Lords Sitting of 4 April 1968

Preamble
The House met at three of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Archbishop of Canterbury

SHOTTON STEEL WORKS AND EMPLOYMENT IN FLINTSHIRE
3.5 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 what are their plans and those of the Steel Corporation for the future of the John Summers & Sons steel works on Deeside at Shotton, Flintshire, and why they have excluded Flintshire from the Welsh Development Area.]
THE MINISTER OF STATE, HOME OFFICE (LORD STONHAM): My Lords, the Corporation have not yet drawn up any plans other than those in their first report on Organisation (Cmnd. 3362) for the long-term development of any part of the nationalised steel industry. The Government will, as was made clear in Wales: the Way Ahead [Cmnd. 3334], aim to ensure the full use of the labour and other resources available in North-East Wales, which includes Shotton, although the circumstances of the Shotton area do not justify its designation as a development area.
LORD OGMORE: My Lords, while thanking the noble Lord for that statement, may I ask him whether he is aware that a fortnight ago a national newspaper came out with an article which said that the Steel Corporation had decided either to close down or materially run down this industry at Shotton? Do Her Majesty's Government realise that this would have a very serious effect on employment in the Flintshire area, particularly as for some reason Flintshire is not a development area?
LORD STONHAM: My Lords, I have not read the article to which the noble Lord refers but, taking his account of it,
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I can say that it is quite inaccurate. With regard to the future of Shotton, the Corporation regard it as of prime importance. They are well aware of the large investment in it and of the need to make good use of the assets there. With regard to the question of a development area, unemployment in February in the area was only 2·2 per cent., which is relatively low. This is being constantly watched by the Board of Trade and if any change of policy should be warranted it would be made.
LORD REA: My Lords, may I ask the noble Lord to bear in mind that this is not a question merely of Shotton? The whole Merseyside area has a great deal to do with Shotton and lives with it to a great extent. Any closure at Shotton would have sad repercussions in Merseyside.
LORD STONHAM: My Lords, I am dealing with the Question on the Order Paper, but I think that the grouping of Shotton in the Scotland and North-Western Group is a help to Merseyside, and that is one of the reasons for the grouping.

NATIONAL DEBT COMMISSION AND NATIONAL INSURANCE FUNDS
3.8 p.m.
LORD MITCHISON: My Lords, I beg leave to ask the first Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government who are the National Debt Commissioners and when the National Debt Commission last met.]
LORD BESWICK: My Lords, the National Debt Commissioners are the Speaker of the House of Commons, the Chancellor of the Exchequer, the Master of the Rolls, the Lord Chief Justice, the Accountant General of the Supreme Court, the Governor of the Bank of England, and the Deputy Governor of the Bank of England. They last met on October 12, 1860, under the chairmanship, I understand, of the late Mr. Gladstone.
LORD MITCHISON: My Lords, does my noble friend consider that this is a suitable body to manage the National Insurance funds?
LORD BESWICK: My Lords, I agree that there is an element of Gilbert and Sullivan about this; but, on the other hand, it does seem to work.
LORD MITCHISON: My Lords, I beg leave to ask the second Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government what directions have been given, and to whom, during the last ten years by the Treasury under subsection (3) of Section 35, or under that subsection as applied by subsection (2) of Section 36 of the National Insurance Act 1946.]
LORD BESWICK: None, my Lords.
LORD MITCHISON: My Lords, have not the Government been rather remiss? Could they not have managed to invoke the National Debt Commissioners and then have given them some directions?
LORD BESWICK: My Lords, some instructions as to management do go from them, as the noble Lord must be aware, but not, of course, under the direct supervision of the Commissioners whom I named. I am aware that this is an interesting field of research and one which perhaps my noble friend would like to pursue, as I see from the Order Paper he wishes to do, on another occasion.
LORD MITCHISON: My Lords, I certainly will accept that reply, with many thanks to my noble friend. But may I ask him whether it is not the case that management has had some singularly unfortunate results?
LORD BESWICK: My Lords, they have to this extent: that I understand their real title is the Commissioners for the Reduction of the National Debt.

CASE OF NIGERIAN GIRL WIFE
3.12 p.m.
BARONESS SUMMERSKILL: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government what justification there is for legalising sexual intercourse between a girl of 14 and an adult male, since this is contrary to the laws of this country.]
THE LORD CHANCELLOR (LORD GARDINER): My Lords, I understand that my noble friend has in mind a case reported in The Times on March 28, in which the Divisional Court held that a Nigerian girl aged 14, married under Nigerian law to a Nigerian, was not exposed to moral danger within Section 2 of the Children and Young Persons Act 1963. It is not correct to say, as the Question does, that intercourse between a girl of 14 and an adult male is contrary to the laws of this country. It is so only if the intercourse is unlawful, and it has been held in a previous case that "unlawful" means outside the bonds of marriage.
BARONESS SUMMERSKILL: My Lords, while thanking the noble and learned Lord the Lord Chancellor for that Answer, may I ask him to recall the history of this particular case? A man of 28 arrived in this country with a girl of 13 after a tribal polygamous marriage. Is my noble and learned friend aware that the man had three illegitimate children in Nigeria; that after the marriage he contracted venereal disease from a prostitute, and that he had intercourse with the girl before she had reached puberty? Is he further aware that, because of this, the girl was taken into care and that she did not reach puberty until a short while ago, while still in care? With this history, does my noble and learned friend think that it is wise to allow this girl to resume cohabitation, in view of the fact that in this country be believe that girls of this age should be protected and because this would be, in my opinion., discrimination on grounds of race?
THE LORD CHANCELLOR: My Lord, girls reach the age of puberty at different times in different countries. We decide on the validity of a marriage not according to whether we approve or disapprove of the marriage laws of other countries, but according to the law of the place where the parties are domiciled. These two were Nigerians, who married in Nigeria, and the Court has held that their marriage was a valid marriage. Great difficulties would arise, I suggest, if it were made a criminal offence for a husband to have sexual intercourse with his wife.
BARONESS SUMMERSKILL: My Lords, am I to understand from what the noble and learned Lord has said that, as we are recognising Nigerian law in this country, if a divorce were instituted on polygamous grounds we should also recognise that?
THE LORD CHANCELLOR: My Lords, there are, of course, countries in which a polygamous marriage is a valid marriage, and where that is so we recognise it as a valid marriage here.
BARONESS SUMMERSKILL: My Lords, is the corollary that we should also recognise polygamous divorce? Do we recognise that?
THE LORD CHANCELLOR: My Lords, the law of divorce is different from the law of marriage.
BARONESS EMMET OF AMBERLEY: My Lords, would it not be wise for us to convey to countries such as Nigeria, through our High Commissioners, that the law of this country allows marriage only above a certain age, and that it is therefore undesirable that people should come here with wives who are under that age? It might be a useful condition to make before their arrival here.
THE LORD CHANCELLOR: My Lords, I think this would be difficult. We do not allow girls to be married under the age of 16. The age varies in different countries. The most respectable Italian girl can validly marry an Italian in Italy at the age of 15. If they came here as tourists I think it would be regrettable if the man had to be prosecuted every time he had intercourse with his wife.
LORD GLADWYN: My Lords, was not the mother of Henry VII only 14 when he was born?
THE LORD CHANCELLOR: My Lords, that was before my time.
LORD GRIDLEY: My Lords, would not the noble and learned Lord agree that if we accept immigrants to this country, and they are married according to the laws, customs and religions of the nationals of that country, we must, in the interests of racial harmony, accept those conditions over here.
THE LORD CHANCELLOR: My Lords, I think our present law, which lays down that whether we recognise a
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marriage as valid or not depends on the law of the domicile, is really the only practicable one.

BUSINESS
LORD BESWICK: My Lords, at a convenient moment after 3.30 p.m. my noble friend Lord Hughes will be making a Statement on storm damage in Scotland.
I hope it will be for the convenience of the House if I say that it is intended to adjourn the Committee stage of the Social Works (Scotland) Bill at a convenient moment around 6.30 this evening. It is then intended that we should go on to the Amendments to the first clause of the Theft Bill, and then adjourn the Report stage at that point. Dinner will be available, without an adjournment, from a quarter to seven until a quarter past eight.
LORD SALTOUN: My Lords, may I ask when it is proposed to continue the Committee stage of the Scottish Bill?
LORD BESWICK: On Tuesday next.

RENT BILL [H.L.]
3.18 p.m.
THE LORD CHANCELLOR: My Lords, I beg to move that the House do now resolve itself into Committee (on Recommitment) on this Bill.
Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)
On Question, Motion agreed to.
House in Committee accordingly.
[The EARL OF LISTOWEL in the Chair.]
Clauses 1 to 106 agreed to.
Clause 107 [Powers of local authorities for the purposes of giving information]:
THE LORD CHANCELLOR THE LORD CHANCELLOR moved, in subsection (1)(a), after the first "duties" to insert "under Part III of the Rent Act 1965 and". The noble and learned Lord said: I beg to move the first Amendment standing in my name, and the Committee will perhaps agree that I should refer also to the

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other three Amendments on the Marshalled List which, as your Lordships will see, are in substance exactly the same. These are drafting Amendments, due to an error which was discovered only after the matter had passed the Joint Consolidation Committee. It consists in the fact that in consolidating the minor and consequential Amendments in Schedule 6 to the Rent Act 1965, the fact was overlooked that paragraph 3, paragraph 5(3) and paragraph 7 of that Schedule have an effect on Part III of the Rent Act 1965, which is not repealed by the Bill, as well as on the main provisions of that Act, which are repealed by or consolidated in this Bill. I have heard from the noble and learned Lord, Lord Upjohn, the Chairman of the Committee, and he regrets that this point was not observed by the Committee.
This is one of the largest consolidations there has ever been. It consolidates all or part of 24 different Acts dealing with rent, 12 of which it repeals altogether. Your Lordships may feel that as the field of law which the Bill consolidates is really unparalleled in its complexity, the effects of the consolidation will therefore be correspondingly great. Certainly to any lawyers, or anyone else who has to deal with our extremely tangled rent law contained in these 24 different Acts, it will be a great boon to have them all consolidated as they are in this Bill. I beg to move.
Amendment moved—
Page 66, line 38, after ("duties") insert ("under Part III of the Rent Act 1965 and").—(The Lord Chancellor.)
On Question, Amendment agreed to.
Clause 107, as amended, agreed to.
Clause 108 [Prosecution of offences]:
THE LORD CHANCELLOR: This Amendment is one on the same point. I beg to move.
Amendment moved—
Page 67, line 20, after ("Act") insert ("or under Part III of the Rent Act 1965").—(The Lord Chancellor.)
On Question, Amendment agreed to.
Clause 108, as amended, agreed to.
Clauses 109 to 115 agreed to.
Schedules 1 to 14 agreed to.
Schedule 15 [Amendments of other Enactments]:
THE LORD CHANCELLOR: This Amendment is on the same point. I beg to move.
Amendment moved—
Page 112, line 38, after ("under'') insert ("Part III of the Rent Act 1965 or under").—(The Lord Chancellor.)
On Question, Amendment agreed to.
THE LORD CHANCELLOR: This Amendment also is on the same point, and I beg to move.
Amendment moved—
Page 116, line 45, after ("under") insert ("Part III of the Rent Act 1965 or under").—(The Lord Chancellor.)
On Question, Amendment agreed to.
Schedule 15, as amended, agreed to.
Remaining Schedules agreed to.
House resumed: Bill reported, with Amendments.

SOCIAL WORK (SCOTLAND) BILL [H.L.]
3.25 p.m.
THE JOINT PARLIAMENTARY UNDER-SECRETARY OF STATE FOR SCOTLAND (LORD HUGHES): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Hughes.)
On Question, Motion agreed to.
House in Committee accordingly.
[The EARL OF LISTOWEL in the Chair.]
Clause 1:
Local authorities for the administration of the Act
1.
(2) The local authorities for the purposes of this Act shall be county councils and the councils of large burghs within the meaning of the Local Government (Scotland) Act 1947; and any small burgh within the meaning of that Act shall, for the purposes of this Act, be deemed to be included in the county in which it is situated.
THE MARQUESS OF LOTHIAN THE MARQUESS OF LOTHIAN moved, in subsection (2), to leave out

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"large burghs" and insert "counties of cities". The noble Marquess said: This is the first of no fewer than 236 Amendments on this Bill, and I think your Lordships will agree—at least I hope you will—that it is one of the most important ones. I sincerely trust that the noble Lord will look at it in a sympathetic light. Its purpose is quite clearly, in dealing with the new administrative areas set up in the Bill, to exclude the large burghs. This matter was exhaustively discussed during the Second Reading, although owing to the lateness of the hour it was understandably not possible to have a very detailed or lengthy answer to the point from the noble Lord, Lord Hughes.
Briefly, my colleagues and I who are moving this Amendment—and I am sure we have wide support for our view in many areas in Scotland, certainly among professional bodies interested in this matter—believe that the vast majority of these large burghs are simply not big enough to sustain an efficient and viable social work department of their own. They have not the funds to attract first-rate staff. Career prospects for such staff will therefore not be encouraging. For myself I feel that, as a result, the welfare of the community, for both young and old, is bound to suffer. I should like to read to your Lordships an extract from a letter I have had from a child care officer, which says very much the same thing. He points out that
"the inability to compete for good quality staff is an inability which is not just a matter of salary but of providing training officers, case work, consultation and staff development programmes which stimulate and attract staff to give the best service. Without these there is a real fear that the large burghs may become professional backwaters in which a person in need can only hope for an inferior service."
I personally agree with that, and I hope that your Lordships will also agree with it.
I cannot, I must confess, quite understand why the Government in this Bill on the one hand are opening the way for and encouraging the amalgamation of local authority functions, and thereby rightly, in my view, cutting down on costs and waste, and, at the same time, seem so keen to preserve in this particular respect the administrative independence of these burghs, which, with a few
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notable exceptions, one must agree, are not equipped to use it. In addition, as your Lordships know, we are expecting the Report of the Wheatley Commission on Local Government, and I myself suspect that what will come out of that Report is to a large extent a recommendation for larger and fewer administrative areas. This seems to be another argument in favour of not increasing the number at this particular moment. I recognise that if this Bill is altered in this way it may mean additional amending clauses dealing with the transfer of functions, and that kind of thing, but I feel that this is something which could be left for the experts to deal with. What I am primarily concerned with to-day is the principle involved. I beg to move.
Amendment moved—
Page 1, line 13, leave out ("large burghs") and insert ("counties of cities").—(The Marquess of Lothian.)
3.29 p.m.
LORD FERRIER: In supporting the Amendment which has been proposed by the noble Marquess, I feel it is worth while mentioning the position of the County of Lanark, in which I live; and, as the noble Marquess has touched upon the question of cost, I think it is safe to say that in terms of cost, so far as Lanark is concerned, this splitting up of the authorities and increasing the numbers of the units of the social services, as this provision would mean, would entail increased cost. I touched on this matter in my speech in the debate on Second Reading [col. 834, 21/3/68] so will say no more than that.
However, there is another point I wish to raise. I feel, as many noble Lords said on Second Reading, that it is important that we should not move too rapidly in the face of the possibility of change ahead. An additional reason for disturbing existing arrangements as little as possible is the prospect of the publication of the Seebohm Committee's Report, which may be expected, I believe, in early June. Admittedly, this Committee's terms of reference are confined to England and Wales, but I have reason to believe its findings will produce a great measure of new thinking, and as such it will have, in its way, as important a bearing on the whole subject as the Kilbrandon Report had in Scotland. If,

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as I believe, your Lordships are all agreed that we should do our best to make something of this Bill, we should do as little as possible to upset existing arrangements, while at the same time not delaying the developments which are so urgently needed.
LORD SALTOUN: There is one thing that we should bear in mind in connection with the burghs. We are discussing places like Arbroath, and to an extraordinary degree the people there know all about one another. The knowledge that people in places like Arbroath, Peterhead and Fraserburgh have of their neighbours is out of all proportion to what usually occurs in the case of the larger cities, and I believe that to be a great advantage.
VISCOUNT STONEHAVEN: The one thing that is a common factor among all the various bodies which have been at me—I do not know why, but they have—and the one thing they are all decided upon universally, is that they do not want the large burghs in this scheme in any form whatever. I should like to read part of a paragraph, and if the noble Lord tells me I am taking it out of context I am quite willing to read more. This is part of a letter which I received from the Aberdeen and North East Counties Social Workers' Group. I think that is a non-official group but it might be described as being rather like the teachers' unions, possibly as a social workers' trade union. So far as I know, it is not official; nevertheless, it represents the thinking of the men on the ground who have to carry out the provisions of any legislation that is passed.
What they say is this:
"while recognising that reorganisation of local authority areas is at present under consideration, we regret the proposal that the councils of large burghs in addition to those of counties of cities he local authorities for the purposes of the Bill. We accept the arguments advanced in the Government White Paper Social Work and the Community, viz., 'Small units do not provide satisfactory career opportunities for keen and progressive staff'."—
this is in the White Paper—
"'They can offer few opportunities for the professional consultation which is valued highly by social workers. With so few staff, they find it very difficult to release staff for training and to offer supervised practical training to students. In a small staff, the range of experience is usually limited, and there can be
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little flexibility in dealing with particular types of problem. Partly for these reasons, very small departments do not easily attract well qualified staff. This weakness and their limited financial resources aggravate their difficulties'. We regret this Bill does not follow the White Paper in this matter."
That is exactly the same as the sheriffs have said, and also the probation officers. I frankly admit that the Social Workers' Group has an element of Parkinson behind it, because the bigger the scope the bigger the job; but, taken at its face value, this is an honest appreciation of the position as the social workers see it.
May I just add a little more in regard to the difficulties of a small unit? Our particular county, of which I happen to have the honour to be Vice-Convener, is a good deal smaller in population than a large burgh. We have to overcome our problems by joining, on a voluntary basis, with Aberdeenshire, and we produce a service in that way. Under this Bill we could not do that. I see the noble Lord is shaking his head. I am not quit; sure about that and I hope he will tell us the position later on. However, I should like to point out one difficulty in regard to units, which is that in a large unit, particularly of probation officers, there will be representatives of both sexes. If there is only one probation officer that officer must be male or female—he or she cannot be both. I think that is apparent to everybody.
The difficulty I have in mind may be exemplified by a distressing case with which we have to deal. This case concerned a girl whose father was convicted of incest and put into gaol for four years. The week after next this man will come out on parole. The daughter is now 15 years of age. If this Bill were on the Statute Book, do noble Lord: consider it would be right that such a man, coming out with these obvious tendencies or disease or misfortune or whatever it may be, should return to this family, with the girl still there, and still fond of her father in spite of everything, but unsupervised by any really skilled person—in fact supervised by what I can only describe as more or less an amateur? Possibly that is a little beside the point, but it underlines the difficulty with regard to small units, and the problems one encounters in a county such as ours, with a population of 20,000. The noble Lord, Lord Stonham, derided me the

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other day when I said that under the cuts in the Civil Defence we should be left with possibly three, but probably one Civil Defence officer. I checked up yesterday and we shall be left with one man.
LORD STRATHCLYDE: I should like to support this Amendment which has been so ably moved by my noble friend. As usual, the noble Lord, Lord Hughes, when he was speaking on Second Reading put every point with his accustomed fairness. He drew our attention to the fact that the White Paper stated that the Government think that on balance it will be best to place responsibility on the counties, including, of course, the counties of cities. The noble Lord told us that we must recognise the existing welfare functions of the large burghs, and then, more or less to clinch the point that the large burghs should be entrusted with this responsibility in the future as they have been in the past, he continued by saying that it has been made clear from their comments on the White Paper that the large burghs want to retain those functions. That did not seem to be an adequate reason—just because the large burghs wanted to retain these functions—why, after the finding of the White Paper, they should be allowed to do so.
I would rather think, from my reading of the White Paper (which of course may be wrong) that, on balance, paragraph 52 is made rather wider by the concluding words, where it says:
"should encourage counties with the smallest populations to join with other authorities to form joint departments serving their combined populations."
It seemed to me that that brought in a larger population than was contained in at least some of the large burghs. I hope the noble Lord will be able to persuade his right honourable friend to reconsider this particular provision in what is otherwise an excellent Bill.
LORD HAMILTON OF DALZELL: I should perhaps apologise for taking part at all in this debate, because in spite of my name I do not live in Scotland and have no personal experience of the ways in which the judicial and local authority systems differ from the English. But the National Association of Probation Officers does represent the interests of probation officers throughout Great
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Britain, and that is perhaps my excuse. It seems to me that this proposal, if it is as I understand it, will particularly affect the probation services, since in many areas they have already combined areas, and been formed into larger groups than is now proposed. If I correctly understand the proposals in the Bill, these combined areas will be broken down into smaller pieces than exist already. The new social works departments will be very much smaller than the existing combined areas in which the probation services work, and it will be a greater disadvantage for them than for other forms of social work.
3.42 p.m.
LORD HUGHES: The noble Lord, Lord Strathclyde, concluded his remarks by saying that he hoped I should be able to persuade my right honourable friend to change his mind. On the contrary, I hope that I shall be able to persuade noble Lords who support this Amendment to change their minds. I do not put that forward as a jocular remark: I believe that what the Government decided on this matter is the right course to follow. It is true that the White Paper decided that, on balance, this matter should rest with the counties, and that of course includes cities which are counties of cities. But it was only on balance. The arguments were fairly finely divided. After the White Paper had been published there were many consultations, and in the course of those consultations very strong arguments were advanced in favour of continuing to entrust these welfare responsibilities to large burghs. I completely agree with the remark that that in itself is not a good reason for change, but while it is perfectly true that most, if not all, large burghs want to retain these functions, and most of the counties, if not all, wish it to be confined to the counties, the second argument is no more convincing that the first. It is only when one looks at all the arguments put forward that one can arrive at what seems to be the best conclusion.
Having said that, I cannot pretend for one moment that all the arguments in favour fall firmly on one side or the other. We have come to the conclusion that, given the fact that we are legislating in advance of the reorganisation of local government which one presumes will follow from the Report of the Wheatley

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Commission, we must inevitably, whichever way we do it, be creating an organisation different from that which will ultimately emerge. We have a very long debate in front of us, and I hope that the pattern will be for short speeches. But this is one of the more important subjects that will be discussed, and I want to make it perfectly clear that on this matter (I am not setting the pattern for my own remarks throughout the debate) I intend to speak at greater length than perhaps on any other item we may be discussing, with one possible exception.
I would remind noble Lords that the Bill embodies the decision in the light of all the comments that have been made by all the authorities who have been consulted, both statutory bodies and voluntary bodies, since the White Paper has been published. I would not pretend, and my right honourable friend would not pretend, that it has been easy to arrive at a decision on this matter. It would have been, I think, irresponsible to take the easy way out and just, as it were, sweep the problem under the carpet by deferring action until we knew the form which local government reorganisation was going to take. I expressed those views briefly during the Second Reading debate, and I think I can content myself with re-stating them briefly. It is not a problem which can be solved readily when the Commission's Report is received. That is only a stage of a very long journey. We shall not get the final answer within a few months of the Commission's Report. Their recommendations will require considerable discussion with the local authority associations and in public, and only after that stage has been completed will the Government be in a position to reach final decisions as to the form which reorganisation should take. After it is enacted, there must he quite a long period while the new authorities are formed. If I may refer to the reorganisation of London government, I would point out that the new bodies came into existence, if I remember rightly, a year before they assumed their functions; the new body and the old body were in existence for a year at the same time.
A Bill will have to be drafted and brought before Parliament. It is easy to see, therefore, that it may be 1973
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before the new authorities will be in a position to organise the new social work departments. The Bill to authorise this would necessarily follow the Local Government Bill, and it might well he 1975 before the new children's panels, which require the support of the new departments, could be set up. The problem of increasing juvenile delinquency was brought forcibly to the attention of Parliament in 1961. It was then stated that it urgently required attention, and to wait for the Commission's Report would mean we should in fact be accepting a delay of almost fifteen years before taking action; and that is something which we do not think would be justified. We therefore must proceed in anticipation of reorganisation and work on a basis which can be adaptable to the structure that will emerge. I think there will be fifty-six authorities under the Bill as it stands. If the Amendment were carried there would be thirty-five; that is, if we assume that every authority which has the power to set up a separate department in fact accepts it. This will be done only against the strongest advice of the Secretary of State. The noble Viscount, Lord Stonehaven, pointed out that I was shaking my head at one point. That was when he said they would not have power under the Bill to combine with Aberdeen for this purpose. Undoubtedly they would have the power and one hopes there will be even more combination. It does not follow that because fifty-six authorities have a right to set up welfare departments they will do so.
May I deal with the point made by the noble Lord, Lord Hamilton of Dalzell, about probation committees? The fact is that in Scotland at the present time the burghs are authorities for the organisation of the probation service, but with the exception of the large burgh of Kirkcaldy no large burgh has ever organised op that basis. They have accepted the advantage of getting together with their neighbours, and that is an advantage which will exist just as much under this Bill as it ever did in regard to probation. The Secretary of State will feel that he has failed in his intention if there is not a voluntary get together. The important thing that the service should be organised in units sufficiently big to enable them to carry out their functions reasonably, and I

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think that is the point which has lain behind the remarks of all those who have spoken in this debate.
It is a fallacy to talk in terms of a large burgh being a small unit and a county a very big one. I wonder how many Scottish noble Lords are aware of the fact that the Burgh of Coatbridge, which for size is in the middle of the list of large burghs, has a rateable value which is greater than that of l4 of the 31 counties, and has a greater population than 22 of the counties. It is a mistake, therefore, to think that all the large burghs are small units. Arbroath is right at the bottom of the list. There was a special provision back in 1929 which enabled Arbroath to be made a large burgh. So we are in fact helping to create bigger units by making it possible for the large burgh to be a welfare authority. We think, therefore, that for the time being, until reorganisation reshapes the whole pattern, the comparison of size is not one which acts to the detriment of the large burghs.
I would repeat, however, that we think that in the long term the organisational units should be bigger. That is why, even under the Bill, existing counties are to be encouraged to combine; and we will give the same encouragement to burghs to combine with the counties, so that for this purpose there will not be any more separate authorities than are necessary to do the job. If time were unlimited, I could go into detail on a whole series of the arguments, but I think it is fair to say that the objection to the Bill is on the basis that the units will be too many, and will include too many which will be too small. I believe that under the Bill, even with the large burghs, with the encouragement to reorganisation we shall not have many authorities which will be providing an inadequate service because they are working from too small resources.
3.52 p.m.
LORD DRUMALBYN: I am grateful to the noble Lord for his explanation in this matter, but I must say that I think it will leave some of my noble friends, as it leaves me, distinctly puzzled. He says that we must proceed with this Bill. For my part—I think I speak on behalf of at any rate a number of my noble friends—I would not contest that. I
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think that at least we should get the structure going now. Then the noble Lord dealt with the question of the size of the unit. He has indicated, I think fairly clearly, that he would like to see larger units; and he said that the Secretary of State is going to give the strongest advice and encouragement to authorities under the Bill to combine. He thinks that there will be a good deal of voluntary getting together.
Perhaps I ought to ask the noble Lord this question. Is it not the case that some of the combinations that took place—for example, the combination of probation authorities in Lanarkshire—were brought about by compulsory order? I think that was so in 1945. I think we are also bound to ask him this question. Assuming that he does not intend to exercise compulsory powers in regard to combinations but is simply going to encourage them to get together, does he think that he will get these combinations under the Bill if large burghs are left with the responsibilities for social welfare? After all, presumably the purpose in opposing their inclusion is quite simply because the large burghs want to retain their responsibilities. Therefore, what reason is there to suppose that they will combine voluntarily? No doubt many of the counties will, as many of the counties have done already. If the noble Lord could persuade the Committee that the Government would be more likely to get combinations such as they want to see if the large burghs were to be left with their responsibilities than if counties alone were to be the authorities under the Bill, then I think that noble Lords would be inclined to agree with him. But I am bound to say that there is no evidence of that at all; and the very fact that the large burghs have opposed this proposal must be because they want to retain their own responsibilities in this regard.
I think we would agree with the noble Lord that the arguments are fairly evenly divided in this matter. On the other hand, the Wheatley Commission is sitting at the present time, and I should think that the Government must have some idea of the direction in which the minds of the Commission are working at present. I should also think, based on experience of previous White Papers

