a subsidy for a tenant, who may be a poor working man, or may even be unemployed, we regard subsidies as something evil. But when we talk about subsidies for landowners for the squires and the noble lairds with their great estates, they can have subsidies. They can have sub
24
sidies which render their agricultural land free of rates, subsidies which enable them to get away with paying only half the normal scale of death duties. We can have subsidies, too, for shipowners, for exporters, and for manufacturers generally. It is only when we come down to the little man and his family who are trying to struggle along on a weekly wage that subsidies seem to become sinful.
I hope that the Committee will reject the noble Lord's Amendment, because it will have one very undesirable effect. If there is a council which has not introduced a rent rebate scheme, and if under the noble Lord's proposal that council has its subsidies cut off, then the tenants in that particular district would suffer twice: first, through not having a rebate scheme, and secondly through having the subsidies cut off, and then the rents of the whole area would have to be increased. I see no virtue in the proposal put forward by the noble Lord and I hope the Committee will reject it.
3.37 p.m.
LORD WADE: The noble Lord, Lord Leatherland, has made a comparison between Parts I and II of this Bill. As I understand it, the intention in Part II of the Bill is to provide assistance for house purchase in certain circumstances. The intention is to benefit those in the lower income class who would not get the full tax relief.
LORD LEATHERLAND: Would the noble Lord permit me? If you had any of the higher income class living on council estates, I should not be too keen on benefiting such people.
LORD WADE: I wonder whether I might pursue my point for a few moments. In the second Part, as I understand it, the intention is to provide assistance for house ownership in the case of those persons with lower incomes who do not get the full benefit of tax relief. That seems to be perfectly reasonable and fair. I think it is a little complicated, but we will deal with that when we come to it.
In regard to Part I and this particular Amendment, surely the intention is to encourage local authorities to make a distinction between those who can afford to pay an economic rent and those who cannot. I should have thought that it

25
would be quite consistent with Part II if we adopted this Amendment in Part I and discouraged local authorities from granting this rent rebate to those who can quite well afford to pay an economic rent. Like the noble Lord, Lord Leatherland, if I drive my small and modest car past a council house and see a large-substantial and expensive car outside, I do not feel too pleased if I feel I am having to contribute in the form of income tax or rates. But surely the right way to deal with this is to discourage local authorities from granting the full rebate to those who can afford to pay an economic rent. That is the gist of the whole problem.
LORD MITCHISON: Since Arthur Greenwood sent out his circular a good many years have passed, and during a number of those years the Tory Party was in power and introduced housing Bills and housing subsidy Bills. I do not recollect a clause of this kind in any of them. At any rate, it was not mentioned by the noble Lord, Lord Brooke of Cumnor, who had a considerable share in these matters. What is "need" in this connection? Once upon a time in the North of England—much about the time when Arthur Greenwood was Minister of Housing—a local authority found that the inhabitants of part of the town were very badly housed. They thereupon built for them a new housing area and moved them into it. A very curious thing happened. The medical officer of health was very interested in the result on the health of the people who were moved and found that instead of their health improving with better housing it became worse. The reason was that the inhabitants had been able to get enough to eat on the low rents in the poor area which they had left, but they were not able to get enough to eat in the new area to which they were moved, because the rents were higher. Yet they paid them and, in a sense, of course, they might be said to be able to afford them or not to be in need. I wonder whether that kind of thing is what the noble Lords opposite intend. I cannot think that that sort of definition of need is what is required, and the real trouble is that you cannot say what "need" is in many—I was going to say in most—of these cases. If you spend less on one thing you spend more on another and vice versa.
26
There is another aspect of it, too. The standard of housing is improving, and I hope that better houses are going to be built under the arrangements in this Bill—Parker Morris standard, perhaps. If that is so, the economic rent—if that is what we are to consider for those houses—will be higher than for bad houses. I think we must rely on Governments and local authorities gradually to improve the standard of housing in this country and to set a good example in the council houses which they build. What my noble friend said just now about subsidies is perfectly true. I remember Mr. Tom Fraser getting up in the House of Commons and saying that he could not understand the principle upon which subsidies were given on a discriminatory basis to men, whereas a noble Duke—whose name he gave, but I shall not—was able to get subsidies for his pigs, irrespective of the needs of the pigs. There is truth in this.
At the bottom of it all, what are we trying to do? We are not trying to dish out coal and blankets on the old-fashioned system only to those who could not afford them. We are recognising, I think, that people's houses are as important as people's jobs and people's schools, and that private enterprise in the past has been unable to meet the need for houses of large sections of the population. We are also recognising that one of the reasons why it has been unable to meet it is because a great many people have not been able to afford houses without depriving themselves of other things. I wonder what is the intention here. Is it that the economic rent should be decided in every case, and that if the council fail to satisfy the Minister—and there is no indication as to the extent by which they have to satisfy the Minister; it may be half a dozen cases, it may be one, so far as I can see—they are then going to be penalised by being deprived of the subsidies? This is not really an attempt to help anybody; it is trying to get local councils to adopt a policy which, while it has had some rather half-hearted support from time to time in the Tory Party, has not in general commended itself to local authorities all over the country, who have recognised that a housing authority is much more like an education authority and is, in fact,

27
filling a gap which private enterprise has been unable to fill.
If an Amendment of this kind is made, and you succeed in increasing on a large scale the extent to which house occupiers have to pay the economic rent, the next stage is going to be that you will deprive a great many people of the help which they have been getting, or which they have been expecting, in the past, and you will be putting up the general level of wages. If you do this kind of thing with housing, then I think you must expect wage claims and, I should have thought, wage claims with a pretty strong case behind them; and I doubt whether in the present circumstances of the country it is wise to do that sort of thing. We pay a very large sum, of course, but, given our situation, our industrial status as a country and the fact that we have been pretty forward-looking in housing matters on the whole, I do not think we pay too much money one way or another for these purposes.
Then it is said that it will relieve the taxpayer if you take the money from the occupant of a council house. It is not only the taxpayer who is concerned; there is somebody else, and that is the ratepayer. One important change which affects housing finance has happened since the days of Arthur Greenwood, and that is that nowadays industry is made to pay its fair share of rates. No doubt you will be relieving industry by this new clause, but there may be the result which I mentioned at the beginning of what I had to say; that some people having to pay the full economic rent because the council thinks they can afford it, and because the council is afraid of losing its subsidies from the Minister, will fall ill or starve in consequence, as happened in the town which I mentioned. To approve this Amendment will be putting an inhuman and rather unfair burden on the local authorities. They have regard to these matters in their allotment of houses, and, if they do not, then the Minister is fully entitled, and I should have thought bound, to call their attention to what he may regard as a misconception of their duties. But to penalise them for failing to charge economic rents in every case where it is thought economic rents ought to be payable is putting a wholly impossible burden on their housing administration.
28
Before I sit down, may I point out to your Lordships one aspect of the burden? So-and-so gets a council house, and the council, having discovered in pursuance of this Amendment that at the time he cannot afford to pay anything more, allows him a reduced rent. What is going to happen when his circumstances improve? We were told by the noble Lord who moved the Amendment that it was not intended to vary these subsidies from year to year; therefore the subsidy would continue on the state of affairs as it was when So-and-so first got his house. But, of course, the council will all the time be concerned to examine changes, and if it does not do so then the purpose of this Amendment—though no doubt its technical language may he carried out—will not, in fact, be fulfilled. It is on questions of change of circumstance that this kind of machinery breaks down, and they are matters which are very much easier to deal with by way of a rent rebate scheme as between the local authority and the person concerned than by trying to deal with them as between the Government and the local authority by an Amendment of this kind. When one really looks at it, I think that this Amendment is wrong in principle, unworkable in practice and uncertain in effect. I hope that we are not going to pass it.
House resumed.

PRICES AND INCOMES: TRANSITIONAL POWERS
3.50 p.m.
LORD SHEPHERD: My Lords, I wish to repeat a Statement that has just been made by my right honourable friend the First Secretary in another place, and I will use his own words:
"As I explained to the House on March 22, the Government are determined to work for an effective policy for productivity, prices and incomes on a voluntary basis, and they attach great importance to the role of the Confederation of British Industry and the Trades Union Congress in making such a policy successful. The wide powers taken in Part IV of the Prices and Incomes Act in support of the standstill and severe restraint will lapse on August 11, 1967, and will not be renewed. The Government consider however that it is necessary to have some

29
more limited powers available during the period of transition in which we are seeking to establish an effective voluntary policy.
"As announced in the White Paper published on March 22 (Cmnd. 3235), we propose to activate Part II of the Prices and Incomes Act, which provides for advance notification of proposed increases in prices or pay and for temporary standstills in appropriate cases during which proposed increases are examined by the National Board for Prices and Incomes.
"In addition, the Government propose to introduce a short Bill designed to facilitate a smooth progress from the standstill and Part IV to observance of the principles set out in the White Paper (Cmnd. 3235). This will give the Government powers, exercisable for a further period of twelve months, to lengthen the period of standstill on prices or pay under Part II, in cases in which this is recommended by the National Board for Prices and Incomes, to a maximum of six months from the date of the reference to the Board, and, in addition, to secure the temporary suspension of price or pay increases which are implemented before it is possible to make a reference to the Board.
"Since the Government intend to rely on the voluntary principle so far as possible, the power to secure temporary suspensions of prices or pay increases is needed in order to ensure that those who are co-operating in the voluntary notification and standstill arrangements are not placed at a disadvantage compared with those who refuse to do so. The extension of the maximum period of deferment to six months after a reference has been made will help to ensure that the parties will, before proceeding to implement any increases in prices or incomes, pay full regard to the Board's findings and recommendations in the national interest.
"The new powers which will replace Part IV will therefore be strictly limited, of temporary duration, and specifically designed to support and encourage the voluntary principle within a framework of reference to and examination by the National Board for Prices and Incomes.
30
"The Government are confident that they can look to the nation to support the policy of moderation in prices and incomes which is essential for our future prospects of securing sound economic growth based on full employment and a strong balance of payments."
My Lords, that ends the Statement.
LORD HARLECH: My Lords, we are grateful to the noble Lord for repeating the Statement which has been made in another place, although, as is becoming rather usual, we had already read the main provisions of it on the front page of the Evening News. The Statement, of course, contains that "double-talk" which is now becoming characteristic of this Government. There is mention of an effective voluntary policy, followed almost immediately by proposals for extending the compulsory powers of the Government and of the Prices and Incomes Board. We on this side of the House do not agree that the compulsory powers, going well beyond what is already contained in Part II of the Prices and Incomes Act, are necessary or required at the present time.
Are we right in thinking that this new Bill will not only extend the period of standstill from an effective four months under Part II to an effective seven months under the Bill but will also increase the powers of the Board and enable it to recommend a standstill for six months—powers which, I think, the Board does not at the present time possess? Secondly, can the noble Lord tell us whether, after this Bill, when it becomes an Act, ceases to operate, which I understand is at the end of twelve months, the Government will then, in perpetuity, operate Part II of the Prices and Incomes Act? And, even as regards this new Bill, are we to understand that an Order made at the end of the period of twelve months, for instance, would be effective for another six months, so that in fact what the Bill contains is powers of compulsion over prices and incomes extending to virtually eighteen months?
LORD SHEPHERD: My Lords, if I may, I would reply to the noble Lord, Lord Harlech, first. I do not think there is anything that divides your Lordships' House, another place or the country about the need for a prices and incomes

31
policy, which in the end can be achieved only by a voluntary acceptance and a voluntary application by all sides of industry. But the noble Lord appears to be both blind and deaf to history over the years, which has shown that, with all the protestations and all the claims, we have consistently failed to achieve that. Consistently over the years we have been paying ourselves more than we have been able to earn. We know this is one of the causes of the very heavy deficit in 1964 and again, I recognise, in 1966; but if we are to get growth, we can get growth—consistent growth—only if we in some way contain what we pay ourselves.
The Government have felt it right, in view of the circumstances of 1966, to give support to what we call voluntary agreement by certain statutory machinery, in order that those who are willing to co-operate shall not be placed at a disadvantage compared with those who refuse. And let us recognise the fact that, pretty well throughout the trade union movement, the trade unions have supported a voluntary prices and incomes policy. When we passed the Act last year we heard a great deal about how many trade unionists would end up in gaol or in the courts, being fined. We know that that has not happened. To the best of my knowledge, no trade union leader or official has in fact been in front of magistrates or courts. We have had this voluntary agreement, but it may be that the statutory provisions helped towards it. So far as we are concerned we feel that as we move from this period of restraint we need the minimum of statutory provisions, and we believe the Statement and the Bill that we shall be placing before Parliament embody the minimum needed in the circumstances. But we well recognise the great efforts that are being made, both by the C.B.I. and the T.U.C., to create their own machinery for the vetting of increases in pay and increases in the prices of goods and services.
It is quite true, as the noble Lord, Lord Harlech, has said that by the Bill we shall be extending by three months the period which, under the Prices and Incomes Act, was given to the Board to examine the circumstances and make its report. What we are now saying is that if the Prices and Incomes Board say that an increase, whether in pay or in
32
the price of goods or services, is too high and is contrary to the national interest, we shall have power to postpone the effectiveness of such an increase for a period of six months. On the other hand, the Government could permit these payments to be made if in their judgment these payments or increases were right. In regard to Part II, if the noble Lord, when he leaves the Chamber, will look at Section 6 of the Prices and Incomes Act he will see that an Order to bring Part II into force covers a period of twelve months. Therefore, if we had wished to keep Part II going after this first period of twelve months a fresh Order in Council would have to be made.
LORD BYERS: My Lords, I think things have come to a pretty pass when we have to congratulate ourselves that no trade union leader or official has come before the magistrates recently as a result of Labour Party legislation. I hope that the noble Lord will not be surprised if I say that we on these Benches find this Statement very disappointing indeed. It portrays an attitude which is negative and restrictive; and the noble Lord will be aware, I think, that there is a general feeling in the country of frustration largely because Government policy so far as wages and prices are concerned is lacking in any sort of imagination. Can we not have a real drive to try to get people to earn higher wages through greater productivity and through increasing their talents by much bigger retraining schemes, and get something dramatically imaginative into our wages and incomes policy? This Statement is not going to help the country to get out of its balance-of-payments difficulties or to see ahead, as it should.
LORD SHEPHERD: The noble Lord has, perhaps, made part of the speech that he will be making, I think, in some ten days' time. I would only say to him that he must take this Statement, not in isolation, but with all the other measures which the Government have in mind and which have already been announced. I agree with the noble Lord that a prices and incomes policy should not be of a negative character. This is right. What we wish to see is growth of income. As the noble Lord said it should be in line with increased productivity. But increased productivity is not entirely within the power of the Government to

33
achieve; it is basically dependent upon the efficiency of management and the workers in the companies. The Government can help, and they are already helping in the field of special grants to the manufacturing industries and to the development areas. We issued a Paper the other day which made another suggestion by which the manufacturing industry could be helped, particularly in the development areas. This is a matter which, in view of the interruption of the Committee stage, it would be wrong for me to develop. I look forward to debating the subject with the noble Lord, Lord Byers, on a later occasion.
LORD HARLECH: My Lords, we are grateful to the noble Lord for the second and third statements. The second statement was almost longer than the first one. Is he aware that it contained almost as much "double-talk" as the original? It is perfectly possible to be in favour of a prices and incomes policy but to believe that a major part of such a policy should be to see, on the part of the Government, that there was a limitation to the demands made on the economy by the Government. It is in this respect that the Government have failed in their prices and incomes policy. It is this which has forced them to introduce these compulsory measures into their prices and incomes policy.
LORD SHEPHERD: My Lords, the noble Lord accuses me of "double-talk". May I say that I am going to listen with great interest to the debate to be initiated by the noble Lord, Lord Byers. I hope that the noble Lord, Lord Harlech, will participate in it. Then I hope to hear from him, on behalf of his Party, what is the alternative to the Government measures, and a little concrete evidence about how the Party now in Opposition believe that an incomes policy can be achieved.

