Lords Sitting of 12 March 1968

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

STANSTED AND SITE FOR THIRD LONDON AIRPORT
2.35 p.m.
LORD BYERS: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether they will produce, before the Stansted Inquiry takes evidence, an objective and independent report containing the estimated costs likely to be incurred in the development of Stansted itself and other sites which are likely to be considered for London's third airport.]
LORD BESWICK: My Lords, the preparation of an objective and independent report on costs and all the other aspects of the third London airport problem will be a matter for the Inquiry itself on the basis of evidence presented by, or sought from, the Government, the British Airports Authority or others such as consultants. The Government will, of course, give the new Inquiry all possible assistance at all times.
LORD BYERS: My Lords, I thank the noble Lord for answering the Question. May I ask whether it would not be better to set up an independent technical committee to provide objective estimates, rather than to leave it to the protagonists and the opponents of the various schemes, because they are producing very widely varying figures for exactly the same facilities?
LORD BESWICK: My Lords, the noble Lord, Lord Byers, appears to be getting very near to the proposal that you have an inquiry into an inquiry, and set up a preliminary committee before you start the work of the main committee. But
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as I see the way it will work out, there will be this objective body, or Commission, however it is composed, and a number of objective and independent bodies will present evidence to it.
LORD BYERS: My Lords, I think the noble Lord has misunderstood the point. Does he not think it right—because presumably the Commission will not itself consist of technically qualified experts—to have a small technical body to give an objective view, for instance on the cost of the railway access to one airport and to another, so that there may be a proper comparison without the lobbying that goes on?
LORD BESWICK: My Lords, I quite agree with the noble Lord that this to a very large extent is a technical matter, but the important thing in all these matters is the establishment of the truth. But as to how we can arrive at the truth will be a matter for consultation with the Opposition which I hope will begin within the next few days.
LORD OGMORE: My Lords, may I ask the noble Lord, Lord Beswick, whether this committee is bound by the term, "Third London Airport"? Is it not a fact that there is a growing body of opinion which thinks that a new international airport is needed, but not necessarily in the London area?
LORD BESWICK: My Lords, this is a point which the noble Lord, Lord Ogmore, has put before, and I do not think that we ought to go over the ground again. Almost certainly there will be a need for another international airport in an area other than London, but no serious body has yet suggested that there is not a need for a third London airport.
LORD LEATHERLAND: My Lords, something must be wrong here, because I find myself agreeing with the noble Lord, Lord Byers. I feel that if the respective cases—
SEVERAL NOBLE LORDS: Order!
LORD LEATHERLAND: My Lords, does not my noble friend feel that if the respective cases are put before the tribunal in respect of number one, two, three or four suggested airport there should be an objective set of evidence compiled by somebody like the Treasury Solicitor who

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could put it impartially before the Tribunal?
LORD BESWICK: My Lords, my own impression was that I was agreeing with the noble Lord at the end of the cross-questioning. I am glad to think, therefore, that indirectly I might even be in accord with my noble friend Lord Leatherland.

DIPLOMATIC AND MILITARY CODING
2.38 p.m.
LORD BEAUMONT OF WHITLEY: 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 to what extent British military and diplomatic encoding and decoding are dependent upon American facilities.]
THE MINISTER OF STATE FOR FOREIGN AFFAIRS (LORD CHALFONT): My Lords, our diplomatic and military coding systems are entirely in our own hands and do not rely on the United States' or other Governments' facilities.
LORD BEAUMONT OF WHITLEY: My Lords, I thank the noble Lord for his reply. May I take it that it also means that we are not dependent upon the supply of encoding and decoding machinery from the United States?
LORD CHALFONT: Yes, my Lords, the noble Lord may take that from my reply. The Diplomatic Service does not use American cypher equipment for its telegraphic traffic. I think that some confusion may have arisen here because, for ease of intercommunications, some British and American cypher equipments are used jointly by both the United Kingdom and the United States military authorities. But when these equipments are used for exclusively British traffic they are fitted with special security devices made by Her Majesty's Government exclusively for British use.
LORD TREFGARNE: My Lords, can the noble Lord comment on some remarks in The Times this morning that communications between Her Majesty's Government and the Government of
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France at the time of the Suez crisis in 1956 were all copied and read by the United States Government by virtue of the fact that they had some knowledge of either our equipment or our procedures?
LORD CHALFONT: My Lords, it would be wrong of me, I think, to comment on newspaper reports of this kind. The noble Lord is now, of course, referring to code-breaking, cryptonalysis, and not to coding and decoding or ciphering and deciphering. That is an entirely separate matter upon which I cannot comment.

ROMAN WALL CONSERVATION IN CITY OF LONDON
2.41 p.m.
LORD AMULREE: 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 steps are being taken to preserve the three mediæval and Roman bastions, with connecting wall at the Barbican site, and whether the remains of the same wall in Noble Street, at present exposed, will remain on view.]
THE PARLIAMENTARY SECRETARY, MINISTRY OF PUBLIC BUILDING AND WORKS (LORD WINTERBOTTOM): My Lords, the three bastions and such sections of the Roman Wall as still exist between Route 11 and St. Giles, Cripplegate, have been given the protection of scheduling under the Ancient Monuments Acts. In view of the importance and interest of these remains there has been close consultation over a long period between my Department, the City of London Corporation, who are the responsible authority, and Professor Grimes, of the Roman and Mediæval London Excavation Council, on the conservation and treatment of this sector of the Wall with a view to its permanent display in a manner consistent with adjoining stretches. My Department are prepared to continue to make available the requisite skilled labour and supervision for consolidating and treating the ancient fabric. It has also been agreed with the City authorities and, so far as

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the section bounding the Plaisterers' Hall site is concerned, with the architects for the owners, that the Noble Street stretch of wall will remain permanently on view.
LORD AMULREE: My Lords, I should like to thank the noble Lord for that encouraging and helpful reply. May I put to him two short supplementary questions? First, have any plans been made whereby it is possible for people to look at the Wall and bastions now, because the path between Route 11 and St. Giles has, I think, been closed? The second question is whether the noble Lord is aware that my noble friend the late Lord Mottistone prepared a plan showing this ground with a garden inside the Wall set out with café tables and chairs?
LORD WINTERBOTTOM: My Lords, I cannot give the noble Lord a detailed reply to the first of his questions, but I will give him a written answer when I have looked into the matter. The whole concept is to display the Wall. As regards the garden, I believe that discussions are going on at the moment for the building of a private garden for the Plaisterers' Company within their stretch of the Wall.
LORD AMULREE: My Lords, I thank the noble Lord very much.
THE DUKE OF ATHOLL: My Lords, arising out of the first reply, did I gather that some of these remains (if that is the right word) belong to the City of London and some to a private owner?
LORD WINTERBOTTOM: My Lords, the ownership is varied, but the City of London Corporation are responsible for the overall protection and display of the Wall.

SCOTTISH LIFE ASSURANCE COMPANY BILL [H.L.]
Read 3a, and passed, and sent to the Commons.
SAINT MARY, SUMMERSTOWN BILL [H.L.]
Read 3a, and passed, and sent to the Commons.
COMMONWEALTH TELECOMMUNICATIONS BILL [H.L.]
Read 3a, and passed, and sent to the Commons.

EDUCATION (No. 2) BILL
2.46 p.m.
BARONESS PHILLIPS: My Lords, I beg to move that this Bill be now read a second time. I will begin my speech by emphasising an important point of fact which my right honourable friend made clear in another place. The Bill arises out of the interim injunction granted by the Court of Appeal in the case of Bradbury v. Enfield Borough Council. This genesis is reflected in its terms, as I shall show. It does not, however, affect in any way the implementation of the Enfield authority's proposals for the eight schools involved in that case. These have already been dealt with on the basis of the law as the Court held it to be and the Bill does nothing to change that. Indeed, the Bill seeks to give explicit statutory form to the substance of the Court's interpretation of the existing law. The Bill is, I am pleased to say, short: but it is inevitably somewhat technical, and in this connection your Lordships will, I hope, be assisted by the fact that Schedule 3 reproduces the text of the relevant sections of the 1944 Act as they would be read when the Bill becomes law. The amendments proposed are printed in heavy type.
I think it may assist the House if, before dealing with the particular provisions of the Bill, I first explain how the present law on establishing and closing schools operates. Section 13 of the Education Act 1944 requires that when a local education authority or the promoters of a voluntary school propose to establish a new school, or when a local education authority propose to close an existing school, they must give public notice to this effect so that the inhabitants of the locality can, if they wish, submit objections to the Secretary of State. After a two months' interval for those objections, the proposal is subject to the Secretary of State's approval. Up to last year, the establishment of a

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new school had been equated with the setting up of a new educational entity, normally in new buildings. Changes to existing schools, were not treated as requiring action under Section 13, except where the Secretary of State, under Section 67, determined that a proposed enlargement of the premises of an existing school amounted in his view to the establishment of an entirely new school.
The Court of Appeal took the different view that, in addition to enlargements, other changes to existing schools could also have the effect of producing a new school in place of an existing one. It held that a substantial change in the age range of the pupils or a school becoming co-educational involved so fundamental a change in its character as to constitute the discontinuance of the school and the establishment of a new one. The Court held therefore that proposals for such changes were subject to the formal approval of my right honourable friend under Section 13 of the 1944 Act which could be given only after the publication of notices under that section.
The implication of this decision may therefore be that any schools to which such changes were made without approval under Section 13 are in law new schools which have been unlawfully established and have been unlawfully maintained by the local education authority. Your Lordships will, I am sure, agree that it would be unsatisfactory to leave the legal status of these schools, of which there must be several hundreds, and the validity of the action of local education authorities in this state of doubt. It is therefore proposed to regularise the legal position of these schools: and this is achieved by Clause 1, subsections (1) and (4). It will be appreciated that the retrospective effect of these subsections is strictly limited to the validation of actions which were done in good faith and which have subsequently been put in doubt by the decisions of the courts. There is no question of making unlawful something that was lawfully done or of taking away any vested rights.
My Lords, if the Bill necessarily guards against the retrospective application of the Enfield judgment, it equally provides for the implementation of that judgment for the future but by a somewhat different process. No changes are proposed in
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the procedure for the establishment of entirely new schools, the discontinuance of existing ones or for out-and-out change, such as turning a boys' school into one exclusively for girls or vice versa. Such cases—which involve a complete change of pupils—will continue to entail the discontinuance of one institution and the establishment of a new one. But your Lordships will, I am sure, agree that there is something artificial in labelling a proposal to change the size or function of a school as its formal closure and the establishment of another merely in order to bring the process within the scope of Section 13 and its public notices. At the same time, such changes, if they are substantial are very properly the focus of public interest. The Bill therefore proposes that after the end of the summer term, 1968, changes in the size or character of an existing school, if significant, shall in themselves be subject to the process of notices and representations and require the Secretary of State's formal approval under Section 13, but without involving the formal closure of the school and its replacement by a new one. This is achieved by Clause 1, subsections (2) and (5).
Your Lordships will wish to know how it is proposed to decide whether an enlargement of the premises or a change of character of a school is to be regarded as "significant" and, therefore, subject to the public notices procedure The Bill, in paragraph 5 of Schedule 1, defines "significant" in relation to a change in the character of a school or an enlargement of school premises as implying a substantial change in the function or the size of a school. The concept of a significant change in function is new, and it may help your Lordships if I quote some examples of changes which would be regarded as significant for purposes of the Bill and of others which would not.
The point is perhaps most readily illustrated in the case where there is to be a change of sex composition. A change from a single sex to a mixed school or vice versa is a clear-cut and significant change. But, my Lords, other less far-reaching changes may be educationally desirable, but not on a scale to warrant going through the statutory procedure; for example, the admission of a small number of girls to the sixth form of a