1337
which have been put out, that it is most unlikely that the outcome of their deliberations will be to recommend that at any rate some of the smaller of the large burghs should continue to exist as islands in a landward area. That seems most unlikely, and it is also something that is undesirable in the administration of social welfare in Scotland. Therefore, what I think my noble friends on this side feel, and certainly what I feel, is that under this Bill, so far as administrative areas are concerned, we ought to begin as we intend to go along; and if it is the case that at any rate the smaller of the large burghs will be extremely unlikely to remain as islands, then under this Bill we should see that they do not do so from the word "Go".
I have seen a statement that there is one large burgh with a population of 21,000, which had one part-time children's officer, one welfare officer and no children's home. That is the kind of situation that no one would want to allow to continue. If the only powers of the Secretary of State are to be powers of advice and encouragement to combine, then there is every chance that that situation will continue, and I think my noble friends on this side of the Committee feel that they have a duty to see that it does not. That is the view we take.
3.57 p.m.
LORD HUGHES: If I may briefly answer some of the points which the noble Lord, Lord Drumalbyn, has made, may I say that I find it difficult to disagree with the general tenor of his remarks. There is nothing strange about that, because we are both seeking to accomplish the same object. All noble Lords who have spoken are seeking to achieve the same object as the Government; that is, to have the most efficient units. It is true that under the Bill the Secretary of State will have to rely on persuading authorities to get together voluntarily. But I would remind noble Lords that this is one pattern in which the Government have taken an example which the Opposition set during their many years in power, that the usual way in connection with local authority combinations is to endeavour in the first instance to do it by agreement. A combination which is agreed is generally much better than one obtained by using compulsion.
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It is not very long ago that we had a debate in your Lordships' House on the merits of compelling local authorities to get together for particular purposes, and it was not then argued that it was authorities which were large and viable which should be allowed to remain out. It was for other, perfectly good, reasons that they sought to keep out. I would agree that, on the face of it, it appear: to be against the Government's argument to give these powers to large burghs, some of whom the noble Lord, Lord Drumalbyn, suggested will not survive the recommendations of the Wheatley Commission. I was in the company of Lord Wheatley yesterday at a meeting in Edinburgh but I did not discuss then—nor have I on the many occasions when I have met him—the Wheatley Commission. I am in no better position than anybody else to guess at what it is doing, and it would be wrong for the Government to act on what they think the Commission may do until the Commission itself decides what it is going to do. After all, it is not so long ago that the Commission heard the last of the evidence presented to it. Furthermore, perhaps it would be wrong far the Commission to say that it has finally made up its mind on what it is going to do. We all have our own ideas about what is desirable in this matter.
Without in any way claiming any knowledge on this matter, because I have none, it is just as likely that some of the smaller counties—and it might go a good deal further than that—have even less chance of surviving than some of the burghs. So in putting in the Bill only the counties, we are entrusting functions to local authority organisations which in some cases may not survive reorganisation. Therefore, we have a choice of giving it to bodies, some of which will survive and others of which will not, or of waiting until we know what the final pattern is going to be and doing nothing. The noble Lord, Lord Drumalbyn, has joined with me in rejecting that last argument as a reasonable alternative, when we have waited all these years.
I would remind your Lordships that the Secretary of State will be bringing in different parts of the Act at different dates on appointed days. It is not beyond the bounds of possibility that before any of these appointed days are fixed, we shall know the Wheatley Commission

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recommendations. There will be a fairly considerable inducement to some of the authorities to see "the writing on the wall" and from the beginning to get a good department organised, even on a voluntary basis. There is a big difference between a large burgh getting together voluntarily with a county on a basis on which they can ensure that they have a reasonable say in the way in which the combined service is going to be worked, and going into a compulsory scheme where they may have a limited representation through their members on the county council, as, for example, on the education side of a large burgh. I think that in some cases the large burghs have at the back of their minds the idea of a voluntary arrangement which they can work out and which will be much better than something which is forced upon them; the power is placed firmly in the hands of the counties.
I have done the best I can. If I have not been completely convincing, it is simply because of the fact that there is no answer which convinces entirely on one side. The Government's case is that, taking all the factors into account (the time factor of which is the most difficult), this is one which is most likely—I can put it no stronger than that—to give us the best working units. We are creating an entirely different welfare service from anything which has existed before in Scotland or anywhere else. The degree of willing co-operation between authorities will be a very valuable feature in this matter. We think that bringing the large burghs in is not necessarily taking anything away from the counties, but that in some cases it will make it easier for the counties to provide an even better service than if they had the burghs with them under compulsion.
I hope that in these circumsances noble Lords will not press this Amendment, but will take the opportunity to withdraw it, perhaps to think further about it, and then, if they still feel very strongly about the matter, they can retable the Amendment on Report stage. The Government have considered this matter for so long that I am not basing my request on the basis that the Government will reconsider the matter. We have come to a firm conclusion on this, and we must abide by it. We hope that a further period of reflection will persuade noble Lords opposite that, although the Government are not perhaps 100 per cent. right in this matter, they are certatinly not 100 per cent. wrong.
THE MARQUESS OF LOTHIAN: I should like to thank the noble Lord, Lord Hughes, for his fair and interesting arguments, and I should also like to thank the noble Lords on this side of the House who have spoken in favour of this Amendment. As the noble Lord quite rightly said, this is a question of balance. I am afraid that despite the eloquent plea by Lord Hughes he has not impressed me that the balance is on his side in this argument. I feel that it would be as well to put this Amendment into the Bill now. The Bill is at an early stage and, despite the noble Lord's remark that the Government will not consider this matter very much further, I hope that if we can amend the Bill in this way it might persuade him and his colleagues to reconsider it.
4.10 p.m.
On Question, Whether the said Amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 76; Not-Contents, 47.

CONTENTS

Aberdeen and Temair, M.

Cromartie, E.

Gridley, L.

Albemarle, E.

Daventry, V.

Grimston of Westbury, L.

Allerton, L.

Denham, L. [Teller.]

Hamilton of Dalzell, L.

Amherst of Hackney, L.

Dilhorne, V.

Hives, L.

Amulree, L.

Drumalbyn, L.

Horsbrugh, Bs.

Ashbourne, L.

Dudley, L.

Howard of Glossop, L.

Balfour, E.

Dundee, E.

Ilford, L.

Berkeley, Bs.

Ebbisham, L.

Inglewood, L.

Bessborough, E.

Effingham, E.

Jellicoe, E.

Blackford, L.

Emmet of Amberley, Bs.

Jessel, L.

Conesford, L.

Falkland, V.

Kilmany, L.

Cork and Orrery, E.

Ferrier, L.

Lambert, V.

Craigavon, V.

Forescue, E.

Lothian, M.

Cranbrook, E.

Greenway, L.

Loudoun, C.

Macpherson of Drumochter, L.

Ruthven of Freeland, Ly.

Stonehaven, V.

Mar, E.

St. Aldwyn, E. [Teller.]

Strange of Knokin, Bs.

Massereene and Ferrard, V.

St. Helens, L.

Strathclyde, L.

Merrivale, L.

St. Oswald, L.

Swinton, E.

Milverton, L.

Salisbury, M.

Teynham, L.

Molson, L.

Sanderson of Ayot, L.

Trefgarne, L.

Mottistone, L.

Sandford, L.

Tweedsmuir, L.

Mowbray and Stourton, L.

Sandys, L.

Vivian, L.

Moyne, L.

Selkirk, E.

Wakefield of Kendal, L.

Nugent of Guildford, L.

Sempill, Ly.

Windlesham, L.

Oakshott, L.

Somers, L.

Wolverton, L.

Rathcavan, L.

NOT-CONTENTS

Addison, V.

Granville of Eye, L.

Morrison, L.

Beswick, L.

Granville-West, L.

Moyle, L.

Birk, Bs.

Hall, V.

Peddie, L.

Bowles, L. [Teller.]

Hill of Wivenhoe, L.

Phillips, Bs.

Brockway, L.

Hilton of Upton, L. [Teller.]

Platt, L.

Buckinghamshire, E.

Hughes, L.

Raglan, L.

Burden, L.

Iddesleigh, E.

Rowley, L.

Champion, L.

Kirkwood, L.

Sainsbury, L.

Citrine, L.

Latham, L.

Segal, L.

Douglass of Cleveland, L.

Leatherland, L.

Shackleton, L. (L. Privy Seal.)

Faringdon, L.

Lindgren, L.

Silkin, L.

Fiske, L.

Listowel, E.

Stonham, L.

Fraser of North Cape, L.

McLeavy, L.

Stow Hill, L.

Gaitskell, Bs.

Maelor, L.

Summerskill, Bs.

Gardiner, L. (L. Chancellor.)

Mais, L.

Wootton of Abinger, Bs

Garnsworthy, L.

Mitchison, L.

On Question, Amendment agreed to.

Resolved in the affirmative, and Amendment agreed to accordingly.
House resumed.

REPAIR OF STORM DAMAGE IN SCOTLAND
4.17 p.m.
LORD HUGHES: My Lords, with permission I should like to repeat in his own words, a Statement which is being made by my right honourable friend the Secretary of State for Scotland about storm damage. The Statement is as follows:
"We debated in this House on February 7, the disastrous effects of the storm which struck Scotland on the night of January 14/15. I then promised to keep the House informed of the steps taken to rehabilitate the areas affected by storm damage.
"As soon as the effects of the storm had been assessed it was apparent that complete rehabilitation would inevitably be a long process. The Government's efforts have been directed first towards making temporary repairs, so that the worst hardships were quickly removed; and then to seeing that the work of permanent repair is finished as quickly as is humanly possible.
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"Unfortunately bad weather has hampered operations. There was a dry and calm spell immediately after the storm, but since then the West of Scotland has suffered three periods of strong gales accompanied by driving rain and snow. It has been necessary on these occasions to divert workmen from permanent repairs to replace temporary roof coverings which had been blown away or penetrated.
"Despite these difficult conditions a great deal has been achieved. All the damaged local authority houses, numbering nearly 200,000—over 70,000 of them in Glasgow—were made wind and watertight at an early stage, and over 63,000 of them have now been permanently repaired. Repairs to houses owned by the Scottish Special Housing Association and the four new town corporations are proceeding satisfactorily.
"Many owners whose houses are covered by comprehensive insurance are dealing with their own repairs. However, I informed the House on January 25 that I was arranging for local authorities to organise the repair of private houses where this was necessary to avoid delay. These arrangements rested on the provision of capital by the Government, the commissioning and

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payment of work by the local authorities, and the acceptance by owners of ultimate responsibility for the cost. The most intractable problem has been the repair of tenements in multiple ownership, many of which are inadequately insured.
"Outside Glasgow local councils have made themselves responsible for organising permanent repairs to the roofs of over 14,000 houses. Work on over 2,500 of these has been completed, and the councils assure me that all the roofs will be permanently repaired before the end of the summer.
"In Glasgow the storm damaged the roofs of some 10,000 privately-owned tenements: 5,000 of these were seriously damaged. This meant that some 80,000 households were, or could be, affected. Permanent repairs to those houses were proceeding fairly well until the weekend of March 16–17, when another bad storm struck the City, and the temporary patching suffered severely. A labour force of some 700 men, drawn from the Corporation's direct labour force, the Scottish Special Housing Association and the private contractors' labour force, was set to work.
"Under the direction of the general manager of the Corporation's building department this force has overcome the renewed emergency, and the Corporation and the master slaters have agreed to work together to ensure that all private houses in the City are fit to withstand next autumn's weather.
"To achieve this the methods of repair are being modified where necessary: strapping and roofing felt, durable enough to stand up to any weather for several years, will be used. My honourable friend, the Minister of State, who discussed these arrangements last Friday in the City, has been assured by all those concerned that the existing labour force is sufficient to ensure that by September repairs will be completed which will fully safeguard all the roofs. Labour and finance have been, and are, the two key factors in this whole operation.
"From the outset everything possible has been done by the local and central authorities to assemble and dis-
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pose to best advantage the necessary labour force. The Ministry of Labour have combed Scotland for men, and have brought some from England. For Glasgow's needs men have been drawn from the Corporation's staff, from local contractors and from the Scottish Special Housing Association. The men have all worked magnificently, often in very difficult conditions. The work has called for an outstanding degree of trained skill, because of the high-pitched roofs of the tenements. Let no one underestimate the danger of this work in the sort of weather we have experienced. I am sorry to say that six lives have been lost.
"As to finance, the arrangements which the local authorities have made, with the backing of Government advances, have been designed to ensure that no repair need be delayed because of lack of means. The private owners and factors have been assured that when local authorities are arranging to recover the costs of repairs they will examine each case individually and ensure that recovery does not cause hardship. Any deficit which a local authority incurs because of this will attract the special 75 per cent. Government grant. These arrangements are being administered flexibly: in urgent cases local authorities are giving instructions for repairs to be undertaken before all the formalities have been completed.
"Since the storm there has been close co-operation between the central Departments and the local authorities. I would like to pay a special tribute to the Lord Provost of Glasgow, who has shown outstanding qualities of leadership during the City's period of trial.
"If I deal more briefly with the damage to agriculture and horticulture it is not because the Government underestimate the severe losses these industries have suffered, but because fewer complications have arisen in helping farmers and growers to overcome the difficulties. As an indication of the severity of the damage I can tell the House that the estimated cost of the work covered in applications made to my Department under the various improvement schemes is now over £1 million.

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"However, I now expect that the restoration of damage to farm buildings will be completed within three months: in many instances farmers are taking the opportunity of making improvements under the schemes of assistance rather than restoring existing buildings. Repair work to horticultural properties is virtually complete. Where rebuilding of glass-houses is involved some delay has taken place because of the need to concentrate on seasonal work at this time of the year. I am glad to say that labour and materials are not presenting any serious problems, either to farmers or to horticulturists.
"As regards forestry, I have now considered the Forestry Commission's advice on the report of the Action Group. I am indebted to the Group for the speed with which they did their work.
"As I announced on March 26 we have urged local authorities and wood-using industries to give preference to home-grown timber whenever possible in the next two years. We are also appealing to private woodland owners to exercise restraint in felling meanwhile, and the Forestry Commission is giving a lead in this direction. In addition we propose to offer assistance in two ways.
"First, an allowance for extra cost will be made to assist in the dispersal of sawmill timber to potential markets in other parts of the country. This will help to ensure that there is no glut in local markets which might result in valuable timber being allowed to rot. This assistance will be administered by the Forestry Commission, and will be payable to those bearing the transport charge. The Forestry Commission is working on the details and an announcement will be made early next week.
"Secondly, we have given a good deal of thought to the provision of additional heavy machinery which will be needed to extract and handle the windblown timber. The timber trade will no doubt meet some of this requirement themselves. But in view of the temporary need for the plant the Government recognise that the trade may not be able to find all the capital for short-term investment on the neces-
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sary scale. We are therefore arranging for the Forestry Commission to hire out machinery to owners and timber merchants at commercial rates. Full details will be announced by the Forestry Commission."
My Lords, that concludes the Statement made by my right honourable friend.
THE EARL OF DUNDEE: My Lords, I thank the noble Lord for repeating that Statement, which I think is too long to be discussed in detail—and I certainly do not want to add to the difficulties of the noble Lord in the middle of a rather vigorous and, perhaps, lengthy Committee stage of a Scottish Bill. I should like to pay a tribute to the fine work which has been done by these improvised squads of labour in such difficult conditions, and with the loss of life about which your Lordships will have regretted to hear.
There is a question I should like to ask about the damage to houses The Statement which the noble Lord repeated has given some general figures about the numbers of houses damaged, some of which were no doubt almost destroyed and some of which were no doubt only very slightly damaged. I should like to know what is happening about the families who are homeless. We were told two months ago that about 800 families were completely homeless in Glasgow alone, and an unascertained number elsewhere. I wonder if the noble Lord could tell us whether it is the aim of the local authorities eventually to put all these families back in the houses which they previously occupied, and what it happening to them meanwhile. Are they living in rest centres, or are they being crowded in with relations? And if it is going to take a long time to rehabilitate their former homes, or if in some cases it is impossible to rehabilitate them, will these people be given any priority on the waiting list for new houses?
On forestry, I am very glad it has been recognised that the chief obstacle to clearing up the mess is the difficulty of marketing and transport; and we shall look forward with interest to the Forestry Commission's announcement early next week. I do not know whether the noble Lord can say anything about

1347
the allowance for extra cost—whether it will be a fixed, fiat-rate proportion of the difference between the cost to the neighbouring markets which are clogged up and to the more distant market which is able to take the timber, or whether it will be on some other basis.
LORD AMULREE: My Lords, I should like to thank the noble Lord for repeating the Statement we have just heard. I do not wish to make any detailed comments, except that I would associate myself with what has been said about the men who have been working so hard to get the damage repaired and express the sympathy which we must all feel for the families of those who unfortunately lost their lives while carrying out this very fine work.
VISCOUNT STONEHAVEN: My Lords, may I ask the noble Lord whether, as second priority, he will consider with the position of the churches, which also suffered considerable damage. Clearly, people's houses must come first; but the churches did suffer a great deal of damage—and one can hardly expect the ministers to insure against an act of God.
LORD MITCHISON: My Lords, can something be done, if necessary beyond the letter of the law, for any of the widows or dependants of the six who lost their lives in the repair work in Glasgow?
LORD HUGHES: My Lords, I had the advantage of seeing this Statement an hour or two before your Lordships heard it, but that is the only advantage I have had. In these circumstances, you will appreciate that it is not possible for me to answer any points that were not within my knowledge before to-day. The one question I can answer is in relation to the rehousing of the homeless. I was in Glasgow on the day following the disaster, and I was also in a number of other parts of the county on that day. I was in other burghs of Scotland on Tuesday, Wednesday and Thursday of that week. One thing which had already emerged clearly was that each of the local
1348
authorities had accepted it as a proper exercise of their responsibilities that all the priorities in housing should be set aside in favour of giving accommodation to those rendered homeless by the storm. In some cases, at the wish of the people concerned, that re-accommodation was of only a temporary nature. There were other cases where houses were badly damaged, or alternatively, where psychological factors entered into it, where a house could be repaired and was in fact perfectly safe but the circumstances were such that a widow said, "I will not in any circumstances go back to live in that tenement." The local authorities looked with the greatest kindness on this; and I can say without hesitation that this is the part of the problem which was most speedily and most satisfactorily resolved.
The other questions I will draw to the attention of my righ honourable friend. It may be that, as a result, I shall be writing to some noble Lords. What I hope is that the very kind expressions of sympathy with those who lost their lives which were made by the noble Earl and by the noble Lord, Lord Amulree, will be adequately reported by the Scottish Press; because I am sure that the building industry in Scotland and the families of those men will very much appreciate that sort of comment by your Lordships.
LORD FERRIER: My Lords, in the light of the fact that a great deal of the damage was done in Glasgow by the cement-bound brick chimneyheads falling into the tenements, may I ask the noble Lord whether the authorities will ensure that, as that form of construction is certain to be used in putting back the chimneyheads, they are adequately anchored to the stone building? Perhaps, also, when repair work is completed there might be a check of the chimneyheads which may not have fallen but which may have been shaken by the gale, lest they need anchoring against the possibility of a similar wind in the future.
LORD HUGHES: My Lords, I am quite certain that both these points are being acted upon by the authorities, public and private.

SOCIAL WORK (SCOTLAND) BILL [H.L.]
4.35 p.m.
House again in Committee.
Clause 1, as amended, agreed to.
Clause 2:
The social work committee
2.—(1) Every local authority shall establish a social work committee for the purposes of their functions under this Act.
(2) Except as otherwise expressly provided, all matters relating to the performance of their functions under the following enactments—

(a) this Act,

(b) section 12 of the Matrimonial Proceedings (Children) Act 1958.

shall stand referred to the social work committee, and before exercising any of the said functions the authority shall, unless the matter is urgent, consider a report of the social work committee with respect thereto.
(3) The social work committee, or any subcommittee thereof, may include persons specially qualified by reason of experience or training in matters relating to the functions of the committee, notwithstanding that they are not members of the local authority:
Provided that at least a majority of the members of the committee, or any sub-committee thereof, shall be members of the authority.
LORD HUGHES LORD HUGHES moved, after subsection (2)(b), to insert as a new paragraph: "( ) Part I of the Children Act 1958,". The noble Lord said: In speaking to Amendment No. 2, may I, with the permission of the Committee, associate with it Amendment No. 3? These Amendments are necessary because the clause makes it a duty of every local authority to set up a social work committee for the purposes of their functions under the Bill. It also lists functions under other enactments which are to stand referred to that committee because their nature is such that it is appropriate for them to be a responsibility of the new social work department. The Amendments would add to the list of functions which are to stand referred to the social work committee responsibilities contained in Part I of the Children Act 1958 and in Section 101(1) of the Housing Act 1964. The first of these is primarily concerned with placing responsibilities and duties on persons who foster children for reward. But Section 1 of the Act places a general duty on local authorities to secure the well-being of privately placed foster children, and it is
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clearly appropriate that this duty should be placed upon the social work department.
Section 101(1) of the Housing Act 1964 enables counties and large burghs to contribute to expenditure incurred in connection with the provision, maintenance and management of housing for elderly, infirm or handicapped persons. This power, which is exercised at present by welfare departments, is also one which would appropriately be placed with the social work department. I beg to move.
Amendment moved—
Page 2, line 28, at end insert—
("( ) Part I of the Children Act 1958,").—(Lord Hughes.)
LORD DRUMALBYN: May I ask the noble Lord with respect to the second Amendment he spoke to, how this will affect the housing responsibilities of local departments in regard, among other things, to finance and the method of financing; because, as II understand it, the method of financing under this Bill will be different from the method of financing, the calculation of rates and so on, in the question of housing.
LORD HUGHES: I have no direct information about that point but I suspect that it will not alter the financial responsibilities of the authorities. I am quite certain that if any of the chamberlains or town clerks have reason to fear that it will, they will soon draw our attention to the fact.
LORD HUGHES: I have already spoken to this Amendment. I beg to move.
Amendment moved—
Page 2, line 29, leave out (" and ') and insert—
("( ) section 101(1) of the Housing Act 1964, and").—(Lord Hughes.)
LORD FERRIER: My noble friend Lord Balerno greatly regrets that an important engagement in Scotland prevents his being here to move this Amendment himself. It therefore falls to me to move it. I need hardly say, as your Lordships know from the speech I made on Second Reading, that I fear that this Dill is so "half-baked" that no amount of re-cooking in Committee seems likely to

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result in a digestible product. However, I am absolutely persuaded that the need for some enactment to improve the situation in Scotland is so great that we must do as much as we can to make the Bill workable and acceptable. This is certainly the view of my noble friend Lord Balerno, and we feel—and we can see by the Amendment that follows that we are not alone—that it is essential that the terms of the Bill should be mandatory in respect of the inclusion of experienced personnel in the Committees. I beg to move.
Amendment moved—
Page 2, line 37, leave out ("may") and insert ("shall").—(Lord Ferrier.)
LORD DRUMALBYN: Would it be convenient if my Amendment, No. 5, were discussed along with this one?
LORD HUGHES: Yes; and I think No. 8 is consequential upon No. 4 and that is also Lord Ferrier's Amendment. It is on the same point.
LORD FERRIER: I may say that Lord Balerno would be prepared to withdraw No. 4 and for us to associate ourselves with No. 5. But if it is your Lordships' wish I will go on to No. 8. I have already mentioned that the noble Lord, Lord Balerno, is unable to be here. Amendment No. 8 is in two parts. Both of those Darts make a whole which will bring the Bill in line with the existing conditions of the Education (Scotland) Act, 1945, which is based on the Local Government (Scotland) Act, 1929. These conditions are that representatives from the Churches have a statutory place on education committees. I need not elaborate on my belief that such representation is advisable. There is, of course, no suggestion that any particular Christian Church should be singled out for selection in this way. The point is that in work of this type ministers of religion have a particular contribution to make by virtue of their dedication and experience. What is more, they are part of a network with unique contacts throughout any community which fact can be only an asset to such a committee. The second part of the proposed subsection speaks for itself and is in line with the existing practice under the Education Act, whereby it is mandatory on committees to submit regular reports to keep the Secretary of State in touch with progress.
4.41 p.m.
LORD WELLS-PESTELL: I hope that my noble friend may be able to accept Amendment No. 4. I am not bothered, if I may say so with the greatest repect, about Amendment No. 5 any more than with Amendment No. 8. I should prefer to leave the choice of personnel to the new social work committees. I do not think that any particular body has any special right to be represented. The noble Lord, Lord Ferrier, said that there ought to be a representative of the universities and the churches. One could argue that there ought perhaps to be a representative of members of the medical profession who are in daily touch with these problems. I should have thought the most important persons to have on such a committee would be people with a wide experience of professional social work.
The clause as drafted says that:
"The social work committee, or any subcommittee thereof, may include …"
and so on. "May" is permissive; it also means that if the committee does not wish to do so, it need not. Therefore I ask my noble friend whether he feels able to accept the word "shall" in place of "may", because, having regard to what the Bill, envisages, which is the co-ordination of a good deal of social work to be undertaken by the local authority, it would mean that the social work committee would have constantly under its review standards of work; the question of selection; the training of personnel and, I would hope, the question of in-service and further training. Those of us who have been members of county councils and borough councils know that not all members of committees (and sometimes none of them) have special knowledge of the work for which the committee is responsible. Therefore I feel that if the word used could be "shall", there would be an obligation on the social work committee and the local authority to bring on to the committee people from a fairly wide field of representation. They would be able to bring to the committee a certain wealth of experience and fund of knowledge which would help to develop a really first-class social service. They would have regard to such things as selection and training, in-service training and further training. That is why I should