HOUSING SUBSIDIES BILL
4.5 p.m.
House again in Committee.
LORD STRANGE: I was just going to say, before we broke off for a moment, that I think the subsidies must continue so long as we are building houses we cannot afford to build for people who cannot afford to live in them.
BARONESS BROOKE OF YSTRADFELLTE: I had no intention of intervening in this discussion on the introduction of this new clause by my noble relative; but as I sat here listening to what was said around the Chamber I remembered the time when I was chairman of a metropolitan borough housing committee. I inherited a housing revenue account that was deeply in the red. I was told by the chairman of the finance committee of my council, and by the leader of the council, that I could have no money to do those things on the housing estates that I wanted to do until we got our housing revenue account, certainly "into the pink", and if possible, "into the blue".
We had great discussions about how to do this, and we decided to follow the excellent example brought into being by the Socialist-controlled Metropolitan Borough of Lambeth in introducing a differential rents scheme. We worked out our differential rents scheme and brought it into being. As a result, after one year's working of the scheme our housing revenue account was deeply in the blue and I was enabled to do those things which I had been wanting to do for some time: things for the communal benefit of tenants living in erstwhile neglected estates, such as improving the grounds of the estates, putting in playing apparatus for the children and redecorating communal staircases. It is for that reason, a purely practical one, that I have risen to say that I hope very much that this clause which has been put forward this afternoon will be introduced, if only in order to enable chairmen of housing committees to carry out those things which they would do, but which at the moment, so long as their housing revenue accounts are running "in the red", they are unable to do.
LORD KENNET: I would only say this to the noble Lady without commenting on the merits of the scheme that she described, about which, unfortunately, I know nothing. Would she have liked the Minister to force her to do it? And this would be the effect of the new clause before the Committee. One of the most engaging things about the noble Lord, Lord Brooke of Cumnor, is that he appears calm, lucid and helpful, whether

35
what he is saying is constructive and useful, or whether, like this one, it is a ploy of a purely Party political nature.
This is the third appearance of the clause in question. The Opposition tried it on at the Committee stage of the House of Commons and again at the Report stage there. Here it comes, in slightly different words, tailored to meet a point which arose in the Second Reading debate in this House. The noble Lord quoted a circular issued by the father of my present right honourable friend the Minister which said:
"Rent relief should be given only to those who need it, and only for so long as they need it,"
We are agreed on that. I quoted the words myself in the Second Reading debate. We are agreed that that is the truth of the matter. What we disagree about is how to achieve it.
I think the noble Lord, Lord Wade, was right when he said that the Government should discourage local authorities from passing on rent subsidies to tenants who do not need it. But we are not invited by the proposed new clause to facilitate the discouragement of local authorities from doing this. We are invited to take all power out of their hands and to put it into those of Whitehall. Even if a statutory sanction of this nature were desirable—which I am convinced it is not—it would be completely unworkable. It would involve the Housing Ministers in deciding, in effect, what rents should be paid by the tenants of nearly 1,500 local housing authorities in England and Wales. This would be physically impossible. I am surprised that the Opposition, who strenuously support the independence of local authorities in most matters, should consider it right, immediately after some election results not unfavourable to them, to undermine the long-established independence of local authorities in this field.
In this connection I would remind the Committee of Section 111 of the Housing Act 1957, which laid it down that:
"The general management, regulation and control of houses provided by a local authority under this Part of this Act shall be vested in and exercised by the authority, and the authority may make such reasonable charges for the tenancy or occupation of the houses as they may determine."
36
And that is that. Local authorities are also obliged, as we know, in fixing their rents (and a number of famous court cases have made this quite clear), to consider the interests of the tenants and of the ratepayers as a whole—interests which may sometimes be in conflict. They must remember that all council tenants are also ratepayers. They have to hold a fair balance between the two, and the district auditor may, as part of his statutory duty, draw attention to cases where there is evidence that the balance has been tipped too far one way or the other.
The proposed new clause would alter all this. Since subsidy payments would depend on the Minister's judgment about the acceptability of rents charged in every single case, in practice local authority rents would be fixed in Whitehall. No previous housing legislation has included such a provision. Certainly nothing comparable can be found in legislation enacted while noble Lords opposite were in office. The Government do not feel that it would be right to take such powers, or to diminish the responsibility of a local authority for deciding its own rent policy and balancing its housing revenue accounts, as the noble Baroness, Lady Brooke of Ystradfellte described, from year to year as it is obliged to do under existing legislation.
The Government made perfectly clear in the White Paper on the Housing Programme for 1965 to 70 (which I quoted during the Second Reading debate) that they want, and expect, local authorities to review their rent policies to ensure that they do give the greatest help, by means of rent rebate schemes, to those who need it. The case for thorough-going rent rebate schemes is indisputable and is agreed on both sides of the Committee. I gave the figures last time. According to the Family Expenditure Survey (it is a little complicated, but the figures show the shape of the situation in dramatic form), in 1965 about 30 per cent. of council tenants with household incomes of £500 a year or less were paying more than one-fifth of their income in rent, whereas almost 98 per cent. of those with household incomes of £1,050 or more were paying less than one-tenth of their income in rent.
These disparities, these distortions in the social scene in what is, in effect, a

37
major social service, are extremely disturbing, particularly, of course, in the burden which they place on the poorest families. Housing subsidies are not paid to produce such inequitable results, and the Government fully acknowledge their responsibility to give a lead to local authorities in this matter. This they have done and will continue to do. At present, regrettably, fewer than half of the local housing authorities operate rent rebate schemes of any kind, and many of these are of limited scope so that only a handful of tenants qualify. Sometimes the average weekly rebates are so small that they hardly warrant the cost of administration. But many local authorities, including some of the largest, have well-tried, comprehensive and well-thought-out schemes, which they operate with great measure of success without raising the general level of rents very much. These new rates of subsidy are designed primarily to help those authorities which are tackling greatly increased building programmes and need this assistance to carry the high costs of construction and of building land. The scope of new subsidies and the amount paid out by Government in subsidies is now, as the Committee have already heard, around £83 million a year, and this figure may rise to £150 million a year by 1970–71. This should serve to remind local authorities—I repeat, local authorities—that they are administering a major social service which must be based on a clear assessment of individual needs and a strong sense of social justice.
At the end of last year the Minister set up a small Working Party, with the local authority associations and the G.L.C., to consider the principles on which adequate and comprehensive rent rebate schemes could be based while allowing for adjustments to local circumstances. I am glad to be able to tell the Committee that this Working Party has completed its Report and the Minister will very shortly discuss it with the local authority association members. As the Working Party consisted only of officials, we must—perhaps especially now—see what the elected members think of it. After these discussions, the Minister will probably issue fresh guidance to local authorities on the whole subject of rent rebate schemes, and, in particular, on
38
the importance of getting schemes which give help to those who need it and not to those who do not.
To conclude, I would repeat the gist of what has been perhaps an unnecessarily long intervention in this debate. We agree with the Opposition that help must go where it is needed. We do not agree that the Housing Ministers should take over from local authorities the responsibility of determining what rents should be paid in every case throughout the country. I believe that the Committee would be well advised to reject this new clause.
4.16 p.m.
LORD HAWKE: There is one question that I should like to ask the Minister. What form of sanction has he for enforcing these proposals on the local authorities? I well remember many years ago, when I was a very junior Minister, sitting next to a Socialist high dignitary of a great big British city. In the course of dinner he said to me, "Please instruct me to impose a rent rebate scheme". My reply was, "I am not here to do your dirty work; you must ask for it". The Minister said that fewer than half of these authorities have some form of rebate scheme. Noble Lords on both sides of the Committee want 100 per cent. of local authorities to have them. What sanction has the Minister to impose the schemes in respect of these local authorities? My noble friend's Amendment would provide some sanction.
LORD KENNET: The Labour Government do not like sanctions vis-à-vis local authorities, even if the local electors, in their wisdom, have changed the complexion of a good many authorities. We are perfectly content to continue to work with a local authority scene which is now more Conservative-controlled than it was a week ago without having any sanctions. I must say that I am surprised at the attempts of noble Lords who are Conservatives to force sanctions upon us in order to enable us to force certain courses of action on local authorities.
LORD BROOKE OF CUMNOR: I hope that noble Lords opposite who have taken part in this short debate will not take it amiss if I say, with the greatest

39
respect, that I think very little indeed of their arguments. I would go further, and declare that when their speeches are read by those people outside who know a great deal about housing, and who are deeply concerned about it, those people will feel the same. I resent that the noble Lord, Lord Kennet, should seek to stigmatise this new clause of mine as a ploy of a purely political nature. In fact I thoroughly believe in the policy embodied in this new clause. I consulted nobody before I put it down, and I am prepared to take full responsibility for it myself.
LORD KENNET: If the noble Lord will yield for a moment, may I ask why did he not introduce any such provision when he was himself in charge in this sphere?
LORD BROOKE OF CUMNOR: I was going to answer that, which is the one point of any substance made in the debate from the Benches opposite. It was made by the noble Lord, Lord Mitchison. The reason is that we have now reached the stage when housing subsidies are to be increased at an unprecedented rate. Up to now we have been doing everything; successive Conservative Governments were doing everything in their power to persuade local authorities to adopt differential rents or rent rebate schemes, and we had some success. Noble Lords opposite cannot have it both ways. They cannot say that this new Housing Subsidies Bill is so generous that it opens a new era in the housing field and, in the same breath, that a new situation has not been created; that it is simply a continuation from the old history of housing subsidies.
The noble Lord has given figures which show that under this new legislation the subsidy bill is to increase by something like 60 per cent. in three years—an unprecedented increase. That requires that Parliament should take a fresh look at the question of whether these subsidies are going to those who need them.
LORD MITCHISON: Is not the position that, subsidies now being adequate or generous, this will lead local authorities to introduce rent rebate schemes which beforehand they felt they could not afford?
LORD BROOKE OF CUMNOR: I really cannot understand any circumstances in which a local authority could not afford to introduce a wiser form of rent scheme which would allocate subsidies according to need. I also reject completely the argument that this new clause is an interference with the freedom of local authorities. The noble Lord, Lord Kennet, said that it was taking all power out of the hands of local authorities and putting it into the hands of Whitehall and that it would be an affront to the independence of local authorities.
All that the new clause asks is that the local authority shall satisfy the Minister of the soundness of the scheme. I have served on local authorities for many years, and I can remember a number of cases in which Parliament have passed Acts, sometimes under Labour Governments, when the local authorities were required to submit schemes to the Minister and get his approval before introducing them. That seems to me an exact parallel, and no-one in any quarter suggested that that was an affront to the independence of local authorities.
LORD KENNET: The noble Lord said that the local authorities would have to satisfy the Minister of the soundness of their schemes. This is not, of course, what is in the new clause. It says that a local authority would have,
"… to satisfy the Minister that it grants rent relief only to those of its tenants who need it and to the extent that they need it …"
Would the noble Lord not agree that any local authority considering a scheme of this kind could go to the Minister and ask whether he would be satisfied that their scheme fulfils the words in the Act? The Minister would have to set up a large staff to go into each category of tenant to see whether it does, and this would amount to central control before we knew where we were.
LORD BROOKE OF CUMNOR: The noble Lord has told us that a Working Party has been going into the whole question, and that he hopes that before long a situation will be reached in which the Minister will be in the position to give fresh advice upon the principles on which these schemes should be based. Surely, it would not be an intolerable task for the Minister to satisfy himself that any future

41
scheme fulfils the principles which, according to the Government, he himself is going to lay down.
I cannot accept that this is an interference with the freedom of local authorities, and I am surprised that supporters of the Government use that argument. What this new clause proposes is that local authorities should be given an option, an incentive, to follow a course of action which the Government are urging them to accept. That seems a long way from interference with their independence.
As to the argument of the noble Lord, Lord Leatherland, that my point could equally have been made to apply to the option mortgage section of the Bill, that was completely and devastatingly answered by the noble Lord, Lord Wade. The noble Lord, Lord Mitchison, spoke of a case in the North-East where he said that tenants moving into a new housing estate were not able to get enough to eat.
LORD MITCHISON: Stockton-on-Tees was the place.
LORD BROOKE OF CUMNOR: That may be so, but the whole purpose of the kind of scheme this clause by implication advocates is one that will more properly meet needs. I cannot think of any local authority which have introduced a rent scheme of this kind who have not so framed it as to make it more generous to those whose needs are greatest, while reducing the amount of
subsidy to their better-off tenants who do not need the rent rebate.
The noble Lord, Lord Mitchison, went so far as to produce a new argument against rent rebate schemes, of which nobody has ever heard before, when he said that subsidies should be allocated by local authorities indiscriminately to their tenants so as to keep down wages. I entirely agree that local authority rents should not be fixed in Whitehall. I entirely agree that the general management of local authority housing estates should be in the hands of local authorities. But all experience fails to bear out the hope of the noble Lord, Lord Kennet, that there will be a sudden widespread change of heart among local authorities as a result of persuasion. He hopes that his Minister will be able to persuade those who are now distributing the subsidies without sufficient regard to need in a new way that will take that into account. I am afraid that something more than circulars will be required. These circulars have been going out since 1930, and there never has been a better one on the subject than that which Mr. Arthur Greenwood authorised in 1930. I suggest that this is a perfectly reasonable clause and I hope that my noble friends will be prepared to go into the Division Lobby on it.
4.28 p.m.
On Question, Whether the said Amendment (No. 7) shall be agreed to?
Their Lordships divided: Contents, 67; Not-Contents, 42.

CONTENTS

Aberdeen and Temair, M.

Emmet of Amberley, Bs.

Nugent of Guildford, L.

Ailwyn, L.

Erroll of Hale, L.

Oakshott, L.

Albemarle, E.

Falkland, V.

Ogmore, L.

Amulree, L.

Ferrier, L.

Rathcavan, L.

Auckland, L.

Fraser of Lonsdale, L.

Rea, L.

Balerno, L.

Goschen, V. [Teller.]

Redesdale, L.

Bessborough, E.

