Lords Sitting of 15 February 1968

Preamble
The House met at three of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Chichester.
The Lord Tedder—Sat first in Parliament after the death of his father.

ROYAL ASSENT
3.5 p.m.
THE LORD CHANCELLOR (LORD GARDINER): My Lords, I have to notify the House, in accordance with the Royal Assent Act 1967, that the Queen has signified her Royal Assent to the following Acts:

Erskine Bridge Tolls Act,

Administration of Justice Act,

Trustee Savings Banks Act,

London Cab Act.

SYNTHETIC SWEETENERS IN FOOD
3.6 p.m.
LORD DOUGLAS OF BARLOCH: 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 synthetic sweetening agents are permitted to be added to foods and beverages, and what obligation there is to disclose the presence of these substances to the consumer.]
LORD BESWICK: My Lords, the artificial sweeteners which may be used in foods and drinks are those forms of saccharin and cyclamates which are named in the Artificial Sweeteners in Food Regulations 1967. As a general rule, where a food contains any artificial sweetener, the label must declare the fact.
LORD DOUGLAS OF BARLOCH: My Lords, arising out of his reply, may I ask my noble friend whether it is not the case that all these artificial sweeteners have no nutritive value whatsoever?
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And may I ask also whether, in the case of cyclamates, there is not evidence that they are toxic?
LORD BESWICK: My Lords, the answer to the first part of the noble Lord's supplementary question is that they have no nutritive value, and I am aware of this. In answer to the second part, I know that the noble Lord holds the view that they have a toxic quality, but the very authoritative Committee which sat on these matters is of a different opinion.
LORD DOUGLAS OF BARLOCH: My Lords, may I ask my noble friend how permission to use these synthetic sweeteners in foodstuffs and drinks can be reconciled with the direction contained in the Food and Drugs Act that the Minister should have regard to the desirability of restricting as far as practicable the use of substances of no nutritional value as foods or as ingredients in foods?
LORD BESWICK: My Lords, I reconcile that by the fact that the regulations are very selective in these matters. For example, in the case of ice cream, because it is necessary to increase its nutritive value, these particular sweeteners are not allowed. In the case of certain other articles—for example, soft drinks—the amount of artificial sweeteners is severely limited in order to ensure that nutrition from sugar is included in the composition of the article.
LORD BYERS: My Lords, is the noble Lord aware that, unlike the noble Lord, Lord Douglas of Barloch, some of us like to take saccharin because it has no nutritional value?
LORD DRUMALBYN: My Lords, is the noble Lord, Lord Beswick, also aware that cyclamates present a rather different problem from that of saccharin, because it is generally thought—in fact, it is recommended—that there is a safe daily limit of intake? Is the noble Lord not aware that the reason why it is thought that cyclamates should be specified definitely is that it will enable people to judge whether that daily safe limit is being exceeded?
LORD BESWICK: Yes, my Lords, it is the fact that saccharin has a bitter after-taste for some people and that

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cyclamates have not such a taste, and are therefore more suitable in certain cases. The more cynical, however, may well say that cyclamates are more widely used in some of these articles, because they are cheaper than saccharin.
LORD DRUMALBYN: My Lords, has not the noble Lord, Lord Beswick, entirely missed the point of my question? This is a question of the safety of the daily level of intake. Would he look further into this subject and have a word with his right honourable friend on it, because it is a matter which is raising a considerable amount of comment? It is thought that perhaps it would be better to have cyclamates specified definitely rather than simply included under artificial sweeteners.
LORD BESWICK: My Lords, I am sorry; I take the noble Lord's point. If more than a certain quantity of some of these sweeteners is taken it is thought by some that there would be a possibility (I put it no higher than that) of its having certain laxative effects. But I do not think the danger of that is very great. If the noble Lord, Lord Drumalbyn, would like more details, I would gladly send them to him.
BARONESS SUMMERSKILL: My Lords, may I ask my noble friend whether I am right in thinking that the Food and Drug Administration of the United States of America prohibited the use of cyclamates?
LORD BESWICK: My Lords, the position is, as I understand it, that the question has been raised in the United States by a number of people, including friends of the noble Lord, Lord Douglas of Barloch; but at the present time the regulations there permit the use of these artificial sweeteners.
LORD DOUGLAS OF BARLOCH: My Lords, may I ask my noble friend whether he is aware that since the Food Standards Committee made its recommendation about cyclamates more data has been published, indicating that they may be toxic in themselves, or that they break down into other toxic substances?
LORD BESWICK: Yes, my Lords, one body did find that there was a suggestion, that there was a breakdown into other substances. That possibility, although
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not particularly dangerous, is now being followed up by another body.
LORD CHAMPION: My Lords, may I ask whether my noble friend was talking about a Committee in the United States of America, and, if so, will he make that clear?
LORD BESWICK: My Lords, I have been talking about a number of Committees and other bodies. In answer to the question put by my noble friend Lady Summerskill I was talking about regulations in the United States. In answer to the question put to me by Lord Douglas of Barloch I was talking about the examination by a body in this country who came to a certain finding which did not cause any undue alarm; but the possibilities to which they pointed are being followed up by another body.
LORD LEATHERLAND: My Lords, is my noble friend aware—before we get too deeply interested in this subject—that there is some toxic characteristic in practically every food we eat and every beverage we drink?
BARONESS SUMMERSKILL: But there is no reason to add to them.

STANSTED AIRPORT RUNWAYS
3.12 p.m.
LORD BALFOUR OF INCHYRE: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether local residents whose properties may for the first time now be affected by the proposed re-alignment of projected runways at Stansted Airport are to have an opportunity to protest and make representations on the new runways.]
THE PARLIAMENTARY SECRETARY, MINISTRY OF HOUSING AND LOCAL GOVERNMENT (LORD KENNET): My Lords, it will be known to your Lordships that my right honourable friend on January 12, 1968, consulted local authorities and local interests in the area about a proposed realignment of the runways at Stansted. Most of those consulted have now replied to my right honourable friend and many of

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them have raised the issue posed in the noble Lord's Question. All these replies are now being carefully considered by my right honourable friends.
LORD BALFOUR OF INCHRYE: My Lords, arising out of that reply, may I ask when the Government will be in a position to give an assurance that those newly affected by the proposed realignment of runways will have, in the name of justice and fair play, and possibly in the name of the law, the same opportunities as the original citizens affected, who had a chance of making representations at a public inquiry?
LORD KENNET: My Lords, I cannot put any particular date on anything which might be said by the Government, but I repeat what I said in my original Answer, that these matters will be considered since they have been pointed out by the local authorities and other interests.
LORD SILKIN: My Lords, is it not a fact that the Minister has stated definitely that there will be no further inquiry? If that is the case, how is that consistent with his genuinely looking at the representations that have been made and considering them?
LORD KENNET: My Lords, since the consideration of the representations is proceeding in these very days, I hope that the noble Lord will understand when I say that it would be discourteous to those who had made the representations if I were to say any more at this point.
VISCOUNT DILHORNE: My Lords, while welcoming the Minister's statement, which clearly indicates that there may be a possibility of some further inquiry, could the noble Lord say whether or not the consultation to which he referred consisted of more than just the writing of one letter?
LORD KENNET: My Lords, it consisted, first of all, of consultations about how to consult; secondly, the sending of an account of the proposed realignment accompanied by certain maps and supporting data; and it now consists in considering the answers to what had been sent.
LORD MACPHERSON OF DRUMOCHTER: My Lords, would the
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Minister agree that when Stansted was originally recommended one of the main advantages was the existing 10,000 ft. runway?
LORD KENNET: My Lords, that is another question, which I should be grateful if the noble Lord would put down for separate answer.

DECIMAL CURRENCY: BASIC UNIT AND INAUGURAL DATE
3.15 p.m.
LORD AIREDALE: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether, now that the British penny equals the U.S. cent, they will consider decimalising the currency by selecting a major unit of 100 pennies, equal to one dollar; thus achieving parity between the world's two reserve currencies.]
LORD BESWICK: My Lords, the view of Her Majesty's Government is that the decimal currency system based on a major unit of the pound sterling is best suited to both the internal and external purposes of the United Kingdom. The incidental fact that the British penny now equals the United States cent is no reason for considering a change to an inferior system at a time when planning is well advanced—I say, well advanced—for the change over to the system for which the Decimal Currency Act 1967 provides.
LORD AIREDALE: My Lords, I am obliged to the Minister for that answer. "Well advanced" has a rather imprecise meaning. Would it be possible for the noble Lord to explain a little more precisely what is meant by those words?
LORD BESWICK: My Lords, I do not think it would be proper for me to go into too much detail as I understand that there will be an announcement later on this afternoon by, among others, the noble Lord, Lord Erroll of Hale. But I think I can say that "Decimal Day" has been fixed now as February 15, 1971, and my noble and learned friend the Lord Chancellor has been invited to place in the Library of the House five

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specimen coins of the new denominations, which will be available for inspection after 4 o'clock.
LORD ERROLL OF HALE: My Lords, though it is very improper for me to do so, may I crave your Lordships' indulgence to intervene, in order to say that the Chairman of the Decimal Currency Board is the noble Lord, Lord Fiske, who will be taking a more prominent part in the Press Conference than I shall, but I appreciate what the noble Lord said about my participation in it.
LORD AIREDALE: My Lords, will the Government continue to study the currencies not only of the United States, but also of Canada, Australia, New Zealand and South Africa? Are the Government really determined that we shall remain for ever out of step with practically the whole of the English-speaking world in the matter of currency?
LORD BESWICK: My Lords, I am sure that we shall never reach the stage when it will not be profitable at least to study what is going on in other parts of the world, but I am sure that the noble Lord will agree that, having decided by vote of both Houses of Parliament, to embark on a certain policy, we ought now to make a success of that, especially as planning is so far advanced. May I take the opportunity of saying that, looking as I do at the noble Lord, Lord Erroll of Hale, he was more significant in my sight than my noble friend Lord Fiske, whose pardon I beg.

ASIAN IMMIGRANTS FROM KENYA
3.19 p.m.
LORD MILVERTON: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether the newspaper report (The Times, January 25, 1968) that Asian immigrants are coming into this country from Kenya at the rate of more than 1,000 a month is correct; and, if so, whether these particular immigrants have an unquestioned right to enter this country, and, if so, why.]
THE MINISTER OF STATE, HOME OFFICE (LORD STONHAM): My Lords, the immigrants to whom the noble Lord refers are citizens of the United Kingdom and Colonies who did not acquire local citizenship on independence. They are therefore eligible for passports which exempt them from control under the Commonwealth Immigrants Act 1962. Numbers of them have been coming here for some years, but the rate of arrivals has recently risen. In 1967, the total was 13,600.
LORD MILVERTON: My Lords, while thanking the noble Lord for his very definite Answer to my Question, may I ask one supplementary question? In view of circumstances which I think I might call unforeseen, and which are likely to deeply intensify this influx of immigrants into this country, and also in view of the fact that the vital interests of the people of this country and some of its serious problems are likely to be intensified by this fresh influx, is it not desirable that Her Majesty's Government should be considering steps to modify, if possible—to be fair to all, if possible—or to check to some extent, at least, this influx?
LORD STONHAM: My Lords, this is an extremely difficult problem, not only in this country but also, of course, in East Africa, and my right honourable friend the Home Secretary has the matter under continuous consideration. I think it should be clearly understood that there is this statutory obligation. As The Times leader of February 13 put it:
"In order to achieve a settlement the British Government of the day"—
that was, in 1963—
"in effect handed out promises for the future in the obvious hope that not many of them would have to be honoured. The British Government has changed since then, but the obligation has not."
This is one side of the difficulty we are in; and the noble Lord has mentioned the other side. We are considering these matters very closely and carefully.
THE EARL OF SWINTON: My Lords, may I put this point to the noble Lord? While, of course, what he has stated is legally exactly the position, could he give this assurance to the House: that if the Government are, as they very well may have to be, considering the whole question of whether there should be any

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further control of immigration into this country, they will not feel in the least inhibited by the past? Let me put it this way. Whether the Government supported by noble Lords on this side were responsible for the present position, or whether it was the Government of noble Lords opposite, may I ask that the present Government will not be in the least inhibited from dealing with this issue in Kenya, and will they make that plain?
LORD STONHAM: My Lords, I hope that the tone and length of the Answer I previously gave carried no indication that I was trying to apportion the blame. The responsibility rests with Her Majesty's present Government. But the major difficulty is that if we did have legislation to remove from these people the freedom from operation of the 1962 Act, it would remove from them their right to United Kingdom citizenship and make them Stateless; and under the United Nations Convention of 1961 the United Kingdom Government are pledged to avoid any increase in future Statelessness. This is the kind of problem we have to consider before the Government can come to any conclusion on this matter.
THE EARL OF SWINTON: My Lords, I agree with the noble Lord. I was not in the least trying to say who was to blame. Let me accept that the Conservative Government were just as responsible for the present position as the present Government are. The really important thing is that our hands should be absolutely free to do what is right in the future.
LORD STONHAM: My Lords, I am sure that Her Majesty's Government will be encouraged to have the noble Earl's assurance in advance that he will support them in whatever action they think it necessary to take.
VISCOUNT DILHORNE: My Lords, the noble Lord quoted The Times as an authority for his statement that certain undertakings were given. Can he give any other authority?—because I have heard it suggested there were no such undertakings given, and that that was only something that appeared in The Times. I do not know.
LORD STONHAM: My Lords, the Kenya Independence Act of 1963 is the authority, and the arrangements then made excluded these Kenyan Asians (if I may call them such) from the provisions of the 1962 Act, which leaves them the right to apply for passports to come to this country.
VISCOUNT DILHORNE: My Lords, the noble Lord referred to undertakings in his original Answer, and he based that statement on something that appeared in The Times. Leaving on one side any statutory provisions, can he give any information about the undertakings he said were given?
LORD STONHAM: My Lords, I cannot recall using the word. I quoted a passage from The Times as an illustration of the position. But surely an obligation in a Statute is an undertaking, and in fact an undertaking of a kind which cannot be altered or withdrawn without Parliament's agreeing a new Statute.
LORD DERWENT: My Lords, may I ask the noble Lord whether Her Majesty's Government have had any consultations with the Kenya Government, and indeed with other African Governments, about this problem to try to ease the present situation? It is a problem which is causing difficulties for us, but which will undoubtedly cause even more severe difficulties in Kenya in the near future.
LORD STONHAM: My Lords, Her Majesty's Government have had consultations with the Government of Kenya over a period of some months. But, as your Lordships will be aware, the Kenya Government is pursuing a policy of Africanisation with some vigour, and in July they passed the Kenya Immigration Act, which has really exacerbated the present situation and brought about the increase in the flow of immigrants from Kenya.
VISCOUNT MASSEREENE AND FERRARD: My Lords, may I ask the Minister whether Her Majesty's Government have informed the Kenya Government that they deplore a policy of racial discrimination against Asians?
LORD WEDGWOOD: My Lords, in view of what the noble Lord, Lord Stonham, said in reply to the Question

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and the first two supplementaries, may I ask him whether he could agree with me that a Kenya Asian who holds a British passport as a citizen of the United Kingdom and Colonies has more right to enter this country and to seek work here than foreign nationals of other Commonwealth countries such as Pakistan and India? Could he also agree that the Kenya Asian who has lived under British rule since birth until Kenya independence in 1963, and in many cases speaks English in his family, domestic life, is far more likely to be a suitable immigrant to Britain, and to have a far greater adaptability to life in this country, than those from the Asian mainland? Further, would the noble Lord agree that the discriminatory legislation against British subjects in Kenya, which has, as the noble Lord has said, precipitated this exodus, is something which, as the noble Lord, Lord Derwent, has just mentioned, should be taken up with the Kenya Government? Moreover, could he give an undertaking to ask his right honourable friend the Minister to take steps to talk these things over with the Kenya Government? Furthermore, is he aware of the damage that may be clone to the Kenya economy and to the stability of that country, especially as the British taxpayer is providing quite substantial funds for the maintenance of that economy?
LORD STONHAM: My Lords, I would not agree that there is any difference between the citizens of any country coming here, who come here with the consent of, and by agreement with, the United Kingdom Government. There cannot be any difference if they enter in accordance with our laws. With regard to the standard of what I might call education, and of the commercial ability and acumen of the Asians, I understand it is generally agreed that they are high; and these are matters, of course, for the consideration of the Kenya Government, including the extent to which the more or less induced departure of these Asians from Kenya may prove a handicap to the future of that country. The position with which we are confronted in this case is that legislation of the kind which has been suggested might well mean that these people would have a British passport but that the only place they could not come to on that passport would be Britain.
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That would be a very serious matter indeed.
LORD FARINGDON: My Lords, may I ask whether my noble friend would agree that the position of these Asians from East Africa is to some extent in the nature of the position of refugees, and refugees who have a very particular and special claim on our hospitality?
LORD STONHAM: My Lords, these people are British citizens and have the right to come here, and when they exercise that right they can scarcely be regarded as refugees. But, at the same time, all the facilities which we have in this country for the assistance of immigrants who come here are, and will be, made freely available to them.
LORD DERWENT: My Lords, I am sorry to intervene again, but in view of the fact that the noble Lord has said it is the policy of Her Majesty's Government that in all the circumstances these people shall be allowed to come here (and I am not arguing about that) would he ask his right honourable friend to take up the matter again with the Kenyan Government, so that this influx can be slowed up as far as possible? According to the Answer given by the noble Lord, the Kenyan Government is pressing these people to get out quickly. I rather doubt whether that is the case. I think there is some uncertainty on the part of the Asians, and perhaps further consultation with the Kenyan Government might have some effect.
LORD STONHAM: My Lords, the Trade Licensing Act was passed in Kenya only last month, and this restricts the opportunity for the Asians to work and prosper in their own country. Other than that they are not being forced out. With regard to making representations to the Home Secretary, I said in answer to the original Question that he is giving continuous and anxious consideration to this matter, and he has most certainly done all he possibly can in the way of representations to the Government of Kenya, and will continue to do so.
LORD ELTON: My Lords, can the Minister tell us whether it is true, as has been stated in the Press, that the number of persons throughout the Commonwealth, as distinct from East Africa, who are entitled to by-pass the Commonwealth Immigrants Act by means of

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citizenship of the United Kingdom and Colonies is not 190,000 but 370,000?
LORD STONHAM: My Lords, there is no question of "by-passing" when people possess rights; but so far as Africa is concerned, according to the estimates made last November which were published in another place, the total number is 230,000, of whom 167,000 were then resident in Kenya. The figure that he has quoted must take into consideration parts of the world other than Africa. If that is so, then the total figure which he quoted is still not correct.
BARONESS GAITSKELL: My Lords, does not the Minister think that this matter of race discrimination by the Kenya Government should be brought up in the relevant Committees of the United Nations and condemned?
LORD STONHAM: My Lords, this is a matter for consideration by the responsible authorities. I think I have given sufficient indication to show that this is already a matter for consideration by the United Nations.

FOOT-AND-MOUTH DISEASE
3.34 p.m.
LORD BESWICK: My Lords, at a convenient moment during the next few minutes I shall be repeating a Statement to be made in another place on foot-and-mouth disease.
May I take the opportunity to apologise to the House for any inconvenience which may have been caused through a breakdown in the printing of the speakers' list. I apologise for this, but unfortunately a fault developed in the machine.

HOUNSLOW CORPORATION BILL [H.L.]
Read 2a, and committed to a Select Committee.
GREAT NORTHERN LONDON CEMETERY COMPANY BILL [H.L.]
Read 2a, and referred to the Examiners.
MERSEY DOCKS AND HARBOUR BOARD BILL [H.L.]
Read 2a, and committed to a Select Committee.

BUSINESS OF THE HOUSE
3.36 p.m.
THE LORD PRIVY SEAL (LORD SHACKLETON): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That Standing Order No. 41 (No two stages of a Bill to be taken on one day) be dispensed with for the purpose of taking the Trade Descriptions (No. 2) Bill through its remaining stages this day.—(Lord Shackleton.)
LORD REDMAYNE: My Lords, I do not want to take up the time of the House, but I was unable to be here yesterday when the procedural difficulty in connection with the Trade Descriptions Bill was discussed. There is one point which I think ought to be made in one House or the other and it so happens that this is the only opportunity in which it can be made in either House. The noble Lord the Leader of the House twice said yesterday, in almost similar words, that there had been no failure on the part of anybody in this House or anybody connected with this House in this matter. Of course, that is true in respect of the staff of this House. Of course it is true in respect of the great majority of noble Lords. But I should like to say, and to say flatly, that it cannot be true in respect of noble Lords who sit on the Front Bench opposite.
Many of us know the procedures in these matters. At some time in the last few months a Committee of Ministers has considered this Bill and has considered also, and in particular, where it should be introduced. Admittedly Parliamentary counsel (who, if I may say so, are very overworked slaves of the governmental lamp) should have drawn the attention of Ministers to the dangers attaching to Clause 39, and that clause should have been omitted from the Bill in your Lordships' House and put into the Bill in another place. Nevertheless, the whole system by which the Government machine works in this country is that the responsibility for blunders which are made—and

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this, however small, is a blunder—lies individually and collectively with Ministers, in whichever House they may sit. I want to assure the noble Lord the Leader of the House that I make this point with no malice towards him, but the fact is that in a certain capacity in another place I "had my tail twisted" so often with previous Governments which made similar muddling blunders that I really cannot resist the opportunity of putting the true facts of this case on record.
I may say, having said—and said sincerely—that I meant no malice in this House, that the "tail twisting" in another place in the past was not without malice, and that these similar incidents were used considerably to delay the business of the Government of the day. I respect the customs of your Lordships' House, but I do not doubt that if this incident had occurred in another place my honourable and right honourable friends in that place would have taken advantage of the opportunity with far more vehemence than I am doing at this moment. I only ask that the noble Lord should admit that the Government have blundered in this matter and that Ministers in this House should take their share of responsibility for the actions of the Government as a whole.
LORD DRUMALBYN: My Lords, before the noble Lord replies may I make two points? The first arises from the way in which this Bill has arisen. It will be remembered that we started off with a Bill called the "Protection of Consumers (Trade Descriptions) Bill", and that Bill, in Clause 40, had a financial provision, as the noble Lord, Lord Brown, will remember. That clause was removed from the Bill. I cannot quote it because I find there are no longer any copies in the Printed Paper Office—they have all disappeared—and I did not have time to go to the Library for it. The noble Lord, Lord Brown, explained that that clause was not necessary. I think it would be embarrasing to your Lordships if the clause came back, so I hope his explanation was correct—I say that in view of what my noble friend Lord Redmayne has said about the practice of not including financial clauses in a Bill when it starts in your Lordships' House. The fact is that this financial clause was in the Protection of Consumers Bill and was not there when the Bill came back to us a second time.
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The other point is this. I am sure we all want to see as much legislation started in this House as possible, and certainly any kind of mishap of this kind might tend to influence the Government of the day not to introduce Bills here. I would ask the noble Lord whether he can work out some means by which in future it will be impossible for this to happen. Indeed, this happening would have been impossible had the clause been put in italics from the start. It would then have been left out at the last stage, or some appropriate provision would have been made. I would ask the noble Lord to deal with those two points.
LORD SHACKLETON: My Lords, I hope the noble Lord, Lord Redmayne, feels better now. I am sorry he suffered so much, and if he now has got something back in return we shall all be very much happier. He embarrasses me slightly, because it is not appropriate in your Lordships' House to refer in any detail to those who advise us. I could perfectly well have specified who was not to blame, but I chose that phrase to save them embarrassment, and I should have thought the noble Lord, Lord Redmayne, would recognise that. So far as the Government are concerned, again if it makes the noble Lord happy that he is able to "twist the tail" of the Government on a point as technical as this—so far beyond the comprehension of practically everybody except the noble Lord, Lord Conesford, and the noble and learned Viscount, Lord Dilhorne, who do understand these things in much greater detail—and if it is necessary for the Government to accept blame and this will make the noble Lord happier, I shall be happy to accept blame also. I think he is taking a heavy hammer to crack this nut, and I think your Lordships dealt with it in the sensible and co-operative way that we do in this House. Therefore I do not propose to comment on what goes on in another place.
The noble Lord, Lord Drumalbyn, raised some very interesting points. I had been thinking about this matter myself. But it is extremely difficult for us here to interpret what is the privilege of another place. Nor is it very easy to expect them always to know what may

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be put into a Bill at some stage. I agree with him it would be very unfortunate if it had the effect of discouraging the introduction of Bills in your Lordships' House, and I do not think that will follow. None the less, it is a matter which it may well be worth examining a little further, and I think this might well be done in the Procedure of the House Committee.
On Question, Motion agreed to.