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like to see the word "shall" used, because then this would be obligatory.
LORD DRUMALBYN: Perhaps I may add a word or two about our approach to Amendment No. 5. I put down this Amendment because I thought that in particular areas there would not be people sufficiently qualified by reason of experience or training to be worth considering for membership of a committee: it would give a small degree of latitude. But I support what has been said by the noble Lord, Lord Wells-Pestell, about the word "shall". My information is that not a great deal of use has been made of Section 39 of the Children Act in co-opting on to the committees people of this kind. I do not know the reason for that, but if it is so, and if it is thought desirable that they should be members, there is a strong case for making the wording at any rate more positive.
The noble Lord, Lord Wells-Pestell, and my noble friend Lord Ferrier would go the whole way and make it an absolute duty. I felt it better to modify it a little, in case in certain areas it was not possible to find the kind of person envisaged, for example, in Amendment No. 8. We have to bear in mind that the reasons for which Churches are represented on education committees are not the same as those for which they are required to be represented on this kind of committee. The Churches have their pastoral duties, but I think it is more with regard to their teaching duties and the regulation of religious instruction that they are represented on education committees. Nevertheless, I think it would be most valuable, because of their pastoral functions and because so much voluntary welfare work is associated with Churches, that appropriate ministers might well become the hub of this kind of activity and prove most useful on this kind of committee.
Those universities which carry out training for social welfare courses would, I am sure, inevitably be represented on the social work committees. I am thinking particularly, in this connection, of Glasgow and Edinburgh, but the same may apply to the other universities. I commend my noble friend's Amendment No. 8, and I will leave the noble Lord to choose between Amendments Nos. 4 and 5.
LORD INCHYRA: My Lords, this Amendment gives me an opportunity to make a short reference to the position under the Bill of the voluntary organisations in Scotland. These organiations have a very wide experience in many aspects of welfare work. I am sure your Lordships will agree that they have done valuable work in a number of directions, and that the last thing anyone would wish would be for these activities to be curtailed or made more difficult because of the provisions of the Bill. I do not for a moment think that that is likely to happen or that it is the intention behind the Bill. On the other hand, I must admit that in the only society for which I am entitled to speak, the British Red Cross Society, I have heard apprehensions expressed that the provisions in the Bill might result in voluntary societies being pushed to one side, or that the work which they do for children and old people, or people who have recently left hospital, might be made more difficult.
In several clauses in the Bill there are provisions for co-operation with voluntary organisations. I am sure it is the intention that the voluntary organisations should be brought fully into the picture. What will matter, however, is not so much the terms of the Bill but the way in which it is administered, and I hope that we need have no concern about that aspect of the matter. But I think that anything which the noble Lord, Lord Hughes, can say to emphasise the part which the voluntary organisations can play in the new set-up will be very welcome.
LORD HUGHES: Yesterday in Edinburgh I had the opportunity of seconding the motion for the adoption of the Annual Report and Accounts of the Royal Scottish Society for the Prevention of Cruelty to Children, and in the course of my remarks I pointed cut the many ways in which voluntary organisations were expected to continue to play their part in this work. If I remember rightly, the words which I used were of this order. Without the continuation of the co-operation which had been given by voluntary organisations in the past, it would not be possible for either the local authorities or the central departments to satisfactorily carry out the duties which are being laid upon them by this Bill. If the noble Lord wishes me to send him a copy of the full remarks which I made,

1355
which I think were generally acceptable to the members of the Society, I shall be glad to do so.
Of course, my remarks apply with equal force to the many other voluntary organisations who have been so helpful in welfare operations and without whose work this Bill could not possibly be before us. It has been the voluntary organisations who have been the spearhead of this new development and who have so often pointed out the need for it. The fact that the noble Lord, Lord Inchyra, intervened on this point emphasises the difficulties of attempting a selection by naming the organisations who will have places on the committee by statutory provision. Who is to weigh up the merits in any particular area of a choice between the local minister or the county director of the Red Cross or an officer of the R.S.S.P.C.C.—the man who is so regularly known in Scotland as "the cruelty man"? It is impossible. If we had to accept everybody who could make a contribution as a member of the committee, there would be no question of a majority being members of the local authority. Their representation would turn out to be a mere drop in the bucket.
The Government are going the other way in these Amendments. As the Bill stands, the majority of a committee will be members of the local authority, but the Government are prepared to accept the Amendments of the noble Marquess, Lord Lothian, suggesting that this should be a two-thirds majority, because we are strongly in favour of the principle of co-option. It may seem that we are going the wrong way about it. But in many authorities there is strong objection to co-option. If we include in the Bill anything that at the end of the day may make it possible that they will have only a bare majority, they will regard any co-option as being the thin end of the wedge and dig in their heels against any co-option whatever. Even the words "where practicable" would lead to difficulty. If the local council do not want to co-opt, they will find the most ingenious reasons for not having other people on the committee, and who is to decide whether their reason is a practicable one or not?
We think that this is a case where the best co-option will be obtained by
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leaving it as it has always been. Outside the Education Acts, the principle of co-option by local authorities has always been a voluntary one. If we are to have non-elected members sitting with the good will of the elected members, we shall get a good committee, who will work well, and the committee will regard themselves as having been strengthened by the experts brought in from outside. They will feel that they have done this themselves; the Secretary of State or Parliament has not compelled them to do this. The committee benefit in the result.
The Government think that the acceptance of these Amendments, which would confine the number of co-opted members to one-third of the committee, is likely to lead to more co-option and bring in more voluntary people, some ministers and perhaps some university people. We are going to emphasise in every way we can that we think that the committees should co-opt outside help in a field which is being widened and in which, let us accept it, there will be a fair amount of difficulty in getting schemes working well. From this point of view, I would sincerely urge your Lordships not to accept Amendments Nos. 4, 5 and 8, and in due course I shall be advising your Lordships to accept Nos. 6 and 7. I am sure that the result will be to produce a greater degree of co-option than the three Amendments would bring about.
LORD FERRIER: I think it is a little misleading to bring in Amendment No. 8 to cloud the issue raised by this Amendment. Nevertheless, there is a great deal in what the noble Lord, Lord Hughes, has said, and with your Lordships' permission I beg leave to withdraw Amendment No. 4.
Amendment, by leave, withdrawn.
THE MARQUESS OF LOTHIAN: As the noble Lord, Lord Hughes, has indicated that he is prepared to accept this Amendment and Amendment No. 7, and has really done my arguing for me, I do not think that there is any need for me to do anything more than formally move this Amendment.
Amendment moved—
Page 2, line 41, leave out ("a majority") and insert ("two-thirds").—(The Marquess of Lothian.)
THE MARQUESS OF LOTHIAN: I beg to move this Amendment.
Amendment moved—
Page 2, line 42, leave out ("or") and insert ("a majority of the members of").—(The Marquess of Lothian.)
LORD FERRIER LORD FERRIER moved, after subsection (3), to insert:
("( ) Each social work committee shall include persons nominated by the authorities of the Churches and, where appropriate, by a University and each local authority for the purpose of this Act shall submit to the Secretary of State for his approval a scheme for the constitution of the committee.")
The noble Lord said: I do not propose to talk any more about this Amendment because I should like time, as no doubt will my noble friend Lord Balerno, to study what the noble Lord, Lord Hughes, has said in the discussion which has just taken place. I am particularly grateful to the noble Lord who spoke from the Cross-Benches, who emphasised the need for an absolute assurance that voluntary bodies are properly represented on all committees and sub-committees tinder the Bill. I may not wish to proceed with this Amendment, but on the other hand, the noble Lord, Lord Wells-Pestell, who has spoken in support of this Amendment, may not wish me to withdraw it. I beg to move.
Amendment moved—
Page 2, line 43, at end insert the said subsection.—(Lord Ferrier.)
LORD WELLS-PESTELL: If I am allowed to speak at this stage, I hope that my noble friend Lord Ferrier will withdraw this Amendment, because now that the Minister has accepted Amendment No. 6, which will put an obligation on local authorities to have two-thirds of their social work committees as members of the council, the number of people they will be able to co-opt will be reduced. For example, in a committee of 15 there will be 10 members of the local authority, so that the number of co-opted members cannot exceed five. I think that it will now be unnecessary to have an Amendment which seeks to determine who shall be on the committee. I would sooner leave it to the committee to have the widest possible field of choice.
Amendment, by leave, withdrawn.
On Question, Whether Clause 2, as amended, shall stand part of the Bill?
LORD DRUMALBYN: I should like to ask one question on this clause. I am not certain what the position is as regards school attendance officers. I know that there is nothing said about this matter in subsection (2) of Clause 2, or, for that matter, in Clause 1. The noble Lord said at an earlier stage that the powers are expressed in very wide terms, so that not everything that is covered needs to be mentioned specifically. I wonder whether he can tell me what has been decided about school attendance officers—or, to put it in another way, whether the staff of the social work committee would serve as school attendance officers, or could so serve. I am told that in some cases janitors of schools serve as school attendance officers.
LORD HUGHES: I must confess that I was told about the position of school attendance officers, but, for the life of me, I cannot remember what I s told. Perhaps at some inappropriate time later on I can give the noble Lord an answer.
LORD DRUMALBYN: I am obliged. I shall wait for the "inappropriate" time.
Clause 2, as amended, agreed to.
Clause 3:
The director of social work
3.—
(3) Any vacancy in the appointment of director of social work shall be advertised by the local authority and, unless and until the Secretary of State prescribes qualifications under the last foregoing subsection, copies of all the applications received for the vacancy shall be forwarded by the local authority to the Secretary of State who shall compile a list of those applicants whom he considers qualified for the appointment.
5.2 p.m.
LORD DRUMALBYN LORD DRUMALBYN moved to add to subsection (3)
"and if he considers none of the applicants to be qualified for the appointment he shall require the local authority to re-advertise the vacancy, and the local authority shall comply with the requirement with or without any change in the terms and conditions of service offered."
The noble Lord said: The purpose of this Amendment is a simple one. It is simply that it is quite possible that the Secretary of. State may find nobody with

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the qualifications that he thinks necessary on the list of applicants submitted to him. Alternatively he may find only one person. As the local authority are really to choose their director of social work, it does not seem to me that it would be suitable for the Secretary of State to send a list down containing only one name. Yet, as the clause is drafted, it appears that this would be perfectly permissible.
Taking this and the next Amendment together, I think there are two points: first of all, that the local authority is to choose from among those on the list, and not just a person on the list; and secondly, where no name is submitted to the Secretary of State of a person whom he thinks qualified, then he shall require the local authority to re-advertise the vacancy. It may well be that one of the reasons why there is no suitably qualified person on the list is because the local authority has not offered a sufficiently high salary or sufficiently good terms and conditions of employment. It is for that reason that I have indicated that it will be possible in that case, when the local authority re-advertise it, to state the conditions clearly. I beg to move.
Amendment moved—
Page 3, line 16, at end insert the said words.—(Lord Drumalbyn.)
LORD HUGHES: I must admit that the Government have no strong objections to offer to this Amendment. It is more a matter of the susceptibility of local authorities than anything else. The only objection we have is that we do not want to make the procedure for selecting a social work director look too involved or to have too much appearance of interference in a section of our relationships with local authorities, which is always tender—the question of saying whom they may or may not appoint; and this is particularly so after the appearance of the Maud Report. If, however, the noble Lord thinks that these rather intangible disadvantages are worth suffering for the advantages of spelling it out in so many words—which, frankly, we think is what will happen in any event—I have no strong feelings against it. I do not think it will help relationships. I do not think it will alter very much the procedure that is due to arise, in any event. On the other hand, I must admit that,
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except from the possible psychological view of relationships with local authorities in this field, it cannot do very much harm.
LORD DRUMALBYN: I am grateful to the noble Lord. The difficulty is that it is spelt out in so much detail already, but perhaps not quite enough. The point here is not so important as in the case of a reporter, because this, as I understand it, is only a transitional arrangement. This will apply only until subsection (2) comes into operation; that is, until the Secretary of State has prescribed the qualifications. I think that if we decide to bring in these words in regard to the reporter, they could quite easily be brought in here, too. Perhaps we might leave the point to be discussed in relation to the reporter, and by then the noble Lord may have taken more soundings from the local authorities and may know whether or not they would like to have this.
LORD HUGHES: I think that is a helpful suggestion. Whichever way we do it, there is probably advantage in having the same sort of wording in both cases. As the noble Lord, Lord Drumalbyn, has suggested, perhaps the more important case is that of the reporter. If we should decide that there is advantage in bringing it in, this proposal could perhaps be brought in on the next stage of the proceedings.
LORD DRUMALBYN: I am much obliged. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
LORD HUGHES LORD HUGHES moved, in subsection (8), after "1947" to insert:
", so far as these provisions are not inconsistent with any of the foregoing provisions of this section,".
The noble Lord said: This clause provides for the appointment by each local authority of a director of social work and adequate supporting staff. The Amendment would insert a necessary qualification in subsection (8) of the clause, which deals with remuneration and tenure of office. The provisions of Sections 82 and 92 of the Local Government (Scotland) Act 1947 are to apply to directors of social work and their staff, but in relation to tenure of office these provisions are simply that office

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is to be held during the pleasure of the council. The director of social work, however, is to have the additional safeguard enjoyed by other local authority chief officials that he shall not be removed from office (or required to resign) except by a resolution of the local authority passed by not less than two-thirds of the members present at a meeting, notice of which specifies as an item of business consideration of his removal from office. I beg to move.
Amendment moved—
Page 3, line 40, after ("1947") insert the said words.—(Lord Hughes.)
Clause 3, as amended, agreed to.
Clause 4 [Provisions relating to performance of functions by local authorities]:
On Question, Whether Clause 4 shall stand part of the Bill?
LORD DRUMALBYN: I should like to put one short point on this clause. I take it that the word "arrangements" in line 4 means, and includes, arrangements on such terms and conditions as may be agreed. These will be arrangements for grant, and so forth.
LORD HUGHES: Yes; I would say so. May I regard this as the inappropriate moment and say that school attendance officers are not affected?
Clause 4 agreed to.
Clause 5 [Powers of Secretary of State]:
LORD DRUMALBYN LORD DRUMALBYN moved, in subsection (3)(d), after "if" to insert "(but only if)". The noble Lord said: This Amendment relates to subsection (3)(d) of this clause and, in particular, to the removal of persons from places in which they are boarded out
"if their welfare appears to require it."
I looked up Section 23 of the National Assistance Act, which is repealed in Schedule 7. That empowers the local authority to require persons to leave premises in which accommodation is provided
"where by reason of any change in a person's circumstances"—
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among other things—
"he is no longer qualified to receive accommodation under this Part of this Act …".
It seems to me that this represents a quite different attitude from the attitude that is adopted in this Bill, and that the sole test is to be the test of need as defined in the Interpretation Clause, Clause 93. Therefore, if the person is in need he ought not to be removed unless his welfare requires him to be removed: that should be the only case in which he should be removed while he is alive. That being so, I think the words, "but only if" are a useful addition. I beg to move.
Amendment moved—
Page 4, line 42, after ("if") insert ("(but only if)").—(Lord Drumalbyn.)
LORD HUGHES: The Government feel that this would not be in all cases a helpful Amendment to the Bill. I think it must be accepted that if there are no other circumstances which have a cancelling-out effect persons should not be removed from a place where they are boarded out unless their welfare appears to require it, and I think this would be a principle generally followed by local authorities. But there might be circumstances where the general advantage of a group of people might require one person to be removed from a place, even though it could not necessarily be shown that it was for his welfare that this should be done.
It is difficult to envisage actual cases, but the sort of case we had in mind, and which might be precluded if we accepted these words, is this. There might be a place in which handicapped children were boarded out and which was suitable for a particular child, for whom a place could be found only by removing another child for whom it was not essential that he should remain in that place. It could not be argued that it was for the welfare of that child to be in this place, rather than in another one which would suit him equally well. But if the local authority had to comply with this Amendment they might in fact be unable to place the handicapped child in the only suitable place which they had for him, because the alternative place available might not be suitable. I know I am making this sound terribly complicated, but we think that this proposal would be an inhibition on the powers of

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the local authority to make the best use of their resources, which could lead in some cases to unfortunate results.
Having said that, however, I would add that I should like time to go into this matter a little more fully. We have a while between Committee stage and Report stage, and if the noble Lord will withdraw this Amendment now I will look at it in more detail to find out just how likely it is that there might be circumstances in which the local authority could not do the job as they would want to do it if these words were in the Bill. One thing I want to avoid, if at all possible, is this. If someone were boarded in a place where things were working very well, one would be loth to disturb that arrangement unless there were reasons which were overwhelmingly in favour of doing it that way; and I accept that the balance should be loaded against unnecessary movement. But if the noble Lord will agree to withdraw this Amendment now, I will go into this matter reasonably early and let him have my conclusions after more mature consideration of the matter, and he may then decide whether or not he wishes to resubmit the Amendment at the next stage.
LORD DRUMALBYN: I am again very grateful to the noble Lord. I thought, if I may say so, that his explanation was extremely lucid, although it was bound, in the nature of the case, to be slightly complicated. In the light of the offer he has made, and in view of his sympathetic approach to this matter, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 5 agreed to.
Clause 6 [Supervision of establishments providing accommodation for persons in need and inspection of records etc., relating to persons in need]:
5.15 p.m.
LORD DRUMALBYN LORD DRUMALBYN moved, in subsection (1) after "may" to insert:
"on producing, if so required, some duly authenticated document showing his authority".
The noble Lord said: This is another point that can often give rise to difficulty—the sort of point we often have to discuss on Bills. It is the extent to which duly authorised officers of the Secretary
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of State may enter premises (and perhaps I may take Amendments Nos. 13 and 14 together) at any time and without producing some duly authenticated document required showing their authority to enter. My Amendments relate to subsection (1). The noble Lord, Lord Hughes, has down an Amendment to subsection (2), which deals with the question of entering offices of a local authority or a voluntary organisation, to include the words "at all reasonable times". I quite see that there is a difference between entering offices and entering, let us say, houses where foster children are boarded out, or inspecting residential accommodation where it might be very necessary to inspect it at times when offices are not open. But of course "reasonable" is a relative term. What is reasonable in one case might not be reasonable in the other.
What I think is important is that here we are dealing with homes; not just residential establishments, but individual homes, where foster children or children under supervision, children boarded out and so forth, are; and in these days we are constantly being warned against the possibility that people may abuse authority, or use authority they do not possess, in order to gain entrance. I think that this is something we have to be particularly careful with in this kind of case. So the purpose of my Amendment is not to deny to duly authorised officers of the Secretary of State the right to perform their functions in any way, but to ensure, first, that they are always able to establish who they are, and, secondly, that it shall be open to anybody to challenge the reasonableness of the time.
Subsection (4) says:
"Any person who obstructs the exercise of any such power … shall be … liable on summary conviction to a fine not exceeding ten pounds …"
Of course it would be considered at that point whether the time was reasonable or not. If the officer of the Secretary of State was not entering at a reasonable time, he would not be convicted; and this is exactly what my Amendment seeks to secure. It will give the courts the final decision as to whether entry was really necessary at the time when it was required, and I think that this is right. We want some restriction on unlimited power to enter private homes. I beg to move.
Amendment moved—
Page 5, line 2, after ("may") insert ("on producing, if so required, some duly authenticated document showing his authority").—(Lord Drumalbyn.)
LORD HUGHES: I am so accustomed to finding the noble Lord, Lord Drumalbyn, picking up points which the Government appear to have missed that I take it as almost axiomatic that that will be the case. But on this occasion this is not the position. The first Amendment is in fact already covered by Clause 6(3), on which, for once, the noble Lord appears to have overlooked something, because it says exactly what is in his Amendment No. 13. Perhaps it would be convenient if I were to speak also to our Amendments 15, 16 and 17, which are on the same point.
We have put our Amendment down at line 25, to subsection (2), because we accept that duly authorised officers need enter the offices of a local authority only at a reasonable time. However, we do not accept that an officer should be under the same requirement to enter only at a reasonable time in respect of visits to the places listed in subsection (1). It is, of course, unlikely that the power would be used at an unreasonable time, but the very nature of a complaint about the running of an establishment might make a visit at, say, midnight essential. Not to act at the time might completely prevent the taking of the necessary remedial action. It might be something which could be discovered only by a visit at that time. If it was alleged that certain things were taking place in an establishment during the night, there would be no point in visiting that establishment during the hours from 9 o'clock in the morning until 5 o'clock in the afternoon.
So we believe that there is a clear case for having a distinction between the times when offices may be visited, for the purpose of examining records, and so on, and when establishments may be visited for other purposes. For clearly, what would be a wholly unreasonable time to seek to look at office records might be a completely reasonable time to pursue that particular object. For this reason the Government have sought to meet the point made by the noble Lord, Lord Drumalbyn, as fully as possible, and this means we have to do it in the way we propose by our Amendments
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Nos. 15, 16 and 17. I hope that the noble Lord will find it possible to withdraw Nos. 13 and 14 and that he will concur in Amendments Nos. 15, 16 and 17.
LORD DRUMALBYN: I am afraid that I am not entirely convinced by what the noble Lord has said. I started by saying that I agreed that there was a distinction between these two cases, but the fact is that what is reasonable in one case is not reasonable in the other. It is perfectly reasonable at night, if that is the only time at which one can get the particular result. It is quite reasonable that there should be a visit at midnight in order to check up on a residential establishment, but the noble Lord was rather careful to gloss over the fact that this involved the visiting of private houses as well as commercial establishments. While the distinction could be maintained, a little more protection could, I think, be given to the visiting of private homes. Will the noble Lord consider this further before the next stage of the Bill?
LORD HUGHES: I will do so but I would point out that to visit either a public establishment or a private home at other than ordinary time would be an exceptional circumstance. From time to time it happens that some of the most severe complaints about conditions are in cases where people are boarded out privately, and it would be a dreadful position if it were not possible to investigate these conditions; because the guilty person may well be the one who just slams the door and says, "This is not a reasonable time to come and visit anybody." In these circumstances the conditions which are suspected may continue, perhaps, for another two or three months, or something may happen in the interval to cause people to say that it was just through a piece of red tape that a complaint could not be dealt with at the moment when it was first brought to the authority's notice. Having said that, I should like to look at the matter again with my officers, to find out whether there is any way in which we can give reasonable protection to the individual without defeating the object of this clause.
LORD DRUMALBYN: The noble Lord has been extremely reasonable this afternoon, and I thank him for his

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approach to this matter. I fully appreciate his point of view, and if he can meet my point of view in some way I shall be grateful. I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
LORD HUGHES: I beg to move Amendment No. 15.
Amendment moved—
Page 5, line 25, after ("may") insert ("at all reasonable times").—(Lord Hughes.)
LORD HUGHES: I beg to move No. 16.
Amendment moved—
Page 5, line 26, after ('authority") insert ("or of a voluntary organisation").—(Lord Hughes.)
LORD HUGHES: I beg to move Amendment No. 17.
Amendment moved —
("(2A) The power conferred by subsection (1) of this section may be exercised in respect of any place which an officer has reasonable cause to believe to be used as an establishment to which the provisions of that subsection apply.")—(Lord Hughes.)
Clause 6, as amended, agreed to.
Clause 7 [Advisory Council on social work]:
5.26 p.m.
THE MARQUESS OF LOTHIAN: This is quite a small point concerning the new Advisory Council which is to be set up to advise the Secretary of State on matters connected with the performance of his functions with local authorities in relation to social welfare. We feel that the words "under this or any other Act of Parliament" would make the position somewhat clearer, and therefore I beg to move.
Amendment moved—
Page 5. line 42, after ("social welfare") insert ("under this or any other Act of Parliament").—(The Marquess of Lothian.)
LORD HUGHES: I do not think I shall have much difficulty in persuading the noble Lord not to press this Amend-
1368
ment, because the effect of it would be the opposite of the general line which he has taken on this Bill. I think it would be correct to say that he regards this as a widening of the general position. In fact it is not; it is a narrowing of the position. The note I have on this Amendment is quite brief, but it is so good that I will read it as it stands.
The effect of this Amendment would be to restrict the consideration by the Social Work Advisory Council to matters of social welfare so far as they were provided for under this Bill or any other Act of Parliament. This seems unduly restrictive. The Council may under subsection (4) raise with the Secretary of State of their own accord matters mentioned in subsection (1). This provision as drafted enables the Advisory Council on Social Work to be forward-looking in its considerations and put up suggestions about matters that might be legislated for the first time—new aspects of social work that have not hitherto appeared on the Statute Book. The effect of this Amendment would seem to be to restrict the Council to considering matters that are already in Statute, therefore confining them to considering improvements to existing provisions.
We have in fact found, and I think all Governments have found, that some of the most useful legislation to be brought on the Statute Book has arisen as a result of advice of this kind which has been given by bodies which points the need for new legislation, and we think that this Social Work Advisory Council may well turn out to be a body which, not immediately but at some time ahead, may well point the way to future Governments embarking on other legislation.
THE MARQUESS OF LOTHIAN: I thank the noble Lord for that reply and for explaining so clearly what he envisages the functions of the new advisory councils to be. Of course I agree; I do not want to restrict their activities in any way. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 7 agreed to.
Clause 8 [Research]:
On Question, Whether Clause 8 shall stand part of the Bill?
LORD DRUMALBYN: I should like to raise a point on subsection (2) of Clause 8, which says:
"Any local authority may conduct or assist other persons in conducting research into any matter connected with their functions in relation to social welfare ".
I presume that that subsection is not limited by subsection (3) of Clause 10. It has been felt that local authorities might wish to use the services of a voluntary organisation the purpose of which might not be solely or primarily to promote social welfare. It might be a voluntary organisation dealing with a number of matters. It was thought that this was perhaps too restrictive, and I wonder whether the noble Lord could see that, so far as conducting of research is concerned, the powers of the local authority will not be limited in this way.
LORD HUGHES: Clause 8(2) contains a very wide power and it stands on its own. The heading to Clause 10 is:
"Financial and other assistance to voluntary organisations etc., for social work".
That also stands on its own. Clause 10(3) does not qualify Clause 8(2).
Clause 8 agreed to.
Clause 9 agreed to.
Clause 10 [Financial and other assistance to voluntary organisations etc. for social work]:
LORD DRUMALBYN: This is a drafting Amendment. I beg to move.
Amendment moved—
Page 7, line 32, after ("things") insert ("belonging to the local authority").—(Lord Drumalbyn.)
LORD HUGHES: I accept this Amendment.
Clause 10, as amended, agreed to.
Clause 11 agreed to.
Clause 12:
General social welfare services of local authorities
12.—(1) It shall be the duty of every local authority to promote social welfare in their area by making available advice, guidance and
1370
assistance on such a scale as may be appropriate in their area, and in that behalf to make arrangements and to provide or secure the provision of such facilities (including the provision or arranging for the provision of residential and other establishments) as they may consider suitable and adequate, and are in accord with any guidance which the Secretary of State may give to the local authority in pursuance of subsection (1) of section 5 of this Act.
(3) Assistance in kind or in cash may be given to, or in respect of, a person where the withholding of assistance in that form would cause the authority greater expense in the giving of assistance in another form, or where probable aggravation of the person's need would cause greater expense to the local authority at a later date.
LORD HUGHES: This is purely a drafting Amendment. I beg to move.
Amendment moved—
Page 8, line 10, after second ("and") insert ("as").—(Lord Hughes.)
5.34 p.m.
THE MARQUESS OF LOTHIAN THE MARQUESS OF LOTHIAN moved, in subsection (1), to leave out "in accord" and insert "not at variance". The noble Marquess said: I hope the noble Lord will not consider this is a restricting Amendment in this case, because it is designed to give local authorities somewhat greater scope and flexibility in the manner in which they go about promoting social welfare in their own areas. The Bill as it stands gives me the impression at any rate that the local authorities are restricted to acting solely within the strict guidance of the Secretary of State. That is what I take the words "in accord" to mean. Our Amendment seeks to give them greater flexibility and freedom in this matter, which I believe to be of great importance in the field of social welfare, at the same time giving them the possibility of not departing from the general framework of the Secretary of State's guidelines. I beg to move.
Amendment moved—
Page 8, line 11, leave out ("in accord") and insert ("not at variance").—(The Marquess of Lothian.)
LORD HUGHES: It is a little difficult to argue against this Amendment because basically "in accord" and "not at variance" would appear to be two ways of saying the same thing. Unfortunately,