Grenfell, L.

Redmayne, L.

Blackford, L.

Grimston of Westbury, L.

Rothes, E.

Bridgeman, V.

Hacking, L.

St. Aldwyn, E. [Teller.]

Brooke of Cumnor, L.

Harlech, L.

St. Helens, L.

Brooke of Ystradfellte, Bs.

Hawke, L.

Sandford, L.

Buckton, L.

Horsbrugh, Bs.

Simonds, V.

Carrington, L.

Ilford, L.

Sinha, L.

Conesford, L.

Latymer, L.

Somers, L.

Craigavon, V.

Lindsey and Abingdon, E.

Strange of Knokin, Bs.

Croft, L.

MacAndrew, L.

Strathcarron, L.

Cullen of Ashbourne, L.

McCorquodale of Newton, L.

Swaythling, L.

Daventry, V.

Merrivale, L.

Swinton, E.

Denham, L.

Meston, L.

Teynham, L.

Derwent, L.

Milverton, L.

Thurlow, L.

Dudley, L.

Monsell, V.

Vivian, L.

Ebbisham, L.

Mountgarret, V.

Wade, L.

Effingham, E.

NOT-CONTENTS

Addison, V.

Longford, E. (L. Privy-Seal)

Silkin, L.

Archibald, L.

Mitchison, L.

Snow, L.

Bowles, L.

Monckton of Brenchley, V.

Soper, L.

Brockway, L.

Morrison, L.

Sorensen, L. [Teller.]

Burden, L.

Moyle, L.

Stonham, L.

Champion, L.

Pargiter, L.

Stow Hill, L.

Collison, L.

Phillips, Bs.

Strabolgi, L.

Gardiner, L. (L. Chancellor.)

Plummer, Bs.

Strang, L.

Granville-West, L.

Popplewell, L.

Strange, L.

Henderson, L.

Rowley, L.

Summerskill, Bs.

Hilton of Upton, L. [Teller.]

Rusholme, L.

Taylor of Mansfield, L.

Kennet, L.

Sainsbury, L.

Wells-Pestell, L.

Leatherland, L.

St. Davids, V.

Williamson, L.

Lindgren, L.

Shepherd, L.

Winterbottom, L.

On Question, Amendment agreed to.

Resolved in the affirmative, and Amendment agreed to accordingly.
Clause 14 [Power to reduce, discontinue or transfer subsidies]:
LORD KENNET: This is a drafting Amendment. I beg to move.
Amendment moved—
Page 15, line 38, leave out ("1964") and insert ("1965")—(Lord Kennet.)
Clause 14, as amended, agreed to.
Clauses 15 and 16 agreed to.
Clause 17 [Power of Minister to recover certain contributions]:
LORD KENNET: I think the Committee will see that this is a self-evident clarification of a drafting nature. I beg to move.
Amendment moved—
Page 17, line 30, leave out subsection (4).—(Lord Kennet.)
Clause 17, as amended, agreed to.
Clauses 18 to 20 agreed to.
Clause 21 [Interpretation of Part I]:
LORD KENNET: This is a drafting Amendment. I beg to move.
Amendment moved—
Page 19, line 23, leave out ("(1)"). —(Lord Kennet.)
Clause 21, as amended, agreed to.
Clauses 22 and 23 agreed to.
Clause 24 [Right to opt for subsidy for certain loans in connection with dwellings]:
4.38 p.m.
LORD KENNET LORD KENNET moved, in subsection (3), to leave out "subsection", where that word first occurs, and insert "subsection (3A) and". The noble Lord said: With the leave of the Committee, I will speak to this Amendment together with Amendments Nos. 12 and 13, as they hang together. They meet a point which was raised by the Opposition spokesman in another place during the Report stage—at least, I hope noble Lords opposite will find that they do.
A person under 21 who wants to borrow to buy a house has to find an adult to act as trustee to take out the mortgage for him. Usually this will be a parent, and under the Bill the parent can opt for subsidy under the option mortgage scheme, because he can make the declaration required by Clause 24(3)(c). But some young people are orphans, either in fact or in essence, and the trustee may be some other relative, a close friend or, indeed, a solicitor. These Amendments would enable a ministerial direction to be made which would allow these trustees to opt for an option mortgage with a suitably modified form of declaration.
The point of making this the subject of ministerial direction is in order to give both flexibility in administration and—and this is an important point—safeguards against abuse. Generally speaking, it can be expected that a trustee will be opting for subsidy on only one occasion in his career as a trustee. But one would not wish that a genuine case where this happened to arise more than once should be ruled out. On the other

45
hand, option mortgages are for owner occupation, and it is necessary to ensure that this arrangement is not used by someone to obtain a mortgage at a subsidised rate of interest for some speculative venture; for example, by forming a spurious trust. Hence the need for that adaptability which can best be obtained by allowing the Minister to regulate.
Amendment moved—
Page 21, line 32, leave out ("subsection") and insert ("subsections (3A) and").—(Lord Kennet.)
LORD BROOKE OF CUMNOR: I should like to express appreciation to the Government for this group of Amendments. They meet a point which I think was raised by my honourable friend Mr. Channon in another place. The Government have recognised that it was a valid point which was worth further investigation. So far as I can see, this is a very happy solution. I am grateful.
LORD KENNET: I beg formally to move Amendment No. 12.
Amendment moved—
Page 22, line 41, at end insert—
("(3A) The Minister may from time to time direct that, in such cases or class of cases as may be specified in the direction, being cases where the borrower is entitled to the interest in land in question as trustee for a person who is under the age of twenty-one, an option notice shall, if the qualifying lender in question so agrees, have effect if, instead of the condition specified in subsection (3)(c) of this section, there is satisfied such other condition as may he specified in the direction.")—(Lord Kennet.)
Clause 24, as amended, agreed to.
Clause 25 agreed to.
Clause 26 [Extension of right to opt for subsidy to certain other cases]:
LORD KENNET: I move Amendment No. 13 formally.
Amendment moved—
Page 25, line 23, after ("and") insert ("except for the purposes of subsection (3A) of the said section 24").—(Lord Kennet.)
Clause 26, as amended, agreed to.
Clauses 27 to 29 agreed to.
Clause 30 [Guarantee of advances in excess of normal amount]:
LORD BROOKE OF CUMNOR LORD BROOKE OF CUMNOR moved, in subsection (1), to leave out all words from and including "such date", to "appoint", and to substitute "1st April, 1968". The noble Lord said: I beg to move Amendment No. 14, the purpose of which is to provide that the new scheme for insurance guarantees embodied in Clause 30 shall come into operation on the same date as the option mortgage scheme, instead of having to wait until a date to be fixed by order by the Minister. Perhaps I may remind your Lordships of the purport of Clause 30 and I quote from the Explanatory Memorandum. It
"enables the Housing Ministers…to enter into arrangements with insurance companies whereby, if qualifying lenders are willing to make loans to persons opting for subsidy above the amount they would normally advance without collateral security, the insurance company will give a guarantee. The risk of loss is to be shared equally between the Minister and the insurance company…In the case of building societies, it is provided that the premium remaining can be added to the loan."
I wish to ask the Government why this scheme cannot be brought in on April 1, 1968, along with the option mortgage scheme. I think everybody appreciates that when Clause 30 was foreshadowed in the White Paper, Help Towards Home Ownership, published in December, 1966, the necessary discussions with the building societies and local authorites, and other bodies concerned, had not been completed, and that was at that time a valid reason for not fixing a definite date. But four months have now passed, and this is a desirable scheme. I submit to your Lordships that it is wrong to put a clause like this into a Bill simply as an indeterminate intention of the future. We ought to have more information before we agree to this clause. The simplest course the Government could adopt is the one that is comprised in my Amendment; that is, to say definitely that the necessary discussions have now been concluded, and that April 1, 1968, can be enshrined in the body of the Statute as the date when this new insurance scheme is to start. I very much hope that the Government will be able to accept this Amendment. I beg to move.
Amendment moved—
Page 29, line 29, leave out from ("after") to ("in") in line 32, and insert ("1st April 1968").—(Lord Brooke of Cumnor.)
LORD MITCHISON: I will not take a moment, but I suspect the noble Lord of getting a little distant from his own Amendment, because if I read it rightly it would have this effect. It would refer to a loan by a qualifying lender, and so on, made on or after April 1, 1968; that is to say, the only effect of the Amendment would be to prevent anything from being done in respect of a loan made before April 1, 1968. It is not quite what the noble Lord explained to us. I may have it wrong, but it seems quite clear to me, and perhaps in the light of that he might like to have another look at the Amendment before pressing it to a Division. This again, of course, is half-forbidden fruit, but at the moment most of the troops have departed and a Division at this moment might be dangerous.
LORD KENNET: I will not enter into the conflicting interpretations of the Amendment which have emerged in the course of this short discussion. The noble Lord, Lord Brooke of Cumnor, ended by saying that he wished the Government could accept a definite date for introducing the guarantee scheme. So do the Government. I think that both the noble Lords opposite know the only reason why we cannot. We are not sure that even then there will be enough money to do it, although we very much hope that there will be.
The noble Lord referred to the White Paper on this subject, from which I think he drew the conclusion that the Government had said at the date of publication of the White Paper that the only, or the main, reason for the postponement of the introduction of the guarantee scheme was that certain discussions were taking place on it. This would not be quite the right deduction to draw. The White Paper also said:
"The Government have decided that no date can at present be fixed for the introduction of the guarantee scheme. Option mortgages"—
that is the other part of the scheme—
"will add to the demand for finance for house purchase and must come first. When this need has been met, the Government will decide, with knowledge of the amount of money then available, when to bring the guarantee scheme into operation. The Building Societies' Association and the British Insurance Association have, for their part, said that they agree that it would not be appro
48
priate to introduce the scheme at the present time."
The point about all this is that if you bind yourself to introduce this scheme at a certain date, it may turn out to be a date when there is not enough money with which to justify it. We must remember that we are talking about 100 per cent. guarantees, and we must also remember the obvious mathematical fact, which hangs like a cloud over all our heads in this respect: that the amount of money which gives you 100 per cent. ability to issue 90 per cent. advances only gives you 90 per cent. ability to issue 100 per cent. advances. For better or for worse, the Government have decided that we should stick to idea of making it possible to give 100 per cent. loans. We are anxious not to be "jumped" into doing it when there is only 90 per cent. of the money to cover those 100 per cent. advances. I therefore advise the Committee not to accept the Amendment, although I appreciate that it is not moved in the spirit in which an earlier one was moved.
LORD BROOKE OF CUMNOR: I never had the intention of asking the Committee to divide on this Amendment, because it seems essentially a matter which the Government must decide. This is a question of availability of money, and the Government are the body who, under our Constitution, decide these matters. Nevertheless, your Lordships will feel that the Government's reply was a disappointing one. While the noble Lord quoted the White Paper, he did not say whether the Building Societies' Association and the British Insurance Association are still saying, four months after the date when the White Paper was published, that it would not be appropriate to introduce the scheme as yet.
From the words of other Government Ministers which I have read, I had hoped that they were confident about the future of the economy and that there would be money available to do within a reasonable time various things which the Government considered desirable. But this is one which the Government have decided must be put off longer. I do not think it would be for your Lordships' House to challenge that decision. I simply say that it is a disappointing one.
LORD KENNET: Before the noble Lord concludes his remarks, I should perhaps say that your Lordships should not draw the inference from my remark that the Government have decided to put this off until after any particular date. The only point is that the Government are against being tied to any particular date.
LORD BROOKE OF CUMNOR: I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 30 agreed to.
Clauses 31 to 33 agreed to.
Schedule 1 [Determination of cost of site]:
LORD KENNET: This Amendment enables the Minister to determine how much of the expenses incurred in connection with the acquisition of any land by a local authority is to be attributed to a building site forming part only of the land. I beg to move.
Amendment moved—
Page 34, line 27, leave out ("by a local authority").—(Lord Kennet.)
LORD KENNET: This Amendment enables the Minister to make certain determinations about expenses incurred in connection with the acquisition of sites. I hope that the Committee will find it a clear improvement over the text of the Bill as it stands at the moment. I beg to move.
Amendment moved—
Page 34, line 46, at end insert ("and references to expenses incurred in connection with the acquisition of a site or of land of which a site forms part shall be construed as including references to such amount as the Minister may determine to be the value of any other land given in exchange for the whole or part of the site or of the land of which the site forms part.")—(Lord Kennet.)
Schedule 1, as amended, agreed to.
Remaining Schedules agreed to.
House resumed: Bill reported, with the Amendments.

ANTARCTIC TREATY BILL
Brought from the Commons; read 1a, and to be printed.
CIVIC AMENITIES BILL
Brought from the Commons; read 1a, and to be printed.
ROAD TRAFFIC (AMENDMENT) BILL
Brought from the Commons; read 1a, and to be printed.
PRIVATE PLACES OF ENTERTAINMENT (LICENSING) BILL [H.L.]
Returned from the Commons, agreed to.

FUGITIVE OFFENDERS BILL
4.55 p.m.
Order of the Day for the Second Reading read.
LORD STONHAM: My Lords, I beg to move that this Bill be read a second time. It is now some four years since the case of Chief Anthony Enahoro heavily underlined the extent to which the Fugitive Offenders Act of 1881 had become outmoded. The Act, originally designed as an instrument to secure the return of offenders between the component parts of a single Empire, is no longer a suitable piece of machinery for regulating extradition arrangements between the separate sovereign States of the Commonwealth as we know it today. The absence of safeguards in the existing legislation had always seemed likely to cause embarrassment as more and more member countries of the Commonwealth achieved complete independence, but it was the Enahoro case which really showed how inadequate the powers conveyed by the old Act could be. For that reason it can properly be regarded as the starting point of the Bill now before your Lordships.
The Enahoro case focused attention on three features of extradition practice on which there were significant differences between the Fugitive Offenders Act of 1881 on the one hand and, on the other hand, the Extradition Act of 1870 and the treaties made under it. They were,

51
first, the absence of a specific list of extradition crimes; secondly, the lack of safeguards relating to political offenders and, thirdly, the absence of any discretion to withhold the surrender of a person liable to the death penalty.
These deficiencies made it clear that the Act of 1881 could no longer be retained as a continuing basis for the return of offenders between the independent countries of the Commonwealth. Therefore, in May, 1964 (while the noble Lord, Lord Brooke of Cumnor, was Secretary of State for Home Affairs), the Government of the day circulated to the governments of the other independent Commonwealth countries a memorandum, as a basis for Commonwealth consultation setting out the modifications which, from the point of view of the United Kingdom, it seemed desirable to make to the code for the return of offenders comprised in the Act of 1881. The memorandum was discussed at a meeting of Commonwealth Law Ministers held in Canberra in September, 1965. From that meeting there emerged a general consensus of opinion as to the desirability of uniform arrangements on a more restrictive basis than that provided by the Act of 1881.
Accordingly a draft scheme was circulated for consideration at a meeting of Commonwealth Law Ministers held at Marlborough House almost a year ago. The meeting came to the view that Commonwealth extradition arrangements should be based upon reciprocity and substantially uniform legislation incorporating certain features commonly found in extradition treaties, such as a list of returnable offences, the establishment of a prima facie case before return, and restrictions upon the return of political offenders. The meeting went on to formulate a Scheme setting out the principles on which legislation within the Commonwealth could be based, and recommended that effect should be given to the Scheme in each Commonwealth country.
The Scheme is fundamentally a statement of principles. It does not constitute a binding Agreement or a Convention; it is rather a basis for legislation within the Commonwealth, which the individual Law Ministers who were present at the Conference undertook to
52
recommend to their respective Governments as an acceptable blue-print for their own legislation. It is agreeable to be able to report that, so far as we are aware, their recommendations have not been found unacceptable either here or elsewhere in the Commonwealth.
It would, I , be helpful to review the changes which our acceptance of the principles enunciated in the Scheme is intended to bring about in the machinery for the return of offenders to the independent countries of the Commonwealth. They are as follows:

(1) there will in future be a prescribed list of the offences for which an offender can be surrendered;

(2) the surrender of political offenders will be prohibited;

(3) there will be a discretion not to return a person who would be liable to the death penalty in the requesting country, but not in the requested country;

(4) the offence for which return is sought will have to be an offence under the law of both countries;

(5) a "speciality rule" will operate (as in Sections 3(2) and 19 of the Extradition Act 1870) to preclude prosecution, without the consent of the returning country, for any offences committed prior to surrender other than those for which surrender has been granted.