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boys' school for instruction in a particular subject or subjects. Where to draw a line between extremes would be a matter for decision in relation to particular cases or categories of class, but my right honourable friend proposes to give local education authorities some general guidance on the subject if Parliament approves the present Bill.
The same is true of changes in the age range of pupils. A change from, say, a school taking pupils throughout the secondary course, ages 11 to 18, to that of a senior school with an age range of 14 to 18 would clearly be significant. But if, for example, a primary school which hitherto had never admitted pupils before the age of five years decided to do so as opportunity occurred, as many schools already do, the elaborate public notices procedure would hardly be warranted. Similarly, at the other end of the range, with the trend of voluntary staying-on after the leaving age, secondary schools are constantly extending their age range as pupils stay on for advanced work in schools where it has not previously been provided.
As for changes in character involving a change in the ability range of the pupils admitted, the Court of Appeal said, in effect, that in its judgment this was not such a fundamental change as to constitute, under existing legislation, the replacement of an existing school by a new one. The Court specifically instanced the change of a grammar or secondary modern school into a comprehensive school. But I think that there would be wide support for the view that a change in the ability range of a school—particularly in the cases cited by the Court of Appeal—is no less a fundamental change of character than any change of sex composition or of age range and one no less likely to warrant public interest. It is therefore proposed that it should be treated as a significant change under the proposed new provisions and therefore subject to the public notices procedure. In this respect the Bill goes beyond the judgment of the Court of Appeal.
In each of these cases the question whether the change in the function of the school is substantial or not is a question of fact and a question of degree, the answer to which is a matter of judgment depending essentially on educa-
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tional and administrative considerations. As I mentioned earlier, the Education Acts already contain provision for the determination of the question whether the alteration of the premises of a school is so substantial as to amount to the establishment of a new school, which, again, is essentially a question of fact and of degree. Any question of that kind now has to be determined by the Secretary of State under Section 67(4) of the 1944 Act. This procedure has been found over the years to be both effective and uncontroversial. The Bill proposes accordingly in Schedule 1, paragraph 3, that henceforth Section 67(4) should apply to significant changes of character as well as of size.
Opportunity has been taken to provide, by means of Clause 2 of the Bill, for a middle school to be established by a significant change in the age range of an existing maintained school or by bringing an existing independent or direct grant school into the maintained sector, in each case by means of proposals under Section 13 of the 1944 Act. This change is one of form only, since such changes can be made under existing law, but only through the artificial procedure of formally closing the existing school and opening a new one. By treating the conversion of an existing primary or secondary school into a middle school as a significant change of character (rather than the establishment of a new school) the Bill brings proposals for middle schools into the procedural framework for dealing with other forms of proposals affecting existing schools.
My Lords, as the Explanatory Memorandum to the Bill indicates, the proposals to which I have so far referred are those in Clauses 1 and 2, and the consequential amendments to existing enactments specified in Schedule 1. Subsections (1) and (4) of Clause 1 are the validation proposals: they provide that, with effect from April 1, 1945, a change in the character of a school or any move or alteration in the school premises is not to be treated as involving the discontinuance of the school or the establishment of a new one. Subsections (2) and (5) introduce the new procedure for the future which I have described, and have the effect that after the Bill becomes law any proposal to make a significant change in the character or size of a school shall be subject to the procedure

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of notices under Section 13 of the 1944 Act. Clause 2 deals with proposals for middle schools.
Finally, my Lords, I turn to Clause 3. This concerns school premises and standards of accommodation. Under the existing law, when proposals for a new school have been approved plans and specifications of the premises have to be submitted to the Department. The Bill enables the Secretary of State to dispense with the submission of plans and specifications, at his discretion, where the new school is to be established in premises which were in use as a school at the time when the proposals for the new schools were approved. My right honourable friend would continue to require plans and specifications in these cases when substantial alterations to the premises were proposed or when he himself had insufficient information, but there is clearly no point in requiring plans and specifications in regard to premises where no substantial alterations are being made.
The existing law enables my right honourable friend to make regulations prescribing standards for school buildings and it contains provisions which enable him to relax those standards in certain circumstances. In parallel with the procedure for dispensing with specifications and plans which I have just described, subsection (2) of the clause has the effect that when a new school is established in the premises of an existing school, any relaxation applicable to the premises shall continue. The power to relax the standards under certain of the provisions of the existing law is exercisable only if it is necessary because of a
"shortage of labour and materials".
That formula is no long appropriate, and subsection (3) substitute a reference to
"the need to control public expenditure in the interests of the national economy".
A brief reference is required to subsection (4) of Clause 3, which supersedes Section 109 of the 1944 Act. It will enable a local education authority, with the Secretary of State's approval, to provide temporary additional accommodation for a voluntary school, until such time as permanent accommodation is provided for it in a building programme. Moreover, where the additional accommodation results in a significant enlargement of the school, the notices procedure
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will apply and opportunity will be given for public objection. This power will be particularly valuable in promoting the reorganisation of voluntary schools on comprehensive lines as well as in easing the continuing pressure of building resources.
My Lords, I have taken some time in describing the Bill. Although it had its origins in the Enfield controversy, it is in fact a technical and, I venture to suggest, a largely non-controversial measure. It has a twofold purpose: first, to regularise a number of actions and decisions by local education authorities, made and taken in good faith, which had been put in doubt by the decisions of the Courts; and, secondly, to broaden the terms of reference to Section 13 of the 1944 Act so that it no longer has to operate within the narrow concepts of closing existing schools and opening new ones. In parallel, the Bill provides for power to dispense with the full requirements of the building regulations in those cases where a new school or an enlarged one is to operate in existing buildings. All in all, I think that the Bill will bring an added flexibility and realism to the operation of Section 13, and it is on this basis that I commend its Second Reading to your Lordships. My Lords, I beg to move.
Moved, That the Bill be now read 2a.—(Baroness Phillips.)
3.3 p.m.
LORD ABERDARE: My Lords, I am sure your Lordships will be very grateful to the noble Baroness for having given us a clear explanation of what is, as she said, a rather technical and difficult Bill, though none the less an important one. May I say straight away that I have no quarrel with the Bill, which is a useful measure for putting right what went wrong in the past, and for making sensible provision for the future. There is one respect in which the Bill is unique, and I venture to suggest a very good precedent, and that is in Schedule 3 where, as the noble Baroness pointed out, the chief enactments are reprinted with the amendments made by the Bill in heavy type. This makes it extremely easy for those of us who are not lawyers to follow what is going on and what the Bill actually proposes. I hope that this procedure will be used as a precedent for other Bills which

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consist mainly of amendments to other Acts; it is of enormous value.
As the noble Baroness explained, this Bill has two functions, one being to regularise decisions taken in the past. As she explained, the Court of Appeal ruled that a change of age range, or a change in sex composition, was so fundamental a change as to constitute the discontinuance of one school and the setting up of a new one, and therefore brought into operation the requirements of the 1944 Act for giving public notice and time for objection. This decision changed the interpretation previously put upon the law, and the Bill is necessary to validate a number of decisions taken by various Governments and by local education authorities in the past. This is retrospective legislation, as the noble Baroness said—and indeed it is stated in the Explanatory Memorandum. I know that your Lordships like to look carefully at any measures which are retrospective. But whereas some retrospective legislation is wrong, other can be justified; and this, I think, is a case in which it can be justified.
Clearly, retrospective legislation is likely to be indefensible where it makes unlawful an act that was perfectly lawful at the time it was done. Here is the exact opposite. Here is a case where Governments and local authorities acted in good faith, thinking that they were working in accordance with the law as it was then interpreted. The law has since been reinterpreted in a different sense, and I believe that this is a correct use of retrospective legislation to regularise and validate actions that were taken in perfectly good faith. I am sure that as individuals we should welcome such legislation where we had acted in good faith and according to the law as it was interpreted at the time. If there were a reinterpretation of the law, I am sure that we should welcome, as it were, an Act of indemnity to legalise the position.
In this particular case retrospective legislation is especially right, because the Bill goes on to put into statutory form the ruling of the Court of Appeal. In fact, as the noble Baroness explained, it even goes a stage further than the Court of Appeal went. They ruled that age range or sex composition changes should require the procedure of public notice.
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The Bill adds a change in the ability range of the school, which is specifically aimed at covering comprehensive schools. I am sure that we shall all welcome the chance given to people locally to raise their objections upon the establishment of a comprehensive school.
I must confess that I am not quite so happy about Clause 3. The effect of the Court of Appeal ruling brought into operation subsection (6) of Section 13 of the 1944 Act whereby the Secretary of State had to satisfy himself that the school premises conformed to the prescribed standards. Under Clause 3(1)(a) of this Bill this requirement is now confined to the case of newly built schools, and therefore does not apply where a major change takes place in the character of the school. Most of us on this side of the House are very worried and suspicious sometimes of what have been called "botched-up" plans for comprehensive schools, where a number of schools have been combined into one comprehensive school. Often it may be that one of those schools is reasonably adequate in its buildings and provisions as it is at the moment, but inadequate when it is changed in character and becomes part of a comprehensive grouping. I personally remember having had some representations on these lines made to me about schools in Newport. It would therefore seem to me all the more important, when it is proposed to group a number of schools into a comprehensive school, that the Secretary of State should satisfy himself that the premises are up to the required standard.
I hope that my fears are fully covered by the operation of the procedures in Clause 1 of the Bill and by the words in Clause 3, "if the Secretary of State so directs". I presume that in such a case he would so direct and would in fact satisfy himself that the premises were up to standard. But I should be grateful if the noble Baroness would verify that. In general, my Lords, I welcome the Bill and would advise your Lordships to give it a Second Reading.
3.9 p.m.
THE LORD BISHOP OF LONDON: My Lords, I should like to echo the thanks given to the noble Baroness for the clear way she has explained this brief but somewhat complex Bill. A word

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perhaps is in season on behalf of those responsible for voluntary schools. I would say that in general we welcome this Bill as introducing a simplification and an element of flexibility which will be valuable, and we welcome especially Clause 3(4) with the extension of powers to the authority to provide, or to assist in providing, temporary accommodation for voluntary schools.
There is only one point that I wish to raise. It has been suggested to me that the phrase "significant change in the character of the school" might, when it is taken in connection with the reference in paragraph 2 of Schedule 1 to the variation in the instrument of government, make it possible for the religious character of an aided school to be changed. This is obviously not the intention of the Bill; in fact the noble Baroness explained the meaning of "significant change" as being educational. Whether it would have been possible to introduce the word "educational" after the word "significant" I do not know, but since the point has occurred to others as being one where misunderstanding might arise, although I believe the intention of the Bill is perfectly clear, perhaps the noble Baroness would consider whether anything further needs to be said on that point. Otherwise we welcome the Bill and believe that it will help the voluntary schools to take an even fuller part in the national system of education.
LORD BEAUMONT OF WHITLEY: My Lords, we on these Benches would also like to welcome this Bill and to thank the noble Baroness for her lucid explanation of it. We share with the noble Lord, Lord Aberdare, the possible doubts about Clause 3. On the face of it, there would appear to be a necessity for extra care to be taken with those premises which are already old, and we seek some reassurance on this point.
3.12 p.m.
BARONESS PHILLIPS: My Lords, first of all I should like to thank your Lordships and the right reverend Prelate for welcoming this Bill and for the words of commendation which have been given to it. As the noble Lord, Lord Aberdare, so rightly said, retrospective legislation is always viewed with great care, particularly in your Lordships' House,
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but as he has reminded us this Bill merely puts right a situation which could have been difficult, time-wasting and costly for those local authorities who had already been described as indulging in unlawful actions.
A question on Clause 3 was raised by the noble Lord, Lord Aberdare, the noble Lord, Lord Beaumont of Whitley, and the right reverend Prelate, and perhaps I can give some reassurance on the question of the building standards. My right honourable friend already has a statutory authority laid upon him to satisfy himself about the standard of school buildings, and there is little doubt that in fact he would call for plans where any doubt at all arose. I would also remind your Lordships that there is already power to dispense with building standards on specified grounds where new schools are going into existing buildings. All that the Bill does is to bring the specified grounds up to date. This is achieved in Clause 3(3), and it enables it to be done without plans, but I think I can best reassure the noble Lord, Lord Aberdare, by saying that my right honourable friend will at all times satisfy himself as to the standard of buildings before any major changes are made.
I would remind the right reverend Prelate that only the governors or managers of a voluntary school can make proposals to change its character, so his fears can be set at rest. There is no possibility that a school of a religious character will be affected. As we go through the various stages of the Bill I shall of course be happy to try to answer any other points which noble Lords wish to raise.
It is true to say that comprehensive education is not a political issue, as there are many local authorities of different political colours which have already submitted plans on these lines, so I hope the suggestion made by the noble Lord, Lord Aberdare, that notices would evoke some kind of public reaction only on that score will not be called into question. I am grateful to your Lordships for the brief and welcoming comments which have been made, and I ask that the Bill be now read a second time.
On Question, Bill read 2a, and committed to a Committee of the Whole House.