TRADE DESCRIPTIONS (No. 2) BILL [H.L.]
THE MINISTER OF STATE, BOARD OF TRADE (LORD BROWN): My Lords, I beg to move that this Bill be now read a second time.
Moved, That the Bill be now read 2a.—(Lord Brown.)
On Question, Bill read 2a: Committee negatived.
Then, Standing Order No. 41 having been dispensed with (pursuant to Resolution), Bill read 3a.
LORD BROWN: My Lords, I beg to move that the privilege Amendment be agreed to.
Moved, That the privilege Amendment be agreed to.—(Lord Brown.)
On Question, Motion agreed to.
Bill passed, and sent to the Commons.

TEACHERS SUPERANNUATION (SCOTLAND) BILL
House in Committee: Clauses and Schedules agreed to.
House resumed: Bill reported without amendment; Report received.

THEFT BILL [H.L.]
3.45 p.m.
LORD STONHAM: My Lords, I beg to move that this Bill be now read a second time. The Bill results from the Criminal Law Revision Committee's Eighth Report, Theft and Related Offences, which was published in 1966. A Bill of 35 clauses and three Schedules cannot exactly be described as massive; nevertheless this Bill represents a monumental amount of work. It amends 18 other Acts of Parliament; repeals in whole or in part 92 more Acts and, in addition, there are many consequential repeals. Their time scale ranges from the First Statute of Westminster, passed in 1275, in the reign of Edward I, to Acts which reached the Statute Book as recently as 1967. I am sure that the House will wish to join me in paying tribute to the work done by this Committee of distinguished lawyers, under the chairmanship of Sir Frederic Sellers. It has been rightly acclaimed in many quarters as an invaluable contribution to the strengthening, modernisation and simplification of the criminal law. We have indeed cause to be very grateful for the efforts of the members of the Committee.
The subjects dealt with in the Bill form perhaps the most complicated and difficult part of the substantive criminal law. It is a valuable contribution to the Government's aim of creating a comprehensive criminal code embodying the whole of the criminal law and procedure. When the further work now planned has been completed the law on any criminal matter will be much more readily ascertainable than at present, because the need to consult old Statutes and judicial decisions, will be largely obviated.
When they came to examine the existing law on larceny and related offences, the Criminal Law Review Committee decided that it would be necessary to make far-reaching changes, not merely by amendments to the present law but by introducing a completely new code to cover the relevant offences. On all the most important of these they found that the law was so defective that they had to go back to first principles—to consider what were the essential elements of the offence, and reconstruct the law on that basis. The Bill now before us is in all

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essentials the draft Bill which the Criminal Law Revision Committee annexed to their Report; but it incorporates some changes, including a new Clause 11 which meets a suggestion made by the Committee and deals with the removal of articles on show in buildings open to the public. We hope and believe that in dealing with an infinite variety of theft the Bill provides a simple, efficient, and satisfactory code.
In the hope of avoiding what would otherwise be an intolerably long speech, I propose to deal only with the more important provisions of the Bill and explain the thinking and policy behind them. Clauses 1 to 7 deal with the new offence of theft, which will replace the existing offences of embezzlement, fraudulent conversion, and the twenty or so different varieties of larceny. The law of larceny at present is difficult and complex. It calls for a great deal of interpretation by the courts, yet fails to deal with certain kinds of dishonesty which should certainly be punishable. To me as a layman, with memories of Bleak House, the deepest complexities of the law are in the field of Chancery: but I was interested to see that in a recent case—it was one which raised the fascinating question whether mussels are wild animals—a distinguished counsel said
"As one who normally practices in the Chancery Division I am left wondering at the legal complications that may arise in the more sophisticated forms of larceny."
The Bill will reduce that wonder, but I am not sufficiently acquainted with the wilder habits of mussels to answer that legal poser.
The defects in the present law arise mainly from the fact that larceny is regarded as essentially a violation of the owner's rights of possession, and not of his rights of ownership. The offence depended originally on a "taking" of the property. Although this notion of taking was extended to certain cases of obtaining possession without a taking, and to certain cases of appropriation by a person in actual possession, larceny still does not cover many kinds of misappropriation which are indistinguishable from stealing. For example, a taking amounts to stealing only if the taker at the time of taking is acting fraudulently, and intends to deprive the owner permanently of the property. An innocent
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acquisition followed by a dishonest decision to keep or dispose of property is, generally speaking not larceny. So a finder of lost property who intends to return the property to the owner is not guilty of larceny even if he changes his mind and dishonestly keeps or disposes of it. Again, larceny by finding is committed only where at the time of the finding the finder believes that the owner can be discovered by taking reasonable steps.
The law of larceny is also complicated by the existence of a great many separate statutory offences, some of them inconveniently divided between various Acts. The Larceny Acts 1861 and 1916 achieved some measure of consolidation, but there are many provisions in both Acts which are completely covered by other provisions in the same Act, even in the same section, and many of them are obsolete or unnecessary.
My Lords, I turn now to the simplifications in the law which we believe the Bill's redefinition of theft will achieve. First, embezzlement disappears as a separate offence. The distinction between embezzlement and larceny is one of the technicalities which the Committee thought should be abolished. At present the success of a prosecution may depend on such subtle questions as whether a clerk or servant has placed property in what the law regards as an employer's possession. If, for example, a cashier misappropriates money before putting it into the till he commits embezzlement; but after it goes into the till the money is regarded as being in the employer's possession, and if the employee then takes it out of the till, that is larceny. The enforcement of the law should not depend on the prosecution's guessing correctly how the courts will deal with such subtleties. He who steals is a thief, and this Bill will enable him to be charged as such.
Next, the separate offence of fraudulent conversion will disappear. The essence of this offence is misappropriation of property by a person who has possession of property on behalf of somebody else, but, as in the case of embezzlement, having a separate offence inevitably makes for difficulty and complexity. I have just mentioned a hypothetical case where money is taken from a till. Had the offender in my example been not a clerk or servant, but in some other

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fiduciary relation to the person defrauded, his offence would, under the present law, be fraudulent conversion. Thus criminal conduct, which is in essence the same may be larceny, embezzlement or fraudulent conversion according to very fine points of distinction. I am sure your Lordships will agree that the courts should not have their time wasted in dealing with such technicalities.
The Committee's solution was a single offence of theft. This is Clause 1 of the Bill, and under it 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".
Clauses 2 to 6 interpret the expressions used in this basic definition, and Clause 7 provides for a single maximum penalty. The law will thus concentrate on what the accused dishonestly achieved or attempted to achieve and not, as under the present law, on the means which he used in order to do so. In this way we avoid the need for a number of different offences which are all in the same family of theft.
The idea of dishonest appropriation, which underlies the new offence of theft, corresponds to the idea of "fraudulent conversion" in Section 20 of the Larceny Act 1916. But the new offence departs from the present offence of fraudulent conversion in dropping the requirement that the offender should, at the time of the conversion, be in actual possession of the property. The offence will thus extend to ordinary stealing by taking property from another's possession. It is as if fraudulent conversion were widened to include the whole of larceny and embezzlement under the umbrella of theft; but the new offence will also include as theft conduct which may not be criminal under the present law. One example is dishonest appropriation by a parent of things taken and brought home by a child who is under the age of criminal responsibility.
The word "dishonestly", which is very important, since dishonesty is a vital element in the offence, is partially defined in Clause 2. It replaces the requirement in the definition of stealing in the Larceny Act 1916 that the offender should take the property "fraudulently and without a claim of right made in good faith".
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The effect of the definition in Clause 2 is to preserve the present rule that a "claim of right made in good faith" is inconsistent with theft, and also that a finder of property can be guilty of stealing only if he believes that the owner can be discovered by taking reasonable steps. The offence will apply to any kind of property; but under Clause 4 land, things forming part of land, wild creatures and things growing wild will be capable of being stolen only in defined circumstances. Generally speaking, a wild animal or plant can be stolen if it is taken for a commercial purpose.
We have included in the Bill Clause 6, which partially defines the expression,
"with the intention of permanently depriving the other of it"
so as to cover certain sets of circumstances, in which, although there may not be an "intention permanently to deprive" on a strict and literal meaning of the words, what is done amounts, for practical purposes, to permanent deprivation, and is larceny under the existing law. With Clause 6 we are providing as complete a statutory code as is practicable of this branch of the law. Without it we should have to rely on cases decided under the old law of larceny; and there would always be the risk of argument that the courts should not, after the Bill was passed, adhere to those cases.
Under Clause 7 the maximum penalty for theft will be ten years imprisonment. This replaces a whole "shopping list" of maxima for the offences of larceny, embezzlement and fraudulent conversion, ranging from six months, on first conviction for stealing a dog, to life imprisonment. Five years is the present penalty for simple larceny, and the increase to ten years may seem severe. But some increases—and decreases—of penalties are inevitable if we are to get rid of the present jumble. And already under the present law a person convicted on indictment of simple larceny may be sentenced to ten years if he has been previously convicted of larceny or, since the Criminal Law Act 1967, of any arrestable offence within the meaning of that Act. So already a thief with a serious previous conviction is liable to ten years imprisonment; and the courts will not contemplate sentences of that gravity except in the worst cases.

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Clause 8 defines the offence of robbery which at present is not defined but rests on Common Law. The new offence of robbery will thus remove uncertainties. The essence of robbery is stealing by using force against the victim or putting him in fear. It will not be necessary for the person on whom the force is used, or who is threatened, to be the person from whom the property was stolen. The clause simply requires that force should have been used or threatened in order to steal, but it limits it to force used or threatened immediately before or at the time of the stealing. To give a simple example of the change made by the clause, if at the time of the "great train robbery" force had been used on a signalman instead of the driver of the train, this, under the Bill, would have been robbery. The maximum penalty for robbery or for an assault with intent to rob will be life imprisonment. At present the maximum penalty for robbery is fourteen years' imprisonment, but it is life if there is any of a number of aggravating features, one of which is the use of personal violence. Similarly, the present penalty for assault with intent to rob is five years' imprisonment, but life imprisonment can be imposed if the aggravating features are present. The single maximum penalty of life imprisonment simplifies the law and removes some anomalies. I do not think the House will have much doubt that the offence is one for which a general maximum of life imprisonment is appropriate.
Clauses 9 and 10 deal with burglary and aggravated burglary. They replace the complicated "breaking and entering offences" and provide that a person will be guilty of burglary (a) if he enters a building or part of a building as a trespasser with the intention of committing certain serious offences in it, or (b), if he commits any of those offences or attempts to do so after having entered the building or part of it as a trespasser. The existing law is unnecessarily complicated. It distinguishes between, for example, places of worship, dwelling-houses and other places. There is a bewildering variety of offences and some of them apply to some kinds of buildings and not to others. In some cases the offence depends on the breaking and entering being in the night. And the concept of "breaking" is itself unsatisfactory. For
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example, "breaking" applies merely to turning a door handle or gaining admission by a false pretence, but often a breaking is difficult to prove. This Bill draws no distinction between different kinds of building or between night and day; the concept of breaking disappears and is replaced by the concept of entering as a trespasser.
Aggravated burglary, under Clause 10, will consist of burglary when in possession of a firearm, imitation firearm, weapon or offence or explosive. The Committee thought it desirable that burglary with these aggravating features should be a separate offence from ordinary burglary, as defined by Clause 9, so that the burglar who went armed should be punishable with imprisonment for life. Again I do not think noble Lords will be in much doubt that the severest penalty must be available for the armed burglar. The maximum penalty for ordinary burglary will be fourteen years imprisonment, replacing widely differing penalties which apply at present to burglary and various breaking and entering offences.
I now turn to Clause 11, which makes it an offence to remove a work of art or similar object from a museum, art gallery or similar place without authority, but without the intention of permanently depriving the owner of it. The Committee regarded this as one of the exceptions which should be made to the general principle, in the Bill and under the present law, that temporary deprivation of property should not be stealing or any other offence. The removal of works of art and other objects from museums and similar places is a mischief which has given rise to a good deal of concern, not least among those responsible for our national art treasures. We all remember the removal of the Goya portrait of the Duke of Wellington from the National Gallery. Such objects are particularly vulnerable to being taken away in circumstances falling short of theft because they are displayed to the public and the public has access to them. Even if the removal of such an object is not, and is not intended to be, permanent, the taker may put at hazard of loss or damage something of great value or which is irreplaceable. Because of their vulnerability such objects and owners require special protection, and

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this the clause aims to give. The offence it creates will carry a maximum penalty of five years imprisonment.
Clause 12 is also concerned with temporary deprivation. It replaces the present offences of taking and driving away a motor vehicle without authority under the Road Traffic Act 1960 and taking and using a vessel under the Vessels Protection Act 1967 by a new offence applying to conveyances generally, except pedal cycles. It creates a summary offence applying to pedal cycles. Taking and abandoning pedal bicycles has become a serious nuisance in some places. It causes hardship and inconvenience to the owners, and puts an unnecessary burden on the police. We have made the maximum penalty for taking pedal cycles a £50 fine.
Clause 15 is another major provision. It provides that new offences of criminal deception should replace a number of existing offences concerned with obtaining by false pretences or other deception or with practising deception in order to obtain something. Under subsection (1) of the clause it will be an offence dishonestly to obtain by deception property belonging to another with the intention of permanently depriving the other of it. The definition of the word "deception" replaces the words "false pretences" in the 1916 Larceny Act. Because of it the new offence will be committed not only where there is a false pretence as to an existing fact but also where there is a false pretence about an intention. The courts have interpreted the present offence of obtaining by false pretences as applying only to a pretence about an existing fact. Thus, in one case, it was held that a man who worked as a pest destroyer was not guilty of obtaining money by false pretences when he obtained it under contracts to destroy pests when he had no intention whatever of carrying out the contract.
Because of the decision of this House in the case of Fisher v. Raven in 1964, this sort of conduct also does not amount to the offence of obtaining credit by fraud under Section 13 of the Debtors Act, 1869. If, however, the accused had obtained his money for some useless product which he sold to householders as a pest-destroying specific but which he knew to be useless, he would have
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been guilty of obtaining money by false pretences because the pretence would have been as to a fact—the nature of the contents of the bottle. The definition of deception in subsection (4) of the clause removes this kind of anomaly, and makes a change in the law which was suggested by the noble and learned Viscount, Lord Dilhorne, as Lord Chancellor, when this House was considering the case of Fisher v. Raven. The penalty for the offence under subsection (1) will be ten years imprisonment, the same as for theft. Under subsection (2) of the clause it will be an offence with a maximum penalty of five years imprisonment, to obtain credit or further credit by deception. This replaces, with some changes, the offence of obtaining credit by deception under the Debtors Act, 1869.
Subsection (3) creates a general offence of dishonestly, with a view to gain, inducing a person by deception to do or refrain from doing any act. This does not correspond to any general offence under the present law, although it will supersede a number of offences of deception in existing Statutes. The main object is to cover cases of dishonest deception which ought to be criminal and which are not or may not be dealt with under the present law: for example, dishonestly inducing a person to release an offender from payment of a debt or to give him a rebate or allowance; or dishonestly obtaining employment or some other contract or opportunity to get money or money's worth.
I now come to Clause 20—blackmail. It is an astonishing fact—at least, astonishing to me—that there is at present no offence called "blackmail". In this clause we create one, to replace the group of offences of demanding property with menaces and similar conduct. When this Bill becomes an Act a person will be guilty of blackmail if, with a view to gain for himself or another, or with intent to cause loss to another, he makes any unwarranted demand with menaces. For the purpose of the clause a demand with menaces is unwarranted, unless the person making it believes that he has reasonable grounds for making the demand, and that the use of menaces is an appropriate means of reinforcing the demand. I have tried to think of a precise case of "unwarranted", but I am not quite sure. I shall have to leave it

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to the courts. The penalty for blackmail will be fourteen years imprisonment. The comparable offences in the Larceny Act 1916 carry penalties of life imprisonment, five years, and two years. Blackmail can be an extremely cruel offence, apart from being a detestable offence, and it seemed to the Committee, as it does to the Government, that a general maximum penalty of fourteen years was not excessive to cater for the worst cases.
Clause 21 replaces, with a new offence of handling stolen goods, existing offences of receiving stolen property. The new offence will be committed not just by a receiver, as now understood, but also by anyone who dishonestly helps in keeping, removing or disposing of the stolen goods or arranges to do so. It will, for example, catch the intermediary who puts a thief in touch with a buyer; or the man who knowingly moves the stolen goods from one hiding place to another. In this respect the Bill carries forward the extension of the offence of receiving made by Section 4(7) of the Criminal Law Act 1967, which the Bill supersedes and repeals. The maximum penalty for this offence is fourteen years imprisonment. It is a higher penalty than the ten years for theft, but the same penalty as at present. It seems right that such a severe penalty should still be available for the large-scale handler of stolen goods who encourages, and may indeed arrange, major crimes.
Clause 24, is a useful clause which should strengthen the hand of the police. It makes it an offence for anyone to have with him, when not at his place of abode, any article for use in the course of, or in connection with, any burglary theft or criminal deception. This replaces several offences of which the best known is possessing housebreaking implements by night. The existing offences are capable of being committed only at night, a restriction which is abolished in the offence under the Bill. In addition, the offence in the clause is not confined to housebreaking implements so that it will be committed by, for example, the car thief who has with him car keys or false number plates, or the confidence trickster with the traditional "gold brick" in his pocket. The proposed penalty for the new offence is three years compared with five years for the corresponding offences under Section 28 of the 1916 Act, or ten
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years after a previous conviction for an offence under the section or for an arrest-able offence. The Criminal Law Revision Committee considered that three years was adequate for an offence which is essentially of a preparatory nature; and I agree with them.
It only remains, I think, to make a special mention of Clause 29. This is an interesting clause, because it provides that husbands and wives should be liable, as if they were not married, for offences under the Bill by one spouse against the other's property. It also makes two changes in the position of husbands and wives under the criminal law generally. It enables them to prosecute each other as if they were not married; and it makes it clear consequentially that husbands and wives are competent witnesses in such prosecutions and that they are competent witnesses in prosecutions instituted against the other spouse by a third party for an offence against the spouse or his or her property.
Broadly speaking, husbands and wives who are living together cannot at present steal from one another unless the offender is "leaving or deserting or about to leave or desert" the wronged party. But while, of course, nobody would want petty disputes between husbands and wives to get to the courts in the form of allegations of theft, it is possible for a spouse systematically to make away with the property of the other, and it seems wrong that the criminal law should not be able to deal with that kind of situation. The occasions on which there is a question of prosecuting husbands and wives for offences against each other's property are not likely to be frequent. If the spouses are living together neither is likely to see much point in getting the other sent to prison or fined. But we have added a safeguard against whatever risk there may be of vexatious prosecutions, by requiring the authority of the Director of Prosecutions for prosecutions for stealing, and malicious damage to, the other spouse's property.
My Lords, I am conscious that there are issues raised by the Bill which I have not touched upon, and which the House may wish to consider now or at later stages; but I have tried, at the risk of wearying the House, to draw attention to all the main changes made by the Bill and

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the principles underlying it. May I in conclusion repeat what was said by my noble and learned friend the Lord Chancellor in your Lordships' House last November:
"Our law of theft has been in a mess for a long time"
and:
"The Criminal Law Revision Committee have done an excellent job and a beautiful piece of drafting ".—[OFFICIAL REPORT, 8/11/67, col. 397.]
I feel sure, therefore, that your Lordships, who will have had the advantge of reading their very detailed Report, will give full weight to their opinions on the many important issues raised by this Bill and that you will give it Second Reading. I beg to move.
Moved, That the Bill be now read 2a. —(Lord Stonham.)