Although the main purpose of these changes is to bring extradition arrangements between independent Commonwealth countries more closely into line with those obtaining generally among independent sovereign States, the Scheme does not seek merely to reproduce the provisions of our Act of 1870 and the treaties made under it. Thus the prohibition of the surrender of political offenders follows Article 3(2) of the European Convention on Extradition, and the restrictions which it imposes are significantly broader than those contained in Section 3(1) of the Extradition Act, and perhaps more in tune with modern requirements.
I referred to the death penalty provision. Although this is found in a number of our extradition treaties and, in particular, those which have been negotiated more recently—the ones with

53
Israel, Sweden and Austria, for example—it does not form part of the Scheme proper, but is a supplementary provision which countries of the Commonwealth may adopt if they wish. This means in practice that, under the terms of Clause 17 of the Scheme, it will be open to another Commonwealth country either to impose additional restrictions on the return of offenders to this country or to ask us to relax our own provisions in some other respect by way of compensation. This we could do, if we thought it right, under the Order in Council powers contained in Clause 2 of the Bill.
As your Lordships will appreciate, however, the Fugitive Offenders Act of 1881 does not regulate the surrender of offenders only to independent Commonwealth countries. It deals also with the return of offenders between the United Kingdom and her dependencies, from the dependencies to independent Commonwealth countries and to the Republic of Ireland and among the dependencies themselves. Any Bill repealing the Act of 1881 must therefore also make new provision for these purposes, and this Bill does so. Thus, it not only seeks to implement the Commonwealth Law Ministers' Scheme as the basis of the law governing the return of offenders to independent Commonwealth countries from the United Kingdom, but it also modifies the existing arrangements for the return of offenders between the United Kingdom and the dependencies and from dependency to dependency—by which I mean the Colonies, the associated States of the West Indies, and the States to which the Government extends protection, such as the Persian Gulf States.
We have not thought it appropriate or desirable that the whole range of safeguards provided in relation to the return of fugitive offenders to independent Commonwealth countries should apply in relation to return to the dependencies. Among the differences are, first, that there will be no list of returnable offences, although, to be returnable, offences will have to be punishable by a superior court in the requesting country by twelve months' imprisonment or more; and second, although there will be a discretion not to return political offenders, their return will not be entirely prohibited, because where two countries acknowledge the same sovereignty and one is respon
54
sible for the other's defence it may well be right to return a person for, say, an offence of treason or espionage.
These are the bases on which the Bill is founded. A Bill of this nature cannot, however, be confined, as the Commonwealth Ministers' Scheme was confined, to a statement of the principles which will govern the return of offenders. It must also prescribe the procedure to be followed in this country to regulate the submission and consideration of applications for the return of offenders. These questions of internal practice may involve a delicate division of authority between the courts and the Executive, and the Scheme, regarding this as a matter for determination by each individual country, has deliberately not attempted to specify how that division of authority might most conveniently be achieved. In the case of this country, the Government have thought it right that as much authority as possible should be accorded to the courts, so that, where questions of liberty are in issue, the matter should, to the maximum practicable extent, be dealt with in the open and by way of the established machinery for the reception and consideration of evidence.
Under the Extradition Act of 1870 a machinery has existed for a very long time for dealing with cases of this kind. Where a procedure has been tried and tested over the years and has not been found wanting in any major particular, it would be rash to depart from it without good reason. The procedure set out in the Bill for the consideration in the United Kingdom of applications for the return of fugitive offenders is therefore substantially the same as that which is followed under the Extradition Act. This has involved some departures from the practice which obtained under the old Fugitive Offenders Act where that differed from Extradition Act practice.
Thus, as under the Extradition Act, the Bill provides for applications to be routed through the diplomatic channel and to be subject to an order by the Secretary of State to the magistrate to proceed, instead of a warrant being sent straight to the court for backing. Although, as experience under the Extradition Act shows, intervention at this stage is very rare, the Secretary of State, by refusing to issue an order to proceed in a case

55
where it appears to him that he will not, at the end of the day, order the return, can secure that a fugitive is not subjected to unnecessary and unfruitful proceedings.
Another change which has been made, in order to bring our domestic procedure more closely into line with that of the Extradition Act, is to provide that the standard of proof required by the court of committal shall be materially the same as that specified under Section 10 of the Act of 1870. The requirement there is that the evidence produced would justify the person's committal for trial in this country if the offence had been committed here. The old Fugitive Offenders' Act, on the other hand, requires "a strong or probable presumption" of guilt. For many years it was believed that there was no significant difference between the two requirements, but this was shown not to be the case in the judgment of your Lordships' Appellate Committee in the case of Armah v.Government of Ghana (No. 1) 1966. Steps have therefore been taken in this Bill to bring the required standards into line. It has not, as it happens, been found practicable to employ precisely the same wording in Clause 7 of the Bill as is used in Section 10 of the Extradition Act, since the term "committal for trial" is not consistent with procedure followed in Scotland, but, subject to that, we have aimed at a uniform standard.
Mention of Scotland brings me to one of the differences between the procedure under the Fugitive Offenders Act and the Extradition Act which we have thought it right to maintain. Scotland has traditionally exercised a separate jurisdiction under the Act of 1881, and so where it is thought that there is good reason for an application to be heard in Scotland—for instance, if it is the offender's normal place of residence—there is provision for that to be done. These cases will be considered by appropriate courts in Scotland, and the powers of the Secretary of State will be exercised by the Secretary of State for Scotland. All other cases will be dealt with by the courts in this country and by the Home Secretary, and it will be immaterial whether the fugitive is found in England and Wales, or in Northern Ireland, the Channel Islands or the Isle of Man.
56
Another most important difference from the extradition procedure stems from an Amendment made to the Bill in another place, as a result of which it is specifically provided that an offence against the life or person of Her Majesty as Head of the Commonwealth should not be regarded as an offence of a political character for the purpose of proceedings here in respect of an application for the return of the alleged offender to a designated Commonwealth country. It was thought right to make this modification of the Bill, since an offence against the Head of the Commonwealth can be regarded as equally damaging to every member country of the Commonwealth.
May I now describe briefly the individual clauses of the Bill. Clause 1 authorises the return from the United Kingdom to designated Commonwealth countries or United Kingdom dependencies of persons found in the United Kingdom who are accused in those countries of relevant offences or are unlawfully at large after conviction of such offences there. Clause 2 provides for the designation of independent Commonwealth countries and defines dependencies, and enables the provisions of the Bill to be modified by Order in Council in their application to any individual country.
Clause 3 and Schedule 1 together prescribe the offences in respect of which offenders may be returned to designated Commonwealth countries. For the purposes of return to United Kingdom dependencies, however, the Schedule does not apply, and an offence will be returnable if it is punishable by a superior court in the dependency by 12 months imprisonment or a heavier penalty. In either case, however, the offence must be one which is recognised by the criminal law of this country. Clause 4 sets out the circumstances in which the return of offenders is absolutely precluded, for example, in the case of an application from an independent Commonwealth country, where the case is of a "political" nature; in the case of any application where the accused person has already been acquitted or convicted of the offence; or where the requesting country does not operate the speciality rule.
Clause 5 provides that a request for a fugitive's return shall be made to the Secretary of State, shall be accompanied by specified particulars, and shall not be

57
proceeded with except in pursuance of the Secretary of State's authority to proceed. Clause 6 specifies the circumstances in which a warrant may be issued in the United Kingdom for the arrest of an offender for whose return a request has been made. Clause 7 deals with the committal proceedings in respect of a person who has been arrested, while Clause 8 relates to habeas corpus applications and the comparable process in Scotland in the case of persons who have been committed to await return.
Clause 9 sets out the considerations to be taken into account by the Secretary of State in deciding whether to order the return of an offender. In particular, it provides a discretion to withhold return where the offence carries the death penalty in the requesting country but not in Great Britain; and, while enabling the return to a dependency of a political offender, nevertheless affords the Secretary of State a discretion to withhold return in such a case. Clause 10 enables an offender to apply to the High Court (or the High Court of Justiciary in Scotland) for his discharge if, without good cause, he has not been returned within the prescribed period.
Clause 11 governs the admission, authentication, et cetera of evidence for the purpose of proceedings in this country. Clause 12 deals with places of committal to custody, re-arrest in the event of escape, removal from one place of custody to another and custody during surrender. Clause 13 enables the form of warrants and orders under the Bill to be prescribed and authorises an Under-Secretary to sign such documents on behalf of the Secretary of State.
Clauses 14 and 15 relate to fugitives returned to this country. They bind the Government to apply a speciality rule to such offenders and empower the Secretary of State, in certain circumstances, to send back a person, so returned, free of expense. Clauses 17 and 18 provide for the extension of the Bill, by Order in Council, with such modifications as may be necessary, as part of the law of any Colony, Protectorate or other dependency, and for alternative arrangements for Colonies and dependencies to be made by Order in Council where it is considered appropriate.
As your Lordships will have noticed, the Act will not automatically come into
58
operation completely on a given date, and I should perhaps, in concluding, give some indications of the Government's proposals for bringing it into being. It is our intention that, very shortly after the Bill receives the Royal Assent, an "appointed day" order should be made bringing the Act into force. That order will have the effect of applying the Act to the return of offenders from the United Kingdom to the Colonies and associated States. Separate Orders in Council will have to be made to designate independent Commonwealth countries under Clause 2(1), and to specify the protected States referred to in Clause 2(2)(c), before the Act can be brought into force to govern the return of offenders to those countries. That will be done as soon as possible after Royal Assent, but the governments of the independent Commonwealth countries will be informed in advance, so as to give each of them an opportunity of indicating whether they would wish that use should also be made of the Order in Council powers under Clause 2(3) to modify any of the provisions of the Act in its application to their country. We hope, however—if your Lordships approve the Bill, as I hope you will—that in all cases the Act will be in operation by the autumn. My Lords, I beg to move that the Bill be read a second time.
Moved, That the Bill be now read 2a.—(Lord Stonham.)
5.19 p.m.
LORD BROOKE OF CUMNOR: My Lords, the whole House is indebted to the noble Lord, Lord Stonham, for his careful exposition of a complicated Bill. It is indeed, although a short Bill, a complicated subject, with a long history, and it well deserves your Lordships' attention. The whole subject is also one which, in my view, can be more easily grasped by professional lawyers than by those of us who are laymen in the law, and I ask for the indulgence of your Lordships if I slip up in any respect. I have not professional qualifications in this field; neither have I, as the noble Lord, Lord Stonham, now has, access to advice from official quarters.
I have no doubt that legislation of some character is required, but in my judgment this Bill will create problems, as well as solve problems. The first

59
point I want to submit is that anybody will be making a grave mistake if he imagines that once this Bill comes into operation all the heavy clouds which at various times in the past have hung over this subject will be dispersed and that we shall have clear weather for ever after. I think that it is common ground, both in Parliament and throughout the Commonwealth, that the 1881 Fugitive Offenders Act needs revision. That point, as the noble Lord said, was brought to the forefront by the Enahoro case in 1963.
Chief Enahoro was charged with a grave political offence in Nigeria, and the Nigerian Government, under the procedure of the 1881 Act, had a warrant issued for his arrest in London. The British courts before whom he appeared found that there was "a strong or probable presumption" of guilt, and that it would not be "unjust or oppressive, or too severe a punishment", if he were returned to Nigeria to stand his trial there. I am not choosing my own words; I am using the words from the 1881 Act. And those were the issues which came before the courts under that Act.
Finally, under that same Act the Home Secretary had to take a decision, and I have no doubt whatever that my decision in the case of Chief Enahoro was right—indeed, I could not have decided otherwise, in all the circumstances, without casting grave and wholly boundless aspersions on the quality of the justice dispensed in Nigerian courts. But the fact remained that the 1881 Act was passed in the time of the British Empire and not the British Commonwealth. That fact alone, the variety of independent nations now contained within the Commonwealth, called for a new look to be taken at an Act passed in such different circumstances. I noted the three points in which the noble Lord said that the 1881 Act was out-dated. In fact in the case of the death penalty—indeed, in every case—the Home Secretary retained final power, unfettered by the Act; but it led to his having to make some very difficult decisions. It was absolutely right, I am sure, that Parliament and the Commonwealth should take a new look at the 1881 Act.
60
Accordingly, as the noble Lord said, following on the Enahoro case I took the lead in working out within the British Government a new plan for discussion with all the independent Commonwealth countries. It was circulated, as the noble Lord said, in May, 1964, and I am prepared to say that that plan is the basis on which the Bill now before your Lordships is founded, though certain alterations have been made in the original plan as a result of two Conferences of Commonwealth Law Officers. What I had in mind at that time was a two-tier system: a basic layer, as it were, of mutual obligations to return offenders, which might run between all the independent nations of the Commonwealth; and then, on top of that, an additional layer of further obligations which might be mutually accepted by agreement between any two Commonwealth countries with more than usually close ties between their political systems.
Though it is not very apparent on the face of the Bill now before us, I think that subsection (3) of Clause 2 renders it possible to reach and apply these additional bilateral agreements. Perhaps the noble and learned Lord the Lord Chancellor, in winding up, will not only confirm this but will also confirm what I suspect to be the case, that those special arrangements can, in point of fact, override the general restrictions which are laid down in the Bill. For example, though the Bill says that political offenders are not to be returned, it will be possible, under subsection (3) of Clause 2, to reach a special arrangement with a particular Commonwealth country that will provide for the return of political offenders between those two countries.
It seemed to me at the time that if the plan which was circulated to the Commonwealth in 1964 found acceptance, two further consequences would ensue. As it might lead to persons guilty of foul crimes not being returnable to the country where the crime was committed, there to stand their trial, on the ground that their crime had been a political one, those people would be free to remain in this country—perhaps to the utter disgust of British public opinion—unless Parliament gave to the Home Secretary the same power which he holds in the case of aliens, to deport a Commonwealth