THEFT BILL [H.L.]
3.17 p.m.
THE MINISTER OF STATE, HOME OFFICE (LORD STONHAM): My Lords, I beg to move that the House do again resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Stonham)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD GRENFELL in the Chair.]
Clause 11:
Removal of articles on show in buildings open to public
11.—(1) Where the public have access to a building in order to view the building or part of it or any of its contents, and the object of admitting the public is not a commercial object, any person who visits the building as a member of the public accordingly and by the use of any opportunity or information so obtained removes from the building (then or afterwards) the whole or part of any article displayed or kept for display to the public in the building or that part of it shall, on conviction on indictment, be liable to imprisonment for a term not exceeding five years.
VISCOUNT DILHORNE VISCOUNT DILHORNE moved, in subsection (1), to leave out "and the object of admitting the public is not a commercial object". The noble and learned Viscount said: Owing to the early hour at which this Committee is starting, I am unfortunately deprived of the assistance of some of my noble and learned friends who will not be available until after four o'clock. However, this Amendment and this clause involve considerations which are far wider than purely legal ones, and they are matters in which those who are not lawyers will probably take a considerable interest.
This clause seeks to make it a criminal offence just to remove from a building open to the public, when the opening to the public is not a commercial object, "any article displayed or kept for display to the public". As the clause is drafted, no proof of dishonesty is required. Proof of removal of such an object from such a building is all that is necessary to constitute guilt. As some of your Lordships will know, I am in favour of making dishonest appropriation, theft. That, the noble Lord, Lord Stonham, has
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so far resisted. I hope that he will change his mind, but this clause, for which the Government are responsible, goes even further than that. As I have said, it makes the mere removal, the mere appropriation without proof of dishonesty an offence it what is taken is in fact taken from a particular category of buildings.
This clause is wholly unnecessary if Clause 1 remains as it is. But if the word "permanently" is put back in Clause 1, so that to establish theft one has to prove an intention permanently to deprive, then I would be in favour of a clause—but a very different clause—on the lines of that now contained in the Bill. The Criminal Law Revision Committee did not recommend the inclusion of a clause on these lines in the Bill. They said that before they made that recommendation they would have to do further work and consult further people, and it would delay the production of the Bill. Also, I ask your Lordships to note that they thought it might be more appropriate to pass separate legislation.
They said with great force at page 28 of their Report that there are objections to extending the criminal law because of isolated occurrences, and I think they mentioned three occurrences: the removal of the Goya, the removal of a statuette, and also, I believe, the removal of the Coronation Stone from Westminster Abbey—isolated occurrences. This clause is an instance of that being done, and it would, I think, be much better to leave out the word "permanently" from the Bill, as it is now left out, and then to let the general law of theft apply. Then it would be an offence to appropriate dishonestly, whether it be from a church, a museum or a private house or from anywhere else, any property. Then the general law would, where there was dishonesty, cover the class of case that this clause is intended to cover.
If we are to deal specifically in a clause with this particular type of case—this is the question to which I hope we shall get a careful answer—why should it be an offence only if the removal is from a building open to the public where the object of admitting the public is not a commercial object? Why should it be restricted to that? The

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Committee say, again at page 28 of their Report:
"Churches, art galleries, museums and other places open to the public may contain articles of the greatest importance and value, many of them irreplaceable."
I think everyone would agree with that. But then they go on to say:
"They cannot always be protected as well as in private premises and, if removed, may easily be lost or damaged."
In these days I should have thought it likely that such objects were better protected in art galleries and museums than they are when they are in private houses. There are still in some private houses—and I hasten to add not in mine—things of the greatest importance and value, many of them irreplaceable. Many of those private houses are open to the public and the public can go in and see the wonderful things that are there. I am sure we should welcome that and not discourage it and where that happens give just as much protection for the articles in them as we do when those articles are in the National Gallery or the British Museum. When these houses are open to the public it must increase the risk that some person will come and take them, and take them in circumstances which we know have happened, where it it not possible to prove an intention permanently to deprive.
If we are considering the moral aspects of this question and looking at the conduct of the person who takes away the thing of great value which may be irreplaceable, is it not just as bad to take a valuable and unique picture from a private collection to which the public are admitted as it is to take it from a museum or art gallery such as the National Gallery? I should have thought it was. But if this clause remains in its present form the criminality of the person who removes such an article will depend not on his conduct but on whether or not the object of opening the building for the public is a commercial object. This seems to me wholly illogical, and I would ask your Lordships to consider what will happen in the courts if this clause is passed in its present form and a prosecution is brought for an offence under it.
First of all it will have to be proved, that there has been removal of an article
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displayed or kept for display from the building. That may be fairly easy to prove, but that will not suffice. The prosecution will then have to go on to say, and prove in every case, that the object of admitting the public is not a commercial object, and if the public do in fact pay for admission it will have to be proved that the excess of receipts over expenditure in connection with the admission of the public and the upkeep or management of the building or collection is wholly applicable for the use of Her Majesty, a local authority, or for ecclesiastical or charitable purposes. That is what the clause provides. So the test is not just what was the conduct of the person accused—did he take it or did he not; you are not even required to prove more than that he took it; you have not to prove that he took it dishonestly. But you have to go on to establish that the object was not a commercial one, and in establishing that, if you charge for admission you must show that not a single penny of the receipts obtained was spent for anything else than in relation to the admission of the public and the management and upkeep of the building and the collection housed in it. Any expenditure on any other purpose will mean that the offence has not been committed and entitle the person charged to a verdict of not guilty, because if anything is spent on anything else then it will not be possible to establish that the excess of the receipts over expenditure was for the use of Her Majesty, for local authorities or for ecclesiastical or charitable purposes.
And so when one comes to consider what is likely to happen in the courts it seems to me that one will have a great deal of time taken up, in nearly every case where it is a case of taking it from, say, a private house which is open to the public, upon the question whether or not the receipts in excess of the expenditure on these particular objects were for charitable purposes or ecclesiastical purposes. Is that the right sort of criterion to lay down for determining whether or not a criminal offence has been committed? Surely that kind of thing is really quite irrelevant in relation to the conduct of the accused person who is charged with an offence. Therefore, I submit to your Lordships that if there is to be such a

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clause as this surely it should apply to any building to which
"the public have access … in order to view the building or part of it or any of its contents."
Those are the opening words of this clause, and this is what this Amendment seeks to achieve: to make this clause apply to removal of an object displayed or kept for display in any building to which the public have access in order to view the building or part of it or any of its contents.
The other Amendments, Nos. 21 and 22, are consequential upon this Amendment and I need not say anything about them, but it might be helpful to the Lord Chairman to know that fact. Before I pass from this clause, which should surely contain the word "dishonestly", there are two further points which I would mention, for I feel it may save time if I do so. Your Lordships will see that in Clause 11 there appear at line 5 the words:
"… and by the use of any opportunity or information so obtained removes from the building the … article displayed."
What are those words there for? To establish the offence, is it intended that the prosecution should show that the removal was "by the use of any opportunity or information so obtained"—that is, when he had been upon the premises as a member of the public? It would seem to me that that is what is intended. But it would also seem to me that it is a wholly unnecessary requirement, if it is a requirement. If the prosecution have to prove that, it is going to be a great obstacle in their path. They have to prove it beyond reasonable doubt.
Supposing, as a member of the public, a man goes round a building containing a fine collection of pictures. He not only sees what he wants to take, but he has an opportunity of seeing how well it is guarded. Then, it may be a month or six months later, he comes back and he removes it, and he is caught. You may say that his conduct is worthy of punishment. I would certainly agree. But I doubt whether he will ever be punished if it really is for the prosecution to establish not only that he removed the thing, but that he removed it "by the use of an opportunity or information so obtained". It does not seem to me
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I that those words are necessary. I have not put down an Amendment to leave them out, but I should be grateful if the noble Lord, Lord Stonham, could deal with that point when he comes to reply.
I note that at the end of subsection (1) it says that the person who does these things
"shall, on conviction on indictment, be liable to imprisonment for a term not exceeding five years."
I just ask the noble Lord this, as I am not sure about this formula: does that mean that this offence is only triable on indictment, or is it intended that some of the cases which come within its ambit shall be triable in the magistrates' courts? I am afraid I do not know the answer to that one, and I should like to hear it, for this formula "triable on indictment" appears elsewhere in the Bill. Because this matter has come on rather early, I see that the noble Lord, Lord Stonham, is without the assistance that he might normally rely upon. Perhaps at a later stage he may be able to give me the information for which I ask; or it may be that his advisers will have caught up with events before we finish the discussion on this Amendment. I beg to move.
Amendment moved—
Page 5, line 2, leave out from ("contents") to end of line 3.—(Viscount Dilhorne.)
3.34 p.m.
LORD ROWLEY: Before my noble friend deals with this Amendment, may I at once say that I find myself much in sympathy with what the noble and learned Viscount has just said. But on the other hand, I cannot believe that if his Amendment were accepted he would include in the purview of the clause places like Madame Tussaud's. I have known of the case of a public house in which an historical incident took place and which was on view to members of the public. Would he not accept that the subsection should be re-drafted so as to limit his proposal to places or buildings where objects of art or of historical interest are on display? Otherwise, if the Bill is amended merely by deleting the words that he proposes to delete, it seems to me to widen the subsection in a way that I am quite sure he does not want to do.
VISCOUNT DILHORNE: I do not know whether I may reply to the noble Lord. His observations seemed to be directed to me. Perhaps I can deal with it briefly. I am grateful to the noble Lord for his support. I say, first of all, that I am in favour of making the dishonest appropriation of property, from whatever building it is taken, a criminal offence. I think it should be an offence if it is taken dishonestly, whether it be from a public house, Madame Tussaud's, or anywhere else. But so far as this clause is concerned, certainly my Amendment would have the effect of saying that any object of value, any property which is taken from any building where the property is kept for display or displayed for the public—that is the criterion in the clause—would come within its ambit. That, I think, is a workable test. You could say that there might be something of value in a public house. The test would be, was that particular thing which was taken kept for display to the public and displayed to the public? I think it would work all right.
LORD AIREDALE: If it would be for the convenience of the Committee to discuss together with these three Amendments, Amendment No. 23 in my name, in which I endeavour to substitute for this long and involved Clause 11 a much shorter and, in my submission, more easily understood clause, then I should be pleased to say a few words about my Amendment now. But perhaps I could first level one or two more criticisms at the Government's Clause 11. First, why does Clause 11 apply only to a building? Many buildings which are on show to the public with their contents have gardens, which equally are on show to the public. Why should it be that somebody who takes an object of value from inside the building would come within the mischief of Clause 11, but somebody who removes a statue or some other object from the garden should not fall within the provisions of the clause? I can see no reason for this at all.
Furthermore, why should not the principle of Clause 11 apply not only to things inside buildings but things on public display in any public garden, street, or square anywhere, whether indoors or in the open air? I can see no purpose at all in restricting Clause 11 to things taken from inside buildings of any kind.
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When one comes to subsection (2), this extraordinarily involved subsection, the purpose of which is to decide what amounts to a commercial object, one reaches the position that, even if there is a commercial object, it is not to count as such if it is also for charitable purposes. The words "charitable purposes" are the last words of subsection (2). I think I am right in saying that nobody has ever yet succeeded in defining a charity. It is therefore not surprising that when Stroud's Judicial Dictionary has to deal with the expression "charitable purposes" it devotes six whole pages to the subject. One wonders therefore in a given case how long it is going to take learned counsel on both sides to argue, while the accused person stands in the dock, whether this particular case is or is not one of charitable purposes. I think that all this is hopelessly complex and unnecessary in criminal legislation.
What useful object is there in mentioning a commercial objective? Surely its effect will be that people on the lunatic fringe of our society who are inclined to remove things from art galleries will not be so lunatic as not to come to realise that they are liable to be caught by this clause if they take things from public galleries, but they will escape conviction if they confine their attentions to private art galleries. This will concentrate to all those lunatics on to private art galleries. I should have thought that this would be rather unfair to the proprietors of the private art galleries, who will be deprived of the protection which this clause gives to those who look after public galleries.
May I now come to my suggested alternative Clause 11? It is to be observed that I include the word "dishonestly". I agree wholeheartedly with the noble and learned Viscount who has criticised so strongly the omission of the word "dishonestly" from Clause 11 as it stands. It is extraordinary to legislate for an offence to be punishable with five years' imprisonment if it is to be an offence of taking which does not necessarily include an element of dishonesty. That is quite extraordinary, and in my suggested alternative Clause 11 I would not have dreamt of leaving out the word "dishonestly". I appreciate that if you put in the word "dishonestly" it excludes the conviction of people who take part in Boat Race night escapades—the sort of lighthearted undergraduate