FOOT-AND-MOUTH DISEASE: COMMITTEE OF INQUIRY
4.18 p.m.
LORD BESWICK: My Lords, with permission I should like to repeat a Statement made by my right honourable friend the Minister of Agriculture in another place. The Statement is as follows:
"I would like to report to the House on the present position of the foot-and-mouth disease epidemic.
"The number of outbreaks has continued at a low level since I last reported to the House in a debate on January 30. In the week ending at midnight last night there were seven outbreaks, almost the same number as in the preceding week. In view of this, I have been able to make substantial reductions in the size of the controlled area, releasing those parts of the country which are now distant from the remaining centres of infection.
"This is encouraging. But deafly the epidemic has not yet been stamped out. When I made my statement about meat imports on December 4, I said that, in any event, the arrangements would he reviewed in three months time; that is, by March 4. This review is being undertaken, and we are also studying the first results of the investigations carried out by my veterinary advisers into the origin of the present
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epidemic. I propose to announce before March 4 results of the review. In the meantime the arrangements announced on December 4 will continue.
"I have already told the House that I propose to appoint a Committee of Inquiry into our policy and arrangements for dealing with foot-and-mouth disease. I am glad to say that the Duke of Northumberland has accepted my invitation to act as Chairman of this Committee of Inquiry. The terms of reference will be:
'To review the policy and arrangements for dealing with foot-and-mouth disease in Great Britain and to make recommendations.'
I hope that the Committee will make a full investigation of the circumstances of the recent epidemic and advise on the policy that should be adopted to control foot-and-mouth disease in this country in the light of the latest scientific knowledge. I am about to invite a number of other possible members to serve."
LORD NUGENT OF GUILDFORD: My Lords, may I thank the noble Lord, Lord Beswick, for reading out the Statement made in another place. I welcome the news that the epidemic seems to be subsiding and that the outbreaks are now at a low level; and perhaps I may express the hope that soon they will have died out altogether. May I also welcome his announcement of the name of the Chairman of the Committee of Inquiry? As the noble Lord is aware, there has been some criticism of the delay in making this announcement, but now that we have heard the name of the noble Duke, the Duke of Northumberland, we shall all agree that it was well worth waiting for.
With regard to what was said by the noble Lord, Lord Beswick, about the review, which is still going on, of the temporary ban on imported meat from sources where the disease is endemic, I note that no decision has been made yet, and I hope that the silence on this matter to-day indicates that the temporary ban will be continued during the period of the Inquiry. Is the noble Lord aware that the devastating losses that have occurred in the farming world have caused immense anxiety, and that it

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would be a very great relief to know that this ban is to continue at any rate until a long-term policy has been decided?
With regard to the long-term policy on meat imports from sources where foot-and-mouth is endemic, will the noble Lord confirm that the terms of reference of the Inquiry, which he has read out to us, include a review of the sources of supply of our meat, including importation from sources where foot-and-mouth disease is endemic, because this could be a major factor for the Committee of Inquiry? If importation from these sources with endemic foot-and-mouth continues, the Committee of Inquiry might very well make one recommendation with regard to the best method of controlling the disease. On the other hand, if it were decided not to continue to import from such sources, they might very well recommend another method of controlling the disease in this country. Therefore, it is vitally important to them. But may I express my best wishes to the Inquiry in this very important matter?
LORD BESWICK: My Lords, perhaps I may reply at once to what the noble Lord, Lord Nugent of Guildford, has just said. First, I would say that I share with him—and, indeed, I am sure, the whole House—the hope that this epidemic will shortly be completely stamped out. May I thank him, too, for the welcome which he has given to the appointment of the Duke of Northumberland. I am sure, as the noble Lord says, that the appointment will carry the confidence not only of all sections of the farming community but also of the rest of the country. I am glad to tell the noble Lord that the terms of reference are certainly as wide as those given to the Gowers Committee, and will enable the Committee of Inquiry to deal with the matters to which he referred. They can make recommendations about imports, although, of course, those recommendations will be based on animal health considerations, and the ultimate decision in these matters must necessarily rest with the Government, who must take into account all the national considerations.
LORD HENLEY: My Lords, may I associate myself with everything that the noble Lord, Lord Nugent, said in relation to this Inquiry? So far as the
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terms of reference are concerned, I think he has put his finger on a weak spot. The terms of reference can possibly be stretched to mean almost everything, but in fact they do not cover prevention. They cover dealing with the disease, and they cover control, but they do not cover prevention. I think the Government will have to think very closely about this point which the noble Lord made, because it is not enough to say that terms of reference such as were given to the Gowers Committee are wide enough for this Inquiry. They must be a little wider.
In relation to the ban, may I just say this? Obviously, the Ministry of Agriculture will have to come to a decision on this ban long before the Committee can report. I personally hope, like the noble Lord, Lord Nugent, that the ban will be extended until that time. Nevertheless, the Minister of Agriculture is under very considerable pressure from other interests, and I hope that what I may term "blackmail" from the Argentine will not be listened to too closely.
LORD BESWICK: I am sure that what the noble Lord, Lord Henley, has said will be borne in mind. With regard to the Committee's terms of reference, I do not think he properly heard what I read out at the end of my right honourable friend's Statement, when he said that he hoped the Committee would
"make a full investigation of the circumstances of the recent epidemic and advise on the policy that should be adopted to control foot-and-mouth disease in this country…"
THE MARQUESS OF ABERDEEN AND TEMAIR: My Lords, may I ask the noble Lord whether it is known how many farms there are in the restricted area which has not yet been affected by the disease?
LORD BESWICK: No, my Lords. I could not answer that question without notice, but I will certainly send the information to the noble Marquess.
THE LORD BISHOP OF CHESTER: My Lords, may I, from these Benches, express a word of thanks to the Minister for the Statement that he has given to us of the Committee has been appointed will I know that the news that the Chairman give the greatest satisfaction. May I also

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add my word to that of the noble Lord, Lord Nugent of Guildford, in wishing this Committee well? At the same time, perhaps I may remind the Minister—although I am sure he does not need any reminder—that the people concerned in this epidemic have passed through a traumatic experience, and it is therefore very important that their confidence should be restored at the earliest possible moment.
I hope that the ban on meat from countries where foot-and-mouth disease is endemic will be kept on until this Committee, possibly with an Interim Report, have been able to consider this particular issue. But may I also remind the Minister that there are other matters, which I think will probably be outside the terms of reference of the Committee, about which some assurance is needed? There are these questions of compensation, for instance, and the question of the encouragement of the employment of skilled labour, so that these men are not lost from the places where they are so greatly needed.
LORD BESWICK: My Lords, the right reverend Prelate is right, of course, in saying that there are other considerations. They were touched upon in the debate which we had in this House, and I hope that what I said then indicated that the Minister is fully aware of them.
LORD OAKSHOTT: My Lords, may I be allowed to express my thanks to the noble Lord for repeating this Statement to-day, and also to welcome the appointment of the noble Duke as Chairman of this Committee? I think it would be difficult, if I may say so, to find a more suitable person to fill this very difficult post. The noble Lord will perhaps remember that in the debate the other day I said, I think wrongly, that I understood the Inquiry was to be held in public. But, to clear up that matter, can the noble Lord assure the House that in fact the Report of the Inquiry will be made public after the Inquiry has taken place? Also, could he say anything today about the size of the Committee, and from what fields of experience its members will be drawn? Further, can the noble Lord give me any idea when this Committee will be able to start work? He will agree, surely, that it is a very
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urgent matter. Perhaps he can also say something about another point which I raised with him the other day, on the question whether the secretariat which will serve the Committee is already at work and preparing what one might call advance information in a dossier which will help the members of the Inquiry in their work when they get down to it.
LORD BESWICK: Yes, my Lords. The Committee is expected to be about the same size as the Gowers Committee, which noble Lords will remember was eight in number, including the Chairman. It is expected that the appointment of the members will follow fairly quickly. It is a matter to be entered into after full consultation with the Chairman; but, certainly, it is hoped that the Committee will be able to start work fairly soon. I assure the House that the Working Party to which I referred when the noble Lord raised the relevant matter of getting and collating information now has a mass of information already there to be put before the Committee when it starts work.
LORD BYERS: My Lords, may I ask the noble Lord not to dismiss lightly what my noble friend Lord Henley said? The terms of reference used the phrase "dealing with". The statement talks about "controlling" foot and-mouth disease in the United Kingdom or in this country. What many of us are worried about is the prevention of it in the future. I submit that those two words "dealing" and "controlling" in this country do not necessarily cover prevention by the banning of imported tinned meat.
LORD CHORLEY: My Lords, I have just the same feeling of worry, especially when the Minister, in answering the noble Lord, Lord Henley, seemed to think that "control" was the same as "prevention". It obviously is not. "Control" assumes that the disease is there; "prevention" means not allowing it to arise. To the ordinary person who is not versed in the technicalities of this matter, one of the main elements in the problem has been the question of vaccination, which has been tremendously argued upon by lay people and which has given rise to a great deal of correspondence in the newspapers. That is very important indeed; but it might well be said that it has nothing to do with control; that it is purely

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a question of prevention. If the Committee cannot go into this problem of vaccination then I am sure it will be a disaster. I hope that the Minister will look at the terms of reference again and make it quite clear that prevention is covered.
LORD BESWICK: My Lords, I do not believe that there is any doubt in the minds of those who have spelled out the terms of reference, nor, if I may venture to say so, in the mind of the Chairman who has been appointed. The terms of reference are very wide. I spoke about "control" and other noble Lords used the word "prevention". In fact, in the terms of reference it speaks of "arrangements for dealing with". Certainly, the question of imports from abroad will be within the terms of reference of, and within those matters to be considered by, the Committee. Indeed, the Gowers Committee sent representatives, if they did not go themselves, to various countries in different parts of the world, including South America. There is no reason to believe that this Committee, if it so wishes, will not also go. The only point I made was that the final decision, in regard to the trading policy of this country, must be a matter for Her Majesty's Government.
LORD WOLVERTON: My Lords, while welcoming the appointment of the noble Duke as Chairman of the Committee, which I think is excellent, may I ask whether there will be an Interim Report or any time limit set on the Committee's work? Sometimes these Committees hang on for a long time. This is a matter of great urgency, and I hope that either an Interim Report will be made or that the Minister may be able to set a time limit.
LORD BESWICK: My Lords, I am sure that the Chairman realises the urgency of this matter. It is not for the Government to set a time-limit; but clearly we want, on the one hand, a deep-searching and authoritative investigation and, consistent with that, a Report as early as possible.
LORD NUNBURNHOLME: My Lords, in regard to the question of preventing foot-and-mouth disease from being introduced here, may I ask whether we should not immediately ban the import of bone manure from endemic countries?
LORD BESWICK: My Lords, that is an opinion which is shared by many.
LORD MACPHERSON OF DRUMOCFITER: My Lords, although I agree with everything that has been said this afternoon—and anything that could prevent a recurrence of this terrible disease must take first preference—may I draw the Minister's attention to the other side of this issue? I happen to know that there are £150 million worth of exports involved with South America. I should like the Minister to bear in mind the value of that trade to us. If some sort of compromise solution could be worked out, which in no way left the possibility of this disease coming back again, I think it would be worth studying. For instance, I would suggest that bone meal is prohibited, and possibly also meat on the bone; or something of that nature.
LORD BESWICK: My Lords, the noble Lord indicates the other considerations that have been the reason for the delay in reaching a decision on this matter.

THEFT BILL [H.L.]
4.35 p.m.
Debate continued.
VISCOUNT COLVILLE OF CULROSS: My Lords, if the noble Lord, Lord Henley, thought that the subject that has just been under discussion might involve blackmail from the Argentine, I hope that I may draw the House back to the question of blackmail in this country and other offences dealt with in the Theft Bill. I suppose it is only those who, like myself, are allowed to deal with the simplest cases of larceny who still think that the definition of larceny in the 1916 Act is the approximate of Holy Writ. Nevertheless, it came as an astonishment to me to read the Criminal Law Revision Committee Report and to find out how defective not only that definition but a great deal of the rest of the Taw on this subject has become. It is not only the cases decided in 1824 which have caused the trouble; surprises still turn up, such as the case mentioned by the noble Lord, Lord Stonham, of Fisher v. Raven which was decided in your

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Lordships' House in 1964 and apparently put an end to what had been a common form of prosecution for an offence which had always been thought perfectly proper theretofore.
The Criminal Law Revision Committee Report is, indeed, a monumental work and one which is fascinating to read. Incidentally, it may be that the noble Lord, Lord Chorley, if he has a Report like this upon questions such as were raised by the Street Offences Bill of last week will find himself very well done by indeed. I entirely accept that the moment has now come to think of a restatement of the essence of these offences, bringing about a simplification and a complete tidying-up of the law on this matter. It is also very right indeed that the House—indeed everybody interested in this subject—should thank the Committee for the formidable job they have done and for the reasoning which is so clearly set out—at least in most cases—in the Report.
It will not, I trust, be considered a criticism of them if I draw the attention of the House to one or two points on which I think it will certainly be rewarding to have some extra throught in the course of the passage of this Bill through Parliament. I will try not to fall into the error of dealing with Committee points on Second Reading; but there is one substantial point of theory that I consider should be dealt with at this stage. I rather think my noble and learned friend, Lord Dilhorne, may have something to say about it as well. It is clear, in the new definition of theft in this Bill, that it is no part of the essence of the offence that gain or loss to the thief or to anybody else should form part of the underlying theory of the offence. Indeed, it is quite clear from Clause 1(2) and from Clause 2(2) that this consideration does not come in at all. I think the same applies when one looks at Clause 15, so far as the first two subsections are concerned.
There runs through the Bill the whole question of dishonesty; and this has been used, I think, to mean very much the same thing as has previously been represented by "fraudulence" in the existing law. I seriously wonder whether the consideration of the Committee has
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quite followed through to the proper conclusion the abandonment of the use of "fraudulently", and all that it has been construed to mean—and whether they may not have produced later on in the Bill some definitions of these offences which are going to cause exactly the same sort of trouble as a result of judicial decisions as have occurred in the criminal law we are attempting to clear up. There are a number of other offences—not the one of theft nor of criminal deception under Clause 15(1) and 15(2), but others I shall mention—where an inherent part of the crime itself is causing gain to oneself or loss to another, and your Lordships should realise, as I have no doubt is the case, that this matter is dealt with in the definition clauses; because it will be seen that in Clause 33(2)(a) "gain" and "loss" are defined as
"extending only to gain or loss in money or money's worth, but as extending to any such gain or loss whether temporary or permanent".
My Lords, it may be—it certainly has been suggested—that instead of thinking in terms of gain and loss in the monetary sense, the real underlying and indeed the common concept which runs through all these offences is an intention to prejudice the rights of others; not just their pecuniary rights, but their rights in general, or to prejudice the interests of the State. I should have thought that when it comes to blackmail under Clause 20, or the new "hold-all" crime of criminal deception under Clause 15(3): or false accounting; or suppression of documents; there may be things other than monetary gain and loss which lie behind the crime and which, if these definitions are not changed, will cease to be crimes. They are crimes at the moment, but they will cease to be crimes under the Bill: for instance, the destruction of another person's reputation; or the wish to obtain the custody of a child of whom one is not entitled to have the custody; or the intention to cover up, not some future misconduct, but something that has already taken place in the past may well, I suggest, not be taken into account by this insistence upon gain and loss in the Bill.
There is no coherent application of these principles. I have already mentioned that in Clauses 15(3), 16, 19 and 20 the test is the gain and the loss in

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the pecuniary sense. But it is not in the main offences of criminal deception under Clause 15(1) and (2). There are some other curiosities, because, for instance, under Clause 13 which relates to abstracting electricity, gain does not come into it but loss does; whereas under Clause 15(3) gain comes into it but loss does not. I should have thought that it would be necessary to look very carefully at these matters in order to make sure that we have got it right. Incidentally, I should have thought that a great deal wider definition was required under Clause 13 because I believe that this is a very useful "catch-all" crime. I may be wrong about this, but it might deal with such things as obscene telephone calls and matters of that nature. If I am right, then I should not have thought that the definition in Clause 13 would be apt to cover such offences.
My Lords, there is another curious introduction of the concept of gain which was mentioned by the noble Lord, Lord Stonham. It appears in Clause 4(3), which relates to mushrooms and wild flowers or plants, and in subsection (4), which relates to animals. Reading the Report, I think it is clear that "wild animals" includes fishes. I think it is a matter for considerable thought whether the test of the commercial taking of these items should be the one that underlies the question of whether or not it is theft. I should have thought that someone who went out and took game and put it in a deep-freeze and kept it for a long period, but did not propose to sell it was just as much of a nuisance, and just as guilty of the sort of thing one is talking about in these subsections, as someone who went straight off and sold the game in the market.
I wonder whether this does not bring in another difficult proposition. It is always a problem to know what is and what is not an offence in territorial waters, but I should have thought that the effect of subsection (4) would be to make all commercial fishermen in trawlers or any other boats guilty of theft every time they caught a fish. To me this would appear to be one interpretation of the definition in Clause 4(4), and I am certain that is not intended. This is a fundamental point and one which applies to the whole definition. I can find no clear exposition in the Criminal Law Re-
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vision Committee's Report of why they have changed between gain and loss and both and neither in these various concepts, and I think we ought to discuss this point later on in Committee.
Then, my Lords, there are other and somewhat more miscellaneous points which perhaps I may mention at this stage, if only to give the noble Lord, Lord Stonham, an idea of what is in people's minds. I refer to Clause 2 and particularly perhaps subsection (1)(b). This is a parallel consideration with the definition of blackmail in Clause 20, and it relates to the use of the word "reasonable". It is perfectly clear from the Criminal Law Revision Committee's Report that these defences, which is what they are in each case, involve a subjective belief on the part of the person who is accused of the matters which make up the defence as set out in the Bill.
Then it comes to be considered whether, for instance, the person to whom the property belongs can or cannot be discovered by taking reasonable steps, or, in the case of blackmail, whether the person believed he had reasonable grounds for making a demand. Are these two sorts of reasonableness to be objective reasonableness which ought to be judged by the jury on the ground of what a man in the Clapham omnibus would think, or are they involved in, the subjectivity of the accused person's belief? Again, I am not sure that there may not be considerable trouble (indeed, there has been trouble already) about "reasonable" and "probable" in the field of blackmail. I think that there may be trouble here as well.
Your Lordships' House will be grateful for the explanations given by the noble Lord, particularly his explanation of Clause 6. This is indeed new, and I should like very carefully to consider what he has said. If he is right in saying that it will avoid any difficulty about the possible attribution of interpretation to various decisions which were taken before this Bill, and will make certain what it is the Bill means with out having to go back to old case law, then I have no doubt that it is the sort of thing which ought to be in the Bill. But I should like particularly to consider what the noble Lord said.

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Then there is a small point, but one which I think is dubious, that occurs in Clause 9(3). This relates to burglary in a houseboat, caravan or some other inhabited vehicle or vessel. Is it the intention of the Government that the vehicle or vessel should have to be actually inhabited at the time of the crime? Or would it be sufficient if it was a vehicle or vessel that was generally inhabited, even though there was nobody at home upon that occasion? I do not think that the Bill is clear on this point.
I now move on to Clause 11. The noble Lord explained that this was the Government's implementation of the suggestion put forward by the Committee which they did not include in their draft Bill. I welcome the theory which under lies this clause, but again I am afraid that I must pick a bone with the noble Lord about this test of commerciality. I am not sure that this is the right way to do it. The protection which is given under this clause applies only, among other things, if the object of admitting the public is not a commercial one. Then subsection (2), among other things, sets out what is the commercial object. It is quite clear, I should have thought, that anybody who opens his house to the public as a private individual is capable of getting within the protection, provided that he does not have any excess of income over the expenditure incurred in connection with the admission of the public and the upkeep or management of the building. But if he does have any surplus, unless it is going to Her Majesty or to a local authority or for an ecclesiastical or charitable purpose, he has no protection.
I should have thought that this was a thoroughly untenable method of distinction between two types of house or other building, the contents of which are meant to be protected by this clause. It is not uncommon now for people who have houses worth looking at by the public to obtain a grant from the Ministry of Housing and Local Government, and one of the terms of these grants is that the public should be admitted thereafter. But the question of whether the contents will be protected by the new criminal offence created by Clause 12 will depend entirely on the level of the admission charges the owner happens to make. So I understand it. I think that
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this makes no sense at all. I think that the clause needs widening and to be much more comprehensive.
Moving on rather more rapidly now to the later parts of the Bill, I am glad to have in Clauses 22 and 23 a new and much more comprehensive definition of what used to be receiving. I expect that difficulties will arise in fairly large numbers under Clause 23(2), because it is a complicated piece of drafting. There may be some method of simplifying it. At any rate, the genuine thought given to this matter by the Committee, and the lucid way in which they worked out how this offence is going to overlap with the offence of theft, are entirely acceptable. The general reasoning on this matter seems an admirable example of the clear way they have approached this problem, apart from clearing up in the details of the Criminal Justice Act last year, a number of difficulties that have for a long time bedevilled the law of receiving.
In Clause 25 there are other matters which I think will also have to be thought over. I see the noble Lord, Lord Airedale, in his place, and it may well be that he will take the view that under subsection (2) of the clause a superintendent of police should not be allowed to authorise a constable, without any warrant from the justices, to go and search private premises in the way the clause provides. I know that the Committee made this recommendation because they said that at present it is only the chief constable who can do this, and since the police forces have been amalgamated and enlarged it is not so easy in such cases to get a chief constable's authority. But I am not a bit happy. This may be a dangerous principle, and I cannot see why there is a substantial difficulty in getting a justice's warrant, if that is the proper way of doing it as a general rule. I should be glad if the noble Lord would explain a little more than perhaps the Law Revision Committee did why he thinks this is right.
Clause 27 is a complete reproduction of the clause in the draft Bill the Committee recommended, but I do not think we have been given any clear exposition of how it is that, under Clause 27(1)(a), under this new and much wider system of restoration, a third party may be made subject to an order of the court requiring

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him to give up goods without any opportunity of being heard. It does not say anything about the circumstances in which he came to obtain the goods, and there must be cases when a person subject to an order like this from the court, who has not himself been accused, will think it unfair and strange if he is not given an opportunity to explain to the court why an order should not be made against him. This again is a general matter, relating to the freedom of the individual and of his property, which ought not to be passed unnoticed by your Lordships' House.
There will be a great many points raised in Committee, but the fact remains that noble Lords on these Benches welcome this Bill, which sets out a new law on this subject. I believe that the whole House will be most anxious that when the Bill leaves us it shall be as correct and perfect as possible, so that it will not fall into the errors that have occurred in past legislation. We must be delighted to see that the Schedule of Repeals at the back of the Bill stretches over an enormous number of Acts, which certainly lightens the Statute Book a great deal. I hope that the House will welcome the Bill most heartily on its Second Reading and speed it on its way.
4.55 p.m.
LORD FOOT: My Lords, I hope it will not be thought presumptious for a humble member of the legal profession to join with the noble Lord, Lord Stonham, and the noble Viscount, Lord Colville of Culross, in congratulating and thanking the Criminal Law Revision Committee for the Report upon which this Bill is based. It may be appropriate for a member of the junior branch of the legal profession to say a word or two on a Bill of this kind. It seems to me that this Bill has two great virtues. The first is that the Committee rejected the idea of trying to consolidate and improve the existing law, and took the bold and imaginative course of getting down to basic principles and rewriting the law from the beginning. That is a very great advantage. One has only to look at the third Schedule to the Bill, at the enormous number of enactments that have been repealed, to see the amount of dead wood which has been cut away and cast into limbo.
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The second great virtue of the Bill is that it is written in language which is simple and comprehensible to ordinary people. I think that all too often the Statute Book is defaced by Acts of Parliament which are incomprehensible to ordinary people. That may not matter so very much if they are dealing with the law of companies or property, because people working in these fields usually know sufficient about them to find their way around, or they have access to professional advice; but to me it is disgraceful to put on the Statute Book an Act which touches the vital things in the lives of ordinary people and express it in a way which ordinary people cannot be expected to understand. One of the most disgraceful Acts of Parliament from that point of view—I am saying nothing about the content—was the Rent Act 1966, which affected millions of tenants and which it is impossible to understand unless one has a pretty close working knowledge of all the Rent Restriction Acts, trailing back to 1923. How much more important it is in a criminal Statute that the wording should be comprehensible and clear! That is the masterly achievement of this Bill.
If I may be allowed, I would not follow the noble Viscount, Lord Colville of Culross, in the points which he made, but would like to speak for a moment on one aspect of the Bill. I am concerned about the new maximum penalties which are being prescribed, because the number of different types of offence which can be committed in misappropriation of other people's property is being vastly reduced by this Bill and because, in particular, the new offence of theft comprises and encompasses all sorts of existing offences including embezzlement and fraudulent conversion. Because that is happening it has been necessary to reconsider the maximum penalties, for the maximum penalties for simple larceny, for example, and embezzlement are at this moment quite different. Therefore it became necessary, as soon as a number of existing offences were joined together in one offence of theft, to look at the maximum penalties. In exactly the same way, when you join together the offence of criminal deception with many existing offences, again there have to be attached different maximum penalties, and it was necessary to look at them.