61
citizen on the ground that his presence here is not conducive to the public good.
Your Lordships must bear in mind that in the case of an alien the Home Secretary can sign a deportation order either on the recommendation of a court of law or because he considers that an alien's presence is not conducive to the public good, though the person concerned has not in fact committed any crime here. I know that the present Home Secretary signed certain orders of that character recently, and I am sure he was right: I had to do the same from time to time. But with regard to a Commonwealth citizen the law is different. In such a case the Home Secretary can make a deportation order only after the Commonwealth citizen has been convicted of some crime in this country. It is that difference which if it is not ironed out in some way, is going to cause serious difficulty.
I should like now to look hack for a moment. In the course of my speech I shall have to mention some hypothetical situations of a dreadful character, but all the experience we have had in this field teaches us that one should look ahead and provide in advance against situations that might arise, rather than allow them to come along and then find that the law is not wholly as everybody would wish it to he in dealing with them.
Suppose that the murderer of President Kennedy had escaped and got to this country, and had been detected here. It would almost certainly not have been possible to extradite him under the 1870 Act, because it would have been ruled that his offence was a political one. One cannot be certain of that, of course, but there are cases involving the murder of Heads of State which lead to the view that it would undoubtedly be ruled that it was a political offence; and the Extradition Act 1870 does not permit the return of political offenders. What the Home Secretary could have done in such a case was to make a deportation order on the man, taking the view that a man who was suspected of such a dreadful crime should not be in this country and that it was not conducive to the public good that he should remain here.
Let us take another wholly hypothetical situation. Let us suppose that there had been an assassination of some Commonwealth Head of State. Let us suppose,
62
in fact, that by some dreadful disaster Mr. Nehru had been assassinated and the assassin had escaped and been found in this country. Under the Fugitive Offenders Act 1881, even though that were judged to be a political offence he could have been returned for trial in India. Under this Bill it would not be possible to return him, unless, of course, a special arrangement were made under Clause 2 with the country in question. I must warn the Government that they are storing up acute trouble for themselves and their successors if they are not willing now to face this issue.
The second consequence which I had in mind was that as soon as Commonwealth agreement on fugitive offenders was achieved and we revised the 1881 Act accordingly, we ought to lose no time in revising the 1870 Act on broadly similar lines. I welcome the fact that in certain respects the law regarding fugitive offenders is brought into detailed uniformity with the 1870 Act relating to aliens. The 1870 Act, as is common knowledge, absolutely forbids the return of political offenders. There is no escape clause from that, like subsection (3) of Clause 2. This means that we could in no circumstances return for trial a man accused or even convicted of the murder of a Head of State or a leading and perhaps greatly respected statesman of a foreign country. if the murder appeared to he politically motivated.
If it were a country with which we were on particularly friendly terms, I frankly do not think that public opinion either here or there would tolerate this. We could deport the man, we could send him away from this country, but the country of the murder could not ask us to extradite him there to stand his trial. I suggest that it is time to begin to ask ourselves whether murder is so terrible a crime that it should no longer rank as a political offence. I feel fairly strongly that public opinion is not going to accept that murderers of leading statesmen or Heads of States should be able to come to this country and stay here with impunity.
I have pointed out that a political murderer who has committed the offence in a foreign country could be deported, made to go somewhere else; though he could not be extradited, made to go back

63
to the country where the offence was committed, to stand his trial. But a Commonwealth citizen cannot be sent back as a fugitive offender under this Bill—though up till now he could, because the 1881 Act did not apply to political offences—neither can he be deported as an alien can, on the ground that his presence here is not conducive to the public good. I submit that we must think very seriously about the situation which may arise if we have political murderers seeking sanctuary in this country.
The same defect in our law appears in the case of espionage. I trust I shall be forgiven for dealing with the 1870 Act as well as the 1881 Act, because I do not think that the present Bill before us can be properly considered except against the whole background of relations with foreign as well as with Commonwealth countries in this respect. A man may be accused or even convicted of spying against one of our allies in that ally's country. Because spying is a political offence the 1870 Act would not allow our ally to apply for his extradition. This was, in fact, exemplified by the Soblen case in 1962; and it puts an alliance under severe strain if a country's laws debar it from enabling its ally to put a spy on trial.
Having pointed out what more needs to be done, I now wish to come back to the Bill before us. I welcome the listing of returnable offences in a Bill which applies to the Commonwealth. I welcome the inclusion here of the speciality rule which, if I remember rightly, is in the 1870 Act but which, for some reason, was omitted from the 1881 Act. I welcome the proposal that applications should be routed through diplomatic channels and that the Home Secretary should have an opportunity of looking at the matter, because I am very well aware of the embarrassment which it causes to a Home Secretary when a situation which may create grave difficulties for him arises, as it were, behind his back with no official information to him from the other country that action is being taken. I welcome that, and I welcome various other detailed provisions which are based on the valuable experience which we have gained from the 1870 Act.
64
I also welcome very strongly subsection (5) of Clause 4 relating to the Head of the Commonwealth. But this, of course, does not refer to the rest of the Royal Family, nor does it refer to Commonwealth Prime Ministers or leading statesmen. I think your Lordships will want to know what the Government have in mind here. I am sorry to have to refer again to dastardly possibilities, but let us suppose that someone were to make an attempt on the life of Prince Philip or the Queen Mother in a Commonwealth country, and that the would-be assassin escaped to this country. I do not believe public opinion would tolerate his living among us here unpunished, being neither returnable for trial under this Bill nor deportable. Of course, the same situation would arise in reverse if an attempt were made on the life of a member of the Royal Family in this country by a Commonwealth citizen who was then detected in the Commonwealth country to which he had managed to return.
Political asylum is a great and noble concept and Britain has a fine record in offering it. But political asylum is to save people from suffering unjustly or undeservedly. For Britain to grant people who have committed detestable crimes a kind of sanctuary from punishment is a wholly different matter, and I hope the Government will explain how they see themselves able to avoid having to do that if this Bill becomes law.
On a particular and rather complex point, which is so important that it should be raised on Second Reading, I should be glad to know whether the Government have in mind to amend Section 3 of the British Nationality Act 1948—a provision which was obviously drafted in the light of the provisions of the 1881 Act and which, I would say with some confidence, would not have been approved by Parliament in that form had the Bill which is now before us been the law at that time. Perhaps I can best illustrate what I mean by giving an example, rather than by stating it in abstract terms.
Let us suppose that a foreigner and, let us say for the sake of example, an Australian citizen—although it might be a member of any other part of the Commonwealth—took part jointly in giving away British secrets in Australia to a foreign power. The foreigner would

65
commit an offence against United Kingdom law, but the Australian would not. If they both were subsequently detected in Britain, the foreigner could be put on trial, but not the Australian. Under the Fugitive Offenders Act 1881, of course, the Australian Government could demand the return of their citizen to Australia to stand his trial there if he had committed an offence against Australian law, but the Bill now before us would preclude that unless we had a special arrangement with Australia covering the point. As I say, this is a complex matter on which I would not press the Government for a reply at short notice in this debate, but I think your Lordships will recognise its considerable importance.
I have a few specific questions to ask on the Bill. Other noble Lords may have more, but as I was fairly familiar with the original plan which was circulated to the Commonwealth perhaps it is somewhat more self-explanatory to me than it might be to those who had not seen the outline plan before. Can the Government explain why, in Schedule 1, which lists the relevant offences, the contravention of import or export prohibitions relating to precious stones, gold and other precious metals is to be a relevant offence, whereas other forms of currency offence, or indeed smuggling, are not to be included in the list? I know that the brief answer is, "Because the Commonwealth Law Officers so decided", but presumably our representatives at those conferences concurred in this, and there must be a rational explanation.
I am not wholly happy about a clause to which the noble Lord referred, that is, Clause 4. Subsection (1) of that clause sets out the parallel or perhaps concurrent powers of the courts and the Home Secretary. The noble Lord described this as "a delicate division of authority". He said that this part is not covered by the agreed Commonwealth scheme, and that it was the Government's desire that as much as possible of the questions at issue should be threshed out in open court. I have no doubt at all that the question of whether an offence is a political offence is a natural matter for the courts. It is quite true that the 1870 Act gives dual jurisdiction in this case, but it has always seemed to me that it would be natural for the courts to decide, if a question was put to them
66
under the 1870 Act, whether an offence was a political offence or not, and that it would be unlikely that the Home Secretary would take a view different from the court that had heard evidence on it.
I must say that subsection (1)(b) and (1)(c) of Clause 4 seem quite a long way from what I have always regarded as normal justiciable issues. Here I must say again that I am not a lawyer, and certainly I cannot think myself into the position of a judge, but subsection (1)(c) of Clause 4 seems to me to expect British courts to pass judgment on Commonwealth courts. Under this provision, the High Court may be asked to say whether the person might, if returned to the Commonwealth country concerned,
"… be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality or political opinions".
I am not saying that it is beyond the powers of a British court to decide that question, but it seems to me that it creates a most unpleasant jurisdiction for them and I find myself wondering whether it would not have been better to demarcate rather more clearly what were the matters which the courts would need to decide in such a case, and what were the matters which the Home Secretary would need to decide.
LORD STONHAM: If the noble Lord will allow me to interrupt, it seems that in essence the issues would have to be decided, whether by the court or by the Home Secretary, and it should surely be no more difficult for the court to decide than for the Home Secretary.
LORD BROOKE OF CUMNOR: I appreciate that it is taking a very unpleasant responsibility off the shoulders of the Home Secretary, because I can remember circumstances while I was Home Secretary in which a question arose as to the return of an offender to a country, not Nigeria, in which I did not have the same confidence in the impartiality of its courts as I had in the case of Nigeria. That is an extremely unpleasant decision for the Home Secretary to take, but it does not seem to me to make the general situation any easier if the British courts of justice are asked to decide it. I should have thought that it would create very undesirable tensions at judicial level. However, this is not a matter for me to judge. Noble and

67
learned Lords will be able to advise your Lordships much better than I can on matters like that. It simply seemed to me that it was a question that I ought to raise.
The noble Lord was good enough to explain what the Government have in mind as the course of proceedings after the Bill becomes law. He said that the Government would fix an appointed day quickly, which would have a certain effect, and that after that they would proceed to make Orders in Council designating Commonwealth countries under Clause 2. He explained further that before doing that each Commonwealth country would be consulted. May I ask him whether it is the Government's intention to make an Order in Council as quickly as possible designating all independent Commonwealth countries, irrespective of whether they intend to take practical steps to grant us reciprocity in these matters? As a separate question, may I ask him whether the original designating Order in Council will simply do the designating, and then whether the Government contemplate making a further Order in Council for a particular country with which it has been able to make an arrangement under subsection (3) of Clause 2?
Further, will the Fugitive Offenders Act 1881, which is the present law, continue to apply in relation to a particular independent Commonwealth country until a designating Order in Council is made? Then, perhaps most important of all, can the Government tell us what in fact the other independent Commonwealth countries are doing as the outcome of the Law Officers' conferences? Do we intend to go ahead designating countries regardless of reciprocity? Of course, I am not impugning in any way the good faith of the Commonwealth countries which have agreed to the Scheme, but we all know that there is many a slip, and even this Parliament does not always rapidly proceed to legislate in order to bring the law of the land quickly into conformity with some Convention to which we have agreed at a conference. Clearly, reciprocity is important. That was the purpose of having a Commonwealth Conference—to try to obtain as great a measure of reciprocal uniformity as possible throughout the Commonwealth.
68
What happens if it becomes clear that, in the case of some particular Commonwealth country, we are not to get reciprocity? Or, indeed, if after a period reciprocity is withdrawn, and the other Commonwealth country informs us that although they agreed in good faith to the scheme, they now take other views and have in mind different legislation? So far as I can see, there is no provision under the Bill for withdrawal of designation.
I think the fact that the Scheme has been agreed and cannot be altered by us unilaterally makes it the more important to put all these questions to the Government on Second Reading, so that Parliament and the country can know exactly how we shall stand. Of course, I entirely appreciate that the noble and learned Lord the Lord Chancellor may wish to defer his answers to some of these questions until the Committee stage. I have no doubt at all that we should give the Bill a Second Reading; but while accepting fully the case for bringing the 1881 Act into line with modern relationships, I trust that no-one will imagine that this Bill will lessen materially the possibility of tension arising with Commonwealth countries or will save future Home Secretaries from having agonising situations to deal with.
5.51 p.m.
LORD STOW HILL: My Lords, I should like to make a short intervention in your Lordships' discussion of this Bill—short because its purposes have been explained with such fullness and clarity by the noble Lord, Lord Stonham, and we have also had the advantage of a most well-informed, careful and valuable analysis of its provisions by the noble Lord, Lord Brooke of Cumnor. My intervention, I hope, will be short for the additional reason that, in view of what has already been said, I wish to concentrate on one clause of the Bill. I refer to Clause 4, which I regard as its focal point.
May I refer back for a moment to the Enahoro case. I thought that the noble Lord, Lord Brooke of Cumnor, was confronted there with a most difficult and agonising decision. It was the kind of decision in which, if you say, "Yes", you are plainly wrong; if you say, "No", you are plainly wrong; and if you say nothing, you are doing something still more unforgivable. When I had some