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escapade. But my answer to that is that if a special clause is needed to deal with that sort of case, very well, put a special clause in; but it would be monstrous ever to invoke a provision which involves a possible penalty of five years' imprisonment for something which amounts only to a student escapade. I hope that when we come to Amendment No. 23 your Lordships will prefer it to this very long, complicated and involved Clause 11, which would take up a page of the Statute Book.
3.44 p.m.
LORD CONESFORD: When we were considering the very first Amendment moved in Committee on this Bill, to omit the word "permanently", I confess that one of the reasons that persuaded me that that was probably a good Amendment was the clause which we are now considering. The clause showed what the drafters of this Bill thought would have to be provided if the word "permanently" remained in Clause 1. I think that this particular clause is quite absurd. A clause in any Statute, certainly in a criminal Statute, should have both utility and morality. This clause seems to me to have neither. That is a very serious defect. I will certainly support the Amendment of my noble and learned friend because that, at any rate, provides some protection for some articles; but the protection of things of unique value, either because they are of artistic merit or for other reasons, ought to be afforded far more generally.
May I give one example of a peculiarly cruel form of theft which has been suffered by a number of people recently—theft from very distinguished soldiers? Your Lordships may have heard—and the matter has already received publicity—of the theft suffered by the noble and gallant Field Marshal, Lord Montgomery of Alamein. I could give other examples among my personal friends, where an old and distinguished General has been robbed of all his Orders (not only those awarded in this country but those which have been conferred by foreign Powers) by a thief who may in due course—I do not know—say that they may be returned if an extravagant payment is made to some object which he chooses to name.
LORD STONHAM: Will the noble Lord explain why he gives as an example
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the theft from the noble and gallant Viscount, Lord Montgomery, which I understand did not involve somebody going to view a private collection, but involved a thief breaking into his house, like any other burglar—which is certainly covered by Clause 1, without any kind of reference to Clause 11?
LORD CONESFORD: I entirely agree that on that particular theft that is so, but in other cases the man may obtain lawful access to the house in one way or another, and in some of these cases it is not clear who the thief is, or even whether there has been a breaking in. I am grateful to the noble Lord for correcting me, but I am pointing out that this particularly cruel form of theft is not necessarily a theft committed in a public gallery. But suppose that it is from some place to which the public have access, why on earth is it thought to be relevant to bring in all this business about a commercial object? What has that to do either with the mischief against which protection is sought or the morality of the transaction? It has absolutely none.
I greatly prefer the type of Amendment proposed by the noble Lord, Lord Airedale; though I do not think that his inclusion of the word "dishonestly" is quite so clearly right as he suggests; and I say that for this reason. Supposing the word "permanently" is restored to Clause 1—and it is on that assumption that Clause 11 is wanted—then I imagine that what the Government are going to say is, "We want some absolute requirement against removal which is not dependent on honesty or dishonesty. If we include the word 'dishonestly', we might get back to the type of defence which could be raised in the Goya case". I am not saying whether that is right or wrong, but I think that that type of difficulty may be involved if we restore the word "permanently" to Clause 1.
I hope that the Government, after considering the objections and shortcomings of Clause 11 and the new clause, will further consider what they have said on the subject of restoring "permanently" to Clause If "permanently" is to be restored to Clause 1, then Clause 11 does not go far enough. But, in so far as it deals with anything which ought to be dealt with, it will be improved by the

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Amendment now under consideration which was moved by my noble and learned friend, because I cannot see that any good purpose of any kind is served by this limitation that the admission of the public must not be for a commercial object.
THE EARL OF IDDESLEIGH: It will be interesting to inquire what would be the position of the Summer Exhibition of the Royal Academy of Arts, because the pictures on display in that Exhibition are for the most part for sale. Would one say that that Summer Exhibition had a commercial object or not?
LORD LEATHERLAND: I think this is a very useful clause and I should like to see it retained. I am glad that the noble Lord, Lord Conesford, after correction, withdrew his remarks regarding the theft which took place at the house of the noble and gallant Viscount, Lord Montgomery of Alamein. That was straightforward burglary or theft in the dishonest sense of the term. This clause appears to me to deal with cases of taking away which are somewhat similar to the taking and driving away of a person's motor car, with no real, dishonest objective in mind but just with a desire to be mischievous and to cause inconvenience to the owner. It seems to me that this clause would cover such a case as the one which I am about to recite.
Let us assume that I go to the London Zoo, which is a place where the public are admitted for other than commercial objects. Then let us suppose that, by some aberration, I say that I should like to take an elephant home, and by some process of magic I manage to harness an elephant and lead it through the streets of London and park it in my own back garden. I have not necessarily been one of those dishonest thieves, but I certainly have taken away the property of somebody which I ought not to have taken away. I was not animated by dishonest motives in the moral sense of the term; nevertheless I have committed an offence, and it would seem to me that I ought to render myself liable to the punishment which is imposed here—namely, a period not exceeding five years. I hope that some of your Lordships would come to visit me occasionally. I agree that, on the whole, looking at this—
VISCOUNT ST. DAVIDS: May I—
LORD LEATHERLAND: Will the noble Viscount wait half a minute? I shall probably have to cross the noble Viscount's boat anchored on the canal, before I obtain entry into the Zoo; I quite agree about that. But this clause seems to me to cater for the case where a person is not indulging in an immoral kind of offence, but is certainly indulging in an offence which is causing considerable inconvenience to the public.
VISCOUNT ST. DAVIDS: May I make one small comment on my noble friend's case, with a great deal of which I agree? Under Clause 11 he would be liable, only for removing something if he removed it from a building. If he removed it from any other enclosure he would apparently not be liable for anything. That is another reason why I think the clause as it stands is inadequate and why I prefer the clause of the noble Lord, Lord Airedale. Clause 11 begins:
"(1) Where the public have access to a building in order to view the building or part of it or any of its contents … and by the use of any opportunity or information so obtained …"
Does this cover churches? I admit that I often go to church to view the building or part of its contents, but sometimes I go to church for another purpose. If I go to church for another purpose and then remove something from the building, should I not then be able to plead to the court that I had not gone to church in order to view the building or part of it or any of its contents?
LORD STONHAM: Yes, but would my noble friend not agree that the taking away was only a temporary deprivation?
VISCOUNT ST. DAVIDS: Yes, quite. That I understand. Nevertheless, as the clause stands it surely leaves open the fact that there is a defence that one went to the building for other purposes than to view the building, or part of it, or any of its contents. There are a whole number of other purposes for which I might go to a public building. There may be a public meeting there or, as in some big houses which are open to the public, there might be a dance there.
LORD LEATHERLAND: In a church?
VISCOUNT ST. DAVIDS: No, not in a church. I am thinking of other buildings. There are a whole lot of other defences which could be raised to show that one had gone to a building not in order to view it, or part of it, or any of its contents. Surely that is a reason why we should look at this clause more closely.
LORD ROYLE: If the Committee are discussing Amendment No. 23, and I assume that we are, I want to lend all the support I can to the new clause of the noble Lord, Lord Airedale; and I do so for a very simple reason. I have tried to understand the original clause and have failed completely. With the deepest possible respect, noble Lords of the legal profession have not assisted me in the slightest degree. In fact, as a result of what I have heard there is confusion confounded in my mind. It seems to me that the noble Lord, Lord Airedale, is trying to do what I have been trying to do for 22 years, and that is to persuade my Parliamentary colleagues to have more simply drafted legislation. I understand quite clearly what the noble Lord, Lord Airedale, seeks to do, and in my very poor understanding of the original clause his new clause appears to me to achieve exactly the same objects. Whether the word "permanently" remains permanently in the Bill in the future, does not seem to matter at the moment. What I am concerned about is getting a clarification of what we mean, and I believe that the redrafted clause of the noble Lord, Lord Airedale, does just that. Therefore, I shall be very happy to support him.
LORD LEATHERLAND: May I just inquire whether we are discussing Amendment No. 23 or whether we are still on No. 20, because there is an argument which can be mounted in connection with that?
THE CHAIRMAN OF COMMITTEES: Noble Lords can, of course, discuss any Amendments they wish, but they can decide on only one Amendment at a time.
LORD CONESFORD: May I put one point to the noble Lord, Lord Leatherland? I wonder whether, instead of imagining the unlikely case of going to the Zoo and removing an elephant, he would concentrate his mind on the
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possible case of a man entering a friend's house, quite legitimately and lawfully, seeing an object of great value, either of intrinsic value or of value to that person, and removing it from his house. Does the noble Lord not think that that ought to be covered by some clause such as this?
LORD LEATHERLAND: I think that in that case the police, acting upon legal advice which they received, would straightforwardly charge that man with theft. It was a dishonest act and not the act of mischievous public inconvenience which I cited on the occasion when I was going to take an elephant from the Zoo.
LORD CONESFORD: But surely the point would be whether the police found him. If there was a party the man might be quite unknown.
LORD AIREDALE: Before the Minister speaks, I should like to make it perfectly clear that it was my understanding and intention that we were discussing Amendment No. 23, my new clause, together with the other three on Clause 11, and I was proposing either formally to move my Amendment when we came to it or not to move it. Unless noble Lords decide that they wish to have a separate debate on Amendment No. 23, that is my present intention.
VISCOUNT BARRINGTON: Before the noble Lord replies, may I give a very personal reason for strongly supporting the Amendment in the name of my noble friend Lord Airedale? It is that, as a character in an Osbert Lancaster cartoon, Lady Littlehampton, said when surrounded by notices, "I am a slow reader". I have counted the words, and it seems to me that not only does my noble friend's Amendment cover both the outside of buildings and the grounds—and would therefore include Lord Leatherland's elephant, whether it was in a building or not—but does so in 38 words instead of in slightly over six times that number. On those grounds only, pending anything that the noble Lord, Lord Stonham, may say, which I know will be very convincing, I should support my noble friend's Amendment.
4.2 p.m.
LORD STONHAM: I do not know whether thieves read Hansard, but if they