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from my point of view, I cannot argue that "in accord" is hallowed by precedent and that the words "not at variance" would present us with difficulty. I am told that both phrases, "in accord" and "not at variance", are in fact thought to be new, and whichever way we do it we are making a precedent. I should like, however, to have another look at these words. I must admit that the noble Marquess has turned the tables on me, in that by substituting the phrase "not at variance" he is accepting the argument I was advancing to his colleague at a previous stage, that we do not want to appear in too many cases to be telling the local authorities what they are to do.
If the noble Marquess will withdraw this Amendment I will look at it along with the others, but I would say that I must come down consistently on one side or the other. I cannot have more interference with the local authorities on the previous Amendment and less on this, so if I take "not at variance", then it follows the Government will have to insist on their view on the other Amendment. If, on the other hand, I am prepared to concede what' the noble Lord, Lord Drumalbyn, wants on the other Amendments, the Government, to be consistent, will have to insist on this remaining "in accord"—not that the matters are related, but at least the attitude should be consistent. If this Amendment is withdrawn it will be looked at at the same time, and I will advise the noble Lord, Lord Drumalbyn, and the noble Marquess, Lord Lothian, in ample time for them to decide what they should do at the next stage.
THE MARQUESS OF LOTHIAN: I am most grateful to the noble Lord. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
5.37 p.m.
LORD DRUMALBYN: This Amendment relates to subsection (3), which says:
"Assistance in kind or in cash may be given to, or in respect of, a person where the withholding of assistance in that form would cause the authority greater expense in the giving of assistance in another form …"
This is a new provision which we very much welcome. At the same time, it seems to me that the expense to the
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authority should not be the only criterion—there is also the question of the persons themselves and what they would like to happen. Therefore the words I suggest are:
"where the withholding of assistance in that form would cause the person greater distress or the local authority greater expense"
if the assistance were given in another form. It seems to me that this is perhaps an improved criterion. I beg to move.
Amendment moved—
Page 8, line 25, leave out from ("cause") to ("in") in line 26 and insert ("the person greater distress or the local authority greater expense if the assistance were given").—(Lord Drumalbyn.)
LORD HUGHES: The noble Lord, Lord Drumalbyn, has indicated that the power which he seeks to amend is one which he very much welcomes. I can assure him this was not a very easy power to get in. It is a very useful addition to the local authority's powers. The noble Lord is seeking to widen it in the most difficult circumstances, because, after all, if we have to compare only the cost to the authority of one form of assistance as compared with another, it is a purely objective matter and it is relatively easy to arrive at the answer. But the introduction of assessment of the client's distress, which is subjective both to the client and to the social worker, would complicate the issue and give the local authority power to give assistance in cash or in kind on grounds which would be entirely subjective and not really open to any effective control by auditor or anyone else.
This Amendment probably reflects a feeling among social workers that the giving or withholding of assistance would depend entirely on the cold-blooded assessment of relative costs. This impression is unjustified, because subsection (3) of the clause does not override the other powers of this clause. It offers an additional criterion on the giving of assistance. To be quite honest about this matter, we feel rather pleased with our selves that we have achieved this big step forward, and I should not like to be subjected to the risk of importing into it this rather vague definition. I hope that the noble Lord will not press me on this Amendment, because I think it is a much too difficult field to venture into at this stage.
LORD DRUMALBYN: I am grateful to the noble Lord. From my experience at the other end of this particular pole, I think I understand exactly the difficulties that he has had in getting this particular provision. But I am not certain that this subsection is going to be easy to operate in any event. The onus of proof in regard to the withholding of assistance seems somewhat "steep". I think that the noble Lord will have to reconsider this clause and try to temper it down a little. He has been talking of objective proof. That is an extremely difficult thing to achieve in one way or the other. I think that he will probably have to modify that a little.
I am sorry that he cannot meet this point. I see the difficulties. I realise that this is a matter of demarcation between one department and another; but it may be that proper liaison between the two departments will get over the difficulty. There is, of course, always the time factor, which is one thing that I had in mind in regard to the greater distress. I do not wish to press this Amendment further, but perhaps the noble Lord and I could have a further word about it. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 12 agreed to.
Clause 13 [Domestic help and laundry facilities]:
5.43 p.m.
LORD DRUMALBYN LORD DRUMALBYN moved, in subsection (1), after "presence" to insert "or the imminent or proposed presence". The noble Lord said: Here, again, it is thought that perhaps the phrase
"where such help is required owing to the presence of a person in need"
is unduly restrictive. I am informed that on occasions help has been withheld because the person was not there yet but was going to be there quite soon, when he was released from hospital or something of that kind. It seems to be a fact that this has happened, and it appears to me that, if so, we ought to alter the drafting of this subsection so that it need not happen. Therefore I am asking for the insertion here of the words "or the imminent or proposed presence" before the words "of a person in need", so that domestic help may be present when there
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is going to be a person in need in the house as well as where there is already one there. I beg to move.
Amendment moved—
Page 9, line 16, after ("presence") insert ("or the imminent or proposed presence").—(Lord Drumalbyn.)
LORD HUGHES: I must admit that I am most sympathetic to the object of this Amendment. In fact, to wait, as the Bill would appear to require, until the person was actually there might complicate things considerably. It nay be that a home help turning up four hours before the person arrived would make things move quite smoothly, whereas in turning up a couple of hours after the person had returned home the home help might have a condition of chaos to deal with. But it is not an easy matter to resolve, and I would ask the noble Lord not to press his Amendment. We should like to look at it sympathetically, but the drafting may well be a most complicated matter. I should like to take the opportunity, after having had some further discussion on the matter, of having a talk with him about it, in ample time for the next stage. He has my sympathy, but whether it is possible to translate sympathy into suitable drafting is a difficulty with which I am faced at the moment.
LORD DRUMALBYN: I am obliged to the noble Lord, and beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
LORD DRUMALBYN LORD DRUMALBYN moved to add to subsection (3) "or any other committee of theirs,". The noble Lord said: This subsection can be read in two ways. It says:
"It shall not be a requirement that any matter relating to the discharge of their functions under this section by a local authority shall stand referred to their social work committee."
Clause 2(2) says that
"Except as otherwise expressly provided, all matters"—
in this subsection
"shall stand referred to the social work committee."
I am not clear whether this is one of the express provisions that it shall be dealt with otherwise, or whether it was intended to indicate that this was a matter which could be dealt with by

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the officials in the first place, without referring the matter to the social work committee.
Even in my own experience, domestic help is not always given as promptly as it might be. It is not given as soon as it is needed. Quite often, the matter has to go to a committee first. To me, that seems undesirable. The officials ought to be given more authority to supply domestic help without having to submit the whole of the case to a committee in the first place. That is what I hoped the subsection meant. To prevent its being submitted to some other committee I am moving to insert the words "or any other committee of theirs".
If, on the other hand, this was supposed to be the express provision and something different from what is in Clause 2(2)—that is, where something is not to stand necessarily referred to the social work committee—then I think it should be made rather more clear by giving such words as enlarge the provisions of Clause 2(2) of the Bill. I do not know which of the two meanings is supposed to be given. If it is the first, I should like to press the Amendment. If it is the second, I suggest that the clause be clarified. I beg to move.
Amendment moved—
Page 9, line 29, at end insert ("or any other committee of theirs").—(Lord Drumalbyn.)
LORD HUGHES: So far as I can see, the effect of this Amendment would appear to be not to alter the subsection. Clause 13 makes it a duty of local authorities to provide domestic help and laundry facilities. Subsection (3) provides that these services do not have to stand referred to the social work committee, unlike the position with respect to the other provisions in the Bill. The Health Services and Public Health Bill at present before Parliament will repeal Section 28 of the National Health Service (Scotland) Act 1947, which placed somewhat more restricted duties on local health authorities. The position, therefore, now is that this service is not referred to any particular committee of a local authority.
The aim of the clause is in fact to allow local authorities complete discretion either to carry out their expanded duties under Clause 13 through the ex-
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isting machinery of the medical officer of health, or to have the new duties on "social grounds" carried out by the social work department; or to have the whole service carried out by the social work department. We know that there has on occasion been a tendency for local authorities to have done by committees far too much work which could be much more expeditiously and just as satisfactorily carried out by their officials working under general rules and guidance which the local authority would lay down. The Bill, as it stands, allows either of those possibilities to be worked out.
Personally, long experience in local government and limited experience in central government have brought me to the point of believing that if there could be any general criticism of local authorities, it is that their machinery tends to work too slowly and that they could accomplish equally satisfactory results for the ratepayers by appointing the right officials and then trusting them to do the job under any general guidance which they may require. One hopes that in this case the authorities will devolve the maximum amount of responsibilities on their officers.
LORD DRUMALBYN: If I understand the noble Lord correctly, he is saying that although the intention of the Bill as a whole is to bring a great many of the services under one social work authority, domestic help is not necessarily to be referred to the social work committee. Personally I regret this, as I feel it is an essential part of the work of a social work committee and is the kind of thing which should be brought under such a committee. However, this is not the right moment to press this matter; possibly we can come back to it at a later stage. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 13 agreed to.
Clause 14 agreed to.
Clause 15 [Assumption by local authority of parental rights]:
LORD DRUMALBYN LORD DRUMALBYN moved, in subsection (4), to leave out "Where, after" and insert "If, at the time whe". The noble Lord said: This is an important Amendment, since we come now on to

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the clauses relating to the Children Act 1948 and to certain changes in that respect. I think I am right in saying that subsection (4) of this clause is a new provision. It reads as follows:
"Where, after a child has been received into the care of a local authority under the last foregoing section, the whereabouts of any parent or guardian of his have remained unknown for not less than twelve months, the parent or guardian shall, for the purposes of the foregoing provisions of this section, be deemed to have abandoned the child."
I agree that there may be cases where it is both necessary and desirable that these powers should be exercised, but one must think very carefully about depriving parents of their children. One could envisage a case where the parents have left a child in what they believe to be good hands. It is not always a case of a lack of sense of responsibility, since the parents may be at the other end of the earth at the time. The person with whom the child is living may die and, owing to the circumstances, the parents may not he informed. The local authorities have an interest in locating the parents if only to enforce their liability to maintain under Clause 16(6). What I am trying to achieve is that a positive duty should be put upon the local authority to locate and notify the parents, if at all possible, and if necessary with the assistance of the Ministry of Social Security or the Foreign Office, or whoever it may be.
Subsection (2) seems to be far too cavalier when taken with subsection (4). The step which is indicated in this subsection may well be necessary and desirable; that is to say, that the parent should be deemed to have abandoned the child. But this deeming that the parent has abandoned the child, with the consequence that the local authority takes over the duties of a parent, should be taken only after the most positive efforts have been made to find the parent. That is what this Amendment is designed to achieve. I beg to move.
Amendment moved—
Page 12, line 3, leave out ("Where, after") and insert ("If, at the time when").—(Lord Drumalbyn.)
LORD HUGHES: Amendments Nos. 26, 27 and 28 are not acceptable to the Government for a variety of reasons. First, it may not be necessary or appro-
1378
priate for a local authority to assume parental rights in every case where the whereabouts of a child's parents are unknown at the time when the child is received into care. The Amendments assume, however, that the local authority will take parental rights in every case, since they require the local authority to serve on the parent as soon as they discover him notice that they have passed a resolution under this clause.
Secondly, the drafting of the Amendments is faulty in that the parent is deemed to have abandoned the child only if his whereabouts have remained unknown for more than twelve months after the passing of the resolution. But in fact the local authority could not pass the resolution assuming parental rights, until after the parent's whereabouts had remained unknown for twelve months unless they had some reason, other than the parent's abandoning the child, in terms of Clause 15(1)(b) for the assumption of parental rights. Thirdly, the subsection as amended would mean that a parent could not he deemed to have abandoned his child if his whereabouts were known at the time when the child was received into care, but he subsequently disappeared. The present provision (which is a re-enactment of Clause 48(1) of the Children and Young Persons Act 1963) enables the local authority to assume parental rights whether the parent abandons the child before or after the child's reception into care.
However, I accept in principle the noble Lord's point that it is reasonable that the local authority should take all reasonable steps to discover the whereabouts of the parent. I am advised, however, that this point could be better met by an Amendment to the previous clause dealing with the reception of children into care, perhaps with a reference back to this duty in the clause presently under discussion. Therefore, if the not le Lord is disposed to accept what I have put forward, I can arrange to have tabled a suitable Amendment on these lines for the next stage.
LORD DRUMALBYN: I willingly accept that. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 15 agreed to.
Clause 16 agreed to.
Clause 17 [Duration and rescission of resolutions under section 15]:
On Question, Whether Clause 17 shall stand part of the Bill?
LORD DRUMALBYN: I should like to put one question on Clause 17 in relation to the rescission of resolutions. I wonder whether resolutions should not invariably be notified to the parent. There does not appear to be express provision for this in all circumstances.
LORD HUGHES: I should like time to have a look at that point.
Clause 17 agreed to.
Clause 18 [Duty of parents to maintain contact with local authorities having their children in care]:
6 p.m.
LORD DRUMALBYN LORD DRUMALBYN moved to leave out the proviso to subsection (3). The noble Lord said. I believe I am right in saying that subsection (3) is a further new provision which is not in the 1948 Act. It says:
"… the appropriate local authority shall be the authority in whose care the child is for the time being"—
and then it continues with this proviso—
"Provided that where under subsection (4) of the said section 14 a local authority have taken over the care of a child from another authority, then unless and until a parent is informed that the care of a child has been so taken over the appropriate local authority shall in relation to that parent continue to be the authority from whom the care of the child was taken over."
The point is really quite a small one, and it lies in the words "is informed". It seems to me that the parent may well have already found out for himself of the transfer of the child, and there does not seem any reason why in such circumstances he should not deal with the authority into whose area the child has been transferred. I do not really see any point in these words, but if there is a point then I think they should be qualified so that they will not apply in all cases. I beg to move.
Amendment moved—
Page 14, leave out lines 30 to 35.—(Lord Drumalbyn.)
LORD HUGHES: I think the noble Lord will find my explanation in this case acceptable. Clause 18 requires the parent
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of a child who is in the care of a local authority to keep the local authority informed of his, the parent's address. Where the care of the child is transferred from one local authority to another, the first authority are required to tell the parent, if possible. But if for any reason there is delay in telling the parent, then the obligation remains on the parent to keep the first authority informed of his whereabouts.
The effect of this Amendment would be to render a parent liable to a fine for failing to keep the new local authority informed of his address, even though he did not know that the local authority had taken over the care of his child, and even though he kept the first local authority informed of his address. It seems wrong to render the parent liable to proceedings in these circumstances. As the clause stands, the parent can still be fined if he fails to keep either local authority informed of his whereabouts. We thought that when we were imposing penalties we had to be reasonable, and that we ought not to fine a man for not giving information to an authority which he had no reason to believe had anything to do with his child.
LORD DRUMALBYN: I am much obliged to the noble Lord for his explanation. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 18 agreed to.
Clauses 19 to 21 agreed to.
Clause 22 [Power of local authorities and voluntary organisations to arrange for emigration of children]:
THE MARQUESS OF LOTHIAN: Under the Bill as it stands, the Secretary of State may consent to arrangements for the emigration of a child, even if the child is too young to express an opinion about whether or not he wishes to go, in order to join a friend, relative or parent. We feel that there are possible dangers in the wording as it stands, in that one cannot invariably guarantee that relatives or friends, or even parents, are desirable characters. When the child is in no position to judge this matter for itself we feel that our Amendment would safeguard it further, in that it places an additional responsibility on the local

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authority to approve of the person to whom the child is going to emigrate. I hope the noble Lord will feel that this is a useful safeguard. I beg to move.
Amendment moved—
Page 16, line 16, leave out ("relative or friend") and insert ("or relative of his or a person approved by the local authority")—(The Marquess of Lothian.)
LORD HUGHES: I appreciate the motive which the noble Marquess had in moving this Amendment, but its effect would be to enable local authorities to arrange, with the Secretary of State's consent, for the placing of young children on emigration with people who had no previous connection with them. The clause (which is a re-enactment of Section 17 of the Children Act 1948) does not place any restriction on the type of arrangement which may be made for the emigration of a child in a local authority's care, where the child is old enough to understand what emigration means and gives his consent. The arrangements for the child's reception and welfare in the country to which he is going must be accepted as suitable by the Secretary of State, but are not limited to arrangements for the child to live with a relative or friend.
Where the child is not old enough to understand and give his consent, however, the 1948 Act limited the power to arrange emigration to cases in which the child is to travel with a parent or relative, or to join a parent, relative or friend. We think that this limitation is right and that it should not be possible for a local authority to send a child in their care abroad to live with a stranger until the child is old enough to consent to such an arrangement. In fact, the noble Marquess has argued the other way, but his Amendment would give too wide a latitude.
I would remind him that the local authority have to put these proposals to the Secretary of State, and it is inconceivable that they would put up a proposal to permit the emigration of a child who was too young to decide for itself to a parent, relative or friend of which the local authority did not approve. After all, if the local authority are not going to approve they are not going to put up the proposal in the first instance. Therefore we think that the arrangements are properly tight and that, given the need
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for the approval of the local authority in the first place and the Secretary of State in the second place, we are taking all reasonable steps to ensure that no child emigrates in circumstances which, at the end of the day, could prove to have been wrong.
THE MARQUESS OF LOTHIAN: I am grateful to the noble Lord for that explanation. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 22 agreed to.
Clauses 23 and 24 agreed to.
Clause 25 [After-care of children formerly in care of local authorities or voluntary organisations]:
6.7 p.m.
THE MARQUESS OF LOTHIAN: Perhaps I ought to apologise to the noble Lord, Lord Hughes, for the absence of my noble friend Lady Elliot of Harwood. As I think he knows, she is very sorry not to be here, because she wished to speak to these Amendments. The purpose of this group of Amendments—that is to say. Nos. 31, 32 and 37—is to extend the duty of the local authority to befriend, advise and assist persons over the age of 18 years whom the local authority considers need such attention. I feel it is right that young people in need of this type of after-care should not be ineligible just because they happen to have reached the age of 18. I hope the noble Lord will accept the Amendment. I beg to move.
Amendment moved—
Page 17, line 11, leave out ("child") and insert ("person").—(The Marquess of Lothian.)
LORD HUGHES: I hope the noble Lord will not find it necessary to press these Amendments. We think they would place an unduly onerous responsibility on local authorities, because if we do what he suggests it really means that we are placing a duty on a local authority to do this indefinitely. They might start with a child of 12 and finish up with an old-age pensioner of 85. It is really unreasonable that such a continuing duty should be placed on a local at thorny, given the fact that the general responsibilities of the authority require them to give assistance where necessary. If after

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the age of 18, when the child had departed from the responsibility of the authority, something else emerged or there was an immediate need for action, it would be possible for responsibility to be assumed under the powers given to the authority under the Bill, but to insert it in this form might in fact "lumber" an authority with somebody for the rest of his lifetime. There are a few people of that kind about, and we ought not to go out of our way to encourage them by such an intention. I am quite certain that that is not what the noble Marquess intends. What I am sure he has in mind to ensure is that, where there are circumstances in which a child is in need of care, that care does not automatically disappear just because he has reached his 18th birthday. I assure the noble Marquess that the powers which the local authority have under the Bill generally enable them to take care of that situation.
THE MARQUESS OF LOTHIAN: I am grateful to the noble Lord for that assurance, and I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
LORD HUGHES: Amendments Nos. 33, 34, 35, 36, 38, 39, 40 and 41 are all on the same subject. The purpose of these Amendments, and their effect, is to import into a local authority's duties under Clause 12, Clause 25 and Clause 26 a certain consistency in that they will be required to give advice, guidance and assistance to the persons or categories of persons mentioned in each clause. Although the substantive effect was intended to be the same, the variations in Clauses 25 and 26 from the basic advice, guidance and assistance in Clause 12 might give rise to doubt about the meaning. We have therefore decided that we should stick to exactly the same form of wording throughout. I beg to move Amendment No. 33.
Amendment moved—
Page 17, line 18, leave out ("befriend,").—(Lord Hughes.)
LORD HUGHES: I beg to move.
Amendment moved—
Page 17, line 18, after ("advise") insert (", guide").—(Lord Hughes.)
LORD HUGHES: I beg to move.
Amendment moved—
Page 17, line 24, leave out ("befriended,").— (Lord Hughes.)
LORD HUGHES: I beg to move.
Amendment moved—
Page 17, line 24, after ("advised") insert (", guided").—(Lord Hughes.)
LORD HUGHES: I beg to move.
Amendment moved—
Page 17, line 36, leave out ("befriending,").—(Lord Hughes.)
LORD HUGHES: I beg to move.
Amendment moved—
Page 17, line 36, after ("advising") insert (", guiding").—(Lord Hughes.)
Clause 25, as amended, agreed to.
Clause 26 [Supervision and care of persons put on probation or released from prisons etc.]:
LORD HUGHES: There are a series of Amendments to Clause 26, some in my own name and some in the name of the noble Marquess, but your Lordships will notice that there is also a Motion to leave out Clause 26. It seems to me that it would be wasteful of your Lordships' time to discuss a series of Amendments to Clause 26 if your Lordships were then to decide to take Clause 26 out. I hope your Lordships will not arrive at any such mistaken decision; nevertheless I cannot guarantee that your Lordships will always arrive at a correct conclusion. I would therefore propose—and I would suggest this course to the noble Marquess—to seek the leave of your Lordships' Committee to withdraw my Amendments Nos. 40, 41, 42, 43, 44, 45, 47 and 49; and then, if Clause 26 survives, I will re-table them on Report stage. Perhaps the noble Marquess would care to do the same with his Amendments Nos. 46 and 48.
THE MARQUESS OF LOTHIAN: That idea commends itself to both my noble friend Lord Drumalbyn and myself. I think it would be rather silly to proceed

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with these Amendments in view of the Motion in the name of the noble Lord, Lord Wells-Pestell; so we are quite agreeable to the suggestion which the noble Lord, Lord Hughes, has made.
On Question, Whether Clause 26 shall stand part of the Bill?
6.16 p.m.
LORD WELLS-PESTELL: I will be as brief as I can, because many of the things that I could say I have already said, during the Second Reading of this Bill. The thing that concerns me most, and I think concerns a number of your Lordships, is that whatever merit this Bill has—and it is not denied that there is a good deal of merit in it—it in fact puts an end to the probation service in Scotland as we understand it at the present day. It may well be that what happens in Scotland to-day may happen in England to-morrow, and this causes some of us some concern. As I say, I do not want to repeat the speech that I made on March 21, but I want to refer to some of the things I said then, as there were very few Members of your Lordships' House in the Chamber at that particular time.
As I said a moment or two ago, I do not deny that the general intention of the Bill, the co-ordination of the social services, is good, and in some respects—in fact, in many respects—quite desirable. But I think it is a mistake—and I am bound to say that I regard it as a grave mistake—to involve the probation service. I cannot regard the scope and function of the probation service as being a proper function of the local authority. The responsibilities and duties of the probation service, and in particular of the probation officer, involve dealing with delinquents—in other words, the supervision of boys and girls and men and women who are on probation; the aftercare of former inmates of approved schools and borstal institutions; prison welfare and prison after-care and, as we know, from the 1st of this month, the supervision of those who have been paroled from prison. Your Lordships and your Lordships' House have long been concerned with the problems, both personal and social, stemming from delinquent behaviour, and I would hazard a guess that in the last three years we
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have probably given more time and attention to this particular problem, this growing problem, than to many other social problems.
The problem of delinquency (and I am not now talking about the problem of juvenile delinquency) is just as acute in Scotland as it is in England. I believe that the treatment of delinquents is a highly specialised matter, and cannot be considered alongside or dovetailed into the normal run of local authority social work. While I recognise that all social workers, if they are properly and adequately trained—and this is not so at the moment in Scotland. I do not say this out of any sense of criticism; I think it is generally accepted—have many of the basic skills in common, not all social workers are competent to deal with delinquents and their problems. I am only concerned with maintaining an efficient, effective service to deal with this rather serious social problem. Many people may feel that the probation officers are concerned merely with retaining an empire. This is not so. I think I can say that every organisation and all who are familiar with this particular field have taken the view that it would be very much better if the probation service remained independent.
Some of your Lordships may wonder why the probation service should remain independent. I think we have to face the fact that local authorities have to measure against financial considerations all the actions they take. We have to face the fact that local elections—possibly also national elections, but certainly local elections—are often won or lost on the question of whether the rate is too high and whether the local authority can cut it down. It seems to me in these circumstances that the welfare services of the local authorities become the Cinderella. Having regard to the important contribution to the community interests which the probation service can make in dealing with this growing social problem, I do not think we ought to put the service under the local authority. I would go so far as to say that the 4uality of the probation service, if we put it under the local authorities, could vary from local authority to local authority, since the effectiveness of its work would depend on what each local authority was

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prepared to do to further and enhance the contribution of the probation side.
It was said by the Morison Committee in 1962 that the probation service in Scotland had not made the rate of progress it should have made simply because it had been treated as a minor, local authority social service. But that is not so to-day, and it has not been so for some years. The Scottish Home Department, which has had the responsibility for developing and maintaining the probation service, has been responsible for the selection, training, overseeing and inspection of the probation service and the probation officers. I think everybody will agree that it is now perhaps one of the best organised, if not the best organised, and most effective services in Scotland. I think that a strong argument for independence is the fact that probation officers have frequently to submit reports to courts on persons who are in the care of the local authority. Can a probation officer do this frankly and objectively if he is an employee of the local authority? I believe that it would be extraordinarily difficult for him to do it. This is another reason why I think there is some merit in keeping the probation service as part of the court service.
This is not going to be a comprehensive social service within the control of the local authority. There are several aspects of social service—those dealing with the educational side, certainly the psychiatric social workers and hospital medical social workers—which are not going to be included because the hospital service is something quite separate. With the greatest respect, I believe the criminal courts of this country and of Scotland are also something quite separate; and that, therefore, their social work should remain with them. Paragraph 6 of the White Paper [Cmnd. 3065] says:
"One of the main reasons for reorganising the services is to enable them to make a more rational and more effective deployment of staff."
If this were the case there would be some merit in it; but I know of one court area in Scotland—and I am told that it is by no means the only one—where the sheriff's court covers several local authority areas. And yet that court is served by one probation officer.
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If Clause 26 remains in the Bill and the probation services become part of the local authority responsibility, then each local authority will have to send a representative to the court when the court is sitting. I do not feel that this will make the best use of social workers. The White Paper, as I have said, talked about the deployment of staff. In some respects, this causes me a little concern, because I can see a situation arising—as it has arisen in some parts of England when the social services have been brought together—where there will be a probation officer with a probationer in one area and another local authority social worker with a case also in the area, and where the local authority may say to the social worker, who is not trained to deal with delinquents, "You are going into that area; you might just as well deal with both cases."
I say—and I think noble Lords on both sides will accept this—that dealing with delinquents, dealing with, if you like, maladjusted minds, requires people who have been specially selected and specially trained in that kind of social problem. Therefore I conclude by saying this. I believe the independence of the probation services and their special relationship to the courts should be preserved, so that in the case of Scotland a sheriff and a probation officer can work together daily, discussing the various delinquents who are under the supervision of the court. I believe that the probation officer and the magistrates, the probation officer and the probationer, have a special relationship. I believe it to be an important part of the treatment of delinquents that the probationer should see the probation officer not as the servant of the local authority but as an officer of the court.
It has been suggested that the White Paper was born of the Kilbrandon Report. It may be that I have misread the Kilbrandon Report; but my reading of it was that the Kilbrandon Report never envisaged incorporating with the local authorities' welfare departments the probation service dealing with adults. When we were discussing the Second Reading of this Bill, the noble Lord, Lord Balerno quoted from the Kilbrandon Report a passage which made it quite clear that the probation services

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dealing with adult delinquents should remain quite independent, should remain part of the court service. That is why I feel that it is a mistake—and perhaps nothing can be done about it—to put the probation services who deal with adult delinquents under the control of the local authority.
LORD HUGHES: It was the intention of the Committee that we should adjourn this debate at about 6.30 p.m. It is obvious that we cannot conclude the discussion on this clause to-night at anywhere near 6.30. I think, therefore, it would be proper that I should now move that the House do resume. I think this would be fairest to those who are against the clause, because it means that on Tuesday, when we resume, the other two noble Lords who have placed their names to this Amendment may, if they wish, have the opportunity to continue the debate; and we should then start with at least some of the points against the clause being heard by those who heard the arguments in favour. So while I regret that the noble Lord, Lord Hamilton of Dalzell, and the noble Viscount, Lord Stonehaven, will have to come back a second time, I am certain that they would be coming back on Tuesday in any event, so that no great hardship has been done. With that explanation I beg to move that the House do now resume.
Moved, That the House do now resume.—(Lord Hughes.)
LORD SALTOUN: I should like to say that I came here this afternoon for no other purpose than to vote against this clause, and I cannot be here on Tuesday because I cannot get here. Therefore I should be grateful if some noble Lord behind the Government Front Bench who is in favour of the clause would abstain from voting on Tuesday and so redress the balance.
On Question, Motion agreed to, and House resumed accordingly.