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What has been done is this. In this Bill, in the case of the new offence of theft, the maximum penalty is put at ten years; and in the case of criminal deception, equally the maximum penalty is put at ten years. What is the practical result of this? In what is to-day simple larceny the maximum penalty is being increased from five years to ten years; and in the case of false pretences the maximum penalty is, again, being increased from five years to ten years. I should have thought that, on any showing, that is a serious step to take, and it ought not to be taken without due consideration.
May I make four brief observations upon what I think is the importance of this matter. It must be true that the offences of simple larcency and false pretences make up a large proportion of all kinds of offences of misappropriation of property. I do not know what the proportion is, but it must be considerable. Therefore, if you are going to increase, as you do in this Bill, in fact double, the penalties for that wide range of offences, you are obviously going to take a step of considerable importance, and it is a major revision in the law. My second observation is this. These penalties—five years maximum for theft and false pretences—have stood for fifty years or more. Indeed, I am not sure that they have not stood since the Larceny Act 1861, but certainly they have stood since the Larceny Act 1916. I do not know that anybody has complained during that time that those maximum penalties were too low. Indeed, in the Report itself the Committee do not say, so far as simple larceny is concerned, that they consider five years is too low, although they do so in the case of false pretences. But these are penalties that have stood their time. It is surely a fairly startling thing in 1968 to be doubling penalties for simple larceny and false pretences, after they have been on the Statute Book for that length of time.
The third point is that this alteration in penalities for simple larceny, in particlar, involves a curious anomaly—in fact, it involves a set of anomalies. I will give only one example. Under the existing law the maximum penalty for the offence of falsification of accounts is seven years imprisonment, and under this Bill it will
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remain at seven years in prison. What does that mean? It means that the maximum penalty for what is now simple larceny is going up to ten years, overtaking the offence of falsification of accounts, which has, as it were, fallen in the hierarchy of mischief. I do not think it is even in the "top ten" now. But is it to be said that something has happened during these last fifty years which has increased the moral iniquity of the offence of simple larceny, and has made the moral iniquity of falsification of accounts less? Possibly we should have to seek assistance of the Lords Spiritual to find an answer to that question.
The last observation I want to make about these changes is this. When the Committee were considering revision of the law, redefinition of the law and redrafting of the law, of course their authority was pre-eminent. We could not have had a more authoritative body to pronounce upon matters of that kind. But when one comes to the question of penalties and punishment, I suggest that new considerations come into view, questions of penology and sociology, and one cannot safely leave the matter of punishment and penalty entirely to the lawyers. This is a matter for this House and for the other place, and a matter for the public generally, when we are talking about penalties which have to be attached to particular offences.
The Report itself recognised that this proposal to increase the penalty for simple larceny from five years to ten years would invite criticism; indeed, the Committee anticipated the criticism. I should like, very briefly, to refer to the arguments which they advanced in support of their proposals. First, as the noble Lord, Lord Stonham, pointed out, they said that, although under the present law the maximum penalty for simple larceny is five years, nevertheless if the person convicted has had a previous conviction, either for larceny or for any other felony, the maximum penalty is then ten years. I do not consider that that is really an answer to the objection to raising the penalty for simple larceny in this way. What is the object of having maximum penalties at all? Surely, one of the objects, at any rate, is to give guidance to the courts as to the gravity which Parliament attaches to any particular offence. If you make an overall maximum penalty for all kinds of theft of ten years, you give no indication

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to the courts as to whether you draw any distinction between the gravity of the offence of, say, simple larceny and that of the offence of something more complicated, such as embezzlement.
The second argument which was advanced in the Report was that the Committee were recommending a general increase of penalties. I accept that. They pointed out that although the maximum penalty for a new theft is to be put at ten years, the maximum penalty for the old offence of embezzlement is being reduced from fourteen years to ten years. And they point out, quite rightly, that the maximum penalty for blackmail and for ordinary burglary is being reduced from life imprisonment to fourteen years. But I do not quite understand the logic of this. Can it really be said that if they are reducing the maximum penalties for certain offences, there is some justification for increasing the maximum penalty for another offence? It does not seem to me to follow logically. I do not think that in this context you can properly argue that what is lost on the swings is gained on the roundabouts. It would not be very much consolation to the petty thief to be told that the penalty for his offence has been put up but that he may console himself with the thought that his blackmailing brother in crime is being dealt with more leniently.
The last argument—I hope I have summarised the arguments accurately—is this. In their Report, in defence of their proposal, the Committee say that there is no need for alarm about this because the practice of the courts over the period of the last fifty years or so has changed with regard to sentencing; that in these days what is necessary is that Parliament should lay down the penalty appropriate to the worst type of offence, and that then one can safely leave it to the discretion of the courts to apply the proper penalty in each individual case. I am sorry to say that at present I am not persuaded by these arguments, and I think that this matter must be further considered.
The argument that there is no need for alarm, and that we can safely leave these matters to the discretion of the court in individual cases, is really, it seems to me, an argument for abolishing maximum penalties altogether. If we can
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safely rely upon the courts to deal justly with everyone who comes to court there is no need to have maximum penalties at all. Why do we have them? I suggest that we have them for two reasons. The first is to give guidance to the court as to what gravity Parliament attaches to the particular offence; and the second, and perhaps more important, is to introduce uniformity as between the practices of different courts. As soon as one increases the penalty for simple larceny—and here it is doubled—to that extent one enlarges the area in which courts may differ in their sentencing practice.
This is an important matter because it is well known to members of my profession, and I am sure to members of the Bar, too, that if you are acting for the defence of somebody who is likely to be found guilty, or to be pleading guilty, there are some magistrates, some judges and some chairmen of sessions before whom you would not wish to come: you would like to have a choice. Of course, this is inevitable and inescapable, because everybody has individual views upon these matters, but the reason why there is difference in sentencing policy as between one judge and another is not due only to the idiosyncratic differences between different judges but is due to something more fundamental; namely, that there is often a profound difference between individual members of the Bench as to what is the purpose of punishment.
At this time of day I am not going to embark upon a dissertation on the old question of whether punishment is for the purposes of deterrence, of rehabilitation or of retribution, but it is an odd fact that we can look in vain in the Statute Book of this country to find guidance as to what the purposes and objects of punishment—and in particular imprisonment—may be. The result is that there is a wide difference of view as between one judge and another. It seems to me that if a judge has a preference for a so-called deterrent penalty, and he thinks the first object of punishment is to deter other people from committing the same sort of offence as the offender before him has committed, he is almost bound to pronounce a sentence different from that which will be pronounced by the judge who takes the view that the first

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object of punishment is something appropriate to that particular offender and that particular offence.
It seems to me inescapable that if we are going to punish for the purpose of deterrence the punishment will be different from that which will be given if we are attempting to rehabilitate the offender. We pay lip service, at any rate, to the theme that the object of imprisonment is the rehabilitation of the offender. I say that we pay lip service to it; but I am afraid I cannot believe that it is in more than a very small minority of cases that we have any success in rehabilitating the prisoner in the present conditions of our prisons. I am bound to say that I prefer the view of Oscar Wilde, who said that in prison
"Some go mad and all grow bad".
Here, at least, we adhere to the humanitarian principle that we do not put a man in prison for his degradation but with the object of rehabilitating him and making him fit to come into society again. But when any judge sentences a man, not for what he thinks he deserves, or what will do him good, or what is appropriate to that offender or his rehabilitation, but with the object of making an example of him, and so hoping to deter other people from doing the same thing, in my opinion not only is it an injustice to the individual but it also creates grave problems in the prisons. Because the object, and I believe the first duty, of the prisons is to try to render the man fit to return and lead an honest life in society, and there they have delivered into their hands somebody who has received a sentence which is, by definition, not the sentence that is appropriate for him. My Lords, for these reasons I feel some concern about this Bill and the penalties it imposes, and I hope that during the course of its passage these matters may be considered afresh.
The last thing I wish to say is that I do not believe that the difficulties about which I have been speaking are incurable. The Committee themselves, and the authors of the Bill, have in one instance said, "Yes, it is quite all right to distinguish between one offence and another for the purposes of penalty". What they have done in the case of burglary is to say that ordinary burglary will attract a maximum penalty of fourteen years but
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that in aggravated burglary the penalty shall be life imprisonment. The difference between ordinary burglary and aggravated burglary is that the latter is something done while the offender is at the same time using a weapon or an explosive. I can see no basic objection in principle to making a similar distinction between simple theft and, if you like, aggravated theft. It is only a matter of trying to work out a satisfactory definition. Therefore, there is no real matter of principle involved.
I do not believe that the grave problems of crime with which this country is faced to-day will be solved in our criminal courts by piling on the penalties. I do not believe that the solution of these matters lies there at all, and I think that, so long as we persuade ourselves to believe that, we shall divert our attention from the fields of human activities in which the real causes of crime and the solutions to the problems of crime are to be found.
5.20 p.m.
LORD STOW HILL: My Lords, I was glad to hear noble Lords who preceded me describe this Eighth Report of the Criminal Law Revision Committee as a monumental Report. I think it undoubtedly is a monumental Report. It is packed with learning and wisdom, based upon a range and variety of experience which it is difficult to conceive of as being assembled otherwise than within the confines of a Committee of this sort. I am glad to have the privilege of making these remarks to your Lordships in the presence of the very distinguished Chairman of that Committee, Sir Frederic Sellers, who, I am glad to say, is listening to this debate. My noble friend Lord Stonham was obviously inhibited by modesty in refraining from congratulating the Government on introducing this Bill to your Lordships' House. He is one of the Ministers who is obviously responsible for it, as is the noble and learned Lord the Lord Chancellor and the Home Secretary.
I think this is a Bill of very great importance, important to the ordinary man and woman in the street, for this reason, if for no other. I suppose we each and all of us think that we know at least one thing about the law, and that is what is the meaning of the word "theft", and we are all wrong. If one

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approached half a dozen ordinary citizens and asked them to give a precise definition, for example, of the legal expression "an equitable interest pour autre vie", some of them might hesitate. But if one conceives the investigators who go up and down the country approaching a solid burgess on the top of the proverbial Clapham omnibus and asking him, "Do you understand the meaning of the words 'A stole from B'?", he probably would be met by a somewhat incredulous and rather angry look. But if the solid burgess did condescend to reply to such a question, he would undoubtedly say that if there were one thing he as a respectable person did understand it is the meaning of the word "stealing". I was in entire agreement with the noble Viscount, Lord Colville of Culross, when he said it was surprising really that when one looked at the definition of "larceny" in the Larceny Act, contrary to what we all thought, it was really so defective.
If the solid burgess indignantly says, "Of course I know the meaning of the words 'theft' and 'stealing'", one might put to him the story, so movingly and graphically told in paragraph 23 of the Report, about the two gentlemen on a windy and stormy night in the autumn of 1888, one of whom wanted to borrow a shilling from the other. The other was a willing lender, but when he handed over what he thought was a shilling he in fact handed over what was a sovereign, and neither realised, because it was dark, that it was a sovereign and not a shilling. The borrower when he discovered, having subjected it to the light, that it was a sovereign, instead of disclosing the mistake dishonestly changed the sovereign and appropriated the proceeds. He was convicted of larceny. That seemed simple enough until he appealed. He appealed to the Court for Crown Cases Reserved, and in that court 14 learned judges deliberated upon the problem of whether he was rightly or wrongly convicted of larceny. The issue was not wholly satisfactorily resolved because they differed seven against seven, so nobody will ever know whether that borrower was rightly or wrongly convicted in 1888.
A similarly agonising problem is posed in paragraph 26 about the welshing bookmaker. A punter handed a bookmaker some coins. The bookmaker welshed and was convicted of larceny by a trick.
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That decision was very severely criticised in a book of very great authority, Russell on Crime, on the ground that the punter when handing over the coins did not expect to have returned to him in due course the identical coins but some other and additional coins, and that therefore the punter intended to part with the ownership of the coins, with the result that it could not be larceny. Then it the solid burgess, going back to 1888, says, "Oh yes, but would he not be guilty of obtaining money by false pretences?", he would be wrong again because you cannot, as the law has been laid down, make a false pretence as to your future intention. A false pretence must be a false pretence as to art existing fact. Apparently it is no use pointing cut, as has been pointed out by one learned judge, that the state of a man's mind is as much an existing fact as the state of his digestion. It still leaves the result, in terms of Russell on Crime, that the bookmaker was wrongly convicted, and indeed was guilty of no offence at all.
When one says that the existing law, without most people knowing it, is really riddled with defects, I should have thought the Report amply demonstrates that that is the case. I entirely agree with the approach of the noble Lord, Lord Foot, who, in looking at the scope and purposes of the Report, commended it by saying that what the authors of it do is to go right back to first beginnings and seek to redraft these basic offences in terms which ordinary people can understand. I would add one further commendation—and I am quite certain the noble Lord would accept this—and that is that not only have they sought to redraft these basic offences, but they have tried to get them right, to produce in the language they have chosen a workable structure of offences which will cover the sort of cases which come before the courts in the vast majority of instances. I am glad that the Government have introduced this Bill to your Lordships' House in the first place instead of to another place, because when we come to examine it in Committee we shall have happily at our disposal so much experience and learning from noble and learned Lords who are Members of your Lordships' House that I hope we can find how far the Committee have succeeded in their very admirable endeavour.

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I shall follow the noble Lord, Lord Foot, in this particular and simply address myself, in order to test the success of their endeavour, to one single clause. I will not follow him in his most interesting analysis of the penal provisions of the Bill, but I should like to read later on his closely reasoned argument. I want to put something a little bit more simple, and I would base the test I would invite your Lordships to consider on Clause 20, which is the clause which deals with blackmail. As my noble friend Lord Stonham pointed out, there is at present no definition, and indeed no use of the word "blackmail" in the existing legislation. The Committee have very courageously gone back to first beginnings and they have used the word "blackmail" in Clause 20, and they have defined it. I wonder whether they have really got it right—and I say that with the very greatest deference to the distinguished Chairman of the Committee. What they have done is that they have adopted for the purpose of their definition a purely subjective test as to whether the menaces used are unwarranted or not unwarranted. It depends really upon the opinion of the person charged.
May I try to make good what I am submitting? If I may take a little time to read the clause, it says:
"A person is guilty of blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces…"
First, you have to ask whether he wants to get something out of it and whether he makes an unwarranted demand with menaces. Then the clause goes on to tell one what is meant by an unwarranted demand, and here prays in aid the opinion, in effect, of the person who utters the threat. It reads:
"… for this purpose a demand with menaces is unwarranted unless the person making it does so in the belief—

(a) that he has reasonable grounds for making the demand and

(b) that the use of the menaces is a proper means of reinforcing the demand."

So one has to inquire by the ordinary process of the court whether in the belief—I suppose a sincerely held belief—of a person charged with making the menaces, he had reasonable ground for making the demand, and that the use of
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the menaces was a proper means of reinforcing the demand.
In order to make the point I seek to put before your Lordships, I instance the case of a lady who supposes that she is in an interesting condition as the result of her association with a gentleman who is married. She has asked him to make provision for the expected arrival in this world of a new child, and he has refused. He is well-off and she thinks, no doubt rightly, that his conduct is indescribably evil and selfish. She passionately thinks it, and so she goes to him and says, "Look here, if you don't make an adequate settlement on this child I will tell your wife, I will tell your employers; I will write letters to the Press; I will do everything I can to make you make a settlement on the child." Does she, in these circumstances, commit the crime of blackmail? I should have thought that undoubtedly under existing law she does. But if one tests by cross-examination the question whether she really and sincerely has the belief that she has reasonable grounds for making the demand, I should have thought that in a situation of that sort, unless there were some reason to disbelieve her credibility, most juries would say clearly that she thinks she has. She is in a certain condition; a child is to be born into the world; the man responsible has plenty of means at his disposal but declines to lift a finger. Has she not in her belief, the jury would be asked, reasonable grounds for making the demand?
If the answer to that question is Yes, then the next question arises: Did she make the demand with menaces in the belief that the use of the menaces is a proper means of reinforcing her demand? How else is she to compel him to make a settlement? How else can she do it other than by saying, "I will tell your wife, unless you make a proper settlement on this infant"? Looking at the words of the clause, I should have thought in that case, if the jury came to the conclusion that she was animated by the bitterest of feelings, by a real and earnest desire to make provision for this child that was to come into the world, she had satisfied both those tests and could not be convicted.
In order to test the matter a little further, and possibly to make the example

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a little more difficult, may I assume this: that she is a lady who feels that this unfortunate infant is going to be born into the world, through no fault of his, labouring under the stigma of being an illegitimate child. What would be a reasonable settlement in the case of an infant born in lawful wedlock into a family is not sufficient in his case; it must be a much more generous settlement. She might say: "You must give three-quarters of your wealth in order to make a settlement on this unhappy child which is going through life with this disadvantage." The amount she has in mind might be such that ordinary people would think it a wholly unreasonable request. But if the jury are to ask themselves, what does she think about it, what is her belief, however unreasonable it may be, however it might beggar the family of the married man, ought they not to come to the conclusion that she is not guilty; that she has the belief that she has (a) reasonable ground for making the demand, and (b) that the use of menaces is a proper means of reinforcing the demand?
The clause goes on to say:
"The nature of the act or omission demanded is immaterial."
So it does not matter that she wants the married man to do something that is utterly unreasonable. He may be a millionaire, and she may say, "Settle £1 million on the child". The clause says:
"The nature of the act or omission demanded is immaterial."
It does not matter that it is £1 million. The relevant question concerns her belief.
May I put yet one more ingredient? Supposing it be the case that, contrary to her suspicions, she is not in the condition that I have described. She is in exactly the same condition, without knowing it, as she was before she met this man who is married. What then? A lady who has no anxieties of the sort that I have described, nevertheless believes that she has, and insists upon £1 million being settled. Where are we? Is that blackmail or is it not? I see that the noble and learned Viscount, Lord Dilhorne, is looking at me rather severely. If he, with his great sense of fairness, were directing a jury—
VISCOUNT DILHORNE: My Lords, I was listening with the greatest attention and with the greatest agreement to the noble Lord. I am sorry he thought I was looking severe.
LORD STOW HILL: My Lords, I hope that the noble and learned Viscount did not think that my reference to him was intended to be other than wholly complimentary. I am most grateful and flattered to think that he is listening to me with such care. What I meant was, that if he were presiding at the trial he might feel himself obliged, in regard to a clause in this form, to direct the jury that really the case could not be established.
I have made the point. I do not want to delay your Lordships further. I concentrate on that point, although it is really a Committee point, because it is one that is of fundamental importance. I think that blackmail is one of the most terrible crimes that can be committed, and I greatly hope that in this clause, in its ultimate format after consideration in both Houses of Parliament, we shall get the matter right. I cannot help thinking that possibly there is something in the criticisms that I have voiced. I do not intend to delay your Lordships further. Obviously, we shall consider this most important Bill with great meticulousness as it goes through Committee. That is all I have to submit to your Lordships at the present stage.
5.38 p.m.
VISCOUNT DILHORNE.: My Lords, I think everyone so far has described this Bill as a monumental Bill. That, I think, has an unfortunate connotation, a sort of relationship with the graveyard. I would not use that word to describe it. I do not think it is a monumental Bill; but I think it is the most important Bill in relation to the criminal law that has come before Parliament for a long time. I should like to begin my speech by joining in the congratulations to the most distinguished Committee which has worked so long, and must have worked hard, first under the chairmanship of the noble and learned Lord, Lord Donovan, and then of Sir Frederic Sellers, who I am glad to see here to-day. It is true that the Bill is based almost entirely on their recommendations.

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It should not be forgotten, when there are those who seem to be under the impression that law reform started only in 1964, that this Committee which performed this task was appointed by Lord Butler of Saffron Walden when he was Home Secretary, no less than nine years ago. It was only a few days ago that we in this House were considering the Civil Evidence Bill, the result of the Report of a Committee presided over by the noble and learned Lord, Lord Pearson; and if my recollection is correct that Committee was appointed by me when I was Lord Chancellor.
Work undertaken by these Committees necessarily takes a long time, and no one who appreciates the magnitude of the task can possibly complain about the time which has been taken. So it happens that the work started in the lifetime of one Government reaches fruition in the lifetime of its successor, of a different complexion. Of course, history may, and I hope will, repeat itself, and a Conservative Lord Chancellor may have the pleasure of bringing to Parliament Bills which result from work initiated by the noble and learned Lord the Lord Chancellor.
I agree with everything that has been said about the time having come when the law of larceny and the law in relation to other offences had to be reviewed. The Committee have done a great deal to simplify the criminal law by reducing the long list of offences which can be committed. There is a great deal in this Bill which is very good indeed. I do not share the doubts of the noble Lord, Lord Foot, in regard to maximum sentences, for I do not believe it to be the case that those who are charged with the responsibility of passing sentence look to see what is the maximum which Parliament allows to be passed. They first consider what in all the circumstances is the least sentence that they can impose, and then they look to see that they are within the maximum.
The abolition of the technical distinction between larceny, embezzlement and fraudulent conversion, and the replacement of these three offences by the offence of theft will, I am sure, be generally welcomed. As has already been pointed out, a number of gaps have been filled in the existing law. I do not propose to say anything more about all the good
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parts of the Bill, but I hope that what I am now going to say will not be understood to mean that I do not praise the Committee and congratulate them upon the work which they have done.
The noble Lord, Lord Stow Hill, said quite rightly that the question was: had they got the answers right? I am sorry to say that I am not at all sure about some parts of the Bill. I should like to draw attention to them now, in the hope and belief that the Government will give them careful consideration before the Committee stage. We ought not lightly to reject any of the proposals put forward by this Committee, a committee of such distinction. At the same time we should examine these proposals carefully and not hesitate to alter them when we think that we can improve them, or reject them when we think that they are wrong. There is so much of this Bill which is of a novel character that I hope and trust we shall give it all the consideration it deserves.
The noble Lord, Lord Stonham, started by referring to the definition of "theft", which of course is vitally important. He referred particularly to the word "dishonestly". Those of us who have practised in the courts know that every single word in the definition of "stealing" or "theft" is of very great importance. I must confess that, although the word "dishonestly" has at first sight some attractions, I am rather doubtful whether it is the best word to include in this definition. I will say why I am doubtful about it. I think that different people have different ideas of what constitutes dishonesty, to what kind of conduct that word "dishonestly" can properly be applied. I am rather fearful that the use of this word my lead to widely differing applications of the definition in different courts and in different parts of the country.
To be guilty of theft under this definition a person must dishonestly appropriate property. In paragraph 39 of the Committee's Report it is claimed that "dishonestly" has the same meaning as
"fraudulently and without a claim of right made in good faith".
Those words are to be found in the existing definition of larceny, and the Committee say that "dishonestly" means the same as those words. I wonder whether magistrates and juries will understand