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do I should have thought they would have got more material for their profession from the imaginative ideas put forward by noble Lords in this debate than from anything they have heard for a long time, because there have been some really delightful figments of imagination put over in the last three-quarters of an hour which have had the effect, as my noble friend Lord Royle says, and as I think, of thoroughly confusing the issue. When the noble and learned Viscount got up, rather more than three-quarters of an hour ago, he said that the early hour had deprived him of the assistance of his noble and learned friends the Law Lords. About half an hour after that he indicated that I had no assistance whatsoever because there was nobody in the box; but as the noble Lord, Lord Airedale, is aware, many years ago, as a small boy, I learnt that a good soldier never looks behind. Personally, I have come to feel that in debates of this kind the one solid support I can count on from behind is the voice of my noble friend Lord Leatherland, who is always certain and effective in my aid. Therefore, I look to the opponents in front, those I can actually see, and rather tend to disregard those behind me.
I would, as it were, address most of my remarks to my noble friend Lord Rowley, who at a very early stage in the debate said that the arguments of the noble and learned Viscount greatly appealed to him. I therefore now want to put the thing in balance, if I may, and for that I have to go back to Clause 1, where we speak of permanent deprivation. As your Lordships will be aware, this was the subject of the first debate, and the word "permanently" was then removed from the Bill. But, as I said the next day, we should proceed on the assumption that the Government would succeed in persuading your Lordships at the Report stage to put back the word "permanently". Subsection (1) of Clause I would then read:
"A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it and 'thief' and 'steal ' shall be construed accordingly."
The Criminal Law Revision Committee, in their discussions when considering this particular matter, pointed out, as we are all aware, that the law as
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it now stands, and the Larceny Acts in particular, do not describe every case in which someone dishonestly deprives another of property as theft. That s why we have the word "permanently", and that is why we find it necessary in Clause 11 to deal with particular cases of removal of property which may rot be theft but which in our view should be punished. Under the law as it stands at present—and the Goya case brought this out very firmly—the man who removed that almost priceless painting did not do so, in the view of the court which subsequently tried him, with the object of stealing it: he intended to replace it in due course. He may have argued that there should be a contribution to charity, or some other condition; but the court, under the law as it stands at present, could not convict hilt of stealing the painting, although they did convict him of stealing the frame. We regard that as an unsatisfactory position—
SEVERAL NOBLE LORDS: Hear, hear!
LORD STONHAM: —and this clause is intended to deal with that. Noble Lords say, "Hear, hear!" This is the first time, judging by this debate, that I have known that noble Lords regarded it as an unsatisfactory position. There were all sorts of red herrings or military herrings brought forward which were quite unrelated to what we are now discussing, so I thought it just as well, to begin with, to bring your Lordships back to the fact that we are discussing an Amendment which has the aim of removing the words,
"and the object of admitting the public is not a commercial object".
I am grateful to the noble and learned Viscount for suggesting that we should discuss the next two Amendments at the same time, and to the noble Lord, Lord Airedale, for suggesting that we should have one discussion. This is extremely valuable co-operation, because we do not have to cover the same ground again. I make no objection to those suggestions whatsoever; and anyone who wants a separate Division on a separate Amendment is, of course, fully entitled to have it. But I feel that each time we get a collection of these Amendments one is almost in the position of replying to a Second Reading debate, so many and varied are the points which are raised.

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But I hope I can go through one or two of them quite quickly.
The noble Earl, Lord Iddesleigh, referred to the Summer Exhibition of the Royal Academy. The Royal Academy Exhibition is protected by the clause as is stands, because the object of admitting the public is not a commercial object, and therefore it comes within the protection of the clause even though the pictures are for sale. I was of opinion that this was not either a summary or an indictable offence, but that it was only an indictable offence, and I have had that confirmed since the "troops" arrived. That is another quick point.
One other matter which the noble Lord, Lord Airedale, raised, and which certainly has my sympathy and I think the sympathy of the Committee, is: why should it be confined to a building? Valuable statues could be stolen from a garden. Indeed, there are many occasions when the public are admitted to both the gardens and the building, often not for a commercial purpose, and therefore I will certainly look into that point because it seems to me that some wider wording would be justified.
With regard to the noble Lord's point about "dishonestly", which is not in this clause, we did not think it necessary to put in "dishonestly" because we could not think of a temporary deprivation being made with a claim of right in the sense of Clause 2, subsection (1)(a). Therefore, it was not necessary to have the word "dishonestly". If we put in "dishonestly", it would not exclude, say, a students' rag. That would be dishonest, and we see no reason, as a matter of policy, to exclude it.
On the general argument—and here I hope to be able to take in most of the points, if not all of them, which have been made—I should like to explain this clause and why he have it. It is intended to protect articles in a building open to the public but only where the admission of the public has not a commercial object. It is designed to apply to a wide variety of buildings, such as museums, churches and art galleries, other than those with a commercial object, and to give protection against a member of the public abusing the privilege of admission to the building.
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The exclusion of displays with a commercial object will apply not only to commercial art galleries but generally to places such as shops and sale-rooms where the sole object of exhibiting articles is to sell them. The principle underlying the exclusion of articles displayed commercially for sale, even if they be works of art, is that they are displayed in the interests of making sales, and the person displaying them can be reasonably expected to bear the resulting hazards and take precautions against them. This is a very different thing from when the display is not with a commercial objective. The clause protects public collections and private collections if in a private collection the owner is put at hazard by displaying them to satisfy public, cultural or similar interests or a charitable purpose.
The noble and learned Viscount said that it would be extremely difficult to establish that it was not for a commercial purpose. I think it would be extremely difficult to find an example when it would be difficult to establish that, because so many of these private collections, and gardens, are advertised as being in aid of the Church or of a particular charity and objects of that kind. If articles displayed commercially were to be included in the clause it would become very difficult to draw the line short of extending the clause to temporary deprivation generally. For instance, if the clause is to apply to paintings in a commercial art gallery—and we are talking about temporary deprivation and not plain stealing—then it should also apply to a bookshop and to taking a book out of a bookshop.
I will go even further than that. If we take out of the clause the words:
"and the object of admitting the public is not a commercial object,"
then really the sky is the limit. The Amendment would so much widen the clause that it would apply not merely to displays of works of art or similar objects in commercial art galleries and shops but to articles in shops generally. I ask noble Lords to look at Clause 11 to see which words would be left. It says:
"Where the public have access to a building in order to view the building or part of it or any of its contents …"
That means any shop, for that is a building to which the public have access and where they go to view the contents.

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Therefore, if we accept the Amendment the principle of limiting the clause to give protection against a special type of hazards would be removed completely. It would become an offence for a shopper temporarily to remove any article displayed in a shop. This would give the shopkeeper—and I do not know whether noble Lords have considered this—a device far outside the intention of the clause for prosecuting, say, a shoplifter without having to prove the ingredients of theft, which is quite a remarkable thing. It would not be merely inconsistent with the general intention of the Bill, of not extending generally theft to cover temporary deprivation, but if it is to be theft temporarily to remove anything displayed in a shop, there is no logical reason why it should not be a offence temporarily to remove something in, for instance, a private house or your neighbour's house.
Therefore, on general grounds I hope that I have explained the purpose of the clause and why we want to adhere to these exceptions of temporary deprivation but nevertheless to make them offences; because they are offences against the public good and therefore should not, as in the Goya case, go virtually unpunished except by accident. They would be punished. I think a case has been made out for the retention of the clause, and I do not really think a case has been made out for the Amendment and for removing these words. The noble and learned Viscount asked me why it should be an offence where the object of admitting the public is a commercial one and not otherwise. I think the answer that I have given covers that point. He also said that it is just as bad to take a picture from a private collection as from a public one. But it would be an offence to take a picture from a private collection, as from a public one, if the public were admitted to see a private collection either free of charge or where the purpose of the exhibition was charitable or for the other purposes mentioned in the clause.
The noble and learned Viscount also said that he wanted this clause—if there had to be a clause—to apply to any removal from any building to which the public have access. Does he mean this in the terms that I have described which would arise if this Amendment were accepted? Or does he mean a re-drafted
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clause which would, in effect, gives protection to the same kind of exhibitions (although they may make a profit on them, like country homes and that kind of exhibition) but not to a picture gallery where the pictures are exhibited for sale, and for sale only, or other places of that kind? I think that is a question that really demands an answer.
VISCOUNT DILHORNE: Does the noble Lord want an answer now? If so, I should be very glad to give it. I can see no logical reason for there being a distinction between the removal of a Goya from the National Gallery and the removal of a Goya from a private collection in a house to which the public are admitted. I should not be content with any clause which did not cover the latter case as well as the former. It is not right, in my view, that the latter case, whether covered or not, should depend upon whether there is a balance of receipts over expenditure for a particular purpose, and on whether that balance does or does not go to Her Majesty, the local authorities, the ecclesiastical authorities or charitable purposes.
LORD STONHAM: With respect, the noble Viscount has not answered the question I addressed to him. He has answered part of it. He merely said that he would like the same protection given to a private collection as would be given to a public collection under the same circumstances, except that the question of whether a profit arose from showing a private collection should riot arise. That is a fair point. That is something that I am prepared to look at. But I did not ask that question alone. What I said was this. Does the noble and learned Viscount really want to take these words out of the Bill so that then you have the position where temporary deprivation in any shop would be theft? If the answer to that question is not "Yes", then I think—
VISCOUNT DILHORNE: With respect, the answer to that question cannot be "Yes", because if the word "permanently" is reinserted in the Bill then it could not be theft. But the answer to it is "Yes" if it is related to this particular clause of the Bill; because again I cannot see what difference it makes whether something like a Goya is temporarily removed from the National

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Gallery, from the Royal Academy, from a private collection or from a shop. The loss of an article like that is a loss to the nation. And as the Committee themselves pointed out, it may be irreparably damaged by reason of the removal.
LORD STONHAM: I will not pursue this topic, but the noble and learned Viscount has not answered the point: he has stuck to the Goya. The point I posed has not been answered. The noble and learned Viscount knows very well why he has not answered; it is because on this point I am right. I started my speech by saying that we hope to put the word "permanently" back, and everything I have said since depended on that premise. I am not a lawyer, but when I understand a point I understand a point, and on this I know that I am right.
LORD AIREDALE: The noble Lord makes such a point here about not letting in shops. Surely there is all the difference in the world between a picture shop, which to all intents and purposes is an ordinary shop with a counter where pictures are sold, and an art business where private art exhibitions are held for commercial profit. There might be an exhibition of Constable paintings in a private art gallery run for a profit. That is nothing like shopkeeping at all. Surely the Parliamentary draftsmen can distinguish in the words in an Act of Parliament between these two quite separate things, so as to exclude ordinary shop-keeping transactions and include private exhibitions for commercial purposes.
LORD STONHAM: Of course the Parliamentary draftsmen could do that—I have already said that I will look into this matter—and it is the first limb of what the noble and learned Viscount said. I am now on the point of the Amendment which we have under consideration. I say that I have proved that it is untenable because if you accepted it in the present circumstances it would cover the whole thing—not merely a Goya or pictures, but the temporary removal of a book from a lending library and things of that kind, which would immediately become theft.
LORD FOOT: Would the noble Lord, Lord Stonham, agree that the first words of this clause:
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"Where the public have access to a building in order to view the building or part of it or any of its contents"
would exclude the ordinary case of a shop? Because it could not be said within reason that because a person goes into a shop to buy a book the public have access to that building for the purpose of viewing the building or a part of it, or any of the contents. Would not those words exclude the example which the noble Lord is raising?
LORD STONHAM: So far, I have taken on only noble barristers; now I am having noble solicitors as well. I shall have to appeal to the laymen and read this out:
"Where the public have access to a building in order to view the building or part of it or any of its contents …"
In my submission, that describes any shop. The public have access and they certainly go in to see the building or part of it. They certainly go in to view any of its contents that they want to see. That is my understanding of it.
LORD MACPHERSON OF DRUMOCHTER: May I interrupt the noble Lord? I apologise as I am not at all legal-minded, but I do not quite understand the procedure here. I understood that at this stage Clause 1 had been amended and that the word "permanently" was out. So far as I can understand it, the Minister has based his arguments on the grounds that the word "permanently" will be coming back into the clause. Should we not be looking at it as it is at the moment, with the word "permanently" out?
VISCOUNT COLVILLE OF CULROSS: No.
LORD STONHAM: I do not know whether the noble Lord was in the Chamber at the commencement of my speech, but I referred to this point. The noble Lord may know that the day after we removed the word "permanently" I made a statement on behalf of the Government indicating our intention to endeavour to persuade your Lordships to recall this word on Report stage. The whole of my arguments have been based on that belief. While I accept that the noble and learned Viscount, Lord Dilhorne, and many others will endeavour to ensure that the word "permanently"