INDUSTRIAL EXPANSION BILL
Brought from the Commons; read 1a, and to be printed.

THEFT BILL [H.L.]
6.32 p.m.
Report of Amendments received.
Clause 1:
Basic definition of theft
1.—(1) A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of depriving the other of it; and "thief" and "steal" shall be construed accordingly.
THE MINISTER OF STATE, HOME OFFICE (LORD STONHAM)THE MINISTER OF STATE, HOME OFFICE (LORD STONHAM) moved, in subsection (1), after "intention of" to insert "permanently". The noble Lord said: My Lords, your Lordships will recall that the word "permanently" was removed during the Committee Stage, and that, at the first opportunity afterwards, in announcing the Government's intention to ask your Lordships to restore it to the Bill at a later stage, I suggested that we should consider the remainder of the Bill on the assumption that the word "permanently" was still in it. You readily assented to that procedure and I think we can all be satisfied with the fruits of the helpful co-operation which then ensued.
There are some 35 Amendments on the Order Paper in my name, and all except one are designed to meet assurances which I gave that I would consider points of criticism or objection raised during Committee. I think this is an example of the open-minded attitude which the Government have pursued with this Bill and proof, if proof were needed, that we wish the decisions to be made on the basis, not of Party, but of fact. It is on that basis that I ask you to consider the Amendment I am now moving which the Government regard as fundamental to the Bill.
My Lords, if it is accepted, its effect will be that a person will be guilty of theft if he dishonestly appropriates property belonging to another with the intention of "permanently" depriving the other of it. This means that, subject to certain exceptions dealt with later in the Bill, temporary dishonest deprivation will not be theft. Your Lordships' first thought may be that anything dishonest must be criminal, and any dishonest deprivation must be theft; and this indeed is the effect of the Bill as it now

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stands after the Amendment successfully moved in Committee by the noble and learned Viscount, Lord Dilhorne. I will endeavour to satisfy your Lordships that not all forms of dishonest deprivation ought to be treated as theft and that you would not wish them to be so treated. Certainly, this was the view of the Criminal Law Revision Committee in framing this fundamental clause; and certainly it is how the law stands at present.
May I remind your Lordships, first, what the law of theft now is. Section 1 of the Larceny Act 1916 defines theft thus:
"A person steals who, without the consent of the owner, fraudulently, and without a claim of right made in good faith, takes and carries away anything capable of being stolen, with intent, at the time of such taking, permanently to deprive the owner thereof."
So "permanently" is in the existing law. This definition, including "permanently", did not start with the 1916 Act, because on that point that Act reproduced the old Common Law of theft. My first major point, therefore, is that it has never been theft in this country merely to take something temporarily, even if the taking is dishonest. My Amendment seeks to preserve that position; those who oppose it seek to destroy it. They thought that the Criminal Law Revision Committee had not gone far enough and that an even more drastic change in the law of theft was required.
Before I deal in detail with arguments on both sides, I ask your Lordships to address yourselves to a fundamental question which we must consider whenever we seek to extend part of the criminal law. That question is: what is the criminal law for? I am not competent, as you know, to deliver a lecture on jurisprudence. I am speaking as a layman to a majority of laymen, and I suggest that we devise, or revise, our criminal law, in order to protect society against types of conduct which are so offensive or serious that those who so conduct themselves should be liable to be punished or controlled by the State. We do not invoke penal sanctions to deal with everything that may be morally reprehensible or harmful or a nuisance, and we should debase the currency of the criminal law if we tried to do so.
Still less, with our empirical tradition of law-making, do we frame our criminal law to deal with theoretical mischiefs. I suggest that, in framing a particular provision of the criminal law, our task is to identify the real mischief, the conduct of which should be subject to penal sanctions and to relate our law to that conduct as closely as we can. If you accept that premise, my Lords, then you will agree with me that it is for those who desire a fundamental extension in the law to prove the need for such extension, not in terms of theoretical concepts, but in terms of hard realities. The onus lies on those who oppose this Amendment because they wish to see the word "permanently" kept out of this clause.
My Lords, the Bill acknowledges that there are some forms of temporary dishonest deprivation which are criminal and must be punished, and punished severely. For example in the new Clause 11, which I shall be moving later, we not only take care of offences like the taking of the Goya portrait of the Duke of Wellington, but protect a whole range of buildings to which the public are admitted to view the buildings or articles in them, either regularly or on occasions. And, again, in Clause 12 we deal with the most numerous of these offences; namely, the taking away of motor vehicles and vessels, and we go further and create a new offence of taking away pedal cycles.
It may be argued that these two clauses are complicated and that they could be dispensed with by keeping "permanently" out of Clause 1, but I do not think anyone will accept that this is a decisive argument for so extending Clause 1 that every form of temporary deprivation would be a criminal offence which would put perhaps a great number of citizens in this country at risk of prosecution and loss of liberty.
At this point I ask what types of conduct would not be criminal if my Amendment is accepted and "permanently" goes into the Bill. I can think of none which would be a cause for public concern. Some lawyers take the view that all dishonest borrowing should be stealing, but what evidence is there that that view is shared by any general body of public opinion? What evidence has the

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noble and learned Viscount, Lord Dilhorne, that people whose lawnmowers are borrowed by neighbours are demanding the prosecution of the neighbours and, if necessary, their fining and imprisonment?
VISCOUNT DILHORNE: My Lords, the noble Lord always omits the word "dishonestly". I have never suggested that borrowing a lawnmower should lead to a criminal prosecution. If the noble Lord persists in omitting the word "dishonestly", he is really misrepresenting the case.
LORD STONHAM: My Lords, I have no intention of misrepresenting the case, as the noble and learned Viscount knows very well. I certainly refer, and have referred at all times until this moment, to dishonest appropriation. I repeat my question. What evidence has the noble and learned Viscount that people whose lawnmowers are borrowed by neighbours are demanding the prosecution of the neighbours and, if necessary, their fining and imprisonment? I shall be interested to hear, because the onus of proof is on him.
If my Amendment is not accepted, it will be theft dishonestly to appropriate property belonging to another with the intention of depriving the other of it. Let us consider what that means. When my neighbour is out, I sneak into his garden and borrow his lawn-mower or garden roller or step-ladder, although he has told me that he does not like my borrowing them and therefore it is dishonest deprivation—theft, as the Bill now stands without my Amendment. I am allowed three books from the public library, but I sneak out a fourth without permission, intending to return it. That is dishonest deprivation. Or perhaps I am a student off to a dance; I borrow my room-mate's dinner jacket, without his permission, although I strongly suspect that he would not like my wearing it. Or perhaps a girl borrows a dance frock from her sister, knowing that she would not wish it. Do we really want these things to be theft, punishable with a penalty of up to a maximum of ten years' imprisonment? Those who oppose this Amendment have not only to explain what serious mischiefs they want the extended subsection to deal with, but also to defend making it a criminal offence with a ten-year
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penalty to do the sort of things I have mentioned. They may say that these trivial types of misbehaviour will not be prosecuted, just as trivial thefts ere not prosecuted now. Can they guarantee that? We all know only too well that dishonest borrowing is a frequent source of neighbour and family squabbles, which unfortunately sometimes go to bitter lengths. Do we really want these translated to the courts? As the noble and learned Lord, Lord Morris of Borth-y-Gest, said in Committee, do we want to give "theft" and "stealing" meanings entirely different from those which are understood by members of the public?
During the Committee stage the noble and learned Viscount, Lord Dilhorne, pointed out that an intention permanently to deprive is not part of the Canadian law of theft, and he challenged me to say whether the extension of Canadian law to temporary deprivation had had undesirable social consequences. He is quite right; the words "with intent to deprive temporarily or absolutely" have teen in the Canadian criminal code since 1892, and there is no evidence that then have had any undesirable social consequences. I discovered the reason why. The law has had no undesirable social consequences in Canada because there appear to have been no prosecutions—certainly there are no reported cases—for taking with the intention of temporary deprivation, except cases involving motor vehicles, which we are, of course, covering separately in this Bill and for which, indeed, the Canadians themselves have found it necessary to have a separate provision. In fact, except for such cases, the Canadian extension of theft to temporary deprivation seems to be a dead letter. Does the noble and learned Viscount want a dead letter provision on our Statute Book also? The provision also causes uncertainty in the Canadian courts. As recently as 1964, a young man, just for a joke, jumped into a police car and drove it round the block. He was charged and convicted of theft. The conviction was quashed on appeal, but only by a majority, and a dissenting judge held that, on the construction of the code, it was theft.
I continued my Commonwealth tour to New Zealand, because I found that their Crimes Act of 1961 retained the requirement of permanent deprivation. They,

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too, have had an expert Committee considering the criminal law over a long period. I am informed that they did not at any stage of the draft consider seriously the omission of the word "permanently" in the definition of theft. Apparently the question was raised in an academic way, but everyone thought that it would make such a serious change in the law that it would not be justified.
Finally, since some play was made of it in Committee, I must mention the draft criminal code prepared for Jamaica in 1877, which was referred to, in a different connection, in the Report of the Criminal Law Revision Committee. This code included a definition of dishonestly appropriating without the word "permanently". But the code was not enacted and to-day the law of Jamaica requires an intention permanently to deprive.
My Lords, under this Bill theft is essentially a violation of ownership, but it does not follow that every violation of ownership ought to be theft. I suppose that I might violate your ownership if I used your hairbrush, knowing that you would object to it; but you would not suggest that that conduct should be criminal. The requirement that there should be an intent permanently to deprive limits the concept of violation of ownership or dishonest appropriation just as it has always limited the concept of taking out of possession, and for the same reasons. This requirement has stood the test of time and is still apt.
There was an argument in Committee that keeping the word "permanently" involved difficulties in qualifying that concept by Clause 6 of the Bill. But Clause 6 does not introduce temporary deprivation by the back door: it simply gives a partial definition of "with the intention of permanently depriving the other of it" in terms which make clear that there is permanent deprivation (so that there may be theft), if what is done amounts to a complete usurpation of the property against the owner, even if the owner finally gets the property back. This, in effect, preserves for the purposes of the Bill the old Case Law about what is an intent permanently to deprive. It is desirable, because if the Bill is to be part, as we intend, of a criminal code, we
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want it to be as complete a statement of the law as is practicable. The sort of case which is covered by Clause 6 is for instance, one in which something is taken and abandoned in such circumstances that the possibility of its return to its owner is, to the taker's knowledge, extremely remote. It cannot be argued from this sort of extension of the notion of permanent deprivation that mere temporary deprivation ought to be theft; and, of course, that is not the intention of Clause 6. You may feel, my Lords, that these are all lawyers' arguments, and I would not disagree: but this is a lawyer's Bill.
So I will conclude my case with a layman's argument. I ask your Lordships to support my Amendment for three simple reasons which appear to me to be completely convincing. The first is that this provision, including "permanent", was devised after long and most careful consideration, which extended over a period of years, by a Committee of the most eminent lawyers of our day. They are completely firm about the desirability of having the word "permanently" in this clause. My second reason is that the inclusion in the clause of the word "permanently" preserves the substance of the law as it is and as it has been for centuries. Thirdly, it satisfies common sense by refusing to label as criminal all the little petty actions of which most of us at some time or another may be guilty. I ask your Lordships to support that common sense by voting for this Amendment. I beg to move.
Amendment moved—
Page 1, line 7, at end insert ("permanently"). (Lord Stonham.)
6.53 p.m.
VISCOUNT DILHORNE: My Lords, I have listened carefully to all that the noble Lord, Lord Stonham, has said. I am sorry to disappoint him, but I remain entirely unconvinced that it would improve this Bill and the criminal law for the future to make the change in it that he now proposes. Before I deal with the arguments that he has advanced in any detail, I should like to say this. We discussed a great many questions in Committee. I think—and I hope the noble Lord will agree—that those discussions were worth while. I think that that is proved by the fact that after consideration of some of them the Government

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have tabled some 35 Amendments, some of them very important Amendments, including an entire redraft of Clause 11 and the insertion of a completely new clause, Clause 15A, to meet points raised. I should like to thank the noble Lord, Lord Stonham, for what he has done, and done, I am sure, after careful consideration of the arguments advanced.
I regret that it would not appear that the same consideration was given to the question whether or not the definition of "theft" and of "stealing" should include an intention permanently to deprive. We removed the word "permanently" on March 5. Two days later, on March 7, the noble Lord announced the Government's decision to seek to reverse the decision reached in Committee. The noble Lord cannot, therefore, have taken very much time in considering what had been said in Committee. Yet—and here I agree with the noble Lord—the correct definition of "theft" is of the greatest importance. It is fundamental, so far as larceny or theft is concerned, and as important, if not more important, than any of the questions arising on the Bill.
I hope that, despite the fact that I made a rather long speech in Committee, your Lordships will bear with me when I seek to refute the arguments now advanced and advanced in Committee for the inclusion of the word "permanently", and to explain the reasons why I think it is right and better that that word should be left out. First, I should like to say a word about the arguments advanced in Committee.
First, it was said by the noble and learned Lord the Lord Chief Justice, whom I am glad to see here:
"Who are we … in a matter of minutes to say that it would have been better if they"—
that is, the Criminal Law Revision Committee—
"had recommended something else?"—[OFFICIAL REPORT, 5/3/68; col. 1307.]
I should like to make it clear that the fact that I express a view in a matter of minutes (and I try to keep my speeches as short as I can) does not mean that I have not thought about the matter a good deal. Of course, one may come to the wrong conclusion. But I was, I must confess, somewhat astonished by the proposition that we in this House should not
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consider and move Amendments to a Bill produced by a Committee of such eminence as the Criminal Law Revision Committee. Anyway, that argument, which really amounts to claiming that we should delegate our functions and duties, now falls to the ground, for the Government, by the Amendments they have tabled, have recognised that we were right to raise the points on this Bill; and the Government have recognised, also, that there were defects in the Bill.
That has to be borne in mind when one considers the first of the three reasons the noble Lord advanced at the conclusion of his speech, when he said that this clause had been devised after long consideration by this eminent Committee. So had the whole of are Bill, apart from, I think, two clauses. Yet our action is now proved right by the fact that the Government seek to make no fewer than 35 Amendments to it. Apart from advancing that argument, the noble and learned Lord the Lord Chief Justice did not advance any argument against the Amendment in Committee, other than saying that he was not convinced that that Amendment was a good one. I shall still try to convince him. Then, in Committee, the noble Lord, Lord Stonham, based himself, as he has again to-day, really on the Report of the Committee. They dealt with the matter in one short paragraph to which I shall refer later.
My noble and learned friend Lord Morris of Borth-y-Gest, whose speech has been quoted by the noble Lord, also opposed the Amendment. He opposed it on different grounds. He based his opposition on the ground that if an intent permanently to deprive was left out, the result
"would be to give the words 'theft' and 'stealing' not only meanings entirely different from those they have always possessed, but meanings entirely different from those which are recognised by members of the public."— [OFFICIAL REPORT, 5/3/68, col. 1313.]
I think the noble Lord, Lord Stonham, quoted that passage. With the greatest respect to my noble and learned friend, I do not agree. Those of your Lordships who are not lawyers can judge of the matter. I doubt very much whether a member of the public would take the view that a person only stole something if he took it with the intention permanently to deprive. If that is how the

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word "permanently" is understood by the general public, then I suggest that the word is frequently misused.
The view I am expressing about the ordinary English meaning of the word is, I think, fortified by reference to the dictionaries. The word "steal" is defined in the Oxford English Dictionary as:
"To take dishonestly or secretly."
Then follow the words:
"to take away dishonestly portable property, cattle, et cetera, belonging to another."
A little later one finds the words:
"To take or appropriate dishonestly anything belonging to another."
There is nothing I can find in that dictionary to support the proposition that in the ordinary meaning of the English language a person steals only if he intends permanently to deprive. And so, if the Bill is left as it is and this Amendment is rejected, the word "steal" will be defined in accordance with the meaning given to it in the Oxford English Dictionary and, I suggest, within the ordinary meaning of the English language. I wonder very much whether my noble and learned friend, before he started to read law, ever thought that a person stole only if he appropriated dishonestly with an intention permanently to deprive.
To-day again the noble Lord, Lord Stonham, has really based his argument on the grounds advanced by the Committee, and they dealt with it in one short paragraph, paragraph 56. There are pages of the Report dealing with subjects like stealing wild flowers and animals, but one short paragraph is devoted to this important subject. The Report says—and I quote the words—that
"the Committee generally are against extending theft to include temporary deprivation of property".
I infer from the use of the word "generally" that some members of the Committee were in favour of that extension and that the Committee were not unanimously in favour of keeping in the word "permanently". The Report goes on to say that it seemed to the Committee wrong to extend it because—and I ask your Lordships to mark these words:
"an intention to return the property, even after a long time, makes the conduct essentially different from stealing".
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I agree that it does, if you give the lawyers' interpretation to the word "stealing", but I pose this question—and it is really this question that I suggest the House has to consider. It is an important question of policy on which I would also suggest your Lordships are fully competent to pronounce and which should not be left to lawyers, however eminent, alone to decide—
LORD STONHAM: My Lords, would not the noble and learned Viscount feel it would be fairer if he read the next immediately following sentence in the passage he quoted?
VISCOUNT DILHORNE: My Lords, I am coming on to the next sentence; I cannot deal with it all at once. I am putting this question, if I may, which I think is the fundamental question for decision: whether it is right that a person who dishonestly appropriates property, who steals it, if the definition of the Oxford English Dictionary gives the correct meaning of that word, should not be guilty of a crime if he took it, and I quote the words of the Report,
"with the intention to return the property even after a long time"?
The noble Lord, Lord Stonham, posed the question: What is the criminal law for? And he said, among other things, "to protect society". I agree. I have never suggested that the criminal law should extend to cover any dishonest conduct. But surely there are some forms of dishonest conduct which deserve the criminal sanction. Surely it is a man's conduct which should determine whether he should be convicted of a crime. If he dishonestly appropriates the property of another and keeps it for a long time, the effect upon society, upon the owner of the property, will not depend on whether there was an intention permanently to deprive, and I would suggest that the conviction of the taker should not depend on the prosecution's being able to prove beyond reasonable doubt such an intention.
It is, of course, a fact that in many cases no difficulty arises as to proof of that intent. But in some cases it does, and where there has been dishonest appropriation of something—we had one example in the Goya picture—it is necessary to prove that intent; and unless it is proved, as the law now stands there can

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be no conviction. I know that the Government seek to remedy this position by Clause 11 in relation to taking things from certain buildings. Surely that clause erodes the principle which the Government by this Amendment are seeking to retain. If you make that exception, if it is right to do that, why stop there? Why not apply the principle of Clause 11 to all property? And, again, the principle which the Government are seeking to restore to this Bill is eroded by Clause 12. There are two examples of erosion of this principle which has, as the noble Lord so rightly says, for long been part of the Common Law and the Criminal Law, and I know that the change I am suggesting is radical.
Then the Committee go on to say—and I think this is the next sentence to which the noble Lord, Lord Stonham, was referring—that the effect of the Bill as it is altered now
"might have undesirable social consequences".
I posed the question to the noble Lord in Committee, and he said he would write and tell me as soon as he heard the answer, and has now said, for reasons I have not been able to examine, that although this requirement is not part of the Canadian Code, there are no prosecutions for temporary dishonest deprivation. It cannot he said, then, that there are any "undesirable social consequences". But then the Committee go on to indicate, as the noble Lord did to-day, what kind of consequences which are not desirable they thought might ensue. They say:
"Quarrelling neighbours and families would be able to threaten one another with prosecution".
There is nothing to stop that now. So long as we have the present system in England, as opposed to the system in Scotland, subject to certain limitations anyone can institute a prosecution. And I really should not have thought that the possibility of a prosecution being instituted in unwarranted circumstances really is a governing consideration in considering what the law ought to be.
Then the Committee say:
"Students and young people sharing accommodation who might be tempted to borrow one another's property in disregard of a prohibition by the owner would be in danger of acquiring a criminal record."
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Again, that was repeated by Lord Stonham to-day, when he said that they would be running the risk of prosecution and loss of liberty. Again I ask: Is that sort of argument really a compelling argument and an adequate reason for not applying the criminal law to a person who dishonestly appropriates—and I again use the words of the Committee
"with the intention to return the property even after a long time"?
Should students and young people be led to suppose that dishonest appropriation by them of property against the will of the owner is all right so long as they have no intention permanently to deprive? The reasoning in paragraph 56 of the Committee's Report should be contrasted with the reasoning in paragraph 47. There the Committee are dealing with stealing wild flowers and things of that sort, and they say this:
"It might he reasonable to let the law of theft apply in all cases. For in trivial cases (as in trivial cases of other kinds of theft) there might be a defence under Clause 2(1)(a) that there was no dishonesty: landowners and prosecuting authorities would presumably be sensible enough to prosecute only in the exceptional cases where this would be reasonable and cases would usually be tried summarily and only a minor punishment, if any, imposed."
So it would be here, my Lords. If there was a prosecution for dishonest borrowing of a trivial kind and the court did not think the prosecution was warranted, the court would no doubt grant an absolute discharge.
Now I put this case to the House, and I should be grateful if, in due course, it could be answered. If this Amendment is not made, is not the position this: that the men who go to a man's house, attack him, beat him and tie him up to obtain from him the keys to a safe in art office building elsewhere, whose object is to obtain those keys to go to the safe and open it, will be liable, will they not? to be convicted of robbery? I believe that that kind of case does occasionally occur, and if the Amendment which the Government seek is made, then in such circumstances there could be no conviction for robbery, although the conduct of the accused would be the same, and the violence would be the same. There could be no conviction for robbery because of the absence of an intention

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permanently to deprive. They would take the keys only to open the safe; they would not want to keep them.
Surely it is wrong that conduct of the kind I have described should not be treated as robbery. If this Amendment is not made it can be treated as robbery.
LORD STONHAM: My Lords, I do not agree.
VISCOUNT DILHORNE: My Lords, the noble Lord says that he does not agree, but he has also said a good deal with which I am afraid I do not agree. If he will study it, he will find that what I have said is the case, because it cannot be said that merely taking the keys away to open the safe could be with the intention of permanently depriving the owner of those keys. The noble Lord will presumably have an opportunity of replying; unfortunately I shall not, but the mere fact that he says he does not agree with me does not establish that he is right and I am wrong.
The noble Lord, Lord Stonham, referred to Clause 6, and I listened with interest to what he said. I take the view that Clause 6 completely destroys the Government's case for this Amendment. It is a clause which the Government, despite the criticism made of it in Committee, are not seeking to amend. As the marginal note shows, that clause is intended to define the meaning of the words:
"With the intention of permanently depriving the other of it".
Indeed, if one looks at subsection (3) of Clause 1, one is referred to Clause 6 to see what is meant by those words. One cannot read Clause 6 as if it was in some way subject to, and affected by, the inclusion of the word "permanently" in subsection (1), because it seeks to define what is meant.
I suggest to the noble Lord that subsection (1) and subsection (2) of Clause 6 read together surely mean that a person who appropriates property, intending a complete usurpation as against the owner of that property, is to be regarded as having the intention of permanently depriving the other of it. I can read that clause only as meaning that. Although by this Amendment the Government seek to retain the intention permanently to
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deprive, the operation of that clause would seem to me to provide that a person may be convicted of theft without it being proved that he had any such intention. All that it is necessary to prove under that clause is that he intended complete usurpation of the property, not that he intended to deprive the owner of it permanently. Do the words "complete usurpation" mean anything more than "wholly appropriates"? I should like to know. If I am right in my interpretation of Clause 6, then the retention of that clause by the Government fortifies my case for resisting this Amendment. If this Amendment is not carried, Clause 6 cannot, on any view, be necessary; nor will Clause 11, nor will Clause 12. So I think I can maintain that rejection of this Amendment will simplify our law.
I believe that the change we made in Committee was a change for the better. "Receiving", or as it is now called "handling" stolen property, is often regarded as more serious than the actual theft, and yet proof of that offence does not require proof of an intention permanently to deprive. Nor did the offence of criminal deception created by Clause 15(3) of the Bill, which we took out in Committee. Contrary to the belief that this would have undesirable social effects, I believe that not only will it greatly simplify our law but that in practice it would lead to the conviction of those who should be convicted but who now escape because it cannot be proved that, however reprehensible their conduct, there was an intention permanently to deprive.
I believe I have now covered most of the arguments raised. The case for leaving the Bill as it is at present is strong and, as I have said, in my view it is a question of policy that is involved. I entirely agree with the noble Lord that it is a fundamental question, and I cannot believe that if this change is made to abolish a principle which has been so substantially eroded, it will be followed by any serious consequences.
7.16 p.m.
LORD PARKER OF WADDINGTON: My Lords, it would be a dull world if lawyers agreed. I came here with no intention of speaking, but the noble