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that, and will understand that that is what the Committee mean.
The Bill does not define "dishonestly", but it says in Clause 2 what is not to be regarded as dishonest; and also that an appropriation may be dishonest notwithstanding that the person who appropriates the property pays for it. I am not quite sure what that means, but perhaps we can get certain guidance on this matter in Committee. But if the word "dishonestly is meant to mean the same as "fraudulently", a word of the present definition of larceny and a word which is well understood in the courts and about which juries have little difficulty, will it not have to be explained to juries that that is what is meant? I think that it will have to be explained: and if that be the case it seems to me that it would be better to use the words which convey the meaning that "dishonestly" is intended to have.
The reasons advanced by the Committee for making this change are simply these. They say that "dishonestly" seemed to them a better word than "fraudulently", and that the question "Was this dishonest?" was easier for a jury to answer than the question, "Was this fraudulent?" I do not think it is a better word if what is meant to be understood by the word is fraudulent, and I very much doubt whether juries will find it easier to answer the question, "Was it dishonest?", for views on that differ widely. I do not think that juries have any real difficulty in answering the question, "Was this fraudulent?" One part of the Committee's Report seems to envisage that a judge will not have to give any guidance to a jury as to the meaning to be attached to the word "dishonestly". If this is so—and I doubt it very much—my fear is that a far wider meaning will in fact be given to the word "dishonestly" than the Committee's Report shows that they intended. If this be the case, then the offence of theft will be extended by the Bill to cover conduct which at the present time does not constitute theft. If by "dishonestly" is meant "fraudulently", it seems to me that it would he much better to use that word in the definition.
In this branch of the criminal law, as I think in most branches, the commission of an offence does not depend upon the motive with which it is committed. There
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may be a wide variety of motives. In nearly every case proof has to be given that the accused acted with the necessary intent. But although the words "intent" and "motive" are sometimes used interchangeably, there is a very real difference to lawyers, and I think to most people, between, for instance, intent to defraud and the purpose or motive of the fraud, which may be to acquire gain or to inflict a loss on someone one does not like. There is a real and valid distinction between "intent" and "motive".
For the first time, in many clauses of this Rill the question of motive is brought in, and as my noble friend said, the criminality of the conduct will depend on proof of motive. The first time one finds this introduced is in Clause 4(3), the effect of which will be that a person who picks wild flowers is not to be regarded as stealing them,
"unless he does it for reward or for sale or other commercial purpose."
So that to establish guilt the prosecution presumably will have to prove that the conduct intentionally done was done for the purpose of reward or for sale or commercial purposes; that is to say, motive has to be proved.
When one realises that, I should like to ask the House to consider it in the same way as the noble Lord, Lord Stow Hill, considered the clause dealing with blackmail. Suppose that some person—perhaps a gipsy—is found coming out of a wood with a bundle of bluebells under her arm. She has taken them deliberately and intentionally, but whether or not she is liable to be convicted of a criminal offence under this Bill will depend on whether it can be proved that she took them for reward or for sale or for some commercial purpose. I think it wrong that the criminality of conduct of that individual should depend upon the purposes for which those flowers were picked. I am not at all sure that the picking of wild flowers ought to be regarded as theft at all. I am very doubtful of it. But if it is to be so regarded, you cannot properly, to my mind, draw a distinction based upon the purpose for which the conduct is done.
Let me consider it further. That having to be proved by the prosecution, are they ever likely to be in a position to prove it without an admission by the

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accused person? How will they be able to prove that the gypsy coming out of the wood was going to sell the bluebells? Your Lordships may say that it is obvious, but what is obvious still has to be proved in the courts.
Before I pass from Clause 4(3), there is one other matter to which I should draw attention. I see from the Committee's Report that it was intended to make stealing a wild plant an offence. So if you pick wild primroses, not for reward or for sale or other commercial purpose, you are not guilty of any offence—you are not stealing. But if I have read the Report correctly, if you dig out the primrose plant, even though it be not for reward or for sale or other commercial purpose, you will be guilty of the offence of stealing. This is thought to be covered by the insertion of the words in the subsection, "without injury to the growth". If that is the purpose, I doubt whether it is achieved by the words of the Bill. But I am not at all sure that the taking of wild plants which are not anyone's property should be theft, whatever the motive. If you pick a bunch of white heather in the Highlands, you surely should not be liable to be convicted of the offence of theft if, and only if, you pull it up by the roots.
Similarly, in Clause 4(4) it is provided that the test of whether there has been a theft of wild animals is whether it is proved that they have been taken for reward or for sale or other commercial purpose. My noble friend Lord Colville of Culross gave the example of a man who took 50 pheasants. If a man takes 50 pheasants and puts them in his deep freeze and feeds his family on them, or gives them to his friends, there is no theft. Why should that be so when the young man or woman who takes an apple off an apple tree will, under this Bill, be guilty of an offence? Again, if the requirement of motive has to be established, I do not see how, when a poacher is caught in possession of pheasants, you can possibly establish that he got them for reward or for sale or other commercial purpose. I hope that the provisions in relation to wild animals and wild plants will be reconsidered. I think myself that perhaps they ought to be dropped entirely, but we can discuss that later.
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I now come to Clause 6. This clause was not in the Bill as suggested by the Committee, and is quite new. If I understood him aright, the noble Lord, Lord Stonham, in putting forward this clause said words to the effect that this will save a lot of trouble; that you will not have to look at the old cases to be able to understand the meaning of the words,
"having the intention of permanently depriving the other of it".
I would ask your Lordships to look at the words in subsection (1) and see whether it really does do that, and satisfies the test of simplicity and comprehensibility which the noble Lord, Lord Foot, put forward. He said that it would be disgraceful to express parts of this Bill in language that members of the public, ordinary people, could not understand.
This is what Clause 6(1) says, and your Lordships will bear in mind what the purpose of it is:
"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 as against him of the property, and in those circumstances it is immaterial that he does not finally lose the actual property."
Let us suppose that the noble Lord, Lord Chorley, was addressing, as I know he does, one of those juries in Cumberland who are as quick-witted as most juries are. After he has summed up to them, they come back with a question and say to him, "Would you explain to us what is meant by the words 'having the intention of permanently depriving the other of it'?" The noble Lord, Lord Chorley, could not go wrong if he read out the words of that subsection to that jury. The Court of Appeal would say, "Well, that is what it is intended to do. This is the guidance which the noble Lord, Lord Stonham, has said is so clear." But what would the members of the jury think or understand? I am not sure that I know what one is meant to understand by this clause. I recognise the purpose of it and what the noble Lord wants it to do, but I must say that I think it is extremely difficult to understand exactly what it does.
May I go a little further on in the Bill. I welcome the definition of "burglary". This is a considerable simplification of the law. But I do not think that paragraph (b) of Clause 9(1) should be left in the

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Bill, and I see no need for it. Certainly, paragraph (a) of Clause 9(1) should stay in, but it is surely quite new to have an express provision about a trespasser making him guilty of burglary if he commits or attempts to commit any of the offences mentioned in subsection (2). It is necessary, because it sometimes occurs, to make it a criminal offence to break into a house with intent to commit rape or to do grievous bodily harm. That is now being converted, and quite rightly, to entering any building as a trespasser. So you get rid of all the technicalities of proving a breaking and entering; and you retain the breaking and entering with intent to commit grievous bodily harm or rape of women. It may seem odd to call that offence burglary. When there has been a rape committed, or when there has been an attempted rape in a house by a person who is a trespasser, why should he be charged with the offence of burglary? He would always be charged with the offence of rape or attempted rape. Paragraph (b) serves no useful purpose, except perhaps to cause some degree of confusion.
I come now to what my noble friend Lord Colville of Culross touched upon, and what I think is the most important part of this Bill which we will have to consider in Committee. So far as theft is concerned, we do not have to prove any motive, but we have to prove an intent. The definition contains only the word "dishonestly". When you come to Clause 13, dealing with the abstracting of electricity, there again, for some reason which I simply do not understand, you are required to prove in addition to "dishonestly", which one interprets as "fraudulently", that it is done with the motive of causing loss to another. Bearing in mind that "loss" is interpreted to mean money or money's worth—that is, a financial loss—you will be liable to be convicted of an offence under Clause 13 only if it is proved not only that you abstracted electricity dishonestly but that you did it with the purpose of causing loss to another. My Lords, I should have suspected that in a great many cases where that kind of crime is committed it is done without any thought of whether or not it causes loss to another. But, there again, there is the addition of these words, introducing what
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I think is an entirely novel concept into this branch of the criminal law.
I looked to see what the Committee had to say about this point, and all they said in their Report, in paragraph 85, was:
"It also seems right, and in accordance with the scheme of the Bill, to require an intention to cause loss to another".
No reasons are given; there is no explanation for the insertion of those words. I frankly say that it does not seem to me right. Nor, when you examine the rest of the Bill, do I think it clear that it is in accordance with the scheme of the Bill. Not only does the offence of theft import no such requirement of proof, but the offence described in subsection (1) of Clause 15—the offence of criminal deception, for which the maximum penalty is ten years—does not require it either.
In relation to that offence, paragraph 88 of the Report said that a person who dishonestly obtains by deception property to which he believes himself entitled will not be guilty of an offence under Clause 15(1) as—and this is the reason given—
"though the deception may be dishonest, the obtaining is not".
My Lords, I am by no means sure that that is right as a matter of reasoning, because I should have thought that the dishonest deception would have coloured the obtaining. But even if it is so, it seems to me anomalous that a person will still be guilty of a criminal offence if, by deception, by the use of a forged instrument, he obtains payment of a debt due to him; and that is clearly so, and is clearly recognised in paragraph 92 of the Report.
When we come to Clause 15(3)—the subsection to which my noble friend drew attention—I think we shall have to take a very careful look at that in Committee. But I come to Clause 15(2) first—I jumped ahead too much. Clause 15(2) extends the offence of obtaining credit, and, as it stands, anyone who goes to his bank manager to get an extension of time for the payment of his overdraft by telling him a lie, by telling him that something has happened or is about to happen which will enable him to pay soon, will be guilty of a criminal offence punishable with five years imprisonment. That is clearly intended, as

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one sees from the Report of the Committee. If this Bill is passed in its present form, going to see one's bank manager will have additional terrors to those which such a visit now ordinarily has.
I now come to Clause 15(3). The Committee say that it does not correspond to any particular offence under the present law; and I am in agreement with paragraph 99(i) of the Report, where it says that the terms of the clause to which it refers
"are extremely general, whereas it is a principle of English law to give reasonably precise guidance as to what kinds of conduct are criminal. The expression 'dishonestly', 'gain' and 'deception' are not precise enough for so general a provision as"
this clause. I should make it clear that those were the views not of the Committee as a whole but of objectors; and I think that they were right.
Then in paragraph 99 they give instances of three cases which this wide clause will cover, so they say, provided that there is dishonesty. As the clause now stands, I do not think that in two of those cases that is a correct statement. For theft, as I have said, it has to be proved only that the accused has acted dishonestly, and the position is the same under Clause 15(1); but Clause 15(3) requires proof that he has acted dishonestly with a view to gain for himself or another and with intent to cause loss to another.
VISCOUNT COLVILLE OF CULROSS: No, my Lords. With great respect to my noble friend, this is the very point. For some reason, the loss point is not brought in here.
VISCOUNT DILHORNE: I quite agree. I have muddled up my notes, and I have got on to the wrong subsection. Perhaps your Lordships will forgive me for one moment. It is Clause 13 which requires proof of an intention to cause loss to another; and that, again, is said to be in accordance with the scheme of the Bill. When one looks at Clause 15(3), one sees that the words are,
"with a view to gain for himself",
and in Clause 16(1) they are:
"Where a person dishonestly, with a view to gain for himself or another or with intent to cause loss to another …".
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That is in the case of false accounting. You find the same formula in Clause 19, dealing with the suppression of documents, and in Clause 20. They all start with those words. I come back to Clause 15(3) and to the examples given in the Report of what that subsection will now cover. That part of the Report is prefaced by the words,
"Provided that dishonesty is proved",
and there is nothing said there about the addition of the requirement to prove, "with a view to gain for himself". Nowhere in the Report is that dealt with.
It may be that it has just slipped through in the drafting, but it is extremely important. I personally believe that this Bill would be no worse, and would really be very much better, if those requirements to prove it was done with a view to gain or with a view to loss were completely omitted. I will deal with it more fully in Committee, but in some cases the insertion of the words "with a view to gain" narrow the clause beyond the point to which, in my belief, it should be narrowed.
My Lords, I have taken long enough, and I do not want to pursue this point at any undue length, but I think that is a very important matter with which we shall have to deal. I listened with attention to what the noble Lord, Lord Stow Hill, said about Clause 20. That is prefaced by the same words. I must say that, on reading that clause, I thought? as he thought, that the interpretation to be given to it was that the test was subjective, about the belief of the person accused, and I doubted again whether it would ever be possible to prove that the lady (in his case) did not have the belief which she said she had. We shall have to look at that very closely indeed; but I am doubtful, too, with the noble Lord, as to what the meaning of that clause really is.
My doubts have been rather added to by the fact that in this Report, at paragraph 123, there is a discussion on the use of the word "proper", and it says:
"'Proper' directs the mind to consideration of what is morally and socially acceptable …"
That looks like applying the objective tests. But as the Bill is drawn the question, as I understand it, is not what was "morally and socially acceptable" in the

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view of ordinary people, but whether the individual concerned believed that what she or he was doing exercised a proper means. If that be so, I think the difficulties of getting a conviction for blackmail in a case where most people think there ought to be a conviction would be very great indeed.
My Lords, I fear that from what I have said I may have given the impression that I am extremely critical of this Bill. I am very critical of certain aspects of it, but I am absolutely sincere in my congratulations to the Committee upon the work they have done. I do not believe that anyone has yet produced a perfect Bill or a perfect Act of Parliament, and I hope that in this House we shall be able to put a polish on, and improve in certain respects, the Bill which has come from this Committee and of which they have many reasons to feel proud.
6.11 p.m.
LORD CHORLEY: My Lords, we are having rather a lawyers' holiday this afternoon, which I think is unfortunate. The noble Lord, Lord Stonham, is the only non-lawyer taking part in this discussion. The noble and learned Viscount who has just resumed his seat has indicated that I am a justice of the peace and accustomed to working in that capacity, so perhaps I may regard myself as half a layman for the purpose of this afternoon's debate.
I am in entire agreement with the noble and learned Viscount when he says that this is much the most important Bill relating to criminal law which has been before Parliament for a very long time. Indeed, I would say that it is the most important Bill we have had to deal with in the present Session of Parliament. When one considers that the vast majority of the men and women who are sent to prison in this country—and tens of thousands of them are dealt with every year by the courts of criminal law—have been charged with stealing, then surely the vital importance of this Bill is only too clear.
I should like to join in all the gratitude that has been expressed in this House this afternoon to Sir Frederic Sellers and to his Committee—I do not know whether he is still here. When, a year
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ago, we had before us the Criminal Law Bill—which also was founded on his Committee's work—I took the opportunity, when congratulating him and his Committee on that occasion, to mention that if you wanted to get a job done quickly the thing to do was to get a Chairman from the Northern Circuit, like Sir Fred Sellers. He is a very old pal of mine on the Circuit; I think we were called almost at the same time. His conduct of the chairmanship of this Committee has been quite remarkable; to get this Report out in such a short time, is a great achievement indeed. It almost sounded as if the Committee had been a long time over it. But consider what is in the Report. It really is an astonishing achievement that the Committee should have succeeded in getting it done in the short space of time that they took.
I remember an occasion when Lord Goddard, at that time Lord Chief Justice, made some tart remark about the time it was taking to get the law of larceny cleaned up. I think those were the words he used: that "It is time it was cleaned up." I am sorry he is not here to-day. It was that remark of his in the Court of Criminal Appeal that led to the reference to the Criminal Law Revision Committee—and they have waited no time over it. Undoubtedly, this area of criminal law is one of the worst of all Augean stables in the palace of the criminal law, where, incidentally, there are quite a number of Augean stables. There is no part of criminal law more in need of some cleaning up. A great deal more than just tidying up is needed; a really complete house-cleaning is required; and this, in fact, it is going to get. This has appeared from what everybody has said this afternoon.
No doubt before this Bill is through it will be amended in certain respects—and I am in sympathy with some of the criticisms that have been made this afternoon. But, even so, it will be a really astonishing achievement. It will clarify the position in this dim but very important area of our criminal law in a way that can only be described as dazzling. It has been received with considerable enthusiasm by the legal profession; or, at any rate, by those members of it who are concerned with working in criminal courts. On the other hand,

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there are, as one would expect, some points on which there is far from complete agreement.
One of the criticisms which I think has not been made this afternoon is that there is possibly no really valid reason for retaining as a separate crime the offence of obtaining by false pretences, even under a changed name. But it seems to me that that offence would fit into the general category of theft which has been widened so much. When the possession concept is abolished from theft, as it will be under this Bill, and ownership is substituted for it, we get the same test as that applied in false pretences where we know it is the obtaining of the property rather than the possession which is the essential basis of that crime.
In the old days this distinction used to give rise to terrible trouble, and literally hundreds of offenders escaped prison because it was difficult to tell, until you tried the case, whether it was one of larceny or of obtaining by false pretences as under the present law. If you tried a man for the wrong offence he got away with it altogether, until a very sensible Statute was passed in that great era of criminal law, the mid-years of the Victorian period, when it was laid down that the jury should find him guilty of whatever crime the evidence showed he had committed. In this Bill, so far as I can see there is not this same sensible provision. In a number of cases it will still remain difficult to be sure whether the man was really guilty of theft or of obtaining by deception. Unless we put into this Bill a similar clause enabling the jury to find him guilty of whatever he did, we may find ourselves back in the situation which existed in the 1840s. It may be that I am wrong about this, but I think that it ought to be looked at very carefully.
There are a number of retentions of title and some new titles. In both cases, I am a little doubtful. Burglary is a crime which has a distinct connotation, not only to the lawyers but to the great mass of the people. I think it is really rather absurd to retain the expression "burglar" for a sneak-thief who goes into a cloakroom in a hotel, "pinches" an umbrella and runs off with it. So far as I can see, under this Bill he will, in fact, be a burglar. It is true that we are getting different gradations of
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burglary, simple burglary and aggravated burglary; but surely it is using rather a heavy gun to shoot at a sneak-thief, to make him a burglar when he behaves like that just because he takes an umbrella out of a house. There is a trespass in the house, something is stolen; therefore it is burglary.
As I say, this is making rather heavy weather of it and it would be sensible to have something rather less serious in the Title. On the other hand, they introduce this extraordinary crime of handling, which I must say I do not like. I would rather have the current expression "receiving", which we are all accustomed to and which does describe what a man is doing. "Handling" is an expression which undoubtedly will puzzle the jury, because it is obvious that the common-sense meaning is not what is aimed at by the Bill; it sound like argot.
On the other hand, the provisions of this clause, as was said by the noble Viscount, Lord Colville of Culross, are very good indeed. The crime of receiving stolen goods well knowing them to be stolen is one of the most difficult crimes for any judge to handle. I am grateful to the noble Viscount, but I am not going to tell him what I would say to the foreman of a jury if he came back with the question which the noble Viscount suggested the foreman might ask. But if he were to put to me some questions about receiving he would catch me out even more easily. Receiving is an extraordinarily difficult crime with which to deal, because of points of this sort which are now cleared up in the Bill. I think the new provision will make it much easier to get convictions in cases where undoubtedly people are guilty but find themselves able to escape from the clutches of the law because of the extreme technicality of the present law relating to receiving.
My Lords, I was very much in agreement with the noble Viscount, Lord Colville of Culross, when he pointed out the difficulties which will undoubtedly arise out of the use of the words "gain" and "loss" in the clause to which he referred. He used the word "prejudice"—I am not sure whether he used it advisedly. No doubt he will know that in the case of Wenham, which is the most important case on forgery in recent years to come to your Lordships' House, the

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word "prejudice" was in fact the word chosen, after a great deal of discussion, to describe the sort of loss which results in a forgery case. There had been an attempt to say that what happened was not forgery because there had not been any pecuniary loss, but as the words "pecuniary loss" are not used in the Forgery Act, or at any rate in the part which was relevant, your Lordships' House was able to come to the conclusion that the fact that prejudice had been suffered made out the case of forgery. I must say I thought a similar principle could be applied in this case and would meet the point which the noble Viscount was making. We might remember that when we look at these clauses in detail during the Committee stage.
I was interested in what the noble Lord, Lord Foot, said about the maximum sentences being increased. At first sight there seems to be a good deal to be said for that point of view, but those of us who are accustomed to dealing with these cases know quite well that if we started to send people to prison for too long sentences, the Court of Appeal would soon come down on us. The Court of Appeal exercises a very thorough control, not only over magistrates' courts and courts of quarter sessions but over the uniformity of the punishments meted out by judges on assize, and I think they can be relied on to see to it that sentences of anything in the neighbourhood of ten years are not imposed in the ordinary way for cases of theft.
What the Sellers Committee were trying to do, I think, was to keep the law fairly simple. There are a number of kinds of theft in which thefts are committed by people in responsible positions, such as people employed in the postal service, for which at present a man may, I think, be sent to prison for as long as 20 years. What the Sellers Committee were trying to do was to establish a maximum sentence which would cover all sorts of cases of that kind in order to get uniformity. It is quite possible to introduce aggravated larceny and ordinary larceny, with a shorter sentence for ordinary larceny and a longer one for aggravated larceny. But that would be a return to the rather complicated position that the Sellers Committee were so anxious to avoid. On the whole, I think it is more sensible and reasonable
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to leave the matter to the courts who, as I say, are supervised by the Court of Appeal in regard to the sort of sentences which they impose.
When I listened to the noble and learned Lord, Lord Stow Hill, I was sorry to find that apparently he was aligning himself with those who feel that the guiltiness of a person's mind ought to be measured in objective terms. Surely it is one of the great prides of our law that a man cannot be found guilty of these serious offences unless he has a really guilty mind. There was the divergation in your Lordships' House in the famous case of Smith v. The Director of Public Prosecutions, where it was held that the unfortunate man who killed the policeman without ever intending to do so at all—he was just trying to shake the policeman off the running board of his car—was guilty of murder because an ordinary person looking at it would have said, "Well, if he hits something corning in the other direction the chances are that the man will be killed, or at any rate very seriously injured, and that provides the necessary guilty mind." We put that right only last year in the Criminal Justice Act, because that doctrine had repelled not only the mass of the legal profession but the country as a whole. The Law Commission reported very strongly against it, and that applies in exactly the same way to a case of this kind.
The noble and learned Lord, Lord Stow Hill, quoted almost exactly the case of Bernhard, which was the case of a woman who had been living with a man who had promised to make a settlement on her and who paid it for some time and then just stopped. She said, "If you don't go on paying, I will show you up". That, said the man, was stealing money by menaces, and he complained to the police. The woman Bernhard was tried at the Old Bailey and convicted. The Court of Criminal Appeal said, "No, the woman had an innocent mind. She thought she was entitled to do this, and that is what you have to look at; whether in fact she thought she had the right to make this demand on the man and, when he did not pay, to make these threats for the purpose of inducing him to pay"—or, at any rate, that was how it should have been left to the jury.