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stays out of the Bill, I think there has been a general consensus that we should pursue the discussion on this basis. I do not want to take advantage of it, and all I can say, therefore, at this stage is this. First, I think a very sound point has been made about gardens and environments. Secondly, a sound point has been made about private collections which I will look at with the other suggestions which have been made. But so far as this particular Amendment is concerned I really do not think it is tenable.
VISCOUNT COLVILLE OF CULROSS: I have not taken part in this debate so far and I apologise for not having been in the Chamber at the beginning. I think that the noble Lord, Lord Stonham, can assist us very greatly by making one thing clear; at any rate, it would help me. I cannot accept this clause in its present form and I would rather let in the danger of shops than draw the line in the way it has been drawn in this Bill. It seems to me that it is quite untenable to give protection to the gallery or the other building and the contents in it, where it is not open for a commercial purpose, in the incredibly complicated way that is described in this clause—which would cause endless trouble at trials—and not give protection when a house happens to be open, as is in so many cases true, on a basis which may be financially viable to the owner.
One of the things which appeals to me in this argument is that people who have houses of architectural value often get grants from the Government to enable them to repair the houses. If they do so, they have to open the houses to the public; it is a term of the grant. If those people charge, as an admission fee, a certain amount to enable them to make ends meet, they are not to get any protection under this Bill. If they happen to charge a little less they will be protected. The thing is so arbitrary as to be wholly ridiculous. I would rather see this Amendment made in the Bill and leave the Government to draft another form of words which would keep out the shops (and I think I agree about that) than leave the clause unamended at this stage. I would much rather do it in that way than try myself to put down at a subsequent stage an Amendment designed to keep in the houses and buildings
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which I think require protection but which would not protect shops. I do not think I am capable of doing it Parliamentary counsel can and the noble Lord said that he can. I would rather, therefore, leave these words out new and invite the noble Lord to come back at Report stage with a satisfactory alternative form of words dealing with the points he thinks should be dealt with, and covering my point.
LORD CONESFORD: I wish to raise only two points. I have listened very carefully to the Minister's speech and I fully understand his difficulty about opening the matter too widely—what I might call his "shops point". I think that a possible way of meeting that would be, instead of having "any article", which is what the clause now says, we referred to the sort of articles we are considering—such as works of art.
I was surprised when the noble Lord referred to books, because a valuable book is very much in point. What we are frightened of, among other things, are thefts which may do irreparable damage to things of priceless value. I mention this because the Committee themselves, at page 28 of their Report, considered as a possibility for a clause of this kind mentioning the things set out in the Malicious Damage Act 1861—works of art or other objects of interest, et cetera. We have not yet tried at all in this clause defining the object. I mention this only because that may be a line that the Government would like to investigate. But in support of what has just been said by my noble friend Lord Colville of Culross, I must say why I feel bound to go into the Division Lobby in support of the, deletion of these words, words that would have an appalling effect in limitation. May I mention two exhibitions which took place last year and which many of your Lordships may have visited: the historic exhibition at Christie's of all the objects they had sold over a great period and an equally interesting exhibition at Spinks? Neither Spinks nor Christie's would be protected under this clause, unless we deleted the words which my noble and learned friend Lord Dilhorne is proposing to delete. And in those exhibitions there were on show objects of immense national importance. This clause is quite preposterous as it now stands. For these

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reasons, I am prepared to support my noble and learned friend.
LORD ROYLE: Would my noble friend Lord Stonham point out why the existing clause is so much better than the new clause proposed by the noble Lord, Lord Airedale, in its simplified form?
LORD LEATHERLAND: As this seems to be a free-for-all, may I be pardoned for entering this discussion? It seems to me that we are trying to distinguish between two classes of offence. First, we have the straightforward case of theft under Clause 1, where I propose to deprive somebody of his property. I am convicted and labelled as a thief, a term of opprobrium. Then in Clause 11 there is the case in which I do not necessarily intend to deprive a person permanently of his property; I deprive him of his property only for the time being, because of some whim of mine. The noble Lord, Lord Conesford, might have arranged an exhibition at his home in aid of the local Conservative Association. I might go there and think, in a spirit of mischief, that I should like to take a certain picture and exhibit it in my own home in aid of the local Labour Party. I am not dishonest. I am having a hit of fun, a bit of mischief—irresponsible mischief, if you like.
Surely the difference between Clause 1 and Clause 11 is the difference between the crime of stealing a motor car and the taking and driving away of a car where there is no intention to deprive the owner of it permanently—though, incidentally, that might be so. I think that there is a difference to be made between these two acts of depriving a person of his property. I do not like the alternative put forward by the noble Lord, Lord Airedale, because he incorporates the word "dishonestly" and there are some takings away which are not dishonest. They may be anti-social, irresponsible and reprehensible, but they may not be dishonest. Therefore, if Clause 1 is to retain the word "permanently", then Clause 11 must stay in, in order to cater for those takings-away which are not of a dishonest nature.
VISCOUNT DILHORNE: We have had a useful debate on this point and we have covered a great deal of ground. As
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I moved this Amendment, I should like to say a word in reply to the noble Lord, Lord Stonham, and to noble Lords who have criticised it. The noble Lord, Lord Leatherland, who I am glad to see has taken an active part in discussing this Amendment, said, in reply to the noble Lord, Lord Conesford, that if a man removed a picture from a private house and nothing else, that man could be prosecuted and convicted of theft. Of course he would not be, as the law now stands, unless it was proved that there was an intention permanently to deprive. That is one correction I would venture to make on what the noble Lord said. He went on to say (I am discussing this on the basis that the law of theft contains the requirement of an intention permanently to deprive) that there was a big distinction between that and mere removal—and removal without the word "dishonestly" is dealt with in this clause. I entirely agree, but I ask your Lordships to consider what this really means.
It may be socially very tiresome for someone out of a sense of fun or in a rag, to remove something of great value. It may be socially reprehensible, to use the word used by the noble Lord, Lord Leatherland. But I, for one, feel considerable doubt as to whether reprehensible conduct of that character should be subjected to criminal sanctions without there being some element of dishonest conduct on the part of the accused. I am not at all sure it cannot be said that, whatever his motive may be, whether it is to hold the article until he gets a contribution to his favourite charity or to give himself the pleasure of looking at it, it ought to be regarded as dishonest if someone takes valuable property which he knows that the owner would not consent to his taking. If we are creating in this subsection a new criminal offence, it ought to contain the element of dishonesty. But that is a matter a little away from this Amendment.
The noble Lord, Lord Royle, seems to want to attack me for not explaining to him what the clause meant. I would never take on the task of satisfactorily explaining anything to the noble Lord. I say that to him with the greatest respect. But what I say about the clause has not been challenged at all by the noble Lord, Lord Stonham.

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May I say something about the Amendment of the noble Lord, Lord Airedale? I think that its language is much to be preferred to the cumbrous language of this subsection. There I agree with the noble Lord, Lord Brooke of Cumnor. My only doubt about it is the inclusion in the Amendment of the words, "where it is kept for public display." Having a valuable picture in a private house, even though people are admitted on certain occasions to see the pictures, makes it difficult to say that the picture is kept there for public display.
LORD STONHAM: The Amendment of the noble Lord, Lord Airedale, does not deal with pictures but with "any article", which would include anything in any shop.
VISCOUNT DILHORNE: The noble Lord has clung to that point as if it were a rock that would save him from disaster. He has almost sunk, but he is clinging firmly to that rock at the present time. He is trying to get me to share in attacking Lord Airedale's draft. I am not unduly critical of Lord Airedale's draft, because I think it is much clearer than the subsection in the Bill; but it seems to me that it has the slight defect that it is so widely drafted that it covers articles of all descriptions.
Coming back to the noble Lord, Lord Stonham, he said that he was going to put this matter in balance. I do not think think that he succeeded in doing that. I had already said that the word "dishonesty" should be included in the clause and had given the reasons why. He flatly said that he would not accept that the proof that the building was not open for a commercial purpose would cause difficulty. He gave no reasons. I think that the noble Lord, Lord Royle, and I would be in agreement in thinking that in magistrates' courts a considerable amount of time would be taken up in determining whether or not an exhibition was for a charitable purpose. The court would have to look at the accounts. Subsection (2) makes that clear. It would have to see what the receipts were and what they were spent on, and if there was one shilling of those receipts spent on something other than the upkeep of the building, and its management, and the admission of the public, the exhibition
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would have to be treated as being for a commercial purpose. Think of the accountants who would be needed to produce the books. It would not depend just on proof that there was an advertisement in the local paper. This is absolutely unreal.
But then the noble Lord conies to the rock to which he clings: that if these words were taken out this would apply to valuable articles in shops. Shops are open to sell things; very often there is an exhibition in the hope that sales will take place. What is wrong about that? I say quite firmly to the noble Lord—I thought I had made it clear before—that I am personally in favour throughout of making the dishonest appropriation of other people's property a crime.
It is no argument to me to say that if these words are taken out the dishonest appropriation of other people's property in shops will be a crime. I think it should be. I do not take the view that the criminal conduct depends upon the place from which the article is removed. I do not think that is right. But what I do say is that as the Bill now stands it clearly excludes a wide category of buildings which ought to be covered by it. I do not in the least mind the clause starting with the words:
"Where the public have access to a building in order to view the building or part of it or any of its content.…"
Those are really words of limitation, But I could not agree to allow words to remain in the Bill which make the liability to this crime depend upon whether or not a building is open for a commercial purpose. If these words are taken out, as I think they should be, it will be for the noble Lord, Lord Stonham, if he wishes, to table an Amendment to exclude pictures and other objects in shops. As my noble friend Lord Colville of Culross has said, the Minister, with all his resources, can table such an Amendment much more easily than we can. He has the opportunity of doing so. This clause as it now stands is wrong, and I shall ask the Committee to join with me in trying to improve the Bill.
LORD STONHAM: My noble friend Lord Royle asked me why the clause proposed by the noble Lord, Lord Airedale, is not acceptable. The short

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answer, I think, is that it would make the clause far too wide. It would apply to the temporary removal of anything from a shop. I do not think anybody wants that. I appreciate what the noble Viscounts, Lord Colville of Culross and Lord Dilhorne, have said: that it would be much easier (I do not make any agreement on this, but there are the facilities available) for me to agree to the withdrawal of this Amendment and then come back with an Amendment which I think would meet people's wishes.
What I am going to look at, of course, is the point about the area not being confined to buildings, and the particular point which is the object of this Amendment; namely, the question of a public purpose or a private purpose. I agree that there is a strong case for the protection of private collections in this way. I think this would meet the point. But I do not think the way to do it is to take words out of the Bill, which then admittedly
creates a situation that nobody wants and makes the Bill wrong. I think it would be better for noble Lords to accept an assurance from me—because I am going to try to proceed in this way—and not take the words out of the Bill.
VISCOUNT COLVILLE OF CULROSS: With respect to the noble Lord, I do not think that that would appeal to me. It may be, of course, that the whole clause is going to be left out, but in any event I should like the noble Lord to come back with an Amendment which does what he says should be done in this clause. I cannot see that there is any possible way that I should be prepared to agree to the withdrawal of this Amendment.
4.45 p.m.
On Question, Whether the said Amendment (No. 20) shall be agreed to?
Their Lordships divided: Contents, 91; Not-Contents, 42.

CONTENTS

Aberdare, L.

Dundonald, E.

Merrivale, L.

Ailwyn, L.

Elliot of Harwood, Bs.

Meston, L.

Airedale, L.

Falmouth, V.

Mills, V.

Albemarle, E.

Ferrier, L.

Milverton, L.

Ampthill, L.

Feversham, L.

Monsell, V.

Amulree, L.

Foley, L.

Morrison, L.

Ashbourne, L.

Foot, L.

Mowbray and Stourton, L. [Teller.]

Asquith of Yarnbury, Bs.

Glasgow, E.

Atholl, D.

Greenway, L.

Nugent of Guildford, L.

Audley, Bs.

Grenfell, L.

Nunburnholme, L.