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Viscount, Lord Dilhorne, has attacked me on what I said at the Committee stage. I said that this was the Report of what I called a really high-powered legal committee sitting for seven years. I said that because I thought the general presumption would be that they were right unless they were glaringly wrong, but I am sure the noble Viscount will acknowledge that I began my remarks by saying that we must get this right, and it is our function to get it right. I have put down an Amendment to a clause later in the Bill, and I say again that we must have this right.
Having said that, without taking up the cudgels one way or the other I should like to put to the House what really are the questions to be considered to-day. The first question is this: Is a case made out for what in effect is a new offence? It has always been the law of this country that there is no offence unless there is an intention permanently to deprive. I do not think reform is merely for the sake of reform; it must be only if a case is made out for it. Therefore ore asks oneself whether a case has been made out for creating what, for the first time, is a new offence. Is it necessary? Apart from motor cars, which are dealt with, and have been dealt with for some time, and now the possibility of pictures in a collection, is the case made out for the need for a new offence? I am not saying one way or another. I do not myself think that the case is made out for it, but if it is, so be it. The second question is this: If a case is made out for creating a new offence of, in effect, borrowing, is it a fit place to come in as theft?
With all due respect to the noble and learned Viscount I have always thought that dictionary meanings were the last resort of the lawyer. This is a Bill dealing with larceny—now called "theft"—carrying a penalty of ten years' imprisonment. Assuming the new offence is to be dealt with, is it right that it should appear as "theft"? Is the domestic servant, or perhaps the au pair girl who borrows a dress or a coat from her mistress to go to the local dance, guilty of theft carrying a penalty of ten years' imprisonment? The answer surely is, "No". If there is a case for finding her guilty of an offence, surely it is not of
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this offence of theft carrying a ten-year penalty.
To return to the first point, as to whether there really is a case for constituting a new offence, it rather appals me. The police are occupied, and should be occupied, in dealing with really serious crime, and they should not have to deal with the au pair girl borrowing her mistress's coat. It may be a case for dismissal, but is it a case for the police? That is the point I think the Committee have made. It is a matter for your Lordships. Has the time come when that sort of conduct is a criminal offence; and, secondly, if it has, is it proper to treat it as theft with a 10-year penalty?
LORD SOMERS: My Lords, may I add a few words apropos of the theft of cars? Let me put a case to the noble Lord, Lord Stonham. Imagine a man taking somebody else's ear with tie firm intention of returning it in five years' time. He might even go to the length of putting a note through the owner's door saying, "I have taken your car, but I will return it on the same date in 1973." By the time he brings fiat car back, provided he has used it fairly hard, it will be in a state of complete—
LORD STONHAM: My Lords, if the noble Lord will allow me to answer him straight away, I suggest that he reads subsection (1) of Clause 6 which says:
"A person is to be regarded as permanently deprived of property belonging to him by any dealing with it that amounts (or substantially amounts) to a complete usurpation …"
I should have thought that keeping somebody else's car for five years would amount to complete usurpation.
LORD SOMERS: I am prepared to accept the noble Lord's word for that, naturally, but I wish there was something in the Bill which made that clearer.
BARONESS WOOTTON OF ABINGER:
My Lords, I know that it is inevitable that the criminal law should make assumptions about the secrets of the human heart which cannot in the nature of the case be validated, but I think it is desirable to keep those assumptions to a minimum. The assumption that we are asked to make here is that you can divine whether an intention is permanent or not. I should like, if I may, to quote one actual case which came within my knowledge. At a juvenile court

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of which I was then Chairman, a boy of 15 was accused of having stolen a book from the publishing house in which he was employed. The book in question gave the history of the firm, and the defence was that he intended to return it. A number of sentimental magistrates, headed by myself, fell for this picture of the ardent young apprentice looking forward to his future in the firm with which he identified himself, and he was acquitted. Unfortunately, the next three cases on the list were also boys from the same firm who had taken, and alleged they intended to return, books of a character very much more likely to appeal to the average young man of their age.
My noble friend Lord Stonham asked what evidence there was that the public regard temporary appropriation as stealing. I should have thought there was a good deal of evidence in regard to certain articles. I have heard a great many people say "Someone has stolen my car". I have never heard anybody outside a court say, "Someone has taken and driven away my car." The public, certainly in relation to motor cars, does not distinguish between "taking and driving" and "stealing".
The noble and learned Lord the Lord Chief Justice said that if we do not have the word "permanently" in the clause we are really making a lot of new offences. I would submit that we are obliged to make other new offences if we have "permanently" in. We have been obliged to make a new offence of taking and driving a car. We are still in some difficulty about bicycles. We are also making a new offence of removing pictures from a public building where they are displayed, and it seems to me that we shall have to go on making new offences to cover cases where there has been deprivation but not with the intention that the deprivation should be permanent.
May I say in passing that I find something very odd in this Bill. It says that stealing is dishonest appropriation, and "dishonesty" is nowhere defined; all that is defined is what "dishonesty" is not. It seems to me a very curious omission. I should like to ask one question about the wording of this clause which seems to me
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ambiguous. In the Larceny Act 1916, it was made perfectly plain that the intention to deprive permanently must be coincident in time with the taking. The words "at the time of taking" appear in the relevant section. Those words have been omitted, but as the Bill now reads it seems to me not at all clear whether this condition still obtains.
A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of depriving the other of it permanently. That is how it would read if this Amendment were accepted. If I take, without her permission, my neighbour's necklace to wear at a particular dance, meaning to put it back when this occasion is over, and when I get it home I think it is rather attractive and decide to keep it, does that mean I have stolen it or not? Under the present law, I think I am right in saying that I have not stolen it, but as the Bill would stand if this Amendment were accepted it seems to me quite ambiguous whether the depriving permanently and the taking must be coincident in time or not. I hope this point may be clarified.
7.27 p.m.
LORD CONESFORD: My Lords, I thought that the noble Lord, Lord Stonham, in his speech this afternoon put the case most fairly, and he pointed out what I think is true, that this House has to make a difficult decision. I agree with a great deal of what he said, but I still support the action taken by this House when it was in Committee on the previous occasion. May I mention one passage in the actual words used by the noble Lord, Lord Stonham, that seemed to me to show how far he was from facing the actual problems that we have to face? He talked about the Amendment that this House made in Committee as if it dealt with some theoretical mischief. Well, whatever the truth may be, that cannot be true. We now know from the Goya case that this is not a merely theoretical mischief. The words to describe what happened appear in the Committee's Report, at page 28:
"A striking recent instance is the removal from the National Gallery of Goya's portrait of the Duke of Wellington. The portrait before being returned was kept for four years, during which there was evidence that the man who took it tried to make it a condition of his returning it that a large sum should be paid to charity."

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As the noble Baroness, Lady Wootton of Abinger, has put a question to the representatives of Her Majesty's Government, perhaps I can put one, too. Is the noble Lord under the impression that What now appears in Clause 6, had it then been the law, would have been sufficient to enable the man who took the Goya portrait to be prosecuted to conviction? If he does not think that he could, then I suggest that the law still has a great gap. If, on the other hand, he thinks the effect of Clause 6 is that the man who took the Goya portrait could have been prosecuted to conviction, had Clause 6 then been part of the law, that strongly supports and strengthens the case made by my noble and learned friend Lord Dilhorne. Whatever we do, we are not dealing here with some theoretical mischief. We are dealing, as we all know, with an actual and growing mischief. I will deal in a moment with my allegation of a growing mischief. I thought that it cast ridicule on the law of this country when the man who, in the circumstances that I have described, took a valuable acquisition of the National Gallery could not be convicted of the criminal offence. It proved the urgent need of a revision of the law.
LORD PARKER OF WADDINGTON: My Lords, would the noble Lord allow me to intervene? Does he not think that almost any jury would have convicted? And are we not dealing with just the odd case where a jury, perhaps perversely, refused to convict? I do not think that from that one can say that it was the law of this country that there was no offence. It was just that that jury did not convict.
LORD CONESFORD: Well, if my noble and learned friend the Lord Chief Justice says he was surprised by what happened in that case, so was the public and so, I think, was all Europe. But I think it brought the law of England into considerable disrepute. Anyhow, he was acquitted because of this requirement of the law which my noble and learned friend Lord Dilhorne has succeeded in eradicating, and which it is now proposed to restore.
The other matter to which I would draw attention is that the Committee itself, in I think the last sentence of paragraph 56, said:
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"If cases of temporary deprivation should become common, or if it should become too easy a defence to a charge of theft that the intention was to return the property in the end, it might be necessary, notwithstanding these formidable difficulties, to create an offence of temporary deprivation with a high enough maximum penalty for serious cases."
I say that there is every indication that cases of temporary deprivation are becoming very common indeed. I happen to know from my own experience of the sufferings of certain public libraries and libraries of scholastic institutions, in schools and universities, where the losses of books are quite appalling. If we can so change the law in this first clause as to impress upon the public that this is a serious matter, I think we shall have done something most valuable.
The noble Lord, Lord Stonham, and indeed the Committee, have said that if we restore the word "permanently" we shall have to have such special pro visions as are made at present in Clauses and 12. But I am influenced in favour of the Amendment which your Lordships in Committee put in and which the Government now seek to reverse, by the extraordinary convolutions through which Clause 11 has passed. Clause 11 was wholly unsatisfactory in the way in which it came before the Committee. I must not deal in detail with the clause in advance, but I think it is still unsatisfactory after all the attention which the Government have now given it.
There is one matter raised, both by the Criminal Law Revision Committee and by my noble and learned friend the Lord Chief Justice, which I should mention. If one were going to make temporary deprivation an offence, it is arguable, of course, that it should be a separate offence. But I think it is for the Government, if they take that line, to prove it. I admit, of course, that we are making a proposal of sufficient novelty, and sufficiently radical, for it to be possible that there will be consequential changes which the Government will have to introduce to guard against trivial and unnecessary prosecutions. But I support my noble and learned friend and what was said by the noble Baroness, Lady Wootton, who, after all, has great experience as a magistrate. Ancient though it is, I believe that this requirement of an intention permanently to deprive is today productive of considerable mischief.
7.38 p.m.
LORD RAGLAN: My Lords, I venture to say a few words about this matter before all these legal experts, not to make a legal point but rather a neutral, historical one. But I would say, with great diffidence and respect to the noble and learned Lord the Lord Chief Justice, that even if the word "permanently" goes back into the Bill, I think a boy who steals an apple will still be liable to a sentence of 10 years. The Criminal Law Revision Committee devote an interesting couple of pages to the sentencing policy of our courts. On the question whether "permanently" should be left out of the Bill, I do not think that that would make trivial crimes liable to heavy penalties in the courts.
When the noble and learned Viscount originally moved his Amendment to delete this word from the Bill I thought what a curious word it was, because, for the reasons given by the noble and learned Viscount and my noble friend Lady Wootton of Abinger, permanent appropriation is not quite the common conception of theft. If one of your Lordships went outside this House and found someone, in the words of the Bill, "dishonestly appropriating" a bicycle, he would not cry out "Stop, borrower!", or "Stop, temporary depriver!". He would cry out, in a rather old-fashioned way, "Stop thief!" And if the thief was not stopped, he would go down to the nearest police station and report the bicycle as having been "stolen". In other words, although permanent deprivation is the Common Law it is not, I think, common usage. If one reported to a policeman that one's bicycle had been borrowed, I think he would probably wonder what all the fuss was about.
So I wondered when it was that the word "permanently" was introduced into the Common Law. I looked it up in a legal dictionary which gave it as being first used in a case in 1837. When I looked up that case I found that the word actually used was not the word "permanently" but the word "wholly". So I looked at the evidence then given before the Joint Select Committee on the Larceny Bill of 1916.
I will not take up your Lordships' time by quoting from that evidence, but according to my understanding of it the
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word derives from a saying or a ruling by Mr. Justice Manisty somewhere in the 1870s. The suitability of the word was questioned and criticised by members of the 1916 Committee, but the matter does not seem to have had the amount of threshing out in regard to the very important qualification which it imparts to the definition. However, it was included in the 1916 Act because it was the Case Law.
If the Government feel that some qualification is needed, perhaps they would ask their experts to consider further whether "permanently" is really the right word, or whether the old term "wholly" would not be better. It might mean redrafting the sentence, but it seems to me to be most important that the law should be codified so that its meaning is nearer to the common conception and the common usage.
LORD GOODMAN: My Lords, I had not intended to participate in this debate, but this matter is almost irresistible to a lawyer. I apologise to the House, but I did not hear the speech of the noble Lord, Lord Stonham, in moving this Amendment. My speech is largely directed at making an inquiry of him. I consider that principle is strongly against this Amendment. I speak as one who was trained in the Roman law and in the English law. So far as Roman law is concerned, this is a decided issue. The Roman law avoided the necessity of a complete catalogue of other crimes so far as the principle is concerned. One had one category of "dishonesty" which covered every aspect of the matter. As a matter of principle that seems to me to be right.
Nobody could fail to be affected by what was said, with characteristic humanity, by the Lord Chief Justice about the possibility that by rejecting this Amendment one is going to allow an alteration to the law whereby au pair girls and such people will be subject to a penalty of ten years' imprisonment for borrowing the gowns of their mistresses. I would regard it as a serious matter if that change came about. I am not sure that her mistress, wearing her underclothes and frenziedly searching for her ball gowns, would regard it as such a serious crime or that ten years' imprisonment was necessarily an adequate penalty, and if we were to introduce a change of

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this kind by chance I think that it would be wrong.
I am not sure that in this Bill we have not already made this change. I wonder whether Clause 6 does not achieve precisely that effect. This is really where I address my query to the noble Lord. If one reads Clause 6, it is true that the words "permanently deprived of property" appear there, but later on the definition of "permanent deprivation" makes it clear that it need not be permanent in any temporal sense, because the loss of the actual property is not a requisite. It need only be permanent in the sense that there is a complete usurpation of the property. This appears to suggest that it is sufficient if there is such a usurpation at any point of time. If I see somebody at Ascot wearing my grey silk hat at the moment when I precisely need it, that is a classic example of a complete usurpation of my silk hat, and this would come clearly within the terms of this particular definition. I venture to think that if we have already done this, this argument goes by default; and that unless one can be persuaded that this definition does not produce precisely the result about which the noble Lord is arguing we ought not to permit this Amendment, but to accept what in principle appears to me to be the right course.
7.45 p.m.
VISCOUNT COLVILLE OF CULROSS: My Lords, the observations of the noble Lord, Lord Stonham, about the law of Canada interested me very much. I am quite certain that nobody who wishes to oppose this Amendment, or anybody else in the House, has any idea in their mind that they want the law under this Bill to be a dead letter. I do not think that is in issue at all. If the law of Canada, without the adverb "permanently", is not very unsatisfactory, then I suppose that it may well be that it is because the police in Canada, or private prosecutors, if there be such in Canada, use their common sense and do not bring ridiculous charges for minor and insignificant offences. That may be one explanation why the noble Lord, Lord Stonham, finds nothing in the Law Reports. One wonders whether it is better to have the law of Canada where by a majority on appeal the boy who took the police car round the block was acquitted, although the law could have convicted him—
LORD STONHAM: It did convict him in Canada.
VISCOUNT COLVILLE OF CULROSS: The conviction was quashed on appeal—they let him off in the end. Or is it better to have the law of England where the person who took the Goya could not be convicted of taking it at all. The only thing of which he could be convicted is of taking the frame. To deal with that situation, the best that can be done—I do not criticise it, because now that it has been considered it may have been put right—is to produce ad hoc new criminal offences for each one of these things which are found to be outside the law and particularly shocking to the public.
The noble Lord said that those who want to make a fundamental extension of the law in the way that we have done, who have tried to justify leaving out the word "permanently", must in fact justify it; but I doubt whether the argument over the word "permanently" is really the crux of the matter. Such researches that I have been able to make leave me in the most extreme doubt as to what the word has turned out to mean in English law. I am certain that if this Amendment is carried all the case lam, about what "permanently" has been thought to mean will have to be resumed and carried on as before.
I entirely agree with the nobly Lord, Lord Raglan, that this seems to be a fairly novel word to find in the definition of "larceny". I think that "wholly" came in about 1815 in a case involving a gentleman who rejoiced in the name of Mr. Cabbage; and I think that "permanently" was first used in 1848 in the case of Holloway, but I may be wrong. At any rate, it is not much more than 100 years old in the judge-made definition of larceny.
LORD STONHAM: A reasonable period.
VISCOUNT COLVILLE OF CULROSS: Yes, but I think it was said at one stage that it went hack into the dim and distant past and has always been part of the Common Law definition of larceny. I do not believe that this is so. What really worries me is what it means. Looking at some of the Case Law, it is very

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strange indeed. The noble Lord said that those who oppose this Amendment are saying that any dishonest deprivation must be theft, and that never has theft in this country consisted of taking something temporarily even if the taking was dishonest. I should like to tell the noble Lord about the case of Cockburn. This was a case that was decided on December 19 last year in the Court of Appeal.
It involved a man who took some money out of the till in the shop where he worked—something which he apparently did quite frequently. What he used to do was a put a chit or a note into the till and then replace it with a cheque, if he did not immediately put in the cheque. And his daughter used to give him cheques to put in, and sometimes he used to pay those in as well. He did this for quite a long time, and on the occasion in question he was caught before he had put the cheque back. Lord Justice Winn said this:
"If coins, half a crown, a 10s. note, a £5 note, or whatever it may be, are taken in all the circumstances which I have already indicated with the intention of spending or putting away somewhere those particular coins or notes "—
and these are the important words—
"albeit not only hoping, but intending and expecting reasonably to be able to replace them with their equivalent, nevertheless larceny has been committed because, with full appreciation of what is being done, the larcenous person has taken something which he was not entitled to take, had no claim of right to take without the consent of the owner, and is in fact trying to force on the owner a substitution to which the owner has not consented."
What is the difference between borrowing those coins or notes and borrowing the noble Lord's step-ladder? I have been able to think of only one difference, and that is that in this case Cockburn did not put back the same coins or the same notes; whereas in the case which the noble Lord used as an example, that of the step-ladder which was taken while the neighbour was out and which the neighbour had said was not to be taken in those circumstances, it was the same step-ladder that was put back. This is a very fine distinction and this is what "permanently" has turned into under the present law. Therefore, if we put it back we are perilously close to the situation
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where theft in this country is to take something temporarily and dishonestly, and exactly the contrary of what the noble Lord said.
How does Cockburn compare with what the Criminal Law Revision Committee said in paragraph 56? They said:
"The former course"—
that is, to take out the word "permanently"—
"seems to them wrong because in their view an intention to return the property, even after a long time, makes the conduct essentially different from stealing."
But it was found by Lord Justice Winn in Cockburn's case that the accused not only hoped but intended and reasonably expected to be able to put the money back. The only difference was that it was not the self-same note or coin. So we have gone a very long way from the purity of permanence which the noble Lord was talking about.
Then take the other cases in which "permanently" is used as a defence. The Goya case, mentioned by my noble and learned friend Lord Dilhorne, was one of them; but there was another. There was a man who took some despatches from a Government office where he had a friend. They were despatches of secrecy concerning the Ionian Islands, when those were a British Colony, and he wanted to get them into the newspapers. So he sent them to a newspaper. It was completely dishonest; the despatches were in due course published and, so far as I can make out, he left them with the newspaper. The rule of the court was that the documents were clearly the subject of larceny. The only question which the jury had to decide was whether the evidence established to their satisfaction that at the time the prisoner took the documents away from the Colonial Office he intended to deprive that Office of all property in them, and to convert them to his own use. The jury said that he did not, and they acquitted him.
Those are very remarkable cases, and one would think it a strange law which allowed people to use "permanently" as a defence in situations of that sort. But it does. On the other hand, as I have tried to tell your Lordships, when it comes to insisting upon proving the degree of permanence, on the borderlines, on the

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margins of what one would expect it to mean, the law manages it. I think that the noble and learned Lord the Lord Chief Justice was saying the same when he suggested that in the Goya case many a jury might have found the necessary degree of permanence in the intention, and might have convicted. So it is really a very strange word, as the noble Lord, Lord Raglan, said, and it may be that we ought to be considering not the question of whether "permanently" should or should not be there, but whether we ought to have some other concept altogether.
May I just touch upon the question of Clause 6? I, too, should like the noble Lord, Lord Stonham, to answer the question put by my noble friend Lord Conesford, but perhaps in a slightly different way. If Clause 6 does not cover the Goya case—if we leave out Clause 11 for the moment and assume that it is not there—I would ask: why not? It is interesting to look at a work written on this matter by one of the members of the Criminal Law Revision Committee, Professor Glanville Williams, in 1961. It includes the reckless taking, which he describes as the foresight of a possibility that the chattel may not get back into the hands of its owner, which he says is not generally sufficient to larceny, and compares it with what I think Lord Stonham said Clause 6 was for, which was to cover cases where someone takes property and abandons it in circumstances in which it is unlikely that the owner will get it back.
The extraordinary thing is that this Bill does not make this clear. In his book, Professor Glanville Williams expressly mentioned this as being one of the things that a redraft of the criminal law ought to get clear, and I refer the noble Lord, Lord Stonham, to paragraph 32 of that book. Incidentally, the other point which he said the new Bill ought to get clear—and it does not—is the one raised by the noble Baroness, Lady Wootton of Abinger. Yet one of the members of this distinguished Committee said as long ago as 1961, when no doubt he was engrossed in this very matter, that the Bill ought to make it clear. Nor, I think, is "usurp" a new word. It was used in Holloway's case, in 1848. I think the noble Lord, Lord Stonham, must deal with this.
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Is he prepared to face that, if we put back the word "permanently", it is going to be followed with all the Case Law? (I have mentioned Cockburn, and, of course, there is Thorpe which has to be specially covered in Clause 6), and that all these gradations of permanence will have to be brought up again? Would he not rather try to get away from all the tremendously difficult and controversial legal and academic difficulty which arises out of the use of this word? The other question that I should like the noble Lord to answer is this. If he says that Cause 6 is somehow overruled by the use of the word "permanently", not only in Clause 1 but in Clause 6 itself, how on earth does he suppose that this is going to cut down the width of Clause 6 so that it does not knock the bottom out of the word "permanently" altogether?
7.57 p.m.
THE LORD CHANCELLOR: My Lords, if I may reply on behalf of my noble friend Lord Stonham, he said that he was addressing the House as a layman, but now that he is a Doctor of Laws I hope we shall not let him get away with that. So far as I am concerned the position is this. It is common ground that for over a hundred years it has been one of the ingredients of our law of larceny that there must have been at the time of the taking an intention permanently to deprive the owner of it. As your Lordships know, there is no Member of your Lordships' House who is more keen on law reform than I am, but not, I think, simply to change things for the sake of change unless if ere is something wrong which ought to be put right.
Dishonest borrowing has never constituted larceny, so I asked myself, "During the hundred years has experience shown that there is a form of dishonest conduct which is not criminal, but which amounts to such a public nuisance that it ought to be made criminal?"; and I answered that question, "Yes". It has been found from experience that young men take cars for joyrides and then bring them back. This became such a serious public nuisance that it needed to be a criminal offence, and so it was made in the Road Traffic Act—not larceny, but a separate criminal offence.
Then I asked myself, "Is there any other class of actions which in the last

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hundred years has grown to be such a social nuisance that it ought to be treated as a criminal offence? "; and I said, "Yes; the Goya." I am not at all an enthusiast about the Goya class. It seems to me quite unnecessary, and I agree with the noble and learned Lord the Lord Chief Justice. Why on earth the jury "fell for" the accused's explanation, I cannot think. We have had pictures in museums for the last hundred years. If anybody "pinches" a picture from a museum, what does he do it for unless it is to "flog" it and get the money? He does not do it in order to take it back. We have managed perfectly all right for a hundred years without a special law for Goya cases. The only trouble with the Goya case was that, as sometimes happens, the jury acquitted when they ought to have convicted. There are differences of opinion about Clause 6. I personally regard Clause 6 as unnecessary. I consider that the cases for which it will provide would be covered even if we did not have Clause 6. But there is a difference of view about this among the lawyers, and if that is so, no doubt it is sensible to cover it.
My noble friend Lady Wootton of Abinger asked at what time the intention had to be formed. From a reading of Clause 1, I suggest that it means that the intention must be there at the time of the appropriation and, with great respect, I should not have thought that it could be read in any other way. The noble Lord, Lord Conesford, said, "There is a growing public nuisance in the stealing of books." This may be so, but I do not know whether, if it is so, it is because the owners cannot catch the thieves or because, although they prosecute them, they cannot prove an intention permanently to deprive.
The noble and learned Viscount, Lord Dilhorne, put a theoretical case in which, if I understood it rightly, some men break into a house, beat up the owner and gag him for the purpose of taking the keys of his safe. I wonder why they take the keys of his safe if they do not intend to use them. Of course, on the facts as the noble and learned Viscount told them, if what they did amounted to grievous bodily harm they could be prosecuted for that; and, if not, for an assault. I should not have thought that they would give the keys back to the owner,
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having robbed his safe. I should have thought that burglars like keeping safe keys, and that there would have been no difficulty in proving a charge of burglary.
The noble Viscount, Lord Colville of Culross, said—and these things are no doubt a matter of opinion—that there was no real difference between borrowing somebody's stepladder and stealing money, and then saying, "Oh, well, I really intended to replace it by some other money". I should have thought those were two entirely different kinds of things. Then the noble Viscount mentioned a case about despatches in which the jury apparently acquitted. Nobody can stop juries acquitting, and they sometimes acquit when they ought to convict.
I am not very good at theory—I am a practical man—and when, at the end of the day, I came back to asking myself the question, "Dishonest borrowing never having been larceny, have certain forms of it grown to such a serious extent that there are forms of dishonesty which ought to be criminal?", I will tell your Lordships what I did. I went and had a long talk with the Director of Public Prosecutions, because he is the man who obviously knows. If the Commissioner of the Metropolitan Police or any of the chief constables of counties find that there is some growing malpractice for which there does not seem to be any possible prosecution, and if they think there ought to be, then the Director, of course, is the man to whom they go. So I asked him how many representations he had had since he had been in office to the effect that our law of larceny was not wide enough, that it was too restrictive because of the necessity to prove an intention permanently to deprive, and he said that he had never had any such representations made to him at all.
Where does this come from? I would respectfully agree with the Committee that, while dishonest borrowing is wrong, it is really something which most people would think quite different from theft. Take, for instance, the case which has been given, that of four girls in a flat and of one borrowing another girl's dress to go out with her young man for the evening, she not having asked permission because she knew jolly well that if she asked she would be told, "No". This is wrong; this is not the right thing to

1421
do; this is dishonest conduct. But I do not think any ordinary person would say, assuming the dress was back on its peg later that night, "That girl stole the dress—this is larceny".
In general, I believe two things, if I may say so. First of all, larceny always has been, and I think rightly, very serious. And, of course, when one is thinking of dishonest borrowing, one has to include sons and daughters, and perhaps grandsons and granddaughters. If one of them is convicted of larceny, they are not likely to get into Parliament, they are not likely to be able to enter any of the professions, they will not get elected to a West End club, and all their lives they will find it very difficult to get insured. I remember a family company which had a very large burglary and where the insurers repudiated on the ground that one of the directors, a quarter of a century before, when he was at university, had been convicted of stealing something. I had to decide this as arbitrator, and I was bound to decide that, in law, the insurers were right. The company could not say that they did not know, because one of the other directors was the father and another a brother. So, of course, the company knew about this conviction. The insurers said, "We never insure any company where any of the directors has been convicted of larceny, and we should never have taken the risk if we had known."
LORD RAGLAN: I am sorry to interrupt the noble and learned Lord, but may I ask him this question? What about the case of a boy stealing an apple? Does he not deprive the owner of it permanently? Is he not subject, theoretically, to a sentence of ten years?
THE LORD CHANCELLOR: Yes, I think theoretically that is quite so. But I do not think this is in itself a good reason for extending this provision to unlawful borrowing. The other thing which affects me particularly is that this is very largely a difference of view between, on the one hand, theoretical cases—very properly so, but cases which are thought-up-and, on the other hand, the practical experience of seven of our most experienced criminal Judges on this Committee. There was also the Director of Public Prosecutions, himself a member; the Chief Magistrate; and the noble and learned Lord the Lord Chief Justice—who, if I may respectfully remind the House, has been a Judge for 17 years and has been Lord Chief Justice for about 10 years, during practically the whole of which time he has been either trying crime at first instance or hearing it on appeal. For my part, while I am perfectly prepared—and more prepared than most—to change the law if there is something wrong with it, I should have thought that when you have had a particular law for 100 years there was a very strong onus on those who say it ought to be changed, particularly when, for the first time, it is going to make criminal something which, however morally wrong it may be, has not been criminal in this country so far. For those reasons, I would respectfully ask the Committee to support the Amendment.
8.8 p.m.
Their Lordships divided: Contents 39; Not-Contents 37.

CONTENTS

Addison, V.

Granville-West, L.

Phillips, Bs.

Beswick, L.

Hall, V.

Rowley, L.

Birk, Bs.

Hill of Wivenhoe, L.

Sainsbury, L.

Bowles, L. [Teller.]

Hilton of Upton, L. [Teller.]

Shackleton, L. (L. Privy Seal.)