69
responsibility for this matter I was most glad to know that the noble Lord, Lord Brooke of Cumnor, had instituted the discussions between Commonwealth countries which ultimately led to the Conference of Law Ministers from which the Scheme on which this Bill is based sprang. I thought that the noble Lord's difficulty in the Enahoro case really arose from the fact that in the Fugitive Offenders Act 1881 the discretion given was so widely drawn: there was no sort of indication as to the kind of criteria which a Home Secretary should apply. Under Section 3 of that Act, it was within his jurisdiction to return an offender—and I think I am quoting correctly:
"if he thinks just".
The position is wide open; he must consider absolutely everything.
In Section 10 the court was given an equally wide discretion, somewhat more clearly set out, which for the purpose of the argument that I wish to present to your Lordships is not immediately relevant. In the Enahoro case the noble Lord, Lord Brooke of Cumnor, found himself (I hope I am correctly following his train of thought) confronted with the uneviable task of trying to answer the question whether "it was just", in the circumstances of that case, to order that Chief Enahoro should not he returned to Nigeria. He took the view that if he did so it would be inflicting a grave insult on the courts of Nigeria and that his duty was to give a negative answer. Other persons who considered the same case felt, equally strongly, that his duty was in the other direction.
I always thought, when considering that case, that it was of great importance, for the purpose of avoiding friction between Commonwealth countries and to preserve good feelings, to try in some way, in terms of an Act, to give some guidance to the Home Secretary as to the sort of things he was to have in mind. I thought, further, that surely the right course was this: that since the Extradition Act 1870 it has always been deeply engrained in our tradition that we do not return to other countries persons charged or convicted of political offences. The courts have considered the meaning of the expression, "political offence". There was a decision in 1893; there was a decision in 1894; there was the recent decision of your Lordships' House, in the Schrack
70
case, as to what is really the meaning, judicially construed, of the expression "political offence".
If one looks back at the Extradition Act 1870 one finds that there was, as it were, this guidance: an offender was not to be returned—it was a categoric prohibition—if he was sought for trial for a "political offence"; a political offence as the courts construed the expression "political offence". He was, further, not to be returned if he could prove—I suppose by evidence or by representations, according as the case may be—either to the committing magistrate or to the court of record from which he asked for a Writ of Habeas Corpus or to the Secretary of State— in that order—in the 1870 Act, that, although ostensibly he was sought by the requisitioning country for trial for a non-political offence, the real object was to punish him for a political offence.
If one looked at an Act in that form, one at least could draw a ring round the matters which the court or the Home Secretary, as the case might be, had to consider. The court would determine the matter by application of ordinary judicial principles and decisions and by listening to such evidence as was brought before the court—often not a particularly agreeable task; but, at any rate, a task to which the court could address itself. The Secretary of State was given a kind of co-ordinate jurisdiction under the 1870 Act, notwithstanding the decision of the court that there was no reason not to send the fugitive back, nevertheless to refuse to send him back on the same grounds.
So the Home Secretary, if he exercised his discretion, had to ask himself two questions: first, is the offence for which the offender is sought a political offence? And the second: is he really sought in order to punish him for a political offence? So the whole bent of his mind, the whole attention of his consideration of the case, must be primarily focused on the question: was the offender really to be tried in his own country for something which the courts in our country had said was a political offence? That was difficult discretion in any event; but still one which could be exercised and which had, after all, traditionally over the decades, been exercised by the Home Secretary—and I think that, historically, I am speaking not too inaccurately when I say

71
without major ruptures of good feeling between this country and other countries.
That was the law so far as foreign countries are concerned. If I may speak for myself, when I addressed myself to this problem I thought that in the long run, now that the Commonwealth countries were completely sovereign and independent (as independent as any foreign country, and as entitled as any foreign country to organise their own country's judicial and political system as it seemed to them good), it was at any rate a possible solution to use in one's relations in this context with Commonwealth countries something very close to the machinery provided by the Extradition of Offenders Act 1870.
When one examines the plan which emerged from the Conference of the Law Ministers of the Commonwealth countries, one finds—so I would respectfully submit to your Lordships—there has been a rather difficult compromise. What has been adopted from the 1870 Act is the concept, in the first place, of an offence of a political character. If one looks at Clause 4(1) of this Bill one finds, in the first place, that there is the same bipartite jurisdiction, if I may so describe it, divided between the Home Secretary and the courts. The Secretary of State and the committing court and the superior court are mentioned in inverse order, but I do not think that makes very much difference. The Home Secretary is given a discretion under Clause 4, and the courts are given the duty of coming to a judicial decision under that clause.
If one stopped at Clause 4(1)(a) one would find that what the courts or the Home Secretary, as the case may be, have to decide is whether the offence of which that person is accused, or was convicted, is an offence of a political character. So far, so good. That is something which the courts can decide, and which, as I apprehend it, does not impose an unduly difficult and onerous task as a matter of exercise of discretion by the Secretary of State.
It is when one gets to paragraph (b) and paragraph (c) that I confess I have some apprehensions. The noble Lord, Lord Brooke of Cumnor, touched on this, and I should like to follow him a little further along the line of thought which he adumbrated. Paragraph (b) requires the court
72
or the Home Secretary to consider the question whether the request for a person's return, though purporting to be made on account of a relevant offence, is in fact made for the purpose of:
"prosecuting or punishing him on account of his race, religion, nationality or political opinions."
I do not think that any Member of your Lordships' House would in any sense demur to the purpose which stands behind that language. I think everybody would find it utterly deplorable if a person in any Commonwealth country, or in our own country, were ever at a disadvantage because of his race, religion, nationality or political opinions. That we would accept at once. What I am concerned with is precisely how this is to work when the task of making a decision under paragraph (b) devolves either upon the courts or upon the Secretary of State.
I cannot help thinking that when one looks at paragraph (c) the difficulty is even more accentuated. If I may trouble your Lordships by reading the paragraph, it is worded as follows:
"that he might, if returned, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality or political opinions."
Now if that matter comes before the committing magistrate, or a court from whom the fugitive asked for an order of habeas corpus, what is the evidence to be? If one fastens on the word, "punished", I suppose that means that our courts are to be asked to decide whether because a fugitive belongs to a particular religion, or possibly belongs to a particular tribal group, or has in the past expressed certain political views, or has been identified with a certain political party, experience in those courts shows that it is likely that he will get a heavier punishment, because of the characteristics to which I have referred, than if he were not under the disadvantage of having those characteristics.
Anything more disagreeable I cannot conceive. It may be that that is the only way in which this can be dealt with. As I say, the purpose behind it is obviously laudable; but I cannot say that I envy the task of any court in our country which would have to listen to evidence: that A was sentenced for precisely the same offence to 6 months; that B, of such-and-such a tribal group to 12 months for an

73
offence which was exactly similar; and that C, who was not of that tribe, to 6 months, and so on. One of the objectives is to preserve good feeling between Commonwealth countries. After all, whatever is said about the Commonwealth, it is an agglomeration of 700 million people of different races. It is an immense force for world peace, and it would be almost world suicide to disband it or cast it aside. It is an immensely valuable thing for the progress of mankind.
Let us consider the word, "detained"—not given bail, I suppose, because he belongs to a certain race or because he is of a certain nationality. I do not mention any particular country because it would be highly invidious to do so, but that is the task which would devolve on the courts. I do not care to think of the position of the Secretary of State. What is he to do? The matter comes before him and he has to exercise his discretion. He must do so, of course, courageously and fearlessly, trying to do justice to the individual; but it will be a very distasteful task for him to undertake. When I think of the noble Lord, Lord Brooke of Cumnor, facing the inherent difficulties in the Enahoro case, I cannot help thinking that with this paragraph, the difficulties would have been greatly multiplied.
I am not asking your Lordships to say that this Bill should not be read a Second time; I certainly think that it should. I think that the noble Lord, Lord Brooke of Cumnor, did a great service in starting the discussions from which this Bill ultimately eventuates, and I hope that it will find its way to the Statute Book. I call the attention of your Lordships to that particular aspect of it—which is really rather a vital one—at this early stage in your Lordships' consideration of this Bill in your Lordships' House, because you may wish to give further thought to it.
I think this is extremely difficult. It is equally difficult to refuse to enact it. I gather that Australia is the only country which has yet introduced legislation on the lines of this scheme. The difficulty of reciprocity was pointed out by the noble Lord, Lord Brooke of Cumnor, but it may be that your Lordships will think that some further thought should be given to this: not to frustrate the purpose behind it, because that purpose everyone
74
would say without the least hesitation is an admirable one, but perhaps to try to make it rather more workable and to avoid the difficult, somewhat critical and unenviable situations in which our Government and our courts may find themselves should future Enahoro cases arise.
6.7 p.m.
LORD REID: My Lords, I agree with previous speakers that fresh legislation is required on this subject, but I am very sorry to see that the title, "Fugitive Offenders Bill", has been retained, because it inclines people to think that we are dealing only with citizens or residents in some other country who have come here and whom we are returning to their own country. Of course that is not so. This Bill applies—or may apply—to a great many people who are citizens in this country and who are habitually resident here. For example, a man goes abroad, and is accused, when he comes back again from the Commonwealth country (they discover some evidence that he has done something when he was there), and a warrant is sent to this country.
I should like my noble and learned friend the Lord Chancellor to confirm that the Bill may apply to somebody who has never been in the requesting country at all. For example, the counselling or procuring offence is an equally returnable offence with the main one. Suppose that a man in this country writes to his agent in a Commonwealth country and instigates some offence against company law, or against the legislation with regard to the export or import of gold; and then that letter is not forthcoming, but the agent tells some trumped-up story implicating the man, who is perhaps not guilty at all. He will be accused and will have to be sent back—or, rather, not sent back, but sent—to the Commonwealth country, on what may be very inadequate evidence. I will come back to that point, but as the time is late I will come to the points which I wish to make as shortly as possible.
The first is with regard to the words in Clause 2(3), "exceptions, adaptations or modifications". I was rather alarmed to hear the noble Lord, Lord Brooke of Cumnor, asking the Government to use this provision for a purpose for which such words are, I think, never used in

75
fact—that of making substantial alterations in the legislation of this country. "Adaptations, modifications and exceptions" normally mean quite minor things, to adapt a particular transaction to the particular circumstances of the case. But if the Government are overruling the will of Parliament by saying to a certain Commonwealth country that they will exchange political offenders with them, that appears to me to go very far beyond an "exception, adaptation or modification".
If we are to deal with this matter, and I think that we should, because I agree with most of what has been said on the subject of political offences, let us deal with it openly and not covertly by administrative action behind the back of Parliament. I was really rather surprised to hear the noble Lord, Lord Brooke of Cumnor, suggest that deportation ought to be used as a means of getting round the provisions of an Act of Parliament that political offenders are not to be extradited or surrendered under these Bills.
LORD BROOKE OF CUMNOR: My Lords, the change in the deportation law which I suggested would need an Act of Parliament in itself. Therefore, before anything of that kind could be done, Parliament would have an opportunity of looking at the full situation very thoroughly.
LORD REID: Yes, my Lords, but I thought the noble Lord was founding it on what happens under extradition. I was not aware that it was used in that way, but it may be, and if it is, then I say that that is going behind the back of Parliament. The intention of excluding political offences was to give political asylum in this country; there can be no doubt about that. To defeat that intention by administrative action, by saying that we are not going to give asylum here and sending the man off to any other country that will take him, not his own country, would in effect be surrendering him and would indeed be getting round the Act of Parliament. So it would if we sent him to a country that we know is likely to surrender him to his own country. And who are we going to find to take him, apart from a country
76
of that kind? I do not think that that is the solution.
I am wholly in favour of such an amendment of the law as reduces this exception to the kind of case to which we wish to give political asylum, and cases to which we do not wish to give political asylum ought to be excluded from it altogether. I doubt whether that can be done in this Bill, but I hope that it is not going to be done by adaptation when we come to put the Bill into practical operation. I shall not say anything more on that.
Coming to the next point in order raised by the noble Lord, Lord Stow Hill, I agree with practically every word he said. The next part of Clause 4 is virtually unworkable and I do not think it ought to be there at all. Let us look at it for one moment. I do not want to add to what the noble Lord so eloquently said, but how in the world is a country going to deal with the provision that the accused might, if returned, be
"…prejudiced at his trial or punished…by reason of his race … or political opinions"?
Are we really to have evidence by the accused or by somebody on his behalf that there have been cases in the country in question where people of one race or one political Party have been sentenced to twice as heavy sentences as those of another? And is the consequence to be that the man gets off scot-free and is given asylum in this country, no matter how blameworthy or how disgusting his offence may be? Because that is the consequence. If we say that we will not send him to the requesting country because they may punish him more than somebody else the alternative is to give him asylum here and let him live on public assistance for the rest of his life. Is that really what is intended? I venture to ask. If it is, I should be very much against it, as the noble Lord, Lord Stow Hill, would also be.
I now come to the point on which I would ask the Government whether they will not make an amendment. Clause 7(5)(a) deals with the amount of evidence which is required to justify a committal warrant for sending a man abroad. There has to be sufficient to warrant his trial for the offence if it had been committed in this country. There are several reasons

77
why, in my view, that is an insufficient protection. If we are dealing with a citizen of this country who is going to be sent abroad, it is an extremely serious matter. The magistrate will not see the witnesses, only the written depositions, and he will not know whether the witnesses appear to be telling the truth or not. He has no means of judging. Moreover, as has been pointed out, the Bill overrules a decision of this House of last year which gave much more protection in cases of this kind. I make no objection, but the point is that although provisions for appeal of one kind or another are scattered throughout the Bill, very careful provision is made so that nobody, neither the court nor the Secretary of State, is to be entitled to review a decision of the Bow Street magistrate that an adequate case has been presented to warrant trial.
We have had occasion to go through the authorities on the reported cases on this matter and I am bound to say that in a number of cases—I am not saying to-day, but in the old days, at least—the Bow Street magistrate committed people to be sent abroad on very thin evidence. Why should this be the one element in the whole of this Bill where there is no power of review by anyone? I think I know what will be said. It will be said that there would be a great deal of delay if this sort of thing is allowed. I do not think there would be. We do not allow that to get in our way when we deal with criminal appeals in this country. We ought to adopt the ordinary system of criminal appeal procedure, under which one applies for leave to appeal to a single judge. That does not take much time and it certainly takes no expense. And I should not in the least object to the decision of a single judge being final. Here, for some reason I have not been able to understand, there is an appeal from a single judge to another court. I I should have thought that leave to appeal to a single judge was ample.
I am not asking for any more than that there should be a provision to take a case on appeal to a single judge and that he should be entitled to decide whether to give leave to appeal against a decision that the evidence produced to the magistrate was sufficient to warrant the man's trial in this country. That safeguard has been applied in different ways in different times and places. Some
78
times a very thin case goes forward. It depends largely on discretion, which is another reason why a matter of this seriousness should not depend solely on the discretion of one man, however experienced he may be. I venture to ask the Government whether they will not consider making this alteration. It cannot upset the scheme which has been agreed by the Commonwealth Law Officers or Ministers. It is a purely domestic matter, and I am sure that nobody would object, except perhaps those concerned in the administration, who might think that this would clog up the wheels. But I do not think for one moment that it would.
Perhaps I ought to mention one Scottish point, not because I think anything should be done about it, but because there will perhaps be some criticism in Scotland and I think somebody might mention it. There is a provision in the Bill—and I do not object to it—that the sheriff and the sheriff-substitute shall have to decide whether evidence sufficient to warrant trial exists. As the House knows, no court in Scotland ever has to decide that question. It is always the duty of the Lord Advocate or his deputies who are responsible to him, and for nobody else, to decide whether there is sufficient evidence to warrant a trial. It may be that someone in Scotland will say: "Why this departure?" I quite see the reason, but I think it ought to be made clear that an exception is being made for reasons of convenience, and there is no idea that, as a general rule, any court in Scotland is to be given jurisdiction to decide whether or not a man is to stand his trial. That would be a complete departure from anything which has been known up to date.
There are one or two other short matters that I should like to mention. In the first place, with regard to the death penalty, can my noble and learned friend give any assistance as to how this provision is going to be worked? Let me give a concrete case. Suppose that two people are accused of murder in a country where the death penalty still exists. One man is accused of a peculiarly brutal murder, and if he is convicted there is a strong possibility that he will not be reprieved, but will be executed. The other is a man for whom there are many mitigating circumstances;