Balerno, L.

Gridley, L.

Oakshott, L.

Barrington, V.

Grimston of Westbury, L.

Poltimore, L.

Bessborough, E.

Hawke, L.

Redmayne, L.

Boston, L.

Henley, L.

St. Aldwyn, E.

Brooke of Cumnor, L.

Horsbrugh, Bs.

St. Helens, L.

Brooke of Ystradfellte, Bs.

Howard of Glossop, L.

Sandford, L.

Buckton, L.

Iddesleigh, E.

Sempill, Ly.

Byers, L.

Ilford, L.

Sinclair of Cleeve, L.

Colville of Culross, V.

Inglewood, L.

Somers, L.

Conesford, L.

Jellicoe, E.

Strang, L.

Cottesloe, L.

Jessel, L.

Strange of Knokin, Bs.

Craigavon, V.

Kilmany, L.

Strathclyde, L.

Craigmyle, L.

Kilmarnock, L.

Swinton, E.

Cromartie, E.

Kinloss, Ly.

Teynham, L.

Daventry, V.

Kirkwood, L.

Thorneycroft, L.

Denham, L. [Teller.]

Lambert, V.

Thurlow, L.

Derwent, L.

Lincoln, Bp.

Trefgarne, L.

Digby, L.

Lloyd, L.

Vivian, L.

Dilhorne, V.

Loudoun, C.

Wilberforce, L.

Drumalbyn, L.

Lucas of Chilworth, L.

Wolverton, L.

Dudley, L.

Luke, L.

NOT-CONTENTS

Addison, V.

Buckinghamshire, E.

Darwen, L.

Beswick, L.

Burden, L.

Donaldson of Kingsbridge, L.

Birk, Bs.

Champion, L.

Douglass of Cleveland, L.

Bowles, L.

Cooper of Stockton Heath, L.

Faringdon, L.

Fiske, L.

Leatherland, L.

Royle, L.

Gaitskell, Bs.

Lindgren, L.

Segal, L.

Gardiner, L. (L. Chancellor.)

Maelor, L.

Shackleton, L. (L. Privy Seal.)

Geddes of Epsom, L.

Mitchison, L.

Shepherd, L.

Granville of Eye, L.

Morris of Kenwood, L.

Silkin, L.

Granville-West, L.

Moyle, L.

Sorensen, L. [Teller.]

Hall, V.

Phillips, Bs.

Stonham, L.

Henderson, L.

Popplewell, L.

Taylor of Mansfield, L.

Hill of Wivenhoe, L.

Rhodes, L.

Wright of Ashton under Lyne, L.

Hilton of Upton, L. [Teller.]

Rowley, L.

Latham, L.

On Question, Amendment agreed to.

Resolved in the affirmative, and Amendment agreed to accordingly.
VISCOUNT DILHORNE: This Amendment is consequential. I beg to move.
Amendment moved—
Page 5, line 11, leave out subsection (2).—(Viscount Dilhorne.)
VISCOUNT DILHORNE: This Amendment also is consequential. I beg to move.
Amendment moved—
Page 5, line 20, leave out subsection (3),—(Viscount Dilhorne.)
On Question, Whether Clause 11, as amended, shall stand part of the Bill?
VISCOUNT DILHORNE: I have nothing to say, except that I believe this clause is better than it was, and therefore at this stage I shall not seek to have it excluded. Of course, if we keep out the word "permanently" I shall seek to have this clause taken out, too.
LORD SILKIN: I want to say a word, not so much on the merits of the matter as on the unfortunate way in which this discussion has developed. Judging by the last Vote, it has become a purely Party political matter on something which one hoped would be discussed and considered quite dispassionately. Every Member of the Party opposite voted one way, whether they had heard the discussion or not; every member of the Committee on this side voted the other way.
LORD CHORLEY: I did not vote.
LORD SILKIN: All right; the noble Lord is a law unto himself. But that is the way the matter is going. I think it is disgraceful that a measure of this kind should be discussed in that kind of spirit. My noble friend Lord Stonham said that
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he had been impressed by a number of points that had been raised in the debate, and gave an unqualified undertaking that he was prepared to consider the whole clause without in any way being prejudiced in favour of the clause as it stood. A Division is forced on it, and decided on purely Party lines.
I am not going to lecture this Committee—I am too fond of the House to lecture it—but I want to warn it where we are going. If we are going to decide non-Party matters on a purely Party basis we must consider the future of this House and what sort of a place it is going to be. So far as the rest of this Bill is concerned, I hope that we can consider it, not on the basis of one Party voting one way, and the other Party voting the other, but on its merits.
VISCOUNT DILHORNE: I certainly have not spoken in any Party spirit at all. This was an Amendment which I put down. It was not an official Party Amendment, so far as I know; I put it down on my own initiative. We have argued it out thoroughly, and the noble Lord, Lord Airedale, has spoken of it, too. It may be that those who sat on this side of the Committee voted for this Amendment. I am sure they did it, not out of any Party views or Party beliefs, but because they thought it was right. Noble Lords opposite—some noble Lords opposite—spoke in favour of the Amendment I moved. I will not mention them by name because it might be embarrassing, but no doubt Party discipline was the cause of their voting against the Amendment at the end.
I think it is a great pity that the noble Lord, Lord Silkin, has brought Party matters into this at all. We have not proceeded on Party beliefs. While it is true that the noble Lord, Lord Stonham, was prepared to consider certain things, certainly (if I understood him correctly) he was fighting bitterly to retain the clause as it stood at the moment; and

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that was, as I made clear, something I could not agree to.
LORD CONESFORD: May I express great regret that the noble Lord, Lord Silkin, made a most uncharacteristic speech in which he overlooked some facts that I am sure he would consider material. In the first place, I think he ignored the fact that in the recent Division, according to my observation, what he referred to as "the majority Party" were accompanied by those who sit on the Liberal Benches and also by the noble and learned Lord, the only Law Lord present, who sits on the Cross-Benches. To talk about this as being a purely Party matter is inaccurate and unworthy of the noble Lord, Lord Silkin.
If I may mention one other factor, it is the all-important first Amendment we considered, when there was a majority for striking out the word "permanently". According to my memory—I have not looked it up—the Conservatives were not even in the majority among the "Contents" who carried that Amendment. The allegation that this Bill is being considered on Party lines is wholly unfounded.
VISCOUNT COLVILLE OF CULROSS: I should like to support what both my noble friends have said. So far as the Amendments standing in my name are concerned, they are only "official Amendments", in the terms of my noble and learned friend Lord Dilhorne, in that I am moving them from the Front Bench. I consider it to be the job of the Opposition to put down constructive Amendments to this Bill, as to any other; but they are not based on any Party line. They are considered to be constructive, and I hope the noble Lord, Lord Silkin, does not think to the contrary.
In regard to the last Division I believe the noble Lord, Lord Stonham, understood very well what I, at any rate, wished. I do not wish to have to do the drafting of this Amendment, because I cannot do it. The noble Lord said that he had the draftsmen and they could do it. When he sees the OFFICIAL REPORT to-morrow he will see what he said.
LORD STONHAM: I know what I said without looking at the OFFICIAL REPORT.
VISCOUNT COLVILLE OF CULROSS: I am glad to have that confirmation from the noble Lord. It was with the intention that it should be for those who are well qualified to get this matter right to do the drafting, that I, at any rate, wished to take this to a Division. It was not a Party affair at all.
LORD STONHAM: Before returning to the Motion, I should like to say that I fully appreciate the sentiments expressed by the noble Lord, Lord Silkin. At no time in any discussion so far—and they have been prolonged—have I ever felt that there has been a Party line. The discussions have been frank and on the merits of the case as we saw them. However, I rather resent the implication made by the noble and learned Viscount, Lord Dilhorne, against my noble friend the Government Chief Whip, that Party pressure, as he called it, could fail 10 produce on this side of the Committee more than 42 votes. That is a reflection that I resent. There has not been any Whip on this Bill. I think I had better leave the matter there.
On the Motion that the Clause stand part (what is left of it), so far as I am concerned it will not make the slightest difference to the action I shall take in the matter whichever way the vote went. The fact is that we are left with a truncated clause, and I shall endeavour to come back with Amendments which will, I hope, achieve what we all have in mind.
VISCOUNT DILHORNE: I welcome what the noble Lord has said. Some time ago, when I think the noble Lord, Lord Silkin, was not in the House, I said that when we had a division of opinion in this House on this Bill and voted upon it, if the the majority voted in support of my Amendment I did not think it ought to be represented as a defeat for the Government but as a victory for good sense.
LORD AIREDALE: There is one final point I should like to make since the Minister is going to look at this clause again. It is in support of a point made earlier by the noble Viscount, Lord St. Davids, who drew attention to the words at the beginning of subsection (1):
"… access to a building in order to view the building or part of it or any of its contents …"