Brockway, L.

Hughes, L.

Shannon, E.

Brown, L.

Iddesleigh, E.

Shepherd, L.

Collison, L.

Leatherland, L.

Silkin, L.

Delacourt-Smith, L.

Lindgren, L.

Sorensen, L.

Fiske, L.

McLeavy, L.

Stonham, L.

Gaitskell, Bs.

Milner of Leeds, L.

Stow Hill, L.

Gardiner, L. (L. Chancellor.)

Noel-Buxton, L.

Strabolgi, L.

Garnsworthy, L.

Norwich, V.

Tangley, L.

Geddes of Epsom, L.

Parker of Waddington, L.

Winterbottom, L.

NOT CONTENTS

Amory, V.

Drumalbyn, L.

Oakshott, L.

Baldwin of Bewdley, E.

Falkland, V.

St. Aldwyn, E.

Barrington, V.

Ferrier, L.

Sandford, L.

Beaumont of Whitley, L.

Foot, L.

Sandys, L.

Brentford, V.

Fortescue, E.

Selkirk, E.

Chelmer, L.

Goodman, L.

Sempill, Ly.

Colville of Culross, V.

Gray, L.

Somers, L.

Conesford, L. [Teller.]

Grimston of Westbury, L.

Strange of Knokin, Bs.

Cork and Orrery, E.

Horsbrugh, Bs.

Teynham, L.

Craigavon, E.

Lucan, E.

Vivian, L.

Craigmyle, L.

Monson, L.

Wakefield of Kendal, L.

Denham, L.

Moyne, L.

Wolverton, L.

Dilhorne, V. [Teller.]

On Question, Amendment agreed to.

Resolved in the affirmative, and Amendment agreed to accordingly.
LORD STONHAM: My Lords, I hope it will suit your convenience if with Amendment No. 1, I speak to the two following Amendments which are consequential. These Amendments propose minor alterations to subsection (2). They would make it read:
"It is immaterial whether the appropriation is made with a view to gain, or is made for the thief's own benefit."
During the Committee stage the noble and learned Viscount, Lord Dilhorne, suggested that the subsection as originally drafted gave room for argument, contrary to the intention of the subsection, that it was material, in order to establish theft, to show that the appropriation was made with a view to gain or for the thief's benefit. Although the Government think it doubtful that such a construction could be put on the subsection, I am moving the Amendments so as to remove any doubt that there might be upon this point. I beg to move.
Amendment moved—
Page 1, line 10, leave out ("that") and insert ("whether").—(Lord Stonham.)
VISCOUNT DILHORNE: My Lords, I rise to thank the noble Lord. I do not think this makes a very important change. It may be that subsection (2) is not strictly necessary; but I think the language is an improvement.
LORD STONHAM: My Lords, I beg to move this Amendment formally.
Amendment moved—
Page 1, line 10, leave out ("not").—(Lord Stonham.)
LORD STONHAM: My Lords, I beg to move Amendment No. 4.
Amendment moved—
Page 1, line 11, leave out ("not").—(Lord Stonham.)
LORD STONHAM: My Lords, other business is to come. There was general agreement through the usual channels that, once through Clause 1, we should adjourn consideration of the Report stage of this Bill. I would suggest that we do so now.
VISCOUNT COLVILLE OF CULROSS: My Lords, I would support the noble Lord in that suggestion.

MATRIMONIAL CAUSES RULES 1968
8.20 p.m.
LORD SILKIN LORD SILKIN rose to move, That an humble Address be presented to Her Majesty praying that the Matrimonial Causes Rules 1968 [S.I. 1968 No. 219], laid before the House on February 29 last, be annulled. The noble Lord said: My Lords, I beg to move the first Prayer standing in my name on the Order Paper and, with the leave of the House, I should like to speak on the first Prayer and the second Prayer, because they are interrelated. Indeed, in the second set of Rules against which I am praying it is stated that these Rules shall be considered as one of the Principal Rules—the Principal Rules being the Rules referred to in the first Prayer. Perhaps I ought to explain what this is all about. The House will remember that some months ago we passed the Matrimonial Causes Bill, which became an Act, designed to give jurisdiction in undefended divorce cases

1425
to the county court instead, as had hitherto been the case, the High Court.
Under Section 7 of that Act, provision was made for a Committee to be set up, the Rules Committee, under the chairmanship of the Lord Chancellor, with not fewer than four other members, at least two of them to be solicitors. The purpose of this Committee was to make rules for the administration of the Act and also to make provision for the costs that would be payable to solicitors in respect of the undefended divorce cases which henceforth they were going to handle. I have no objection at all to the Rules relating to administration or what are called the Principal Rules, and I propose to devote myself therefore to the substance of the second Prayer and to say nothing more about the first of the Rules. Those Rules were agreed to by all the members of the Committee and there is no criticism of them; at any rate nothing of such a nature as would require me to say anything this evening.
As regards the Rules referred to in the second Prayer, the decision there was not unanimous. The two solicitor members of the Committee refrained from signing, and I am given to understand—I do not say this with complete authority—that certain other members of the Committee signed with reservations, and that these reservations have been minuted. No doubt my noble and learned friend the Lord Chancellor, if he wishes, will be able to say whether that is correct or not. Perhaps I might summarise the whole substance of the objection to the Costs Rules, as I am going to call them, by saying that it is the opinion of the whole of the legal profession that the provision made for solicitors' costs is quite inadequate.
In 1966, and prior to that, the Law Society, which is the governing body of the solicitors' profession, had made representations to the Lord Chancellor, in whose hands our fate lies, regarding the inadequacy of the then existing scale of costs in the county court. These had not been changed since 1956, and I think it was agreed on all sides that they were quite inadequate, even at the time when the representations were made in 1966. My noble and learned friend referred this matter of the costs to the National Board for Prices and Incomes in order that they might consider not merely the question of the adequacy or otherwise
1426
of the costs in the county court but also the whole question of solicitors' remuneration, which was going very much wider than the solicitors' profession had asked. At any rate, the Board did make this investigation. So far as I know the only other professional body which has been investigated regarding its profits, not as regards fees, is the architects.
The National Board for Prices and Incomes had before them a sample of solicitors' remuneration in various categories: firms that were being conducted single-handed, those with several partners, those with more than five partners, and so on. Out of all that, the Board came to two specific conclusions one was that on average the remuneration of solicitors was not unreasonable in comparison with that of members of other professions. The remuneration was rather lower than that of doctors and a little higher than that of architects, but on the whole the Board expressed no dissatisfaction with the remuneration of solicitors, taking the average figure. But they came to the conclusion that costs in connection with county court matters ought very definitely to be reviewed.
I think I can best tell the House about these county court costs if I read out the actual recommendations of the National Board for Prices and Incomes which are contained in paragraphs 65 and 66 of their Report. They explain that:
"nearly two-thirds of all the firms of solicitors transact an insignificant volume of county court work. It would be wrong if the new level of charges were determined by reference to the work of those solicitors who incur high expenses because they do not specialise"
They go on to enlarge on this, but in the end they come to the conclusion that they could justify an increase in county court costs of 93 per cent. in the case of certain solicitors, and a lower percentage in the case of others. But they come down to the conclusion that a compromise would be an increase of 55 per cent. on the then current scale of costs of solicitors. The reason for that, of course, is that since 1956 the overheads of solicitors have increased enormously. Rents, rates, cost of staff, services and of course the selective employment tax, to which solicitors are particularly vulnerable because they tend to employ a greater number of staff than members of

1427
other professions—all these have established that the scale of costs fixed in 1956 was hopelessly outdated and the recommendation of the Prices and Incomes Board was that there should be a compromise increase of 55 per cent. on those costs.
This Report was published last month, and I should imagine that the facts in the Report were not present in the minds of the Rules Committee over which my noble and learned friend presided, because they reported early in February and this Report was published at a later date or at about the same time. Unless they had private knowledge of what was going into the Report they must have come to a decision without reference to it. I wonder what conclusion they would have come to if they had known that there was this recommendation from the Prices and Incomes Board for an increase of 55 per cent.
THE LORD CHANCELLOR: My Lords, I hesitate to interrupt my noble friend and I do so only in order to clear up the point. I heard that the Prices and Incomes Board Report was about to be published. We had three meetings of the Rules Committee and I think that this was after the second meeting. The third was deliberately put off for a week so that both the Bar Council and the Law Society could consider the terms of the Report before we came to any conclusion on the Rule.
LORD SILKIN: My Lords, if that is so, I am shocked—completely shocked—that the Rules Committee should have so completely ignored the recommendation of the Prices and Incomes Board, put forward in such a strong form. If that is so, I think that it makes our case all the stronger.
I ought to point out, in addition, that prior to the coming into force of the Matrimonial Causes Act undefended divorce cases have been conducted in the High Court and solicitors were entitled to, and received, High Court scale costs, which are considerably higher than the scale which is laid down in the Report of the Rules Committee. The work they are now to do in the county courts, under the Act which comes into operation on the 11th of this month, will be exactly the same. They will still have to receive
1428
instructions from petitioners, whether the petition is on the ground of adultery, cruelty, desertion or any other reason. They will still have to take careful instructions from clients. They will still have to put in all the same kind of attendances at court. There will still be the same standard of proof required; and, as those noble Lords who are members of the profession will appreciate, where a case is undefended a judge will insist on a much stricter standard of proof than he would if the case were being contested. Then there are the ancillary matters which solicitors have to deal with, as they do now in the High Court—alimony, custody of the children and settlements. Yet not only do these Rules provide this inadequate scale of costs as remuneration but there is actually a reduction of some 15 to 20 per cent. in the costs which solicitors are at present receiving for exactly the same work.
I have explained about the overheads which have increased so dramatically in the legal profession. They have increased all the more among solicitors because or the high rents which they have to pay, the larger amount of accommodation they need relative to other professions and the larger staffs required. The fact is that the Prices and Incomes Board came to the conclusion that the county court fees at present payable to solicitors were not sufficient to meet the overheads—in other words, that solicitors carrying out work in the county courts were carrying it out at a loss, not even recouping themselves for their outgoings. That is a position which is really not maintainable. It may be said, as I have heard one of my friends say, that solicitors can make up on the swings what they lose on the roundabouts. The kind of solicitors I am speaking for have few swings and few roundabouts, whichever is the more advantageous.
The Report refers to conveyancing costs. It says that the conveyancing costs, on which solicitors also depend, are inadequate in the lower ranges and ought to be increased. Of course, this is not before the House, but it is an indication of what those members of the profession in the lower income range are going through at the present time. I hope that my noble and learned friend will not argue that all is well in the profession because the average income is nearly equal

1429
to that of doctors, architects, accountants and so on. The fact is that there is a considerable number of solicitors who have very high incomes, because they are practising in the City of London and specialising in commercial work or company work and other well paid work of that kind. Some of them, I understand, are making £50,000 a year or more, and all that comes into the average, but it would he quite wrong to ignore the very much larger number with small incomes who go to make up the average. In fact, the Report of the Prices and Incomes Board is quite definite on the point: that there is a large number of solicitors, working single-handed or with one or two partners, who are in receipt of very low incomes and are undertaking work for which they are not even getting a proper compensation for their outgoings.
When this Bill was introduced in another place the question of solicitors' costs was raised and an assurance was given by the Attorney General that costs would be fixed on a fair and reasonable basis. Can anyone suggest that costs which involve practitioners carrying on at a loss can be fair and reasonable? I wonder how the Government or my noble and learned friend can expect solicitors to undertake work on which they are going to lose.
After all, the success of this Act depends upon there being a sufficient number of solicitors ready and willing and with the requisite skill and knowledge to undertake these cases. If solicitors will not come forward—and I can assure my noble and learned friend that there is already a strong movement in the profession that will involve quite a large number of solicitors not undertaking the work—the whole purpose of this Act will be frustrated and there will be great delay and heart-burnings among petitioners who have applied for divorce.
There is only one other thing I want to say, and it is this. I hope that the position as set out in these Rules does not represent the Government's last word. I am aware that paragraph 51 of the White Paper, Productivity, Prices and Incomes Policy, gives us a ray of hope that possibly this matter will be reexamined. It mentions the fact that the Government have referred to the Prices and Incomes Board the remuneration of
1430
solicitors, and architects' costs and fees, and then it says:
"The Board's report on solicitors' remuneration was published in February"—
that is, February of this year—
"and its recommendations are being considered by the Government."
If that is really a statement of the Government's intention; and if my noble and learned friend can give an assurance that that consideration will be objective and speedy, and in the light of the Report of the Prices and Incomes Board, then I shall feel that something has been achieved by this debate. But I can assure him that we shall not be satisfied with any lesser assurance. The legal profession is not content to let matters rest as they are; nor will the general public be, if they are aware of what is to be the likely outcome. I am hoping that my noble and learned friend will be able to give us the assurance that is set out in broad terms in this White Paper, and which I am seeking this evening. I beg to move.
Moved, That an humble Address be presented to Her Majesty praying that the Matrimonial Causes Rules 1968 [S.I. 1968 No. 219], laid before the House on February 29 last, be annulled.—(Lord Silkin.)
8.43 p.m.
LORD TANGLEY: My Lords, I should like to add just a few words in support of Lord Silkin's Prayer. I spent 28 years of my life in the Council of the Law Society, and it taught me many things. Perhaps the most vivid thing it taught me was that it is impossible to get laymen interested in lawyers' fees at all, except in a negative sense, So I want, first of all, to remind your Lordships to-night that this is just not an argument about lawyers' fees; there is something much more deeply involved in this than a mere question of fees.
I had some doubts—and I am sure many other noble Lords shared my misgivings—about the idea of divorce going to the county court at all. To put divorce into a court which deals with small debts, rent collecting, hire-purchase and matters of that kind, was, I thought, a dangerous thing to do; and I know that many other noble Lords thought the same. After all, divorce is a serious thing, and there is no branch of the law which puts more

1431
responsibility upon lawyers acting for people who are thinking of getting divorced. They are officers of the court. They have to see to a great many things which have to be brought before the court if the court is properly to decide upon the matter and, particularly, to exercise discretion in those cases where discretion has to be exercised. This is a serious and difficult matter, and personally I think it was a mistake to send divorce to the county court. If I had known that it was the intention to send it to the county court in circumstances which made it impossible for the county court properly to deal with these cases, then I think the opposition to the Bill would have been much stronger. That is what is happening now.
The situation is that all these matters will go to the county court. What is being offered to lawyers is a fee of £40 for the complete conduct of an ordinary average divorce case in the county court. That is not much more than half what solicitors are being paid for exactly the same work and the same responsibility in the High Court. That means that the solicitor who has the ordinary, normal overheads will either make no profit—that is to say, he will not be remunerated at all—or else he will get only an absolutely nominal remuneration. In those circumstances, there is no doubt in my mind that the system will break down. It will be impossible to get people to do the work on these terms. That is my first point.
The second point I want to make is that it is utterly wrong to take the ordinary county court scale and apply it to this new jurisdiction of the county court. It is quite wrong to say that because a solicitor can get up to £40, or in certain circumstances £45, for conducting a little action involving £300 or £400 damages, that scale should per se apply to the far more difficult and responsible work of conducting a divorce case. In those circumstances, I am afraid it is quite clear that what we have done is to send divorce to a second-rate tribunal, with second-rate representation, at cut prices. And that is not, as I believe, what we thought we were doing when we passed the Bill.
It is on those grounds—not only the petty squabble about whether a man should be paid £40 or £50—that I
1432
earnestly support the plea put forward by the noble Lord, Lord Silkin. I share his shock at the behaviour of the Committee. When it was urged in the other place that this Committee should be given some directions, here is what the Attorney General said:
"The Rule Committee is not specifically required to have regard to the principle of allowing fair remuneration. It is unnecessary to require it to have regard to that principle. As the fixed costs will be related to the amounts which might be expected to be allowed if the costs are taxed, regard will in effect be paid to the principle of fair remuneration. I do submit that it would not be appropriate that the Rule Committee should be told to have regard to this principle. I am quite confident that, in practice, it will have due regard to it."
In face of that undertaking given in another place by the Attorney General, the Rule Committee, knowing apparently what the Prices and Incomes Board was going to say (we have had that assurance to-night from the Lord Chancellor), expressly enforced a Rule 13 years old, which the Prices and Incomes Board committed to their knowledge and said was 55 per cent. too low. In these circumstances, it is quite impossible, in my submission, to go ahead with sending this work to the county court unless this proper provision is made for seeing that it is done properly when it gets there.
8.49 p.m.
VISCOUNT BRENTFORD: My Lords, I should like to declare a personal interest in this matter, as other noble Lords who have already spoken have done, in that I am a member of this profession. I wish to support the Prayer moved by the noble Lord, Lord Silkin, very strongly indeed. I rather tend to share the view expressed by the noble Lord, Lord Tangley, with regard to the Matrimonial Causes Act itself. But that has been decided by Parliament and, therefore, I am prepared to accept it, although I may not be feeling exceedingly happy about it. However, I take serious objection to the Matrimonial Causes Rules relating to costs. I consider that they are grossly unfair.
It may possibly be of interest to your Lordships that in my own firm the managing clerk in charge of the department came to the partners and said that we must give up doing all legal aid work in divorce cases because it was going to be run at a dead loss. The partners

1433
said that they considered we had a public duty to perform and we could not arrive at that decision straight away. But how long they would be prepared to continue and how much they would be prepared to expend in order to support their attitude towards performing a public duty, I do not know.
We have been told that the trouble stems from the fact that the Rules Committee have decided to base the remuneration of solicitors and of lawyers in divorce cases in the county court upon Scale 4 of the county court scales of 1955. They, as we have been told, have been unaltered for 12 years, and since 1955 practically every expense of a solicitor has risen out of all recognition. Not only have we had, in common with many other people, selective employment tax imposed upon us, but the contributions which we have to make under National Insurance have risen astoundingly. All salaries and wages have risen—and that we cannot regret in our own case because, generally speaking, the standard of salaries and wages in the legal profession was very low. I recall very well that when I first entered my firm, upwards of forty years ago, the standard salary of a typist was £2 10s. Now, of course, the standard salary of a comparable typist is about £15. The salaries of the secretaries run up to £20 plus. I do not say that that has all happened since 1955, but certainly I think that since 1955 the standard of those salaries and wages has risen by about 33⅓ per cent. And, of course, the standard of salaries of the clerks who carry out their duties has risen comparably.
In addition to that, all postages, telephone charges and charges of that sort have gone up; and stationery and printing charges have also gone up. As the noble Lord, Lord Silkin, said, in a great many cases rents have gone up, and in every single case rates have gone up. All those additional charges have to be borne by the solicitors, because if the 1955 scale was fair in 1955, it certainly can no longer be remunerative to solicitors at the present time.
The seriousness of this situation with regard to county court charges has been kept before the notice of the noble and learned Lord on the Woolsack and his predecessor, for it was as long ago as 1963, nearly six years ago, that the Law
1434
Society submitted a memorandum proposing an increase in county court costs. That did not achieve any satisfactory result, and so two years later, in 1965, further amended proposals were submitted on account of the increased jurisdiction of the county courts which by then had taken place. But even that, my Lords, was not the end, because as recently as July last year further proposals for a general revision of county court costs were submitted by the Law Society to the noble and learned Lord on the Woolsack.
In view of the Government's statements, to which my noble friend Lord Tangley has referred, which were made during the course of the passage of the Bill in another place, it really is quite incredible that the Rules Committee should have failed to take into their cognisance the inherent duty to prescribe costs which would reflect fair remuneration to the profession. That was an undertaking twice given by the Attorney General. In fact, the noble and learned Lord on the Woolsack himself expressed his very serious recognition of the state of affairs when he was speaking in 1966, and he made it quite clear that the profession had been so strongly hit by the additional charges which had been laid upon it that it was incredible that it was alone of all the professions and of all other businesses in that it had not been allowed to increase some of its charges for 11 years. So the noble and learned Lord was fully seized of the seriousness of the situation to our branch of his profession.
In addition, there are the statements which have been made by the Prices and Incomes Board, to which reference has already been made. But it is quite clear from them that contentious business is unremunerative, and if, as they say themselves, Supreme Court work is excluded from the remuneration the position is very much more marked. They recommend, as we have heard, that there should be an increase of 55 per cent. in all the county court charges for work which is done there. And in paragraph 66 of their Report, to which I think my noble friend referred, they mace this clear. They said, after referring to the fact that they by then knew it was intended that these divorce cases should be referred back to the county court:
"Determination of the charges for divorce work in the county court which have yet to

1435
be fixed should be consistent with our recommendation for an increase in the level of the county court income."
That recommendation has been completely and utterly disregarded, unless, as Lord Silkin intimated, it is possible for the noble and learned Lord to give us an assurance to-night that the recommendation for the increase of 55 per cent. will be accepted by the Government and will be applied to the scale which we are now being asked to pass. It certainly cannot be argued that a new scale based on a 12-year-old scale, which is already hopelessly out of date and which it has been recommended should be increased by 55 per cent., can in any event fulfil the recommendation made by the Prices and Incomes Board.
We feel that a good deal of this difficulty has come about as a result of the statement made by the Government during the passage of the Bill, that in consequence of the Bill when it became an Act there would be a saving of £400,000 per annum to the Legal Aid Fund. That is a very desirable thing to bring about if it is possible. But it ought not to be brought about at the expense of under-remunerating the people who do the work. The increased cost on the Legal Aid Fund has not been caused by increases in rates of remuneration to the legal profession; it has been caused entirely by the increase in the number of aided cases. In 1956 27,750 petitions for divorce were filed. In respect of 12,981 of those 27,000, certificates for legal aid were granted; that is to say, of the total number of petitions which were issued, 44 per cent. were legally-aided cases. Ten years later, in 1966, the total number of petitions filed had risen to 45,610, of which 31,188 had legal aid certificates granted, showing a rise to 69 per cent. in the proportion of petitions which were supported by legal aid. That is the reason for the tremendous increase in the operations of the Legal Aid Fund: that more people have become legally eligible for legal aid.
Therefore we feel strongly that this is something which is quite outside the responsibility of the legal profession. It is something for which the Government and Parliament are responsible, and for which they should pay the cost. The cost should not be forced upon the legal profession itself, for if that is so, only one
1436
of two courses can possibly be open to the profession: first, that they shall skimp the work in order to try to avoid making a loss on it. That would be quite disastrous, not only from the point of view of the reputation of the profession, but, more important, from the point of view of the welfare and happiness of the public who consult the legal profession in these cases. It would mean that work which is of the most serious and responsible character that the profession has to undertake would not be dealt with in a proper, right, reasonable, thoughtful and responsible manner.
The other alternative is that the profession would simply decline to accept legal aid divorce cases at all, and that is a very real possibility, as I have indicated, bearing in mind the feeling in my own firm at the present time. But for the smaller solicitor who specialises in the workings of the county court above all, it is a very likely thing to happen, and representations have been received by the Law Society from a great many of the local law societies in opposition to these new Rules. Therefore, my Lords, I hope your Lordships will agree with the mover of this Motion and that these Rules will not be passed.
9.3 p.m.
LORD CHELMER: My Lords, your Lordships may feel that, after the careful deliberations you have given to the niceties of the definition of the law of theft, to devote as much time as this to a consideration of the cost of administering the law is, so to speak, a surfeit of legal riches, but I make no apologies for detaining your Lordships for one moment to make what I think is a useful point.
First, in the current economic context solicitors are no strangers to a prices and incomes policy, because they have been subject to some form of statutory limitation since 1883. My second point is this. As the noble Lord, Lord Silkin, and others have said, the Prices and Incomes Board made it quite clear that the costs in these matrimonial causes—so-called "divorce", in common parlance—should be increased, and indeed recognised that by the increase of 55 per cent. which they proposed in other county court matters.
The Prices and Incomes Board is by no means animated by any sense of bias

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towards the solicitors, because in another field, that of conveyancing, they have proposed quite substantial reductions in their fees. They reached their conclusions without taking into account the operation of the selective employment tax or the more recent increase, and they defined the rewards for professional work as follows:
"Solicitors' remuneration is a price for services rendered. The proper criterion for looking at the price of a product is whether it adequately covers costs…and in addition produces a profit which makes for adequate investment and for an efficient allocation of resources."
One can almost hear the convolutary rumblings of the late Sir Edward Marshall Hall, wherever he may now rest, on this definition of the rewards for professional skills. So I think it could not truthfully be said that the Prices and Incomes Board was prejudiced in favour of solicitors. In fact they came out with this recommendation to which noble Lords have referred, and which was ignored by the Rules Committee.
The point which follows from that is that in 1939 the average party and party costs of an undefended divorce action was £46. In that year the average weekly wage of a wage earner was approximately £3 12s. In 1968, the Rules Committee propose that the party and party costs for an undefended divorce action shall be £40, and in 1968 the average weekly wage of a wage earner is something like £21. It may be said by many who argue against this proposition that this is represented by the change of jurisdiction from the High Court to the county court, but I do not believe that noble Lords can accept that in a period when weekly wages have risen by something like 600 per cent. it is a proper appreciation of the difference between those jurisdictions, bearing in mind the considerable responsibility which lawyers bear in this regard and which has already been referred to. I cannot believe that the increase of 600 per cent. in wages is properly measured against a decrease of 13 per cent. in the remuneration proposed in these undefended divorce actions, which represent the great bulk of such actions.
As has been said, it is not just what may be the brief formality in the divorce court which is the summation of the
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work done by the solicitor. That is the culmination of a great deal of preparation, of careful administration by Her Majesty's Judges and their staff, and preparation by the lawyers involved, which produces the brief formality. That represents countless hours of work done, including listening, very often, to the irrelevant outpourings of people who are deeply concerned about this critical period of their lives upon which advice is needed, and, very often, the counselling to prevent such a break-up taking place. Your Lordships will appreciate that work such as this requires skill and judgment of the highest order, and I suggest very sincerely to your Lordships that support for the Motion of the noble Lord, Lord Silkin, will make sure that that skill and judgment is maintained.
9.8 p.m.
LORD GRANVILLE-WEST: My Lords, although I would not support my noble friend Lord Silkin if his Motion were taken to a Division, I nevertheless feel, like the other speakers, that the Rules that have been made in connection with the solicitors' branch of the profession provide totally inadequate remuneration for the work they have to do. Indeed, I think one could say as a provincial solicitor that county court work has rarely ever paid. I might mention that even though at the present time I am prepared to accept the Rules as they are, the remunerations which will be received under the existing Rules are inadequate and in due course are bound to create great resentment throughout the profession. My desire not to support my noble friend in the Division Lobby is simply due to the fact that this is not the time for a professional body to seek an increase immediately in the remuneration which is proposed, when at the present time the workers of the country are being restrained in their wages. Nevertheless, I feel that there will in due course be a strong case for a revision of the scale which is proposed in connection with the county court costs as a whole, as well as a revision of the scale which is proposed for divorce costs in the county court.
Perhaps I should mention that as a member of the profession in my early days, in the days of depression in the 1930s up until Legal Aid was introduced, I know that solicitors and counsel, in