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I must say that I thought the view of the Court of Criminal Appeal in that case was the correct one, and not the view taken by the Lord Chief Justice, Lord Hewart, when he directed the jury at the Old Bailey and told them it did not matter what was in the woman's mind, the point was that this was an unreasonable demand to make, unwarrantable in law, and if the jury felt it was an unreasonable demand they should find her guilty. Obviously, the Sellers Committee were following the law as laid down in the Bernhard case, and I think that most lawyers would feel that that was right, because this subjective test of the guilty mind is the correct one to apply in this sort of case. Those are points which we shall have to look at again as we come to deal with the clauses one by one.
Finally, I should like to say that I entirely disagree with the noble and learned Viscount, Lord Dilhorne, who wanted to go back to the use of the word "fraudulently" in the definition of theft. The word "fraudulently" has given rise to quite a lot of trouble. It is my custom to tell the jury, if they cannot understand what "fraudulently" means, that it really means "dishonestly"; and I have the strong support of Lord Goddard in the case of Williams, in which he said that that was the right way of handling this matter. Both to lawyers and to lay people the word "fraudulently" has developed a very distinct meaning since it was used in the 17th and 18th centuries when the definition of theft began to be built up. It is used in a very different sense now. At that time it really meant "dishonestly", and I think it much more sensible to use the word "dishonestly" as the Sellers Committee have done; and they explain very clearly why they have done it. I think it would be a very substantial retrogression if we were to eliminate "dishonestly" and put back "fraudulently". I hope that we shall not do so. I hope that this Bill will, in the main, go through in the way it has come before us. Certainly I would agree that some of the points should be looked at when we come to the Committee stage.
6.30 p.m.
LORD STONHAM: My Lords, of the six noble Lords who have spoken in this debate five have been distinguished law-
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yers. Therefore it is only common justice, even common sense, that the one layman, myself, should speak twice. I feel very much as I did when I had to go to France during the war as a civilian. Having the right papers, I could talk to officers of any rank and get what I wanted done. It had distinct advantages. I think I have an advantage now, even though I am completely outranked by the lawyers who have spoken. When I come back from my forthcoming visit to Canada to receive an honorary degree of Doctor of Laws, perhaps I shall have some shred of respectable standing in the distinguished company I shall have to meet in Committee. I must say that I look forward to the Committee stage of the Bill, because I cannot imagine any discussions more valuable and rewarding than those we shall have in Committee on this Bill.
I think it is fair to say that every noble Lord has warmly welcomed the Bill. My noble friend Lord Stow Hill said that it had gone right back to first principles, that it was drafted in language that the ordinary man could understand, and that great pains had been taken to make the right decisions. With that I am in agreement. The noble and learned Viscount, Lord Dilhorne, took me to task for using the term "monumental". I did not have gravestones in mind. While on that point, I think the noble Viscount made a mistake when he said that my noble and learned friend Lord Donovan had been chairman of this Committee at one time. He was a member, but I believe that Sir Frederic Sellers has been chairman throughout.
At the beginning of his speech the noble Viscount, Lord Colville of Culross, said something which has coloured my listening to every one of the learned speeches that followed. He said that he had been brought up to believe that the definitions in the Larceny Act were akin to Holy Writ. I think that every one of the criticisms made this afternoon was coloured by the training and the practice of the distinguished lawyers who have taken part in the debate. I think they find it difficult to come to this new way of thinking, to relinquish the old cases, mementi curiae. But we shall hammer these things out in Committee. It is worth spending a long time on them and getting them right.

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Another point that occurs to me is that though the Bill has emerged from a Report produced by a Committee of distinguished lawyers, who have worked hard to the utmost of their abilities, not under conditions of stress but with time for full consideration, during this short debate there has been disagreement on different points.
VISCOUNT COLVILLE OF CULROSS: My Lords, I do not know whether any noble Lord is necessarily saying that he disagrees with any point. One of the main points I was making was that on the loss and gain clauses of the Bill it has not been explained specifically why there is loss in one, gain in another, both gain and loss in a third, and neither gain nor loss in the fourth. I think that what we should all be grateful to hear is the reasoning, which I do not think appears in the Report.
LORD STONHAM: My Lords, I could not give all the reasons in a speech of reasonable length to all the many important points that have been raised, and to be honest I do not know the answers in every case. They are matters we shall have carefully to consider. I shall have to read and study them so that we can work them out in Committee. But I would refer to one or two of these points to give some idea of our thinking.
The noble Viscount had the theory that there is some kind of overriding principle that fraud should run through the Bill and that this included the idea of harming a person's rights. I regard that as a heresy which I cannot accept. The noble Viscount, in his interpretation of Clause 4(3), put forward the point that in his view trawlers would be committing an offence as soon as they caught some fish. They could not be caught—I mean, the trawlers—because the fish they trawl for is not other people's property. He also mentioned the word "reasonable". In our view this is subjective, because it depends on what a person believes to be reasonable. On the point of loss and gain, we have tried to see gain where the essence of the offence was gain and similarly with loss. With the Committee, we think that we have got them right.
VISCOUNT DILHORNE: My Lords, the noble Lord will appreciate that my point was not so much whether there
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would be gain or loss, but rather the difficulty of proving motive, which is now placed on the prosecution.
LORD STONHAM: I appreciate that, and that is why we must consider these points so carefully. In Clause 13, we feel that it can only be loss to the electricity suppliers. Clause 16 replaces the present offence, of which the essence is falsifying the accounts as a preparatory offence to cheating an employer or owner of a business whose books are being kept.
The noble Lord, Lord Foot, raised the question of penalties, which is exhaustively discussed in paragraphs 12, 27 and 59 of the Report. I have great sympathy with the noble Lord, because his reactions were precisely the same as my own when I saw this in typescript almost three years ago. I thought that it was one of the best things I had ever read but, like the noble Lord, when I picked up "simple larceny, five years" I voiced my objections, just as he has done But I came to the conclusion that there are two points here. If we want different penalties, then we have to have different offences, with all the complications of the present law, the precise thing which this Bill is designed to avoid.
I am going to do to the noble Lord what I did to myself nearly three years ago. I got out Archbold and looked up larceny, the whole 20 varieties. I will not read them all; but larceny by a clerk or servant carries a penalty of fourteen years, or by a tenant or lodger, where the value is over £5, it is seven years; where the value is under £5, two years; larceny from the person, from ships or docks, in dwelling-houses, of cattle, all fourteen years. But larceny of deer only two years. Larceny of documents of title, five years; larceny of dogs, after a previous conviction, eighteen months. And we go down to larceny of goods in process of manufacture, fourteen years; larcency of postal packets, life imprisonment; larceny by officer of a post office, life imprisonment; and lower down, after previous conviction of felony, ten years. In fact, it has to be a very simple larceny to get only five years maximum. That is the conclusion I reached.
There are very great advantages in having this one penalty. But the other point is this, and my noble friend Lord

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Chorley raised it. Because a maximum is fixed—and we have some of these offences with life imprisonment—no court would ever award a maximum penalty for a minor larceny such as stealing an apple or something of that kind. And I am satisfied that we have the maximum penalties right.
LORD FOOT: My Lords, before the noble Lord leaves that point, may I ask him this question? Would it be right—and I followed his arguments about this—that if you are going to have different maximum penalties for different offences you have to distinguish between the less serious offence and the more serious offence? Is that not exactly what this Bill does in the case of burglary? There is simple burglary, attracting a punishment of fourteen years, and aggravated burglary, attracting a penalty of life imprisonment.
LORD STONHAM: If a man goes to commit a burglary armed with a cosh or gun or knife, I think we must regard that as a different offence from that of a man who goes to commit a burglary unarmed. I think it is right that those offences should carry different maximum penalties, because the man who goes armed takes his arms in order that he may well use them; and it may well result not merely in grievous harm to some other person, but in death. Therefore I think it is right that we should have different maximum penalties for offences of different gravity.
But the point I was discussing with the noble Lord was that here we have one offence of theft, with one maximum penalty, which takes under its umbrella 20 existing offences of larceny, all fraudulent conversion, all embezzlement, and says—as indeed they are—that they are all theft and, whichever variety is being dealt with, it is possible to have ten years imprisonment for it. What I am saying is that I do not accept that it will create more anomalies than it abolishes.
The noble Lord mentioned the sentence of seven years for falsification of accounts. It may well be—and this is a matter to be considered in Committee—that that also ought to carry a maximum of ten years. I do not know. But I believe that when we have settled and agreed
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this single maximum penalty for this family of offences (if I may call it that), it then becomes a matter for the courts. If there should be different sentences for similar offences between different courts—and we have that now, Heaven knows!—it will be a matter for the Lord Chief Justice and the conferences which he periodically holds on these different subjects.
My noble friend Lord Stow Hill, whose speech I so very much enjoyed and for which I am so grateful—as I am for everything he does—raised, in particular, blackmail, which is dealt with in Clause 20. As he knows, the question is discussed in paragraphs 114 and 121 of the Committee's Report. I would not venture to answer all the questions he put and which I wrote down, but it seems to me that in the case he suggested it would be right to point out that the girl could go to a solicitor and get him to put the demand in a way which would not lead I to any criminal proceedings. He asked what the girl should do; and that would be the answer, I think. As for a demand for £1 million, surely no jury would ever accept that she believed she had reasonable grounds for making such a demand. Of course it is hard to evolve a test as to exactly what should be covered, and this is another point on which I am sure we are going to have a very important and interesting debate.
The noble and learned Viscount, Lord Dilhorne, dealt—and I was glad he did—with the word "dishonestly". We do not at present consider that any further definition is necessary. We think that "fraudulently" is a more legalistic term; that people would better understand "dishonestly". Of course, there has always been a good deal of argument about the word "fraudulently" in existing Statutes. I took his point, which is a fair one, as he put it, that the definition may lead to widely differing application in different courts throughout the country. He asked whether magistrates and juries would know what the Committee mean by the words they use, and whether exactly what is meant would not have to be explained to the jury. I think that that is probably right, but I do not think it is much different from current practice. He may be right in thinking that a far wider interpretation will be put on "dishonestly" than the Committee or Parliament might

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think. That is something we shall have to look at very carefully, and we shall study his speech and other speeches on the point.
With regard to Clause 2(2), which he mentioned, we think it is for the person who puts down the money and takes the property, even though he knows the owner is unwilling to sell; and it is that subsection which provides for that offence. The noble Viscount also spent some time on wild animals and wild birds. In our view, so far as the wild creatures are concerned, they are not at present "property", but Clause 4(4) makes them property. Even so, taking is not made theft, except in the cases mentioned in the clause; and, of course, it is the same with wild plants, except that wild plants are "property" now if they are growing on somebody's land. As for tearing them up by the roots, this is ordinary malicious damage now, under the present law, and under the Bill it will be theft if the conditions of Clause 4(3) are satisfield. But, naturally, we shall have a look at this question, particularly if Amendments on this subject are put down, even if they are put down as points for discussion.
LORD AIREDALE: My Lords, surely the trouble with Clause 4(3), regarding the picking of wild flowers—and this subject seems to have given rise to more dispute than anything else this afternoon—is that this subsection departs from the essence of theft, which surely is deprivation of another of his property. Taking some wild flowers from somebody else's property is depriving the person of the wild flowers. If you go on to say that that will be theft if the person who takes the flowers is going to sell them, but not if he is not going to sell them, it undermines the principle. The person who is deprived of his wild flowers does not care tuppence what the thief will do with them. That, surely, is the trouble we are in with this subsection.
LORD STONHAM: My Lords, I quite agree with that, though I regret to announce that the odds on lawyer versus lay have now gone up to six to one. I was about to say that in the case of the taking of heather, mentioned by the noble and learned Viscount, it would not be theft unless it was done dishonestly. This is one of the misfortunes of having to deal with these points in this way. It will be much better if we can deal with them in Committee and consider them properly, so that we can cover the whole ground.
On the point about pheasants—
VISCOUNT DILHORNE: My Lords, if it will help the noble Lord may I say straight away that I was not expecting answers to all these points? I was giving him advance notice and hoping to give him an opportunity of considering them.
LORD STONHAM: My Lords, I am most grateful for that, and if your Lordships feel, as I am sure you do, that I have said enough I will not say any more. The noble and learned Viscount is always helpful in these matters, but never so helpful as now.
I therefore conclude by thanking all the noble Lords who have spoken for the general welcome they have given to the Bill and for the valuable suggestions which have been made on matters which we shall certainly discuss in Committee, and I would only add that I now look forward to the next round.
On Question, Bill read 2a and committed to a Committee of the Whole House.

MAURITIUS INDEPENDENCE BILL
6.53 p.m.
House in Committee: Clauses and Schedules agreed to.
House resumed: Bill reported without Amendment; Report received.

GIBRALTAR
6.54 p.m.
LORD MERRIVALE LORD MERRIVALE rose to ask Her Majesty's Government, in view of the rejection by Spain of the offer to take the legal issues concerning Gibraltar to the International Court of Justice, and of the result of the Referendum held on September 10, 1967, and in view of our rejection of the United Nations resolution of December 19, 1967, and the assurance that the sovereignty of Gibraltar is not something which we can allow to be at issue,

(a) whether they are prepared to offer a final constitution and status to Gibraltar which would give it full internal self-government and in addition make its situation no longer debatable by the United Nations under Art. 73(e) of the Charter; and

(b) whether they will consider taking some initiative calculated to achieve an improvement in the Spanish restrictions on the frontier and in the air.

The noble Lord said: My Lords, my reasons for asking this Question are twofold. First, because the situation of Gibraltar has been discussed within the United Nations for nearly five years now—that is, since September 11, 1963—with the result that on December 19 last the noble Lord, Lord Caradon, before the General Assembly of the United Nations, had rightly to emphasise—and I quote his words:
"There are two basic principles which we cannot betray. First, the principle that the interest of the people must be paramount, and, second, that the people have the right freely to express their own wishes as to their future."
Last September, the people of Gibraltar overwhelmingly voted for a free and voluntary relationship with Britain. They also voted for discussions by their representatives on appropriate constitutional changes that might be desired. Surely they are now entitled to expect that Her Majesty's Government will no longer be called upon to submit political and constitutional information about Gibraltar to the United Nations.
My second reason for putting down this Question is that it is nearly five years—since October 17, 1963—that the people of Gibraltar have had to put up with increasing restrictions imposed by
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the Spanish Government. Surely the time has now come for Her Majesty's Government to take some positive action, calculated to diminish these restrictions. I am delighted that the noble Lord, Lord Shepherd, has just returned from a six-day visit to the Rock, for he will have learned at first hand of the constitutional changes which are desired by the people there in order to achieve full internal self-government. Also, he has been able to appreciate for himself what an inhuman strain has been placed upon the Gibraltarians by the Spanish Government.
As a result of the 1964 Constitutional Conference a significant advance was made, in order to achieve full internal self-government, by the inclusion of measures to accelerate the complete devolution of internal power. As Sir Joshua Hassan, the Chief Minister, told the Fourth Committee of the United Nations on December 17, 1966, the process of decolonisation started in 1950 by the setting up of the first Legislative Council, with the people now enjoying a great measure of self-government. In view of the Minister's recent talks in Gibraltar I sincerely hope that this evening he will give the House information as to the Government's proposals regarding the forthcoming constitutional changes. I trust that he will not just suggest, as has been suggested in the past in another place, a merger of the Legislative Council and of the City Council, which would be purely an administrative measure and, by itself, would not constitute decolonisation; nor would it alter in any way the status of the Gibraltarians.
Going back to September 19, 1963, within the Committee of Twenty-four Sir Joshua Hassan said that Gibraltar could not emerge as an independent sovereign State but that under Principle VI of the Annex to Resolution 1514 she could achieve a full measure of self-government by "free association with an independent State". Bearing in mind that this type of relationship, extending as it does from almost integration to near-independence, permits a certain liberality of interpretation, this, in effect, is what the people of Gibraltar voted for on September 10 last. But what are these links to be at the outcome of the constitutional discussions? And would the noble Lord, Lord Shepherd, consider holding these discussions in London, so

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that if they are to permit full internal self-government they may receive wide publicity, through Government statements in the Press and on the radio, so that full decolonisation may be seen to have been achieved, and that it may be seen throughout the world? Also, could the noble Lord say, when he comes to reply, who will be attending this conference?
In my humble opinion, to achieve this complete de-colonisation—the Treaty of Utrecht placing certain obligations on Her Majesty's Government which make it indispensable to retain certain reserve powers—those reserve powers should not go beyond those required to comply with the provisions of the Treaty of Utrecht. That is on the one hand. And on the other hand, I feel they should permit intervention by Her Majesty's Government, the British Parliament, if any act of the Gibraltar Government or any amendment to the internal constitution should appear inconsistent with the obligations imposed on the United Kingdom Government by the Treaty. I believe that in this final Constitution—I hope it will be a final Constitution—the British Parliament should not have power to amend or suspend the internal Constitution except at the specific request of the people of Gibraltar.
Last Thursday in Gibraltar, the noble Lord, Lord Shepherd, mentioned that nothing was irrevocable, not even your Lordships' House, which was likely to be reformed. But does the noble Lord not feel that the people of Gibraltar are entitled now—and would the Minister consider this—to some form of agreement or convention which would make Gibralta's future immune, though it may be quite irrelevant at the present time, to any political expedient in the future, such as changes in defence policy or changes in strategic concept in the Mediterranean, so as to remove, as the noble Lord said in Gibraltar, the worry of the Constitution from people's minds so that they can get on with the essential development of their economy?
I for one warmly welcome the fact that in Gibraltar last week the Minister stressed the need for giving political and economic stability to that small area. Would the noble Lord now be willing to agree that Gibraltar's definite link with this country must primarily be established
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through the status of the citizen? As I mentioned in this House on March 21 last year, the people of Gibraltar are technically British subjects, citizens of the United Kingdom and Colonies, but in practice they are not. They come under the provisions of the 1962 Commonwealth Immigrants Act. This must surely be changed in any future Constitution in view of their very special situation—even unique I would say. Owing to the Treaty of Utrecht and the impossible situation in which they find themselves of being unable to remain a colony or to become an independent sovereign State, surely with this combination of such a complex national and international situation their case deserves special consideration. I would add that they are not responsible for defence, and there is no question that they should be in the future, nor for international affairs. In other words, there is no question of any break in British sovereignty. It seems to me that if we are to achieve this process of decolonisation, then the people of Gibraltar should be granted a status equal to that of the citizens of the Channel Islands, for instance, and thereby come under the Home Office rather than the Commonwealth Office.
Turning to the importance of the Rock from a defence or strategic point of view, I should like to recall a statement contained in Document 431 of the Assembly of the Western European Union, which came out on November 16 last year and which says:
"Gibraltar holds a key position of strategic importance, dominating as it does the Western entry to the Mediterranean. It is essential for Western security that Gibraltar, with its fortress, airport and harbour facilities, remain under the control of a friendly Power. With the rundown of Malta as a British naval base it is all the more important that the Allies can count on Gibraltar remaining British."
In the context of a strong British presence in Gibraltar, and in the context, too, of the Government's planned withdrawal of our forces from East of Suez, would the noble Lord, Lord Shepherd, consider approaching his right honourable friend the Secretary of State for Defence with a view to seeing whether it would be feasible and possible to reinforce our garrison in Gibraltar? This could alleviate the problem of accommodation for some of our troops returning from the Far East. Also, would his right

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honourable friend consider the Royal Navy making more frequent calls at Gibraltar; and also, finally, with regard to the Royal Air Force, would he consider sending a squadron from time to time to Gibraltar for the purpose of undertaking training flights from that airport?
This brings me to the increasing activity of Spanish warships in the Bay of Gibraltar; three of them anchored in British territorial waters whilst the Minister, the noble Lord, Lord Shepherd, was in Gibraltar, and which were, I understand, duly boarded by the Queen's harbourmaster. The noble Lord will certainly be aware that last month two notes were handed to our Embassy in Madrid by the Spanish Foreign Ministry, in which the Spanish Government say that such boardings, coupled with our insistence on territorial waters, could give rise to an increase in restrictions against the Rock and to the obstruction of maritime traffic. How much longer are we to appear to be one jump behind the Spanish? As I asked on January 23 last, could not a White Paper, for instance, or a document, be produced to expose and confound these Spanish tactics and statements? This document should be given the widest possible circulation so as to influence world public opinion.
I turn now to the Algeciras prohibited area. The Secretary of State for Commonwealth Affairs, Mr. George Thomson, said on January 31 last in another place that this country had filed on September 6 last year—that is over five months ago—with the I.C.A.O. in Montreal a Memorial stating our case and setting in motion the appropriate procedure for the settlement of disputes under Article 84 of the Chicago Convention. May I ask the Minister whether Spain has filed a counter-Memorial, the deadline being February 1 this year, and has the disagreement yet been decided by the Council, or will it be necessary to invoke Article 85, that is, arbitration procedure?
I feel that Her Majesty's Government should take firm action in this matter, as the prohibited area has certainly interfered with flying. The present interference with access is intolerable, for Gibraltar is certainly not the only airport which is situated close to international
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frontiers. As a C.O.I. document points out—I am quite sure the noble Lord has seen Gibraltar Airport—The Facts—Detroit, Copenhagen, Geneva and Singapore, which the noble Lord knows well, are in a similar position. As to restrictions on the frontier, will Her Majesty's Government step up diplomatic pressure and influence, with a view to causing Spain to have a "re-think" on this matter, in the same way that Spanish diplomacy exerted considerable diplomatic pressure last December at the United Nations?
In conclusion, I would ask the noble Lord when he comes to reply to please bear in mind that the people of Gibraltar are relying entirely on this country, and that it is imperative that these 24,000 British people, all on a small area of two and a quarter square miles, should no longer have this strong feeling of isolation. I would plead with him, as the Minister responsible, to do everything in his power to allay this fear.
7.12 p.m.
LORD MOYNIHAN: My Lords, the hour is considerably later than I had expected it to be owing to the extremely interesting debate which we have just heard, and I would prefer to try to cut my arguments short and concentrate on the points of the actual Unstarred Question. I should have liked to go over the whole of this enormous problem of Gibraltar, a problem which I think is taking on some of the characteristics of the Rock itself. I hope that we shall have an opportunity to do this on another occasion.
Before I start my speech I should like to say that anything I say is a personal opinion. I have been instructed most clearly by my political Party to say that I am not speaking for them in any shape or form. In fact, I believe that in so far as there is a definite opinion in my Party it is much against me. But I am perhaps speaking for a younger generation, a generation of Englishmen for whom the Rock is not quite so symbolic as it is for many of your Lordships. My love and admiration for the apes on the Rock is that of an animal lover, rather than of somebody who believes that the British Empire will fall if ever they should die. The British Empire has, to all intents and purposes, disappeared. The idea of an Empire is one with which

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many of your Lordships would not really wish to be associated in 1968.
Before coming to the actual points of the Unstarred Question I should like to look at one matter which never really seems to be looked at, and that is the situation and circumstances surrounding the capture of Gibraltar. I assure your Lordships that I shall do it quite briefly. At the time Great Britain was not at war with Spain but was merely supporting one of the Pretenders' claim to the Spanish throne. In the words of the Spanish Foreign Minister
"Great Britain usurped from the Prince whose cause she had adopted a stronghold which she had conquered in his name."
I think that this is historically a fact and is not really subject to argument.
I should like briefly to quote from the Encyclopædia Britannica of 1879, volume 10, page 586. This, I think, is hardly the mouthpiece basically of Spanish propaganda. It says:
"The captors had ostensibly fought in the interests of Charles, Archduke of Austria (later Charles III), but, though his sovereignty over the Rock was proclaimed on July 24, 1704, Sir George Rooke on his own responsibility caused the English flag to be hoisted and took possession in the name of Queen Anne. It is hardly to the honour of England that it was both unprincipled enough to sanction and ratify the occupation, and ungrateful enough to leave unrewarded the General to whose unscrupulous patriotism the acquisition was due. The Spaniards keenly felt the injustice done to them, and the inhabitants of the town of Gibraltar in great numbers abandoned their homes rather than recognise the authority of the invaders."
Those are not my words; those are the words of the Enclopædia Britannica. That was how Gibraltar was taken.
We have always quoted Article 10 of the Treaty of Utrecht as the legal grounds for our presence in the Colony. But I wonder how many of your Lordships here have actually read Article 10 of the Treaty, or, at least, how many have read beyond the first paragraph. Perhaps I may quote the first paragraph, which says:
"The Catholic King does hereby, for himself, his heirs and successors, yield to the Crown of Great Britain the full and intire propriety of the Town and Castle of Gibraltar, together with the port, fortifications and forts thereunto belonging; and he gives up the said propriety to be held and enjoyed absolutely with all manner of right forever without any exception or impediment whatsoever."
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That is quite clear. There is no problem arising from that. But, unfortunately, that is not the whole of Article 10 of the Treaty; and I feel that many British politicians have put down the Treaty of Utrecht when they reached this point and have not read any further. Noble Lords will have noticed that no reference is made there to the peninsula adjoining Gibraltar. The Article says, if I may repeat it:
"… the Town and Castle of Gibraltar together with the port, fortifications and forts thereunto belonging."
There is no mention whatsoever of the peninsula adjoining Gibraltar to what is now La Linea. It is on this peninsula that the airport is situated.
It seems that, judging by the Treaty of Utrecht, and that Treaty alone, we have a very poor claim indeed to the piece of land on which the airport is situated. This, I think, answers a part of the noble Lord's Question. The argument that "possession is nine-tenths of the law" is hardly a principle that the British would want to put forward in 1968. It smacks rather of Stamford Raffles and "Bloody" Morgan, who conducted admirably the British policy of the years in which they lived. But I am grateful to see that British policy since then has changed.
Article 10 of the Treaty of Utrecht goes on:
"But that abuses and frauds may be avoided by importing any kind of goods, the Catholic King wills and takes it to be understood, that the above-named propriety be yielded to Great Britain without any territorial jurisdiction and without any open communication by land with the country round about."
I put it to your Lordships that this is equally clear, and I think it answers another part of the noble Lord's Question, paragraph (b), which asks the Government:
"whether they will consider taking some initiative calculated to achieve an improvement in the Spanish restrictions on the frontier …".
According to the Treaty of Utrecht, there is legally no frontier there at all. If anybody has ever been allowed to pass over it, or if any trade has been allowed to be conducted there, it is because the Spanish have been kind enough to allow us to do it, completely contrary to the stipulations of the Treaty of Utrecht which I have just read to your Lordships.