79
there is the equal probability that, if he is convicted in that other country, he will be reprieved. Is the intention to keep in this country the brutal murderer, because he risks hanging, and to send back for punishment the man who is very much less guilty, because he is not going to be hanged? How is it going to be worked out. If we have this kind of thing, it makes one begin to think again whether what we think follows from the abolition of the death penalty ought to follow.
The other question which may be of public interest concerns Ireland. Two years ago Parliament passed an Act with regard to Ireland which gave to people in this country much less protection when they were being sent to Ireland than when they were being sent to any other part of the world. Is it intended by Clause 17(2) to go back on that, to some extent, and now to give persons in this country who are asked for by the Irish authorities something more like the protection which they would get if they were to be sent, let us say, to Canada or, for that matter, to Gibraltar? My Lords, I have taken perhaps rather too long, but I think that these matters may cause great difficulty in the future, and it may well be that they should be considered before the Bill becomes an Act.
6.24 p.m.
LORD SOPER: My Lords, like the noble Lord, Lord Brooke of Cumnor, I make no profession of legal scholarship, and I am continually amazed and, I hope, edified by the refinements of insight that noble and learned Lords bring to these matters. It would be quite impudent for me to pass any comments on these, I think, peripheral issues, in the sense that the main substance of the Bill would, I imagine, commend itself, in intention at least, to all your Lordships. I am sure that the noble Lord, Lord Brooke of Cumnor, would not want to abandon the house because one or two or the doors will not shut. In my own judgment of these matters—and I have listened to the debate—there has been overall agreement on two general propositions which are contained in and, in fact, are the inspiration of, the Bill. The first is that there should be a regularity and a coincidence of treatment as between the provisions of the Extradition Act 1870 and
80
the Fugitive Offenders Act 1881—that there is need for revision and improvement. The second is that where possible there should be a clear and specific differentiation between a political and a criminal offence, and that where the differentiation is perhaps clouded or is difficult of precise calculation, there should rest discretionary powers to prevent what in other cases would be injustice. With these propositions I am entirely in agreement, as I hope your Lordships are.
I wish this Bill well. I should imagine that many of the matters raised will probably arise in Committee and can there be settled, or that the major substance of them can be, to the satisfaction of your Lordships, and in proper answer to the questions which hitherto have been propounded. But I would venture to delay your Lordships a little, because I believe that, in the somewhat pompous words of Disraeli,
"the reverberations of this matter go far beyond the range of its immediate audibility".
I believe this is an important Bill at this precise time, for reasons which are not immediately apparent as we consider its various clauses.
I was in Nigeria during the relevant period when Enahoro was being extradited, and I remember listening to a number of intelligent and civilised people there, both white and coloured. The comment that I recollect as being the most poignant was: Did I imagine that had Enahoro been a Frenchman he would have been sent home to Paris, as he was sent home to Nigeria? It seems to me that this opens the door to what lies behind a great deal of the troubles in the present situation, not only represented in the reactions to the Fugitive Offenders Act, as hitherto it has been operating, but on the whole question of racial prejudice and racial discrimination. It is my judgment that there is already a breakdown somewhere along the line between Governmental action in general in the West, and its understanding, particularly in places like Africa. I know that this does not specifically apply only to those with dark skins and living on the Continent of Africa; but it will be regarded, and has been regarded hitherto, as yet another example of the way in which treatment of these people in Africa is generally different from and inferior to

81
that accorded to those who do not happen to come from that Continent.
This was made manifest, in my view, by the reaction of the various Immigration Acts. It has been spotlighted recently in the reactions to the extension of fees for overseas students. It is perfectly right to say that this is not in exact definition discriminatory; and neither is the law which I hope is now to be amended, with regard to fugitive offenders. But if I remember Professor MacTaggart and his teaching at Cambridge when I was a student, the great mistake he seemed to make, in the opinion of his colleagues, was that he imagined that reality was very much like the High Table at Trinity College, Cambridge, and he imagined that what he propounded in close and logical terms would be equally understood by students and fellow members at the High Table. You can present the most proper, logical and just of laws, but unless you can commend them without the appearance of evil, those laws will not have the purchase that you expect from them.
I welcome this Bill, because it is one step back along the road towards that appreciation and sense of right and justice which I am bound to say. in my experience, and it may be in the experience of your Lordships, has been lost. I will not delay to assess blame, but will rejoice, as I believe I can, in a sort of Bill such as this which will go far, or can go some distance, at least, to the alleviation of what is a world problem, and an aggravated world problem. Here is an opportunity of being able to say in categorical, simple and understandable terms that we are not discriminating against these people because they happen to belong to a Commonwealth, because they happen to come from Nigeria or, for all I know, from Ghana.
The other matter is much more complicated and it has already been adverted to, and I will not delay the House by talking about it at length, but it is perfectly clear that to make a distinction between a political offence and a criminal offence is necessary. To delineate that distinction, however, is in many cases extremely difficult. One of the reasons for unicameral Government in many of the new and free countries of Africa is that it is impossible to convince the citizens of those countries that those who are in
82
political opposition are not moral scoundrels in being so. This is the more exaggerated when so many of these countries now are under military rule. For if it be argued in civil conditions that to be in opposition is not—as it is to be in Her Majesty's Opposition—honourable but some kind of moral subversion, how much more clear-cut is it to those inoculated or indoctrinated by the military code that any act of opposition to a reigning military junta is rebellion and criminal and of a most nefarious kind?
It is in this kind of environment that I perceive, I hope, the various difficulties already advanced and referred to in previous speeches. Yet I am sure that the differentiation must be made; I am certain that the effort must be made to discriminate; and I would heartily agree with the noble Lord, Lord Brooke of Cumnor, in accepting quite simply the Schedule which says that the first of the relevant offences is murder of any degree. I hope that that may be strengthened in order to include murder by assassination. I personally am rather worried about some of the items in the Schedule. What, for instance, is the difference between the criminal offence of conspiring to defeat the course of justice, and the political offence of setting up, or endeavouring to set up, a different regime? What is extortion by means of threats or by abuse of authority but a measure which could be argued to be the reaction to the refusal of a recalcitrant person to obey an order, and so on? It is not for me at this stage merely to point the difficulties, but it seems to me that this is a gallant effort to face a very complicated business, perhaps much more complicated than was at first envisaged when this Bill was drafted.
Nevertheless, such are the pragmatic demands, I feel, for setting in motion this kind of reverse process, that I welcome it most heartily. Though it may be legally difficult and at the moment incomplete and imperfect, I hope that the moral and political impact of the Bill will be such that it will be calculated to redress some of the wrong balance and to recover something of the prestige which we have lost, and some of the fair-mindedness to which we claim we should be entitled. I venture to hope that the application of the Schedule and various clauses of this Bill, in particular in reference to the question

83
of distinction between political and moral or criminal offences, may at least be adventured upon; and perhaps, solvitur ambulando, it may be—I, for one, cordially invite you to believe it will be—that in the process of trying to work it out we shall derive and discover the added wisdom with which to make the Bill not only right but effective.
6.35 p.m.
VISCOUNT SIMONDS: My Lords, I ask for your Lordships' indulgence, and for the indulgence of the Lord Chancellor in particular, whom we are all ready to hear, for a very few minutes. I say "very few minutes" for some reason, as your Lordships will appreciate when I have to admit that I am an exact contemporary of the Fugitive Offenders Act 1881. As your Lordships are aware, this Bill proclaims that Act to be old and obsolescent and fit for the scrap-heap. The inference is obvious. But I want to say something about the interaction of Clause 4, which is an all-important clause in the Bill, and Clause 2(3), to which my noble and learned friend Lord Reid has already made some reference.
I do not wish to be dogmatic, but it seems to me to be clear beyond a peradventure that Clause 2(3) does not enable the authority, whoever it may be, to override the clear categorical imperative of Clause 4. Clause 4 stands as one of the most important clauses in the Bill, and it provides for immunity and sanctuary for an offence of a political character. I wholly dissent from the suggestion made in another place, and adverted to but not, I think, approved by the noble Lord, Lord Brooke of Cumnor, that an arrangement can be made under which immunity would not be given in circumstances beyond those provided by Clause 4(3).
The matter stands, then, in this way—and let me take a concrete example. Suppose that a British citizen or a Commonwealth citizen commits one of those offences which are classified as offences of a political character. Let me assume him to be a Canadian, who on the occasion of the Royal Visit (I hesitate to suggest such a thing, but it is what we have to contemplate), assassinates, or attempts to assassinate, the Queen, and comes to this country and claims, as he no doubt would, that it was a political
84
offence. Under subsection (5) of Clause 4 he may be surrendered. That results from an Amendment made in another place. The Bill as introduced did not even provide that in such a case the offender should be delivered over. The clause was absolute and comprehensive.
Now, for some reason, because I understand the Queen is the Head of the Commonwealth, there is to be no immunity in such a case. But, my Lords, suppose that it were Prince Philip; or suppose it was not one of our Royal Family, but was a Governor General, or the Prime Minister of Canada, who was assassinated. The assassin could come here and say that this was a political offence; indeed, he would say that it was a political offence. I suppose it would be a political offence, and he would live here for ever after, save the mark! under the Queen's peace. Is that what the Government really intend, or are they relying upon that provision of Clause 2 to which I have already referred? It seems to me to be a shocking thing. I ask the Lord Chancellor to say categorically whether that is what the Bill intends. I hardly think so. Yet that is what it provides beyond all peradventure.
I agree most heartily with the noble Lord, Lord Brooke of Cumnor. I do not think the people of this country would tolerate it. I think, further, that if the people of this country gave consideration to the matter they would reject altogether also that piece of Victorian self-righteousness under which it was thought a venial offence in 1870 that a foreign potentate should be assassinated. That Act was passed in 1870, and that was, I think (if my historical recollection is right) the time of Mr. Gladstone's first Government. I think, as I say, that the country would not tolerate such a situation. Still less would they tolerate sanctuary being given to a person who commits that sort of offence. What is to be done about it? I hope that some Amendment may be passed on the Committee stage. But from the speech which has been made by the noble Lord, Lord Stonham—a very clear and admirable speech—it did not seem to me there was any indication of movement in that direction. Perhaps the Lord Chancellor will help us.
There are a good many more things that I might say, but I will say just this.

85
Of course it may be that in such a concrete case as I have put, the assassination, let us say, of the Governor General of Canada, the assassin seeking refuge here would be guilty of a crime which could be tried here at Common law. I think I am right in saying—and if I am not the noble and learned Lord the Lord Chancellor will correct me—that at Common Law our courts have no right to try crimes committed abroad, but a number of Statutes have made exceptions to that general principle, and in such a case it might be possible for the offender to be tried here. However, I do not think that could be offered as an excuse; for, if he is to be tried at all, every consideration which would determine what lawyers call the forum conveniens would point to Canada as the place where he ought to be tried. It is the law of Canada that is violated; it is on Canadian soil that the crime has been committed, and the witnesses will be in Canada. Indeed, even for the man's own sake, his own witnesses may be Canadian, and therefore everything would point to the true forum conveniens being Canada not London. Therefore I think it stands baldly as a piece of naked folly that a man who commits such a crime can come here, claim sanctuary and live in peace for evermore.
There is much more that I could say about this aspect, but it is already late and I have exhausted the time limit which I had allowed myself.
6.44 p.m.
LORD MITCHISON: My Lords, I did put my name on the Paper, but as it is late I will not take more than a minute or two. I think the group of subjects we are discussing to-day, not only extradition but also the question of immigration, which must go with it, and with that also the question of deportation, which are closely interconnected, would provide an admirable field for a rather hostile critic of the British Constitution to examine what we had done and what we had been prevented from doing by the limitation of responsibility between the Executive—the Home Office—on the one hand, and the courts, on the other. Yet they are things which profoundly concern a number of people and arouse, quite rightly and naturally, the deepest feeling in this country. There was
86
Enahoro, there was Soblen, and there were others whose names we remember, and no one can say that these are matters which are not worth the most careful examination.
I wonder whether my noble and learned friend the Lord Chancellor feels that the whole field we are considering to-day is something which ought to be examined rather more broadly—the three matters, at least, in conjunction, and by some kind of body which represents both legal opinion and executive opinion. In this connection, I would ask: is there any information about a body which I believe is called the Wilson Committee on Immigration Appeals? I do not know what the Committee's terms of reference are, or how far they are relevant to the kind of thing we are discussing to-day, and I do not know what progress has been made, or is likely to be made.
There are two other small points that I should like to mention. One is the question of what I might call "transit prisoners". This is a matter which was mentioned in the conclusions of the Scheme relating to the rendition of fugitive offenders. "The rendition of fugitive offenders" is a frightful phrase. Fugitive they might be; by why "rendition", and why "offenders", when the whole question is whether or not they are offenders? Admittedly I cannot think of another phrase, but paragraph 15, which deals with the ancillary provisions, says:
"Each Commonwealth country or territory will take, subject to its constitution, any legislative and other steps which may be necessary or expedient in the circumstances to facilitate and effectuate—
(a) the return of a fugitive offender who is in transit in its territory for that purpose.…"
Let us suppose that someone born in England goes out to Canada, and there commits one of the offences listed in the Schedule. Suppose he then goes to Nigeria, and is returned from Nigeria to Canada through this country. I have never understood, and I do not quite understand now, how anybody manages to keep him legally in custody in this country while he is on his way through. That is a question I should like to have answered, and it is in connection with that question that some legislative and other steps were to be taken by the countries which were parties to this scheme.