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order to assist poor persons, undertook divorce cases for nothing. We expected no remuneration at all, either counsel or solicitors, because we regarded it as a social service and we were content to play our part in the social services of the country. I think it can be said that in the Provinces much work is done by solicitors without thought of remuneration. But, of course, conditions in these days are different from what they were in the early days. As has been stated, rents and rates have increased, salaries have gone up, and it is indeed a very difficult time for provincial solicitors.
We have come to the conclusion that the county court scales cannot be accepted or worked in the future. We find that many of the young solicitors whom we article and train in the profession are leaving the practice of the profession and taking appointments with companies, with the national boards, with industry, because they realise that the prospects and the security in such occupations are far better than they can expect as practising solicitors. I would therefore urge the noble and learned Lord, the Lord Chancellor, to give very careful thought to the difficulties that provincial solicitors, in particular, will suffer as a result of the application of the Rules now before the House. Speaking for myself and, I believe, for many of the members of my profession, I say that we have the best will in the world to try to make this work, and to try to see that the unhappy and unfortunate people are well served; their their difficulties may be overcome by proceedings which we have to take. But unless these Rules are reviewed and these scales reconsidered, I am afraid that many of the provincial solicitors will have to give up county court work altogether.
9.13 p.m.
THE EARL OF IDDESLEIGH: My Lords, I think it would be rather regrettable if this debate were concluded without one person who did not belong to the honourable profession of solicitor making his comments. I will therefore, very briefly, say that I very much hope that the strong case that has been made out by noble Lords will receive Government attention. I know that there are some firms of solicitors, very respectable people, who do not take divorce
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work. That seems to me very regrettable. I know well that solicitors who do take divorce work are quite often able to reconcile the parties and prevent the break-up of marriages. I know, too, of the good work that solicitors do on marriage guidance councils; and I am not ignorant of their work as "poor man's lawyers", and of the help they give, without remuneration, to deserving cases. I share, therefore, the hope of other noble Lords that their case will receive most careful consideration.
9.15 p.m.
LORD FOOT: My Lords, as we draw towards the conclusion of this debate I should like to add a few words in support of this Motion. I would say to your Lordships at the outset that I do not relish the opportunity of speaking on the subject matter of the remuneration of solicitors, because it might appear that I am engaging in a piece of special pleading on behalf of my own profession. I do not like doing it, but this debate has been largely carried on by members of my profession, because, of course, this question of legal fees raises considerations which are quite specialised and esoteric, and only solicitors and people who have some knowledge of the profession can understand the issues that are involved. However, I should like to approach the matter briefly from what might be the layman's point of view. It seems to me that if it is looked at from that point of view, the history of these Rules has in it some elements of farce or low comedy which may have an entertainment value appealing to a wider public than solicitors and lawyers themselves.
How did all this start? How did it all originate? It originated in this way. The Government woke up to the fact that there was this increasing burden upon the Legal Aid Fund and upon the State, by reason of the expenditure on legal aid in matrimonial cases. That that was the origin of these Rules is made perfectly clear in the correspondence that took place between the noble and learned Lord the Lord Chancellor and the Law Society. In the course of one letter the noble and learned Lord said this:
"I am bound to say that much of the criticism of the Government's proposals, both in Parliament and outside it, seems to me to have been pretty wide of the mark, if it is accepted, as I think it must be, that something

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has got to be done to reduce the total cost falling on the Legal Aid Fund in matrimonial cases."
So that the way in which the argument proceeded was this: that something had to be done to cut down this increased burden in legal aid in matrimonial cases.
If, of course, it could have been contended that this increased burden was due to the fact that the scheme was ill-administered or uneconomically administered; or if it could have been said that there was some waste of public money which ought to be stopped; or if this had been another of those scandals that ought to be brought before the Accounts Committee; or if it could have been said that this increased burden of cost was due to the cupidity of the legal profession, that would have been one thing. But it was not due to that. Inquiries were made, and they disclosed that the reason why the burden of legal aid in matrimonial cases had increased was that there were more of them.
What was the Government's reaction to this? One might have thought that the Government would say, "Well, if more people are in a position to take advantage of the Legal Aid Scheme, if more people can bring themselves within its ambit, if more people want to take advantage of it, then we must accept the increased burden." After all, it must have been within the contemplation of the Government, must it not? when legal aid was introduced in the first place, that the burden falling upon the Fund would vary according to the number of people who took advantage of it or who might be in a position to take advantage of it from one time to another. But that was not at all the Government's attitude. They said "No; this is intolerable. Something has got to be done to reduce this burden".
If they wanted to reduce the burden of legal aid in divorce cases, what steps might they have taken? They might have tightened up the divorce laws, so as to make divorce more difficult. But that would have been contrary to all the trends of the time. As an alternative, they might have tightened up the legal aid regulations, so as to make legal aid not available to the less indigent applicants or to increase the amount of the contributions. These were things which they might have done. Instead, the
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solution which they hit upon was to say, "We will take it out of the lawyers." I said earlier that the matter had in it some elements of farce. The title of this farce is, "How to win friends and influence people without actually paying for it."
The machinery to do this lay to hand because, as the noble Lord, Lord Silkin, has explained, from time immemorial the remuneration of the legal profession in matrimonial cases has been on the High Court scale. That is a scale which attaches a particular sum to particular items of work but, for the most part, leaves the decision as to what remuneration is to be paid to the legal profession, both solicitors and barristers, to the discretion of the taxing master or the registrar, who looks at the amount of work done and decides what is a fair remuneration for that work. If it was contended that the scale was too generous, then the solution would have been to scale it down. But it could not be contended that the scale was too generous because it has recently been found by the Prices and Incomes Board that in general terms litigation—that is to say, contentious business—is unremunerative to the legal profession. Therefore it could not be said that this scale is too high.
What did the Government decide to do? They said, "Well, we cannot get away with that, so we will transfer the matrimonial causes—at any rate undefended divorces and ancillary matters—to the county court, which will enable us to pay the lawyers on the county court scale." This had two effects. In the first place, under the county court procedure there is no need for counsel to be engaged. In the county court solicitors have a right of audience, and therefore the expense of counsel can be got rid of, and the burden, obligation and responsibility—a burden which previously was carried by the Bar—can be thrown on to the solicitors. Secondly, the county court scales have always been lower than the High Court scale, and therefore one will be able to bring the matrimonial business within the lower scale of the county court.
This transfer of matrimonial causes to the county court had two great advantages from the Government point of view. First, it threw additional burdens and responsibilities on solicitors; and, secondly,

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the Government were going to get all the work done at cut rates—at rates which have been declared by the Prices and Incomes Board to be quite unremunerative and inadequate. This affords an interesting commentary on the White Paper which appeared to-day, in which the Government reaffirm that they are prepared to reconsider an increase of remuneration if it is strictly tied to an increase in productivity. What is being done under these Rules, however, is something quite different. What is being done here is that the legal profession, the solicitors, are having required of them an increased productivity, and the consideration for it is an enforced reduction in their remuneration. The increased cost of Legal Aid to the State is to be met by requiring solicitors to accept a scale which has been found by an independent body to be wholly unremunerative.
That, no doubt, is what the noble and learned Lord, the Lord Chief Justice, had in mind when he was speaking at Cambridge in October, 1966, on the occasion to which another noble Lord referred earlier. I think he was addressing the Labour Party and he said, speaking of solicitors' fees in general and referring in particular to the county court scale:
"Show me any other body of men in the country who, with rising overheads and staff on whom they now have to pay selective employment tax, have not been allowed to increase some of their charges for eleven years."
I imagine that the challenge there was rhetorical. If he wants to find any other body of men who are in that plight, I can only suggest that he might direct his inquiries to the Charity Commissioners.
I should like to conclude—and I am sorry that I have detained your Lordships for longer than I intended—with a footnote to what the noble Lord opposite was saying just now. I should like to speak now as one of those general practitioners in the law, and a provincial practitioner at that. We do not claim to have any excess of virtue or sense of public duty, and I should lose your Lordships' patience if I claimed any such thing. But the fact remains that, in common with all other reputable professions, we from time to time have
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to do work for nothing or for inadequate remuneration because of the particular circumstances of the case, because we are confronted with a client who is without adequate means and does not come within the ambit of the Legal Aid scheme. We are faced with the alternative of doing the work for that person or turning him away, and I like to think that the great majority of my profession do not turn people away in such circumstances. There is nothing remarkable about that. There is nothing greatly to our credit about it. It is something which is done by members of all reputable professions.
But these Rules confront us with something which is quite different. They are writing into an Act of Parliament, and writing into Orders made under that Act of Parliament, that over a wide range, a not insubstantial part of the business they do, solicitors are to be required from now on to accept a remuneration which involves them in an actual loss. That is a very different matter indeed, and I respectfully submit to your Lordships that as a matter of public policy it is wrong that a Government should handle a matter of that kind in that way.
9.29 p.m.
LORD GOODMAN: My Lords, after the very persuasive and eloquent speeches which your Lordships have heard on this subject, which I think we must all agree, whatever importance we attach to it, is not the most important subject in the world, you might conclude that no further arguments could conceivably be devised on the matter; or that if human ingenuity, and even solicitors' ingenuity, could devise further arguments you would tolerate being deprived of them even permanently. But there are one or two things which I should like to say quite briefly on this subject, in support of the Prayer of the noble Lord, Lord Silkin.
The first point I should like to make is this. I would hope that a profession which has a very honourable record of public service, notwithstanding what the noble Lord, Lord Foot, may have said —and I do not think he was saying anything to the contrary—will not over-stress the suggestion that it will not participate in these matters on account of questions of remuneration. I do not believe that, in the end, lawyers in any

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category, and solicitors in particular, will be deterred from rendering public services by any selfish consideration arising from their remuneration. But if I may say so, to my mind that makes it doubly important that solicitors should not be penalised in this fashion, because they will, I think, undertake the work whatever may happen. Solicitors have an exceptionally fine record in the way of organising the whole of the Legal Aid Scheme, which is a very splendid social feature of the services we now provide in this country. The Law Society in particular—and I can speak in praise of the Law Society without any suggestion that I am praising myself, since I have had no formal association with it except as a mere solicitor member—has, I think, carried for years the brunt of the administration of the whole of the legal aid system, and was very actively and primarily engaged in devising the system. I think it is fair to say that but for the activities of the Law Society and the activities of solicitors as a whole the legal aid system would not have been a success and would not be shaped as it is to-day.
The second point I want to make is this. I find myself unusually in disagreement with my noble friend Lord Tangley on the question of the transfer of divorce cases to county courts. This is something which I personally welcome very much. I thought it was an important sign of the democratisation of our legal system. If I may say so, it was a development introduced by the noble and learned Lord the Lord Chancellor, in key with the many reforms which he is introducing. I think it is an important reform, and I think it is extremely important that it should work. I think, therefore, that it behaves the people who have made this change to see that it works, and one of the requisites for making it work is that no one should have the feeling that this is justice "on the cheap", or that any litigant concerned in having his matrimonial affairs adjudicated upon in the county courts is having a less careful, less accurate and less meticulous trial than would have taken place in the High Court.
I have on previous occasions alluded to what I have myself regarded as the excessive arguments addressed to the question of retaining matrimonial causes in
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the High Court, because the nature of the administration of justice in the High Court in relation to matrimonial matters did not invest it with any particular dignity. Lawyers who practised in those courts will remember the hastily contrived, nissen-type huts and quarters in which cases were conducted. They will remember that the cases were admirably conducted by county court judges—the self-same judges who will conduct them now. It seems to me that to have devised a rate of remuneration which is demon-strably inadequate—one has only to mention the amount to see how, by current standards, it is inadequate—gives rise to something more than an apprehension that people coming into those courts to have this most important matter dealt with, this most vital matter in relation to their personal lives, will have a very distinct suspicion that they are not receiving the same service, that they are not receiving the same care and attention, that they would have received previously. I think it is on these aspects of the matter, and not on the narrower question of the remuneration of solicitors, that the real importance of this debate attaches.
It is also important that the Government should realise the difficult position in which professions as a whole, and solicitors particularly, are placed 10-day through the various economic trends and tendencies. Office rents are enormously increased and rates of pay of clerks and other employees are greatly increased, but rates of remuneration have not increased proportionately. Solicitors as a profession—and, if I may say so, I think that in this respect the Bar are worse treated than solicitors—have little or no opportunities of saving, have little or no opportunities of amassing any kind of provision for their futures, except those provisions which arise under the Finance Act insurance schemes of which the House will be aware. It is very important that these professions, which are so vital to the maintenance of so many features of life in this country, and particular to the maintenance of very crucial liberties in this country, should not have placed upon them a burden which they cannot sustain.
Therefore there is a much wider question involved in this debate than the mere question of whether a particular piece of work done by a particular person

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should be remunerated at a rate of 6s. 8d. or 10s. 6d. It is, I think, a question of maintaining the standards of a profession whose standards are now seriously challenged. It is on this general ground that I hope the Government will reconsider the matter and give heed to the persuasive arguments of the noble Lord, Lord Silkin, and those other Members of your Lordships' House who have spoken in his support.
9.35 p.m.
LORD WRENBURY: My Lords, I, too, am a solicitor, but I do not practise in divorce. I wish to make a few short points. It seems to me that if this remuneration is to be just, it should provide a decent living for somebody who specialises in this kind of work. The normal country solicitor, if he is in a modest way of business, hopes to earn a gross annual income of around £3,500. His overheads are probably 70 per cent, so he retains only 30 per cent, for himself. Working on those figures, I think that he must earn over £11,000 a year at this kind of work if he is to earn a decent living for himself. If one works on the basis of each case being remunerated at £55 and on his being an advocate and not employing counsel, he must do some, thing like one case per working day in order to make ends meet. Allowing for the fact that he does not do the whole thing himself but has to employ a secretary and a clerk to do the filing in the court, I calculate that the amount of time he is going to have to spend on each of these cases is not more than between five and six hours. This may seem a reasonable amount of time if you never leave your office; but if you go to the county court—and this applies to any kind of county court practice—it cannot be done by appointment. You turn up at the beginning and you await your call. You may be unlucky or you may get in quite early. But you can spend a whole morning waiting about in a county court, and that could represent some three or three-and-a-half hours of your time.
What I should like to know is this: has the calculation been done in reverse? Has anybody tried to calculate how much time is going to be allotted to the client for this kind of case? It seems to me that this is an important calculation;
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for once you get to the stage that the principal cannot handle this work economically then divorce practice is going to be relegated to the managing clerk, who is paid about half as much and who therefore can take twice as long to do the job. I cannot believe that divorces in this country should be run on a sort of managing clerk level; that a kind of debt collectors' service is really the way to do it. I support what the noble Lord, Lord Goodman, has said: that there is a limit to how far down the scale one ought to go in this type of work. That is all I have to say; but it seems to me that even on the basis of the Law Society's suggestion it is cutting it as fine as it possibly could be. If sufficient time is to be given I do not see that this work can possibly be dealt with at the level now suggested.
9.40 p.m.
THE LORD CHANCELLOR: My Lords, I have listened with great interest and with sympathy to the eight noble solicitors and to the noble Earl, Lord Iddesleigh. There are some things which all lawyers know and which perhaps I ought to explain. The first is that the Government do not leave it to the lawyers to decide what is a High Court case and what is a county court case. That has always been dealt with by Parliament. Secondly, the lawyer gets higher costs in the High Court than in the county court. Thirdly, at all times there is a movement one way or the other. Either the lawyers are doing this year for higher fees what they did last year for lower fees, or vice versa.
The reason, in the main, is that the county court jurisdiction depends on the amount in dispute, and this has gone up with the fall in the value of money. As a matter of interest, in 1846 it was £20; in 1850, it was £50; in 1903 it was £100; in 1938 it was £200; in 1955 it was £400; in 1966 it was £500. When Parliament is making no change, then as the value of money, in terms of goods, is always going down (or, if you like to put it the other way, the cost of an average secondhand car is going up), all the time it is happening, a car about which an action last year could have been heard in the county court this year will have to go to the High Court. Lawyers do not always complain that it is not right that for doing exactly the same case, in

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exactly the same way, they should be paid High Court costs when last year they were doing it at county court costs, and nobody expects them to complain. But it is always happening one way or the other. The moment that Parliament puts up the county court limit, immediately the lawyers have to do at county court rates work for which the day before they got High Court rates. Then again, when the value of money falls they are getting paid on a High Court scale for what they previously did in the county court.
Ultimately, the result of all this at the present time, assuming that £200 jurisdiction was about the right figure just before the war, as it was, the county court jurisdiction to-day ought to be £700. It is £500. So to some extent the lawyers are still getting as High Court cases some cases which really ought to be heard in the county court.
My Lords, perhaps I may just say a word as to divorce history. It is quite true that one of the things in the Government's mind has been legal aid, because until 1960–61 we always spent on civil legal aid £1 million. The total went up every year. In 1960–61 it was over £1 million; the year after that it was £2½ million; the year after that it was £3½ million; the year after that it was £4½ million; the year after that it was £5 million, and the year after that it was £5½ million. Now, it is running at the rate of £6 million; which is for civil legal aid, apart from criminal legal aid; and there are limits to the taxpayers' pocket. But the suggestion that undefended divorces are being sent to the county court simply to save money is not true.
I agree with the noble Lord, Lord Goodman, that this is the right thing to do. After the war, in 1949, as the noble Lord, Lord Foot, will remember, there were so many divorces that the High Court Judges simply could not try them. The noble and learned Lord, Lord Denning, was Chairman of a Committee which sat to decide what was to be done about this problem. I myself suggested, on behalf of the Society of Labour Lawyers, when I gave evidence before that Committee, that undefended divorce actions ought to be tried in the county court. This was on principle, because, after all, these cases are undefended,
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twelve-minute cases, and they did not seem to me to justify High Court costs, even in those days.
Your Lordships may remember that when the recent Act was introduced as a Bill the noble and learned Viscount, Lord Dilhorne, said he was rather embarrassed at having to agree with everything I said, but that had there been a Conservative Government they were going to do exactly the same thing—only, he said, they would have cone it more quickly. If these cases are transferred to the county court, obviously the lawyers are going to get less. I said at that time that I estimated the saving at £400,000 a year. My noble friend Lord Silkin said he warmly welcomed the Bill; he was entirely in favour of it. He did not say that it could not be right for the lawyers to get £400,000 a year less than they are getting at the moment. He welcomed the Bill; he thought that it would save more than I had suggested because people would have their cases tried locally.
My Lords, on the timetable, if I may get this right, the Bill which is now an Act was ready for introduction in October, 1965, but owing to the pressure on legislative time, had to wait until the October, 1966, Session before being introduced. It became law in July. In the summer, Rules were drafted, and I intended to bring them into operation on January 1. But then the Law Society (whom we naturally always consult about Rules), said that they had a very great deal to do, and that when the Rules are published solicitors have got to understand them and get used to them. I thought that was reasonable, and agreed that we should not start until April 1.
I do not want to get involved in quantum. I do not accept Lord Tangley's £40. In a legal aid case I should say that it is more like £59. But I agree—and I have said this publicly for the last two years—that solicitors are having a difficult time. They are overworked. There is a great shortage of solicitors. The Law Society themselves reckon that they are short of 5,000 solicitors—about 25 per cent. There are 30 jobs for every newly qualified solicitor now. They cannot get staff. Their overheads go up all the time, and they are subject to S.E.T.

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One thing that is quite plain is that county court fees—and this applies to both barristers and solicitors—could not possibly be right, because they have not been increased for twelve years. Anything fixed twelve years ago, when we think of the increases in salaries, in telephones and every sort of thing, could not be right now. Therefore I was not at all surprised when I received an application from the Law Society for an increase in county court costs. Unfortunately, we are subject to a prices and incomes policy and, as this morning's White Paper says:
"Many individual salaries and other forms of remuneration, including that of company directors and executives, are fixed outside the usual process of collective bargaining. The principles of incomes policy should, however, be applied equally to them as to other forms of income. The incomes and scales of charges and fees of self-employed persons, including all forms of professional fees, are expected to conform with the policy."
Therefore, any Minister with power to fix remuneration has to comply with the prices and incomes policy.
The Secretary of State for Economic Affairs and I had to refer this matter to the Prices and Incomes Board. What the Board said was fairly indicated by my noble friend Lord Silkin. Having carried out an extensive sampling of solicitors' incomes and compared them with what they were at the time of the Pilkington Committee about nine years ago, they found it untrue to say that solicitors were earning enormous incomes. They found that about one-quarter were earning over £6,000 a year and a quarter less than £2,500. What they said was that solicitors have kept up with the Joneses. Looking at the increases in earnings between the time of the Pilkington Committee and the present, they found that the increase in solicitors' incomes was just about the same as those of other professional men. They have fared a little better than the architects, and not quite so well as the doctors. Therefore, there was no justification for any general increases in solicitors' incomes. But they said that solicitor's earnings were too little in county court work, and too much in other forms of work. They said that county court costs were obviously too low and an increase of 55 per cent, would be £2·4 million. Then they said that lessee's solicitors
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should get the same as the lessor's solicitors. That would be another £0·9million. Finally, the increase which they thought necessary to encourage the conveyancing of lower priced houses would add a further £0·8 million to total income. These increases would total £4·1million and the reduction elsewhere was therefore appropriate. They then said that in the middle ranges of conveyancing there should be the same total reduction as they were recommending increases. This is a package deal.
I do not think it is generally understood that the result of this is this. First of all, obviously, this being a package deal, the solicitors cannot get the increases and pay no attention to the decreases. Secondly, nothing can happen in any case unless and until the Government have decided whether or not they are going to accept the Report. I am not in a position to make any statement about that, because it has always been the right of anyone affected by a Report to make representations to the Government against the Report.
Within 48 hours of the Report's being published I asked the Law Society whether they wanted to do this. I told them that I could not tell them whether the Government would accept the Report or not. I said: "All I can tell you is that, on the one hand, if they do not accept the Report it will be the first time the Government have not accepted a Report from the Prices and Incomes Board. On the other hand, it may seem wrong—I do not know—to some of my colleagues to implement a Report which means that poor people buying houses will be charged more and richer people will be charged less. But it will be for the Government to decide". They said they wanted to make representations against the Report. So at the moment the matter is entirely in the court of the Law Society. I have told them that I hope they will let me have their representations as soon as possible, because the sooner they get the increase which in county court cases they ought to have, the better, so far as I am concerned.
I have also said to them: "We do not want further delays. If you are going to consult local law societies, and so on, about your representations, I hope that you will save time by thinking about two things: first, how exactly you are going

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to work the reductions in conveyancing; and secondly, how exactly you want to work the increase in county court fees. If you are going to get an increase of 55 per cent., do you want it straight across the board, or do you want an increase of 70 per cent, for debt collecting work"—which solicitors say is worse paid than anything else—"and 10 per cent. for divorce, or what?" I hope that this is being done. But it is for those reasons that there is nothing further I can do at the moment.
Three Orders were made on February 21. First, an Order bringing the Act into force on Thursday of next week. That is an Order which cannot be annulled and which the Government have no power either to withdraw or to amend. The second, on the same day, was the Rules Order—that is, the Rules other than costs—and that is the first of the Orders which my noble friend Lord Silkin would wish to annul. But nobody suggests that there is anything wrong with the Rules. I think one or two speakers have gone out of their way to explain that they do not quarrel with the Rules; they are only quarrelling with the Costs Rules.
The other Order which my noble friend seeks to annul is, of course, the Costs Rules. As I have said, I have great sympathy with solicitors, and to some extent the Bar, too, in so far as all county court costs are too low. All I can say is that, having a Prices and Incomes Act, the application had to be referred to the Board. The Board have now made the Report, and nothing can be done until the Government have decided whether or not they are going to accept the Report. For that I am waiting for the representations which are being made by the Law Society.
There are two other points that I should like to mention. It is not accurate to say that solicitors who work in the High Court and who used to have an average of £65 a case are now getting less for doing exactly the same work. It will not be exactly the same work for this reason: that in some dozen different ways we have simplified the new Rules. We have taken out steps which used to have to be taken, like an affidavit to support a petition, like the solicitors having to find the petitioner and serve him. The court is now going to do the
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serving, so it will not be exactly the same. Solicitors will not have as much work as before.
The other thing which I think I should mention is this, because nobody has mentioned it at all and those who are not lawyers would not know it. For years and years solicitors, particularly young solicitors, have said to me, "You know, it really is absurd that I am not allowed to do my divorce cases. For twenty years they have been tried by my local county court judge. It is this monopoly of the Bar. I have to get a barrister to do these cases, and it is absurd, really, because I do personal injury cases, factory accident cases, cases which may last a day, or two or three days, before my county court judge, some involving medical evidence, and difficult questions of law. Yet here is an undefended case that lasts 12 minutes and I am not allowed to do it". The persons who are really affected by this are the barristers, because for the first time every solicitor will be able to do all his undefended divorce cases himself. You would not think that, because in the large brief which has been sent out by the Law Society, which I have seen, to every solicitor Member of the House, this seems to be the one relevant thing which is not mentioned. There is a Birmingham solicitor who has engaged a young solicitor to do all his divorce cases. After all, you can do a dozen in a morning at £60 a time. It is not all that bad. And whether they do them all themselves is entirely a matter for them, but they could. If so, of course the Bar—this is a straight transfer of money from one branch of the profession to another—will lose the whole of this work—
LORD GOODMAN: My Lords, I hesitate to interrupt the noble and learned Lord, but he may be so carried away by his enthusiasm that he may be giving a rather unfortunate impression, that a dozen divorce cases can be completed in one morning from beginning to end by a solicitor. I think that would be an unfortunate impression to convey to the public at large.
THE LORD CHANCELLOR: I did not mean of course that he prepares the whole case in a morning. I am talking about the hearing. A dozen cases can be done at one hearing, but of course the

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fee he gets, like the barrister's, covers work previously done. As I said, I am very sympathetic to lawyers about county court fees; they are obviously not enough, having been fixed 12 years ago. I am anxious to help in every way I can to see that in this respect the Report of the Prices and Incomes Board is implemented. It means, I am afraid, so far as solicitors are concerned, that some of the conveyancing fees will also have to be reduced. But it may be that both courses are right, because we must face the fact that the value of land has gone up so much. But, of course, being paid on a scale is of great assistance.
My Lords, I do not think I can say any more, except that these, of course, are Government Orders, and about public expenditure, because so far as Section 9 of the Act is concerned (which is the section under which these Costs Rules are made), this was, I think, subject to a Privilege Amendment, and as this concerns money it is peculiarly a matter of the other House. On those grounds, I would ask the House not to accede to my noble friend's Motion.
9.59 p.m.
LORD SILKIN: My Lords, as a matter of fact I was going to ask the House to do exactly the same; that is, not to accede to my Prayer, because, for one thing, this House has never since, I think, 1911 successfully prayed against, or even divided against, a Statutory Instrument; and I should hate to create a precedent after all these years. Secondly, my noble and learned friend has to some extent given us a little satisfaction; and I think fully justified the Prayer which I put down. I hope he was not meaning to draw any particular significance from the fact that eight of the speakers were solicitors. After all, they know where the shoe pinches, and they are in the best position to say—far better, even, than barristers—that a gross injustice has been done. Therefore I was glad to find that my noble and learned friend was in sympathy with that view and that there is a hope that something will be done.
I am sure the Law Society will make their representations, and I am equally sure that we, as a profession, will be very willing indeed to look at the other aspects of solicitors' costs, such as conveyancing, where on the one hand in the case of the
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smaller conveyancing transactions it is proposed to increase the fees, and on the other hand in the case of the larger ones it is proposed to decrease the fees. We are perfectly willing to consider all these things sympathetically. But the purpose of this debate was to draw special attention to this particular Rule which was asking the members of the solicitors' profession to undertake work for fees which admittedly not only were unremunerative but would have involved them in a loss; and if there is any hope that that state of affairs is going to be remedied then I am sure we have justified the purpose of this debate. In those circumstances I beg leave to withdraw this Motion, and I do not propose to move the second Motion standing in my name.
Motion, by leave, withdrawn.

EPPING FOREST (WATERWORKS CORNER) BILL [H.L.]
Commons Amendments, considered, and agreed to.