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The Treaty of Utrecht further says, in Article 10:
"And Her Britannic Majesty at the request of the Catholic King does consent and agree that no leave shall be given, under any pretence whatsoever, either to Jews or Moors to reside or have their dwellings in the said town of Gibraltar."
This, in 1968, smacks of racialism and is something which I could not possibly accept or support in any way at all. If noble Lords agree with me on this, surely it is quite impossible to throw away one part of Article 10 of the Treaty of Utrecht and not in fact dispense with the whole thing, which means that we should be in Gibraltar illegally.
The final paragraph of Article 10 is perhaps the most important. It says:
"And in case it shall hereafter seem meet to the Crown of Great Britain to grant, sell or by any means to alienate therefrom the propriety of the said Town of Gibraltar, it is hereby agreed and concluded that the preference of having the same shall always be given to the Crown of Spain before any others."
I am not a lawyer, my Lords, but I think that an argument can be made out that that sentence of the Treaty of Utrecht is a complete answer to the part of the noble Lord's Question which comes under paragraph (a). In other words it seems to me doubtful that we have any legal right whatsoever to grant independence to the people of Gibraltar unless we first offer the territory to Spain. It can thence be seen that decolonisation is impossible without offering first to give it back to Spain. So much for the Treaty of Utrecht.
I will not go into the details of the ways we have used over the years to increase the territorial restrictions placed on Gibraltar. Suffice it to say that during the great yellow fever plague in 1815 the Governor, General Don, asked a favour of the Spanish authorities temporarily to billet those who had not had fever on neutral ground outside the walls of Gibraltar. This permission was granted by the Spanish, but we never returned. It is on that very ground which we were allowed to use by the Spanish that the airport is now situated.
The problem of Gibraltar is an extremely difficult one, but it is not one that will be solved by jingoism; nor will it be solved bilaterally between Great Britain and the people of Gibraltar, as
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the Treaty of Utrecht cannot be overlooked and the Spanish have definite legal claims. What is needed is a three-way agreement, acceptable totally to Great Britain and Spain and as acceptable as possible to the present inhabitants.
LORD SHEPHERD: My Lords, may I ask the noble Lord whether he would deny to the people of Gibraltar the basic rights of the United Nations Charter on Human Rights, which I believe we shall be celebrating this year?
LORD MOYNIHAN: No, my Lords, I certainly would not; and if the noble Lord will bear with me I will try to make my points and put forward some form of suggestion. My next words were to be that I agree that it is out of the question to hand over the people of Gibraltar to a Spain which is undemocratic; and I hope that when the noble Lord comes to reply he will give the people of Gibraltar a definite reassurance that there is no question of that happening. I wish that the noble Lord had given me a chance to say that before the interruption, but we must all hope and assume that in the near future a more liberal Government will emerge in Spain.
Geographically, Gibraltar is as much a part of Spain as Hong Kong is a part of China, and in my opinion there can be no long-term solution—I repeat, no long-term solution—to the problems of either place without bearing in mind that these geographical ties are at least as strong as those of Romney Marsh to England.
There seems to me to be a possible solution along the lines of returning Gibraltar to Spain in exchange for a very lengthy lease, perhaps 99 years; or, for that matter, 999 years. For what the Spanish are upset about, basically, is the fact that the present situation is a thorn in their side; it upsets their pride, a perfectly justifiable national pride, in a country which is not whole in any shape or form while Gibraltar is not a part of it. I suggest that this solution would be totally acceptable to the Spanish. I could be wrong, but I should be very interested to hear the Spanish turn down such a proposition. I suggest that it would equally be totally acceptable to Great Britain, and I suggest that it might well be very nearly acceptable, in some shape or form, to the people of Gibraltar.

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The ultimate solution is, of course, a unification of Europe that would make us all—whether we be English, Gibraltarians or Spanish—simply Europeans. I look forward to seeing that day, which I am sure will arrive long before the end of any 99-year lease which we might create. However, in the meanwhile, let us put aside all jingoistic thoughts and let us try to work out a solution with the Spanish, who are, after all, a great, proud and dignified nation with whom I, for one, am proud to reassert my friendship.
7.27 p.m.
LORD MOWBRAY AND STOURTON: My Lords, I should like to thank my noble friend Lord Merrivale for raising this very important subject, which is of great concern to the 24,000 inhabitants of the Rock. If in my speech I appear to be going over a somewhat wider field, I ask your Lordships to forgive me, because, like the noble Lord, Lord Moynihan, I think that we have to look at this matter from a slightly wider angle. Both the Spanish and the British Governments and peoples—and this is a question of peoples more than Governments—are bogged down in emotion coupled with legalism; we are getting down to legalistic details. To the British in the past, Gibraltar has been one of the brightest jewels in the Crown. This is partly because of the emotion which was evoked by the great defence of Gibraltar by General Elliott, which lasted some three years and seven months. It was a great feat. After something like that has happened, as it happened in Malta in the last war, we have a great feeling of emotion. But we must not let this worry us too much in looking at it from the Spanish point of view. Dover, for instance, was occupied in the 11th or 12th century by the Count of Boulogne. He might have got a treaty from the then King of England to enjoy it in perpetuity. If he, or his successors, had been able to hold on to it until to-day, I do not believe that any of us sitting here would be pleased by this circumstance. He would now no doubt have populated the area around Dover with various people from the area adjacent in France. It would not make it any the less objectionable to us and to our national pride. Similarly, had we held on to our completely legally owned base at Calais and the land adjacent
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there, I am sure that every French citizen, from its great President downwards, would feel very strongly indeed.
We should remember these facts as a background. We are arguing both legalism and expansionism. We expand, as the noble Lord, Lord Moynihan, said, by creeping trading, and we then justify it by occupation. On the other hand, we have undoubtedly annoyed the Spanish in the past, not only by occupying Gibraltar, but by allowing smuggling to go on, which has cost them an enormous amount. I would quote what Mr. Frederick Harrison wrote in 1917:
"In the 200 years we have held this town, we have made it a resort of smugglers, gypsies, vagabonds, African rogues, Spanish rebels…. As a systematic emporium for the smuggling of Spanish products into Britain, and of British goods into Spain, for generations Gibraltar was notorious."
This has not been true recently of the inhabitants. Obviously, we shall all accept that.
Just to give the background again, another encyclopædia, Chambers, which was published exactly 100 years ago in London and Edinburgh, said at the end of the article:
"Gibraltar is a free port and is a resort in consequence of Spanish smugglers who drive an amazing trade by introducing contraband goods into Spain. The British Government is not altogether free from a charge of breach of faith in the toleration it has given to these dishonest men for it is bound by many engagements to use its best exertions to prevent any fraud on the Spanish revenues."
I think we should all agree that this is true, and we must accept that the Spanish traditional background has made the position worse. We have angered the Spanish population by this behaviour.
Don Angel Ganivet, writing at the end of the last century, expressed what Señor de Madariaga has strongly endorsed. He said:
"Gibraltar is a force for England so long as Spain is weak; but if Spain were strong it would become a vulnerable point and would lose its raison d'être."
How true this is. It would then become a rather unpalatable nut, which was very indigestible.
How do we get round this? We must do something. The Spanish Government has made various suggestions. In May, 1966, the Spanish Foreign Minister suggested that if we were willing to give up our sovereignty they would be willing

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to grant some long lease or something of that kind. They would be willing to negotiate a convention for the base. They also offered to protect the citizens' interests and British nationality and to register all these points with the United Nations as a protecting Power, so to speak.
I should like to draw your Lordships' attention to another small pimple, one which exists on the French coast—Monaco. It is only a small place, even tinier than Gibraltar, with 2,000 citizens. But France has come to an agreement with the reigning Prince. The reigning Prince is a Sovereign Prince only in so far as he is under the protection of France. He has to accept one of three Ministers suggested as a Minister of State, and they are suggested to him by the French State. So the Minister of State of Monaco is a French citizen. Its Sovereign is its own Sovereign, Prince Rainier. They elect every five years by universal suffrage 18 members of their Council. However, they are bound to keep Monaco's guiding rules and laws on the same parallel course as those of France, who in return guards it from outside aggression and such like. It is only just a thought thrown out, but if one were able to get talking with the Spaniards on this matter again, without bias and without jingoism, I am sure there must be room for a possibility of peace.
If we could see the Union Jack flying beside the gold and red flag of Spain this would probably go halfway towards solving all the problems. If we could allow the Spanish Air Force and the Spanish civilian lines to share the airport; if we could allow the Spanish Navy to share our base, this would go a long way. We could probably extend the runways, and have new ones, and have them running diagonally. This would improve the airport enormously. I see the noble Lord shaking his head. Anyhow, conditions are now intolerable to both sides.
While I am on this point, I should like to pay tribute to the British forces who are in Gibraltar, the troops and the Navy, who, under extremely trying conditions, are a wonderful example of the best type of Briton abroad. With their patience and tolerance and good morale they help to keep up the example of what the people expect the British to do, and make the population of Gibraltar even more
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loyal to us than we know they are already. It is the people of Gibraltar that we have to consider. It is no good their being loyal to us if we cannot protect them. The Spanish Government regard us somewhat as we regard Rhodesia, as being in an illegal state. I think we all accept that negotiations should take place with Rhodesia, but it is said by most people in this country, so far as I can see, that we should keep sanctions going while we negotiate. Similarly, Spain regards us as being illegal here and say, "We will keep up what we regard as rightful restrictions on you until you negotiate something with us." It is a rather similar parallel. If we can get agreement, all these problems will drop overnight, I am sure.
Finally, just to sum up, I should like to say that you must either accept the inconveniences imposed by the Spaniards, or come to terms. If you have complete independence and isolation from Spain, you do not really have much choice at all, because in that case you are going to continue having air restrictions. You will still not have a Spanish Consulate in Gibraltar. You will have Spaniards prevented from visiting Gibraltar. You will still have the Spanish Government refusing to recognise certain types of passports issued in Gibraltar. You will still have the withdrawal of certain residence permits in Spain. You will still have the withdrawal of most of the passes of the workers of Gibraltar. You will still have the imposition of delays at the frontier.
Equally, if you are going to have complete independence from Spain, you will have to recognise that they have had just grievances in Gibraltar's having made goods available to smugglers from its bonded stores; having allowed smugglers to pay for their goods in pesetas; having allowed pesetas to be freely transferred abroad, particularly to Tangier; and, also, having allowed tourists to finance their holidays in Spain by means of black market pesetas issued in Gibraltar. If this is the way Gibraltarians are going to react, relations with Spain will continue to be strained. Gibraltarians will have to keep away from Spain, and the Press and radio will persist with a provocative policy against Spain.
Let us look at the consequences of such a policy. Gibraltar's value as a fortress will cease, because it will be absolutely

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worthless if all the territory around it is hostile. You are going to have to give expensive, artificial injections of help into the Gibraltar economy, some of which will mean making more ships visit it, having air squadrons staying there, using the Gibraltar dockyards for repairing ships—even though that is probably not the most economic way of doing it. Of course, the United Kingdom taxpayers will have to pay for this difference in what is essential and what is not.
The land communications between Gibraltar and Spain will still be virtually cut, because we know they have the right to dig up the road if they wish. You will then not get tourists using Gibraltar, and the children of Gibraltar and their children's children for generations will be confined to the Rock. The end result of this will be that the Gibraltarians will be in a similar position to that of employees in a firm which is rapidly going bankrupt in economic terms, and who have no hopes of alternative employment.
Just look at the other alternative of friendship. Then you will have to try to modify popular reactions to the restrictions and inconveniences in a manner which will make a policy of friendship attainable. In other words, the tail must not be allowed to wag the dog. It is only necessary to think back to the conditions which existed between Gibraltar and Spain before the war to see clearly that if friendly relations can be reestablished the Gibraltarians will gain in comfort, happiness and prosperity, and so will all the Spaniards in the neighbourhood.
Persons who believe in this should play their part in trying to attain it by ceasing to be provocative, by showing tolerance, by being patient and by, whenever we visit these places and other countries, trying to get the other side of the view looked at reasonably. It is no good working up feelings, whether it is in the United Nations or in Parliament, on matters like this. That is not the right way. The Spanish Government, as we know, is ready to talk to Britain about Gibraltar. Let us hope that the British Government, and all Parties, will take a broad view of the problem, unbiased by Party politics of any sort, and that they will try to re-establish friendly relations.
7.41 p.m.
BARONESS EMMET OF AMBERLEY: My Lords, I must apologise—and I have, indeed, already apologised to both Front Benches—for speaking without having put my name down on the list, but I was not certain that I should be here this afternoon. It was not until after lunch that I had put in my hand this letter from Gibraltar, from Mrs. Angela Smith. I feel that it would be wrong if I did not say a few words on behalf of the women of Gibraltar—and I am sure that Members on all sides of the House will join with me—and to sympathise with the predicament in which they find themselves and about which they feel very strongly. I therefore hope that I have your Lordships' indulgence for a few minutes.
As your Lordships know, Mrs. Smith organised a petition in 1966, and I believe that 7,499 women signed it in four days. This number represented 96½ per cent. of the women on the Rock. The petition was sent to Her Majesty, and I am sure it must have created a very great impression. Quoting from Mrs. Smith's letter, this is really her main theme:
"As a mother of three children, I cannot allow the present opportunity to escape without a real attempt at getting our national status recognised and guaranteed by Britain. Our children cannot grow up to face the same situation without any security for the future".
I shall not go into the Treaty of Utrecht, into historical background or into anything else. All I know—and this is what I really want to say—is that the people of Gibraltar want to stay with Britain. That is what interests me; and it is in that way that we have to find our solution. I hope this will be said very strongly by the Minister, who has just been to Gibraltar, and who I feel sure is full of sympathy. But children grow up—they grow up too fast—and it must be an agonising state for fathers and mothers of families to be in, wondering what their children's future is going to be unless some decision is taken in the near future.
I think it is a great pity that we seem to be so obsessed with geographical tidiness when we look at a map, and this is really what has happened in the case of the Iberian Peninsula. If one were logical, the whole of the Iberian Peninsula

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ought to be one country. It is two or three, with Gibraltar at the bottom. There are many other anomalies of this sort which do not seem to give the same kind of trouble. We have the Republic of San Marino, in Italy. We also have the Republic of Andorra, between Spain and France, which has a most interesting Constitution from which one might perhaps derive some benefit. It has two Princes, and no law can be passed without both Princes underwriting the law. One Prince is President of France, and the other is an eminent Bishop in the North of Spain. I think Andorra is a wonderful place, because there is such difficulty in underwriting any legislation that legislation is hardly ever passed—and I cannot think of any better heaven than that! However, there you have an interesting possibility.
When you come to think of it, there are other anomalies. Our Channel Islands are an anomaly; so is the Isle of Man; so are the Falkland Islands; so are all the Middle Eastern countries at the present moment. They are all anomalies. If we are going to stake the world out on a map in order that it should look nice and tidy, we are going to get involved in the most extraordinary predicament. So far as smuggling is concerned, smuggling has gone on all round the Mediterranean ever since man started to enforce borders. Smuggling is one of Andorra's biggest incomes. These are matters which can be adjusted, and which are not really all that important.
My Lords, we have been to the United Nations and we have done everything we can to meet Spain openly, but we have really had no response at all, except increased impediment. If I may quote from Lord Caradon's speech at the United Nations on December 19 of this year, he recalled the fact that there is not another case in the history of the United Nations in which a territory has been decolonised in defiance of the freely expressed will of the people. He also said that this was the first time that the Fourth Committee had opposed the opportunity of a free expression of opinion of a people. That was the referendum. So that was another first time.
If one looks at the votes of the nations who took this line at the United Nations, one can see the demarcation very clearly. The South American nations, in a body
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practically, voted against Gibraltar because of their connection with Spain. The U.S.S.R. bloc and the satellites all voted against Gibraltar for very obvious reasons. Italy voted against it because Italy took part in the Civil War in Spain some years ago. It is difficult to explain the attitude of Greece; but when one looks at the votes one sees that there was a reason for those countries voting the way in which they did which had nothing to do with Gibraltar at all; and that is why the United Nations has not helped us. I said that I would speak for only a very few minutes. I have made the one or two points that I wanted to make, and I hope that we shall have a sympathetic reaction from the Minister, after his recent visit there.
7.48 p.m.
LORD ST. OSWALD: My Lords, to-day, as over the recent months, I join in any discussion on this subject with acute discomfort, since every time we touch upon it the state of affairs looks worse and the prospect for the Gibraltarians looks bleaker than the time before. All the same, it would strike me as somewhat cowardly on my part not to join in since, unlike other noble Lords, I have watched and worried over this situation sometimes at close quarters and over fairly long periods for the last 20 years—although I have to admit that I cannot remember as luridly as some the outbreak of yellow fever in 1815 or the taking of Gibraltar in 1704.
I hope devoutly that I shall not embarrass the noble Lord, Lord Shepherd, by saying that I feel the greatest sympathy for him in this task among the many that face him in his present Office. I know most of the obstacles which confront him and something of the narrow, the crampingly narrow, compass in which at present he has to operate and seek a solution. I know that he will do his best, and a very capable best—indeed, the whole House relies upon him to do so—but he is continually being urged with the best will in the world to achieve the desirable by impossible means; means which simply are not open to him. In my view, that is the case to-day.
I also have sympathy with my noble friend Lord Merrivale in his efforts to help the Gibraltarians, but I say to him, in all friendliness, that his questions to-day, to my mind, will not have that

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effect. A population of 18,000 people, 2,000 miles away from Britain cannot feasibly take on the responsibilities of internal self-government, even with its foreign affairs and defence being handled by Britain. Nothing which my noble friend proposes would prevent the United Nations from continuing to debate this matter, and indeed the sort of unilateral action which he, I gather, favours would be taken as a defiance of United Nations' rulings and would antagonise that body even more than is the case to-day. There can be no doubt that this would be turned to account by Spain; indeed, it would be a "gift" to the more belligerent element within Spain. It would be regarded as further justification for isolating Gibraltar from the mainland, and it is utterly preposterous—and I say this with confidence—to suppose that the Gibraltarians can afford to be isolated from the mainland and yet live, and continue to live, satisfying, still less prosperous, lives.
The noble Lord, Lord Shepherd, has recently been to Gibraltar, and therefore we value his participation and his winding-up of this debate. He has been in Gibraltar where, I know, he was warmly welcomed, as he deserved and as he always will deserve. It is rumoured that he has some plan to alter the form of the Legislature in Gibraltar, in particular to streamline it; and I am sure that this makes sense, the sort of sense I know that many leading Gibraltarians are ready to accept. I should like to think that this might take the form of a purely Civic Authority with wide responsibilities, responsibilities which can be most ably discharged—as some of us know they will be—by some of those whom we also personally know in Gibraltar. If this should be in the noble Lord's mind I should like to be among the first to support and applaud him. I am certain that this would be more beneficial to the Gibraltarians than what has been proposed by my noble friend.
My noble friend also referred to the Spanish rejection of the offer to take the legal issues concerning Gibraltar to the International Court of Justice. But apart from the aerodrome and its location, there are no legal issues over Gibraltar. This is a cardinal mistake, it seems to me, which my noble friend and other well-wishers continually make. The Spanish
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Government have not, in fact, questioned our legal right to be in Gibraltar under the Treaty of Utrecht. What they have said, as I understand it, is that this is a situation which is no longer politically tolerable; and the Court at The Hague cannot take up political issues. Moreover, as Her Majesty's Government know, the Spanish Government put forward the argument—and I think it is a fairly difficult argument to refute—that the issue is now in the hands of the United Nations Organisation itself and this Organisation is superior to any of its own Agencies.
But, having said this, it would be absurd to suggest that this is an issue which can be decided, can possibly be decided, by a resolution of the United Nations alone. What we must hope is that it will be decided by moderates, by moderate opinion and moderate influence in particular in Spain and in Gibraltar. Impossible demands must not be made by either side because this will continue to end in deadlock and the duty of us all who take an interest in this is to break that deadlock.
The second of my noble friend's questions, or requests, to Her Majesty's Government, is, it seems to me, as impractical as the first, and, I should think, very difficult for the noble Lord, Lord Shepherd, to accept or even to encourage. What sort of initiative can Her Majesty's Government take regarding the over-flight restrictions? The Spaniards have made it abundantly and forcibly plain that they will not consider the matter of the air traffic restrictions in isolation from the dispute as a whole, and I frankly do not see how any British Government could expect to persuade them to do so.
I am deeply convinced that the solution of every individual problem and the relief of every individual hardship at present burdening the Gibraltarians lies in a wide agreement, between the Governments, on the status of Gibraltar as a whole. I can see that this achievement becomes more difficult as time goes by, but I believe, from what knowledge I have, that agreement can still be obtained short of—and well short of—handing over Gibraltar and the Gibraltarians immediately to Spain—a course which none of us contemplates. There is room—and I insist that there is room—for compromise, and it is only the opponents of any