87
My second question is a small one, and concerns Clause 4, "General restrictions on return". I notice that the words used are
"on account of his race, religion, nationality or political opinions".
I would not for a moment venture to dissent from the criticism which has been made about this clause as a whole, but there is another small point of some importance. In some parts of the Commonwealth nowadays we see bitter disputes which are not quite of that character at all: they are inter-tribal disputes, and it is rather difficult to fit them exactly into that category. It may be that they are intended to be covered, but I can imagine a fine argument as to whether the differences between a tribe in say, Nigeria or some other country were or were not in fact intended to be included in those words. It would be a simple matter to put right, although I am not so certain about the "transit prisoner": he may be more difficult.
I apologise for taking up your Lordships' time. I can only say that I came here without any idea of how interested I should be in the discussion. I say this with great respect to people who know much more about this than I do. I never expected to listen with such interest to every word that dropped from every speaker's lips, whether on the Opposition or on the Government side of the House, and whether he spoke with judicial or executive experience.
6.49 p.m.
THE LORD CHANCELLOR (LORD GARDINER): My Lords, the Bill was explained by my noble friend Lord Stonham with such lucidity that I do not think I have a great many points to deal with. Indeed, your Lordships will not expect me to reply at length, because although not a large number of noble Lords have taken part in the debate, it has included two former Home Secretaries, a former Lord Chancellor and the noble and learned Lord, Lord Reid. I am sure that, as to some of these points raised, your Lordships will not expect me to say "Yes, the Government will do that", or "No, the Government will not do that", because in view of the quality of the speeches made on a number of these points my right honourable friend
88
the Home Secretary will wish to consider them.
In view of some of the observations which have been made I should perhaps start by respectfully reminding your Lordships that extradition arrangements are always and inevitably a question of agreement. Perhaps I may remind your Lordships that the Extradition Act of 1870 begins:
"1. This Act may be cited as 'The Extradition Act, 1870'. 2. Where an arrangement has been made with any foreign state with respect to the surrender to such state of any fugitive criminals, Her Majesty may by Order in Council, direct .…"
After dealing with the contents of the Order in Council the section says
"Every such order shall recite or embody the terms of the arrangement, and shall not remain in force for any longer period than the arrangement."
If, therefore, we say to any country, "If we return your criminals will you return ours?", they naturally say, "That depends on the terms and conditions"; and it is a question which has always had to be negotiated.
Secondly, there is the great difference between the Extradition Act and the Fugitive Offenders Act. The noble and learned Lord, Lord Reid, in the Kwasi Armah case, said:
"The operation of the Extradition Act depends on there being a treaty or arrangement with the foreign State. Normally the person surrendered would be a subject of that State. The Act recognises that there may be conditions, exceptions and qualifications, and there could be, and I believe have been, treaties under which our Government reserve the right not to surrender British subjects"
And then later he said:
"But the Fugitive Offenders Act was in 1881 a domestic matter dealing generally with British subjects and enabling them to be sent from one jurisdiction to another within the British Empire where there was then no Dominion status. There could then have been no question of political asylum in one part of Her Majesty's Dominions for an offence committed in another part and no room for such a provision as Section 3(2) of the Extradition Act"
In the field of foreign countries we had our treaties with the United States and an extradition treaty with France, but it was not, I think, until 1957 that there was a European Convention on extradition treaties. This made an enormous difference, because it was so much simpler once we could get all the countries of Western Europe to agree

89
upon a common form, even if there should be differences of detail between us. So far as the Empire was concerned, we had one system of law administered up to the same standards in different parts of the world, and whether you were tried in one part of the Empire or another was largely a question of where was the most convenient court. Times have changed, and for some years law reformers have been pointing out that the Fugitive Offenders Act is wholly out of date in circumstances in which we no longer have an Empire. We have a Commonwealth, and for an increasing number of years there have been more and more independent countries, some members of the Commonwealth under Dominion status, others wholly independent countries of the Commonwealth.
Of course, nobody ever pays any attention to law reformers, but the Enahoro case did highlight that this was indeed so. I agree very cordially with my noble friend Lord Soper as to the necessity of passing legislation to undo the unfortunate situation which arose there, and we owe it to the noble Lord, Lord Brooke of Cumnor, that he realised this at once and acted upon it; before the Commonwealth Law Conference in Australia in August, 1965, he had already laid down the bones of what is now this Bill. We discussed this at the Commonwealth Law Conference. After the Conference at Sydney we had a week-end at Canberra where there were two series of meetings, one of Commonwealth Chief Justices to discuss matters of interest to them, and the other meetings of Law Ministers to discuss matters of interest to them. And having discussed matters such as whether or not we should have a legal section of the Commonwealth Secretariat, one of the questions which we discussed was this. I had told them, and they had been advised beforehand, that we felt it necessary and indeed essential at a fairly early date to recast altogether our Fugitive Offenders Act; that we felt that as most of the Commonwealth countries had such Acts much the same as our Fugitive Offenders Act of the last century there was much to be said for seeing whether or not we could all pass a new Fugitive Offenders Act or Extradition Act, whatever we liked to call it, in the same terms. They also thought that was a very good idea, and they then asked
90
us whether we could forward to them a sketch for such legislation; and they asked whether they could all come to London at Easter of last year to see whether we could not all agree to pass the same legislation.
That took place and the meeting lasted, I think, just over a week. Mr. Taverne represented the United Kingdom on behalf of my right honourable friend the Home Secretary, and I took the chair when I could: when I could not, my right honourable friend the Solicitor-General took it. But if I had been asked at the end of four days what I thought were the prospects of getting agreement I should have had to say I did not think there were any prospects of getting agreement about anything at all. I mean no discourtesy to my colleagues who are Law Ministers or Attorney Generals in the Commonwealth, but they are not silent. Everybody had his own very determined view on every question which arose, and it looked as if it would be absolutely impossible to get agreement about anything at all. It was only in the last two days that suddenly things began to fall into place and we were able at the end to get a unanimous agreement, signed by everybody, in the form in which it was published in a White Paper in May, 1966. I say all this only because we must realise that, however many Acts of Parliament we pass, we cannot make people agree in this particular field; and when we have got all the Law Ministers of the Commonwealth to agree that they will recommend legislation to their own Governments in this form there is a great deal to be said for leaving it as it is.
The noble Lord, Lord Brooke of Cumnor, asked for indulgence on the ground that this is a Bill which could be more easily understandable by lawyers, but I am sure that that is not so at all, and he has no need to ask for indulgence, particularly as in substance this is his Bill. I agree with him that it may be that it will not dissipate all the difficulties in what is a notoriously difficult field. He asked about the two-tier system and what Clause 2(3) really came to, but if he will allow me I will leave that for the moment, because the noble and learned Lord, Lord Reid, asked the same question and it might be more convenient to deal with it then.

91
He then raised what is admittedly a difficult question about Commonwealth murderers remaining here, and this difficult question of Heads of State; and the noble and learned Viscount, Lord Simonds, raised exactly the same point. It is not at all an easy question and it is not one to which I think I ought to propound a definitive solution to-night; I have no doubt that my right honourable friend the Home Secretary will wish very carefully to consider everything that has been said. It is possible to take the view—and I quite appreciate this—that murder ought to be taken out of the subject altogether. That is a possible view. To leave murder in and say, "We will except murder of Heads of State", is, I think, very difficult, because I do not know where you draw the line. There is really a conflict between the whole concept of granting sanctuary to a political refugee, on the one hand, and starting to say, "Well, if we do not send you back, anyway we will deport you". Heads of State are not necessarily the most political people or the most powerful people in their own country. One can imagine a state of affairs in a particular country where the head of the Government is acting with such a degree of oppression as to raise very strong feelings indeed in this country whether somebody really ought not to interfere. And if he is then murdered on political grounds the circumstances might be that everybody in this country would say, "Thank goodness for that!".
If you include Heads of State, it is difficult to see why you should not also include Prime Ministers and the really important people. An exception has already been made in the Bill, by an Amendment of the Government on the suggestion of the Opposition in another place, in relation to the Head of the Commonwealth. This is rather different because, after all, the Head of the Commonwealth is the Head of the Commonwealth in every Commonwealth country. Nevertheless, I hope that, although this was not suggested, much less agreed to, at the Marlborough House Conference, in this case the Commonwealth countries would largely agree.
But your Lordships see what happens as soon as you make an exception. Somebody then says, "What about Prince
92
Philip?" Then they say, "What about Heads of other States? If Heads of State, why not Prime Ministers?" As I have said, I think that there is a distinction, which I hope Commonwealth countries will agree is well merited in the case of the Sovereign, who is Head of the Commonwealth in every Commonwealth country. Nevertheless, I am quite sure that my right honourable friend the Home Secretary will wish most carefully to consider everything that has been said.
The noble Lord, Lord Brooke of Cumnor, asked whether the Government had it in mind to amend the British Nationality Act. The answer is, No. We shall certainly consider what the noble Lord has said, though I do not think that this Bill would be an appropriate place in which to alter the criminal law. The noble Lord also asked about smuggling offences. The answer, I think, is that it has not been usual to include smuggling offences in extradition arrangements; but some of our Commonwealth friends to whom diamond smuggling is of exceptional importance have been provided for.
Then there was the question raised by my noble and learned friend Lord Stow Hill, and also to some extent by the noble and learned Lord, Lord Reid, about the difficulties of operating Clause 4(1)(b) and (c). Perhaps I might leave that for the moment until I come to deal with their observations. The noble Lord, Lord Brooke of Cumnor, asked whether it was intended to designate all the Commonwealth countries and make Orders thereafter. The answer is, Yes, that is so; it is intended to designate all the countries to start with, and Orders will be made after any variations have been agreed to.
My noble and learned friend Lord Stow Hill dealt primarily, as did the noble and learned Lord, Lord Reid, with the difficulties of Clause 4(1)(b) and (c). I venture to think that there are a number of answers to this point. In the first place, in Section 10 of the 1881 Act, the courts were already invited to consider, if I may quote:
"Where it is made to appear to a superior court that by reason of the trivial nature of the case, or by reason of the application for the return of a fugitive not being made in good faith in the interests of justice or otherwise, it would, having regard to the distance, to the

93
facilities for communication, and to all the circumstances of the case, be unjust or oppressive or too severe a punishment…"—
and so on.
So the courts have always had to consider whether the request for the return is being made in good faith in the interests of justice; and that must already to some extent reflect either on the Governments or the courts of other countries. But under the Irish Republican Extradition Act 1965, the courts of the Republic may have to decide:
"If there arc substantial grounds for believing that a request for extradition for an ordinary criminal offence has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality or political opinion, or that person's position may be prejudiced for any of these reasons"
The tasks of the court under Clause 4(1)(b) of this Bill appear to be no more than those of the Irish Republican courts under the Irish Act 1965.
Moreover, the European Convention on Extradition provides, in Article 3:
"Extradition shall not be granted if the offence in respect of which it is requested is regarded by the requested party as a political offence or as an offence connected with a political offence. The same rule should apply if the requested party has substantial grounds for believing that the request for extradition for an ordinary criminal offence has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality or political opinion, or that that person's position may be prejudiced for any of these reasons"
There is, I think, considerable merit in trying to get agreement on these points; and, of course, in putting forward the scheme that was put forward at Marlborough House, we bore in mind the provisions of the European Convention.
Further, so far as these matters are to be decided by a court as well as, or alternatively, by the Home Secretary, I understand that the Lord Chief Justice, having seen the Bill, has taken no objection to it. Is there not a great deal to be said for allowing a man, and perhaps the requesting country, too, to call their evidence before a court, where everybody can see what the evidence is? Therefore, I should not have thought that there will be these great difficulties in practice but I will certainly bring everything which my noble and learned friend Lord Stow Hill has said before my right honourable friend.
The noble and learned Lord, Lord Reid, suggested that "Fugitive Offen
94
ders" was not a good name. That may be so. It is because the position is now quite different from what it used to be under the Empire that new legislation is necessary. He and the noble Lord, Lord Brooke of Cumnor, and the noble and learned Viscount, Lord Simonds, expressed somewhat different views about the effect of Clause 2(3). I think I should probably be unwise, in those circumstances, to do other than reserve any view I may express, though my prima facie view is that the noble Lord, Lord Brooke of Cumnor, is right in thinking what its effect is. I hope that the noble and learned Lord, Lord Reid, will bear in mind that if you are to have a departure, so far as this country is concerned that must be in an Order in Council which has to be approved by both Houses of Parliament.
Then the noble and learned Lord, Lord Reid, asked whether if a man had never been in the requesting country he could be extradited from here to the requesting country. I think that the answer is: Yes, if the offence is an extra-territorial offence not only in the requesting country but also in the requested country. The noble and learned Lord then raised the question of the right to obtain leave from a judge to appeal against a magistrate's findings. I will certainly consider the matter. I think that the view taken was that the remedy would be by Habeas Corpus, where there is a prima facie case, though there is no question of law. I entirely agree that this is a purely domestic point: it does not affect others, and I will see that my right honourable friend certainly considers it. As to the Sheriff of Midlothian, the noble and learned Lord is quite right in saying that an exception is being made for good reason. No general change in the law is intended, and much the same exception already exists in Section 5 of the Act of 1881.
Then the noble and learned Lord raised the question of two murders, in one of which it might appear that the person concerned was likely to be reprieved but not the other. I should have thought that the effect would be that if it is a case which is a capital case, whatever sentence might or might not be likely, the person concerned would not be extradited. Here again, one can understand that there might be a number of differing views.

95
At the Marlborough House Conference I think the only two countries which were abolitionist, or partly abolitionist, countries, were Australia and New Zealand. All the rest were absolutely emphatic that nothing would induce them to agree to a clause excepting capital cases. They regarded it as something of an insult that they should be asked at all, and they were insistent that their own murderers should be returned, to be dealt with according to their own law.
I am afraid that I had to point out, as I did at the outset to your Lordships, how much that is done in this field depends on agreement. I said: "I very much sympathise with you about this. We all do, because until only yesterday we were exactly in your shoes. France and Spain being the only two countries on the Continent of Western Europe which still have capital punishment, we have always found, when we have tried to agree extradition treaties with the abolitionist countries, that they have said to us: 'You must put in a clause whereby, although you can return our murderers to us, we are not going to have to return your murderers to you'." We always said that this was quite wrong, but it always ended up with the abolitionist countries saying, "If you do not agree, there is not going to be any extradition agreement between us".
I told the Marlborough House Conference that when people feel strongly about such matters, they insist on them; and we should not have a single extradition agreement with Western Europe if we had not given way on this point. I am sure that our Parliament, we having recently become an abolitionist country, is now going to take the view which abolitionist countries have always taken with us. Eventually they did come round to it. But if we are going to take this view about cases of that character, then we shall have to do it. Being a haven for refugees also means that, in the case of Commonwealth subjects, they will be allowed to stay here and we cannot deport them, unless either we change the law or they commit some criminal offence here. This, I am afraid, is the inescapable logic of the situation.
In regard to the remarks made by my noble friend Lord Mitchison, the answers
96
to his questions are these. First, the Committee to which he referred is a Committee of which Sir Roy Wilson, the Chairman of the Industrial Court, is the Chairman, and it is believed that it will report in some months' time. I hope that it will be before the summer, or during the summer, but whether it will be in July or in August I cannot say. I will ask my right honourable friend to consider the matter of the insertion of the words "inter-tribal", but this is just the sort of point that it would be very difficult to implement without asking all the others first whether they agree.
Lastly, my noble friend raised a point on which I have a very long answer but, having regard to the time, I hope that my noble friend will not mind if I send it to him in writing. It was the question of why, although there are provisions in the printed scheme about transit arrangements, they are not much reflected in the present Bill. The answer, in short, is that, on examination—and there was a good deal of discussion about this, too, at the Conference itself—it was felt that this matter can be more easily dealt with by administrative arrangements than by arrangements to be provided for in a Bill. Of course, we can always refuse to let anybody come here if he is someone whom we have a right in law to exclude. And when one comes to consider the question of handcuffs while he is going through countries B, C, D and E, this is a matter which it is very much easier to deal with by administrative arrangements between Commonwealth countries rather than by trying to provide for it in the Bill.
I should like to say, on behalf of the Government, that I am grateful to all those who have given up their time to take part in this discussion. This is a not unimportant Bill, and I am sure the Government will have profited by the observations which have been made by Members of your Lordships' House, including, as I have said, two former Home Secretaries, a former Lord Chancellor, and the Leader of the Lords of Appeal.
On Question, Bill read 2a, and committed to a Committee of the Whole House.