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compromise who argue that Spain will accept nothing less than immediate possession.
There is no reason and no excuse for believing or arguing this or for believing that the Spanish Government are not open to negotiations. For what it is worth, it is my conviction that there can still be a fruitful and honourable outcome to talks so long as those talks are set in the wider context and not in the narrow context. We must all appreciate that Spain has as much to lose from aggravation of this dispute as we have, and that Spain has as much to gain by its solution. I agree with the noble Lord, Lord Moynihan, that no happy, acceptable outcome can be found by Jingoists, British or Spanish. That is one of the reasons why I am so happy that the noble Lord, Lord Shepherd, has this in his hands today.
My Lords, I have not stood up to-day to attack the Government, and certainly not to criticise the noble Lord, Lord Shepherd, himself. But I have to say that I think it was a great error of judgment and a strategic error in May, 1965, to ignore the Castiella proposals without at the same time offering something in their place. Those proposals were seriously intended. Unacceptable they may have been to the Ministers concerned; but we should, to my mind, have specified what was indigestible in them. I believe they could have been taken as a basis for negotiations or alternatively—and perhaps better—British proposals could have been put on the table and something worked out between the two sets of proposals.
As it was, and as it remains, no serious British proposals have been provided and Spain as a consequence has had, and continues to have, the initiative ever since. I sincerely believe that it would help greatly to clear the air and to clear the minds of those who are interested in, concerned with and influential in this problem, both in Britain and in Spain, if the noble Lord could this evening identify and describe the objections to the proposals of May 18, 1965.
It was said in The Times on Monday:
"Madrid wants to discuss ways and means of returning Gibraltar to Spain while Whitehall is interested merely in ending the Spanish harassment of Gibraltar.'
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My Lords, in this way, never the twain shall meet. Of course, we can go on making no concessions whatever, and the Rock will remain British. The Spaniards will not invade, as the Indians invaded Goa without any great fuss on our part. They will not employ the methods of violence and infiltration so lately employed by the Chinese in Hong Kong. But if we persist in refusing any concessions, life on the Rock will become increasingly intolerable: the Gibraltarians, I believe, will begin to leave it, and it will become rapidly depopulated. I hope this is not the solution that we seek for the Gibraltarians, and particularly for the children on whose behalf the noble Baroness, Lady Emmet, spoke.
I am sure, on the other hand, that it would not help for me to-day to refer to any one possible formula among the many formulae mooted at one time, or another. The noble Lord, Lord Shepherd, would not thank me for asking him to name his favourite among them. But I offer this thought, as one who knows the Gibraltarians well over many years, and feels the respect and affection for them which anyone so placed is bound to feel. With this in mind, I suggest, putting it very allegorically, that three-quarters of a Rock is better than an uninhabited rock with the present inhabitants demoralised and scattered to strange places far from the homes and occupations in which they take a rightful pride to-day. No one can sensibly doubt that there are still a great many measures which the Spanish Government, the Spanish authorities, can take within their own borders which would make life tougher, less profitable and less bearable for the Gibraltarians almost immediately, and which, if extended in time and scope, would break, I believe, the morale and undermine the will of these people to remain where they were born and where they belong. We must do better for them than that, a great deal better.
My Lords, in closing I want to emphasise what I regard as the overriding factor which has bedevilled almost every negotiation on the Gibraltar question between the British and Spanish Governments over many years and through the periods of many Governments, and perhaps most

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critically to-day. We have continually underrated, undervalued and underestimated the depth and sensitivity of Spanish feeling about Gibraltar. The greatest disservice that anyone can do to the interests of British Gibraltar and the Gibraltarians is to suppose or pretend, as it is often supposed and pretended, that this is no more than a political strategem by an ephemeral régime. There is nothing ephemeral about it. The present form of British possession of Gibraltar is a wound in the pride of every Spaniard under whatever Government or régime he lives. This fact has been consistently ignored, and we can continue to ignore it to-day only at the direct cost of the Gibraltarians.
My Lords, I doubt whether the reason for this feeling is often appreciated, even by those who are aware of it by their contact with Spaniards. Spain is a Mediterranean power and on the Mediterranean coast of the Spanish mainland Gibraltar is the key strategic point. If we are trying to imagine ourselves with a similar problem and similar indignation, it is not enough to imagine that the Lizard or Cape Wrath were military bases of Soviet Russia. We must imagine that Dover was in the hands of a foreign Power which had expressed some antagonism towards us in this immediate period of history. My noble friend dwelt on the impression created among Spaniards by this, and we ignore it, as I say, at the cost of the Gibraltarians.
Spain, my Lords, is not antagonistic towards Britain and is quite prepared for the continuance of the British base and for Britain to insist upon safeguards for the Gibraltarians. But antagonism will, I sincerely believe, be created by any continued failure seriously to seek a solution. We have to face the fact that a solution must include concessions and must provide safeguards. Some of the concessions must come from us and some must be made by the Spaniards on their own demands. Given the safeguards, I believe that concessions will pay off to the benefit of the Gibraltarians. The Spaniards also have to think and act in terms of moderation.
If the Government do not consider that the Castiella proposals provide such safeguards they are entitled so to argue.
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Let them say so, and let them say also what they would regard as proper safeguards. I have given notice to the noble Lord, Lord Shepherd, that I should ask this question to-day. I do not think that it is an abuse of the substantive Question set down by my noble friend Lord Merrivale, because I believe that only by broadening the approach can we have any hope of achieving what he hopes to achieve and ensuring a secure, satisfying and prosperous future for the Gibraltarians.
8.5 p.m.
LORD STRABOLGI: My Lords, I apologise for taking up the time of the House. I shall speak for only a very short time, but I felt it might be appropriate if a few words were said from these Back Benches. I congratulate the noble Lord, Lord Merrivale, on raising this question once again and also on his tenacity in ploughing a lonely furrow on this, subject, about which he rightly feels so strongly, over such a long period. I agree with a great deal of what the noble Lord has said. I also listened with interest to the noble Lord, Lord Moynihan. I am not surprised that the noble Lord said that he was not speaking for the Liberal Party, because, my Lords, I have rarely heard such an illiberal speech coming from those Benches. Listening to the noble Lord one would have thought that, at best, one was dealing with a bare rock, or with a piece of desert, or at worst with a population of serfs who were to be bought and sold by one owner to another.
LORD MOYNIHAN: My Lords, would the noble Lord say what it was I said which led him to that conclusion?
LORD STRABOLGI: My Lords, it is not what the noble Lord said, it is what the noble Lord did not say that led me to that conclusion.
LORD ST. OSWALD: Then tell us what he did not say.
LORD STRABOLGI: The noble Lord took us all through the Treaty of Utrecht. He also quoted from certain ancient out-of-print and out-of-date encyclopædias about law, and leasehold, and so on; but there was very little about people, my Lords, and this is a question of people. This is a question of the people of Gibraltar and what they want—
LORD MOYNIHAN: My Lords, if the noble Lord would give way for a moment, may I say that I think that on the points that I made about the Treaty of Utrecht it is only fair to say that at the time of the Treaty of Utrecht—by which we are legally bound, whether we like it or not—there were precious few inhabitants of Gibraltar. This is an enormous problem and I am not for one moment overlooking the future of those people in Gibraltar. I should not like the noble Lord, Lord Strabolgi, or anyone else, to be under the illusion that I am. What I was dealing with was the Treaty of Utrecht as it stands, and, of course, that Treaty was signed when the present inhabitants of Gibraltar were not there.
LORD STRABOLGI: Yes, my Lords, but they are there now, and that is the point. It is the people who are living there now and what they want which is the point.
I listened also with great interest to the speeches of the noble Lord, Lord Mowbray and Stourton, and the noble Lord, Lord St. Oswald; and to their constructive proposals for a solution. I agree that the present situation cannot be allowed to continue; there must be some form of compromise. But whatever the compromise is, we must take into account the fact that there are people living in Gibraltar and it is the human aspirations of those people and what they want that we must consider. For those reasons, my Lords, I hope that in any consideration the Government are giving to this problem they will never forget that they are dealing with human people. It is not a question of just a bare rock. Whether it is of strategic importance any longer or not does not matter a bit. It is the fact of the people living there, and what they desire; and, by a very large majority, as was said by the noble Baroness, Lady Emmet of Amberley, they have opted to stay with this country. That is what they want, and whatever we do, my Lords, I hope that Her Majesty's Government will not let them down.
8.9 p.m.
LORD SHEPHERD: My Lords, it is becoming what would have been in the old days a rather late hour, but I am sure that the House is grateful to the noble Lord, Lord Merrivale, for raising this
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subject which is of importance to the people of Gibraltar. I am personally appreciative of the opportunity to say a few words after my very recent visit to Gibraltar; although I am bound to say to the noble Lord, Lord Merrivale, regarding some of the very detailed questions which he put to me about what decisions one may have arrived at following that visit, that I shall not be able to answer, for reasons which I shall give him in the course of my speech.
May I say to the noble Lord, Lord St. Oswald, that any praise for me, coming from him, seems to have a rather damning effect for me, at least among my friends, but I am grateful that for once he sought to praise me and not to abuse me. To my noble friend Lord Strabolgi may I say that I agree entirely with what he said in reply to the noble Lord, Lord Moynihan. I can well understand that though our Benches are not very full, the Benches of Lord Moynihan's Party should be completely empty. The noble Lord, Lord Mowbray and Stourton, is not quite in the same class as the other noble Lords, although he was very close to it. My entire sympathies are with the noble Baroness, Lady Emmet of Amberley, who spoke on the basic problem of Gibraltar—not the Treaty of Utrecht but the Declaration of Human Rights and the people of Gibraltar.
I spent six days in Gibraltar and made a special effort to see as many people and organisations as possible. The most dominating impression of my visit was of the will and spirit of the people, which were firm and strong. It might be said that when one speaks with the leaders of a people one meets with cold logic, but the warmth and emotion of Miss Angela Smith, the leader of the Housewives' League, soon dispelled that, and the visit I paid to the ordinary people in the Laguna Bay Housing Estate confirmed my dominating impression that the people of Gibraltar wish to continue their abiding link with the United Kingdom. In representing Her Majesty's Government I felt proud and terribly humble about the obligation which the faith of these people placed on the British Parliament and the British people. I would say to the noble Baroness and to the lady who wrote to her that I do not believe, as I said many times when

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in Gibraltar, that any word written on any piece of paper in the form of a treaty could make the relationship between this country and the people of Gibraltar any stronger than it is. I hope that the people of Gibraltar will accept this and cast aside the doubts that I know exist.
I should like to deal with the problem that is before us. First comes the Treaty of Utrecht of 1713, about which we have heard so much. I suppose that few other Treaties of that time cause more difficulty in our affairs to-day. Article X of that Treaty provides for the Crown of Great Britain acquiring
"… the full and intire propriety of the Town and Castle of Gibraltar, together with the port, fortifications and forts thereunto belonging … to be held and enjoyed absolutely with all manner of right forever, without any exception or impediment whatsoever".
It goes on:
"… in case it shall hereafter seem meet to the Crown of Great Britain to sell or by any means alienate therefrom the propriety of the said Town of Gibraltar, it is hereby agreed and concluded, that the preference of having the same shall always be given to the Crown of Spain before any others."
The implication of this Treaty is that the idea of independence for Gibraltar, even if other considerations made it realistic, is meaningless. Another implication, which is perhaps less obvious, is that the status known as free association is similarly ruled out, since an integral factor in it is the right to pass to independence at the unilateral choice of the territory.
The next important document is a Statement made by the Minister of State for Colonial Affairs, Mrs. Judith Hart, in another place on June 14, 1967, in which she announced the holding of the Referendum. In that Statement she said that the people of Gibraltar were being invited to say which of two courses would best serve their interests. The second of two courses was:
"Voluntarily to retain their link with Britain, with democratic local institutions and with Britain retaining its present responsibilities."
The statement went on to say that if the majority vote went in favour of the second course,
"we will regard this choice as constituting in the circumstances of Gibraltar a free and voluntary relationship of the people of Gibraltar with Britain We will thereafter discuss with representatives of the people of Gibraltar appropriate constitutional changes which may be desired."
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Finally, the Statement said that if the majority voted for the second course,
"provision will also be made for the people of Gibraltar to retain the right at any future time to express by free and democratic choice the desire to modify their status by joining with Spain, in which event we would be ready to approach the Spanish Government accordingly."
As the House knows, the result of the Referendum was a decisive vote in favour of the second course. In my view, that vote constitutes the reality of decolonisation.
The third factor in the situation, however much we may deplore it, is the resolution adopted by the General Assembly on December 19, 1967. This resolution condemned the holding of the Referendum as contravening the provisions of the earlier General Assembly resolution and called upon the Spanish Government and ourselves to resume negotiations, with a view
"to putting an end to the colonial situation in Gibraltar and to safeguard the interests of the population upon the termination of that situation."
My Lords, my noble friend Lord Cara-don at the United Nations left no one in any doubt as to the attitude of the United Kingdom Government—and, I believe, of Parliament—to this resolution, which he described as disgraceful because, among other things, it flouted the Charter of the United Nations. My noble friend stated our position in the following words:
"There are two basic principles which we cannot betray: first, the principle that the interests of the people must be paramount; and second, that the people have the right freely to express their own wishes as to their future. These principles have guided us and will continue to guide us in our task of carrying out our responsibilities to the peoples of the dependent territories for which we are responsible."
May I break off for a moment to say that we are not thinking in terms just of Gibraltar but of how it is going to affect all the other people who are now living under colonial rule. My noble friend Lord Caradon continued:
"In the whole process of decolonisation we have adopted the methods of consultation and consent.
"We shall not abandon those principles in the few Dependent Territories for which we are still responsible. We have consequently maintained and constantly stated that to hand over this small, proud, united community of free men against their will, bound for ever

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to a régime which has done so much in an endeavour to harm them, would be an intolerable injustice."
My Lords, those are the views of Her Majesty's Government expressed by my noble friend Lord Caradon. For these reasons my noble friend made clear at the United Nations that we reject the resolution as partial and misguided and contrary to the principles of the United Nations Charter. I feel bound to say that what I found so distressing about this vote was the attitude of so many countries who place so great a store on their own independence, their own freedom, yet were prepared to close their eyes on this small community of people. However, I am also pleased to say that there were a number of Commonwealth countries who consistently, despite very great difficulties, helped us in this matter at the United Nations. We have made clear, moreover, that while we remain ready as ever to hold discussions with Spain about Gibraltar, we could not do so solely upon the basis of this General Assembly resolution. As I have said, in our view this resolution is contrary to the Declaration of Human Rights.
The purpose of my visiting Gibraltar was not just to let me see the people of Gibraltar face to face, and to see their city and to see their difficulties. The main purpose of my visit was to prepare the way for formal constitutional talks of the kind envisaged in the statement I quoted earlier in regard to the referendum. The circumstances of Gibraltar are so unusual that we believed that the best way of ensuring that these talks should be fruitful was for me to hold preliminary, informal and confidential talks with a wide range of Gibraltarian citizens and representatives. In this way, it would be possible for our thinking to develop on the same lines, and eventually the talks of a formal nature, when we call them, are more likely to produce full results. I am glad to say that for my part, at least, that visit was successful.
I was able to exchange views with a wide cross-section of opinion and to hold talks, very detailed talks, with the various political groups. I believe that those talks were constructive and productive. As I said, our talks were confidential, and, therefore, if I were to reply to the
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first question, I should in fact be rejecting the views of some of the political organisations who approached me in Gibraltar; and therefore the noble Lord, I am sure, will understand that I cannot reply to that directly. I found a very realistic attitude among the elected representatives and others, and I think I was able to make my own contribution on this very difficult problem, and all these matters are now being carefully considered in my office.
Without wishing to prejudice the course of the forthcoming discussions, I think there can be no harm if I indicate what I believe are the limits of our final discussions. Our aim in Gibraltar would naturally be to provide the Gibraltarians with the maximum control over their internal domestic affairs. Nobody could possibly question the capacity of the Gibraltarians to manage their own affairs, and I am bound to say that if Gibraltar were in a different position on the globe, and perhaps if it were a little larger, certainly they would well have achieved full internal self-government by now. But while this may be common ground between us, we all know that the circumstances of Gibraltar are different. While we should wish to see a development of domestic control, there must be a dividing line between what are purely domestic matters and those which affect Her Majesty's Government's interests, particularly as a military base. Therefore, for that reason, there must be some retention in the Governor's powers.
At the outset of my speech I quoted from the Treaty of Utrecht. It must be clear that no constitutional changes must conflict with that Treaty or our obligations that flow from it. I also quoted from the Referendum statement of June 14, 1967, which indicated that Britain would retain her responsibilities. Clearly these must continue under any revised Constitution, in that an effective British presence and an intimate relationship between Her Majesty's Government and the Gibraltarians is provided. I think I should stress that the present machinery of the Gibraltar Council has worked most effectively, and there has been no stress or strain between the Ministers and the Governor. None of this, in my view, should mean closing the door to the possibility of a better relationship with Spain at some time in the future, which

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I am sure the House would agree is the real interest not only of ourselves and Spain but, not least, of the people of Gibraltar. But, my Lords, I wish to repeat this—and this I said on television: that does not mean capitulation. That is a very important fact.
I hope that noble Lords will not think I have spoken too long in an introduction to this matter before I answer two specific questions of the noble Lord, Lord Merrivale, and the various questions that he and other noble Lords have raised, but I thought it right to put these words on record, particularly in the interests of those in Gibraltar. The noble Lord, Lord Merrivale, in his first question raised the matter of the final Constitution. I think I should say quite bluntly that I do not believe any Constitution in itself is final. In many respects, I think it would be presumptuous of us to suggest that whatever may be agreed with the leaders in Gibraltar is ever final. This is a matter which we should need to watch and to see how it developed, according to the situation in Gibraltar. The noble Lord also asked us about the final status of Gibraltar. Here I must make it absolutely clear that the constitutional changes which are envisaged will not result in any alteration in the present international status of Gibraltar. In the Referendum, on which the Gibraltarians themselves voted so unanimously, there were very clear words that Gibraltar, by remaining with the United Kingdom, did not itself envisage any change in its international status.
LORD MERRIVALE: My Lords, may I interrupt the noble Lord? I am grateful to him for giving way. When he mentions this question of status, does he mean the status of the territory or does he mean the status of the citizen of Gibraltar?
LORD SHEPHERD: My Lords, I have very much in mind the status of the Colony, and I should suspect that that very much means the status of the people who live in that territory.
The noble Lord also asked me about the transmission of information to the United Nations under Article 73(E) of the Charter. I suggest to the noble Lord that this is a matter of detail. In fact, whatever may be the decision on this point, I suggest it would be optimistic to
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suppose that the Committee of 24, or any other committee, would feel precluded from debating the problem of Gibraltar, whatever view we were to take on it. However, the noble Lord will be aware of the attitude expressed quite recently, in the last few days, at the Committee of 24 and at the United Nations, as to our general attitude towards the activities of that Commitee.
In regard to the restrictions in the airfield, I think I should say this: it is an irritant. It has had but small effect upon flights into Gibraltar. I see that a Spanish newspaper referred to it as
"a grievous and mortifying blow".
I saw some statistics the other day; and, fortunately, they are very small indeed. In regard to the tourist season, the latest information I have is that the hotels expect a very good season, and we have no reason to believe that the restrictions which have been placed by Spain, and which in our view are completely illegal, will have any effect on tourism in Gibraltar.
LORD MERRIVALE: My Lords, I am sorry to interrupt the noble Lord again, but I am sure he will be aware that this over-flying ban has had the effect that on a number of occasions aircraft which were due to land had, because of atmospheric conditions, to land either at Tangier or at Malaga, and it was rather a grave inconvenience for persons proceeding to Gibraltar.
LORD SHEPHERD: My Lords, I speak merely from memory (and it is a fairly good memory), but I believe that of the 450 flights the number of aircraft which were diverted on account of weather conditions was 15. I speak subject to correction, but the number is fairly close to that figure. Therefore the noble Lord will accept the point that I made: that these restrictions have in fact had only a marginal effect.
The noble Lord, Lord Merrivale, then spoke about whether we should not have these more formal talks in London The noble Lord will remember that he questioned me some weeks ago, when he wanted a wider opinion to be available, and I pointed out to him then that to make that opinion available it would be best to have the talks in Gibraltar. If we were to have them in London, then,

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by custom, those talks would be limited merely to the elected members of the Legislative Council. One thing I can say: I discussed this with the members of the Legislative Council, and they agreed that it would be infinitely better for all concerned if these discussions were held in Gibraltar.
The noble Lord spoke about the Governor's powers in relation to domestic affairs. This is a matter which we are looking at and I believe a settlement can be reached. The noble Lord also drew attention to an issue which confronted me every day when I was in Gibraltar (and, if I may say so, it was not only in Gibraltar), the question of the Commonwealth Immigrants Act and how it affects the people. I was very firm in Gibraltar. I pointed out that I personally, like many of my noble friends on this side of the House, dislike the Act. We recognise the necessity for it, but we can accept that Act only on the basis that it applies to all, and there should be no possible exceptions. The noble Lord shakes his head.
LORD ST. OSWALD: My Lords, it is hardly surprising.
LORD SHEPHERD: My Lords, I was quite blunt in regard to this. I dealt with it on the Gibraltar television, and I have received no reaction to it. I think the people of Gibraltar understand this point of view.
LORD ST. OSWALD: My Lords, I only wish to make the point that, as the noble Lord knows, there is an exception for the Maltese, and I am sure the Gibraltarians have this in mind.
LORD SHEPHERD: My Lords, there is no exception in the case of Malta; all that has been done is to give them a special voucher issue. This is quite different from the point made by the noble Lord, Lord Merrivale, of free entry into the United Kingdom.
LORD ST. OSWALD: I quite agree.
LORD SHEPHERD: My Lords, the noble Lord, Lord Merrivale, also asked whether we should not reinforce the Gibraltar garrison. I do not need to see my right honourable friend the Minister
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of Defence because I have already asked the specific question. The answer is that there is no barrack accommodation available, and if we were to put in troops on a permanent basis they would have to be under canvas. With regard to the Navy, I am pleased to say to the noble Lord, Lord St. Oswald, that there were four or five frigates there during my visit.
A NOBLE LORD: My Lords, were they Spanish or British?
LORD SHEPHERD: They were British, my Lords. The others are "Smokey Joes" I believe. I do not believe that the Gibraltarians feel isolated. I believe this is far from being the case. They are conscious of the restrictions upon them, but they feel so close to us that I do not believe the word "isolation" applies to them.
The noble Lord, Lord Mowbray and Stourton, asked whether we could not offer Spain the use of the airfield and the harbour. May I refer the noble Lord to the British proposals put to Spain in July, 1966, details of which are in the "Blue Book" at page 43 (Cmnd. 3131)? He will find the answer there, and as it is getting late I shall not read it.
The noble Lord, Lord St. Oswald, spoke about the need for compromise, and that we should be open to negotiation. We have always made our view clear in this matter. We should wish to discuss the problem of Gibraltar and Spanish-United Kingdom relations, but we are unwilling—determined in this view—that it should be related purely and simply to the United Nations resolution. The noble Lord, Lord St. Oswald, asked me whether we had reacted to the Spanish Government's proposals of May 18. Here again I will not go into detail owing to the lateness of the hour, but I would refer him to pages 42 to 44 and 121 and 122 of that same document (Cmnd. 3131) where we in fact made our counter proposals.
My Lords, I have been speaking at considerable length, and I apologise to this House. There may be some questions that I have not answered, although I think I have dealt with most of them. Perhaps, therefore, in closing I could express a word of deep appreciation to

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the Governor, to the Chief Minister, and all those in Gibraltar who did so much to help me to see and to understand the problem of Gibraltar. The noble Lord, Lord Mowbray and Stourton, mentioned the Forces. I was particularly impressed with the Army—the Royal Ulster Rifles and the Royal Warwickshire Regiment—who have done a really magnificent job, not just to avoid friction with the civilians, but really to make an effort to be partners in their troubles. I am looking forward to May, when the Royal Ulster Rifles will be there and also the Royal Highland Fusiliers. I am sure this will be a notable occasion.
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Perhaps I may close by saying this. I have an abiding sense of a warm affection to ourselves, loyalty to the Crown and the people of this country, and I would only say to those in Gibraltar that if there are difficult days ahead (and it has been suggested that there may be) we shall stand by them and we shall sustain them despite all the difficulties.

SALVATION ARMY BILL [H.L.]
The Order of yesterday discharged, and Bill referred to the Examiners.
House adjourned at twenty-two minutes before nine o'clock.