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The noble Viscount pointed out, perfectly correctly, that art galleries, museums and public libraries are used for concerts, lectures, receptions and cocktail parties, and if the words at the beginning of subsection (1) are left as they are at present then anybody who goes to a museum or art gallery to a concert—for instance, the Victoria and Albert Museum Sunday evening concert—and then takes advantage of being inside the building and removes something, he is going to escape from the provisions of Clause 11 as drafted because he will not have gone in "in order to view the building or part of it or any of its contents". He will have gone there for a concert or a lecture, or whatever it may be. For this reason I think these words should be looked at again.
Clause 11, as amended, agreed to.
Clause 12:
Taking motor vehicle or other conveyance without authority
12.—(1) Subject to subsections (5) and (6) below, a person shall be guilty of an offence if, without having the consent of the owner or other lawful authority, he takes and drives away any conveyance or, knowing that any conveyance has been taken without such authority, drives it or allows himself to be carried in or on it.
(6) A person does not commit an offence under this section by anything done in the belief that he has lawful authority to do it or in the belief that in the circumstances of tic case the owner, if asked, would have given consent to his doing it.
5.7 p.m.
VISCOUNT ST. DAVIDS VISCOUNT ST. DAVIDS moved, in subsection (1), after "takes and drives away", to insert", or releases from its moorings,". The noble Viscount said: By this stage the Committee may be grateful for a small and simple Amendment which anyone can understand and which cannot be put down by anybody to any kind of Party pressure. Therefore I do not need to be particularly brave in order to move it. This was an Amendment which I intended to move to the Vessels Protection Bill when it was going through the House last autumn, but owing to the fact that the Bill went through at the tail end of the Session we did not have time for a Committee stage, and
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if I had attempted to put this Amendment then it would have killed the Bill. If I had put it in then, I hope it would have found its way, in the normal process of digestion, into this Bill.
The fact of the matter is that to move a car or an aeroplane or most other vehicles it is necessary to get into them and to do something inside them, like driving, whereas to move a boat it is often only necessary to untie it and it will then proceed to move itself. If it is in a stream or a tidal estuary it may move itself at considerable speed and to a considerable distance, and what happens to it when it does so may be much more devastating than if a vehicle is simply taken and driven away. If it is taken and driven away it will at least move in a purposeful manner and may not do much damage, whereas if it is cast adrift, in the case of a small boat it will probably be smashed and in the case of a big boat it will probably smash up a number of others. There are other difficulties which can arise as a result of a boat's being cast adrift. For example, it may be left around and almost Certainly will not be returned to its original point of mooring. It may then fall into the hands of anyone who sees fit to take hold of it and to use it for any other purpose.
I am sure I shall be told by my noble friend, Lord Stonham, that this point is already covered by the fact that anyone who casts such a boat adrift and causes damage can be summoned for malicious damage, but some of the types of malicious damage will be very odd indeed. For example, a boat left lying around is often picked up by thieves and used to steal things from other boats. Is the person who cast it adrift then guilty in respect of the sums stolen from the other boats as being the amount of malicious damage that has been done? Is it malicious damage inadvertently to cause somebody to steal something from elsewhere? It must be realised that normally we keep boats safe by keeping them out of harm's way. We moor them in locked marinas; we moor them out in the middle of rivers; we moor them where the general public cannot lay hands on them. The only way these boats can get into trouble normally is by somebody having another boat; in other words, in order to steal a boat they must have another boat.
If a boat is cast adrift it leaves its place of safety and drifts to some towpath to which the public has access, and it is used as a raiding boat for raiding anything in a marina, in a private mooring, on private gardens and all sorts of places where the public normally do not have access. If this Amendment is not put into the Bill it will be necessary to carry on, as I feel sure is going to be suggested, by prosecuting such cases as cases of malicious damage; but one has to understand that all these instances of subsequent damage, due to a boat's being free and in a public area, will also have somehow to be brought in as cases of malicious damage, and in some of the ramifications of this subject that is going to look very odd indeed. It would be much simpler if this Amendment was put in and unmooring a boat was included as taking and driving away. It would make the prosecution of such an offence much more easy.
There is another point. If the unmooring of a boat is to be prosecuted on the basis of malicious damage, we shall have the extraordinary case that something which is done is not illegal at the time but becomes illegal possibly hours or days afterwards, because if you try to prosecute for unmooring a boat as malicious damage and no damage is done, presumably you cannot do so. In other words, there is no prosecution until the damage occurs. But the damage in unmooring the boat may not occur when the boat is unmoored, or within minutes or hours or days or weeks. If the boat has been left lying about and a thief comes and raids another boat with it, it may be a week after, it will be extremely difficult to pursue the original person who unmoored the boat in the first place and who is the person responsible, if this offence is to be taken on the basis of malicious damage. Why cannot we put in this simple little Amendment and make it illegal to move a boat by unmooring it, just as it is illegal to take and drive away a motor car or any other vehicle? I beg to move.
Amendment moved—
Page 5, line 25, at end insert (", or releases from its moorings,").—(Viscount St. Davids.)
5.14 p.m.
LORD STONHAM: I am being doubly assisted by my noble friend because he
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not only stated his own case but endeavoured to put my reply to him as well. I think it will be as well if I state the position as the Government see it, and that is not in the way that my noble friend put it. Clause 12 makes it an offence to take and drive away a conveyance without the owner's consent. It replaces and extends the existing offence in the 1960 Act of taking and driving away a motor vehicle, and the similar offence in relation to vessels under the Vessels Protection Act 1967, to which my noble friend referred. I would point out to him that the word "drives" is glassed by the definition in subsection (7) of this clause to apply to conveyances, such as vessels, to which the word is inappropriate.
My noble friend's first Amendment would make the offence apply to a person who "takes and drives away, or releases from its moorings, any conveyance …". There surely can be no doubt that a person takes a boat for the purposes of this clause if he releases it from its moorings. There is no question at all about that. But the offence in Clause 12 requires him to take it and drive it away. The question, therefore, is what he needs to do, in addition to unhooking the rope, as it were, in order to commit the offence of driving away the boat. The definition subsection, subsection (7), provides for the word "drive" to be appropriately construed in relation to boats, and by analogy with the construction which the courts have put on "driving away" in relation to motor cars, it would be "driving away" if the person got into the boat and did something to move it. Whatever he did, even if he paddled with his hands or kicked with his feet, if he moved it at all after getting into it he would be driving it away.
The analogy with the motoring offence is that if a boy goes up to a car and releases the handbrake of the car—and does nothing else—so that the car runs downhill, he is not charged with taking it away. It is completely analogous to unmooring the boat, hooking the rope off the stake. The charge in both cases, if damage is done to the boat or to the motor car, would be that of causing malicious damage. A person who merely sets a boat adrift, without getting into it and controlling its movements in some way, once it is adrift, is not covered by

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the clause, just as in the case of a person who releases the handbrake of a car. The essence of the point in this Theft Bill is stealing a ride. The person in our example gets into the boat and he steals a ride, and it would be inappropriate to extend the clause to cover conduct which is analogous to malicious damage—and may indeed involve the offence of malicious damage. I would say that setting a boat adrift might amount to theft if the intent in doing so amounted to an intent permanently to deprive the owner of the boat.
VISCOUNT ST. DAVIDS: There is one small point on which my noble friend might help me. Earlier in the Bill we were told that if one put one's arm, or presumably one's foot, into a dwelling-house in order to steal one was entering the house. If, therefore, a man shoves the boat off with his foot is he entering the boat?
LORD STONHAM: That, I think, would be a matter for the courts to decide. If a man puts his arm through a window, part of his body actually enters the house, and the clause did not say that the whole of his body had to enter the house: it speaks of entering. It is not for me to say whether pushing the boat out with a foot is or is not entering: that would be a matter for the courts. I would submit that these very fine points that have been invented this afternoon are quite remarkable. I might ask any noble Lord who invented one of these points whether such a case had come up within the last hundred years.
May I deal with one or two points made by my noble friend? He said that some of the malicious damage included the taking of the boat by thieves to steal something from other boats. They cannot take the boat and use it for stealing from other boats without getting into it, and they are caught by the clause because they get into it and steal a ride.
VISCOUNT ST. DAVIDS: My noble friend does not understand. The boat would not be in the hands of the thieves if the original man had not unmoored it, so that the malicious damage that he has done in that case is the damage done by the thieves.
LORD STONHAM: It is a question of which of us does not understand. I am only asking my noble friend to try to understand this. Let us take it stage by stage. A small boy walks along a towing path and unhooks the rope that attaches a boat to the towing path. He does nothing else. Therefore he may be liable to a charge of causing malicious damage. The same night, or some days or weeks later, someone enters that boat. He will be depriving the owner of it; he will be stealing the ride.
VISCOUNT ST. DAVIDS: The owner is already deprived of it; the boat has gone.
LORD STONHAM: It seems that the owner has not worried much about his deprivation., because in the case that the noble Viscount put forward the boat was away for weeks and nobody knew about it.
VISCOUNT ST. DAVIDS: We had an exactly parallel case to this a few months ago on the Regent's Canal. A boat was cast adrift, it left its secure moorings and drifted over to the towpath, and within hours it was picked up by thieves and used to raid other boats.
LORD STONHAM: I accept that. I am accepting the noble Lord's proposition. My difficulty is that he is not prepared to listen at all to argument. I am asking him whether he would kindly just listen, at least until I get to the end of a single sentence. The small boy has cast off the boat, it has arrived at some other shore—perhaps at the other side of the stream. Somebody gets into it. When that person gets into it he is, or he may well be, stealing a ride, stealing the boat, and he is then liable for theft. This is the point. The small boy did not steal the boat; he may have caused the damage. The other person or persons have stolen the boat. If they then use that boat to commit other thefts, of course they are liable for those other thefts. But this is not what the noble Viscount is asking in his Amendment. What he is asking in his Amendment is that the small boy who casts off the boat and walks along the bank of the canal, and does nothing else, should be regarded as having stolen the boat. This is what cannot be accepted.
VISCOUNT ST. DAVIDS: I am sure that what my noble friend means is taking and driving away a boat, not stealing.
LORD STONHAM: In the words of the subsection anybody who does that commits an offence; he commits the offence which is in the clause. I am saying that he could not drive the boat away unless he was in it. But the clause does not defend the entering of the boat. In so far as it is possible and is right, I think that what my noble friend wants is achieved by the clause. The one thing we cannot do in this clause, and I think ought not to do in a Theft Bill, is to include something which can be only malicious damage.
5.24 p.m.
LORD POPPLEWELL: I wonder whether my noble friend the Minister would have another look at this matter. We greatly appreciate the argument that he has advanced; but my noble friend Lord St. Davids has instanced a case where a boat has been liberated on the Regent's Canal and damage has been caused, or it has been used for other purposes. I personally have some experience of a boat being liberated in a harbour, and considerable damage was done in consequence. Nobody ever knew whether anybody was at any time in the boat. The owner of the boat secured it firmly to its moorings, and ultimately some person unmoored the boat. This is the simple connection.
I am not entirely convinced by my noble friend's reply that the wording of the Bill is sufficient to cover this particular type of incident. I am not in a position to make any suggestion as to whether the Amendment of my noble friend Lord St. Davids is quite the right way to cover the situation. From my layman's point of view it appears to be so. But I am not a lawyer—heaven forbid! How they can interpret these things I do not know: it is most difficult. But I wonder whether my noble friend would kindly agree to have another look at this. He may be able to make some suggestion that would help us. Alternatively, if he comes back having given careful consideration to this matter and says that the circumstances which we have enumerated are fully covered by the Bill, I shall be prepared to accept
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that. At the moment I have certain doubts, and I hope that my noble friend will have another look at it.
BARONESS EMMET OF AMBERLEY: May I corroborate the circumstances spoken to by the noble Viscount? We had a case before the bench, not so long ago, in which a boat had been taken from its moorings and towed further down the beach. At that stage nobody had got inside it. It was pulled up on the beach and it was left there deliberately for a week. Finally, it was found by the owner. But the intention was that, had it not been reclaimed, the people originally concerned with releasing the boat were going to make use of it. They had not got inside the boat, but they had towed it away in order to do so. It was a quite deliberate act. But we were in a difficulty because the law did not allow us to catch them.
VISCOUNT DILHORNE: I should like to support what the noble Lord opposite has said. I doubt whether the cutting of the painter of a boat or untying its mooring really amounts to taking the boat. The case my noble friend put is obviously a case where the boat was taken but was not driven. Just cutting the painter, unmooring the boat and letting it be carried downstream, may cause grave inconvenience and possible loss. In the case instanced by the noble Baroness it was the prelude to the intended acquisition of the boat, but not in circumstances that would amount to theft. The action in the case put by the noble Baroness, if dishonest appropriation was all that was required—as in my view it should be—would be an offence. But even if that were done, that would not cover the case where in fact there has been no appropriation, because all that has happened is that the boat has been released from its moorings. I think there is a case there for that kind of thing to be covered perhaps by a by-law—I do not know.
With great respect, it does not seem to me that it would be right to make this Amendment in this Bill, because I doubt whether it would cover the point effectively. I think the proper answer therefore would be for the noble Viscount, Lord St. Davids, to put down an Amendment to this Bill to make that kind of conduct a special offence. He may of course be told that it is not suitable for

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this Bill; but I should think that it might be brought within the scope of it. However, I do not think that it would be right to make this Amendment in this Bill.
LORD CHORLEY: Would not the noble and learned Viscount agree that the case put by the noble Baroness could at any rate be argued to be a preparatory act to a theft? There is a long line of cases which deals with that.
VISCOUNT DILHORNE: I am sure it could be argued to be a preparatory act to the theft. It could be argued that in all cases of taking and driving away a motor car without the consent of the owner there was a preparatory act to the theft.
LORD CHORLEY: The words of that Act are clear. This is not.
VISCOUNT DILHORNE: The noble Lord was interrupting me from his seat. We will carry on the discussion between us in some other place, perhaps sitting down. I do not want to hold up the proceedings on the Bill. I only want to encourage the noble Viscount to withdraw this Amendment and, if he can draft it, to put down a separate condition.
LORD STONHAM: I was invited by my noble friend Lord Popplewell to take another look at this point. As I have already indicated, I have looked at it most carefully. My difficulty is this. The noble and learned Viscount said that he was convinced that cutting the painter did not amount to taking away. So am I. I thought I made it clear in my speech that it did not amount to taking away. For that to happen the chap had to get in it. The noble Baroness fully appreciated that point when she said that a boat was removed somehow without anybody getting into it.
But if my noble friend does consider another Amendment which has the effect, as it were, of trying to establish, not dishonest appropriation but purely an act liable or calculated to cause malicious damage in a Theft Bill, then I would have to say that it seems to me to be outside the scope of the Bill and it would not be right to include it. But my noble friend Lord Popplewell has asked me to look at it again and then to come back and say whether I feel
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that all forms of taking away are covered. I am prepared to do that, but I can give no kind of undertaking to agree that an act which might cause malicious damage would be theft. That is the present position in regard to these Amendments, and I hope that, with that limited assurance, my noble friend would be prepared to withdraw them.
VISCOUNT ST. DAVIDS: I think that is quite fair. I do not think I can carry this matter any further. My noble friend is more capable of having further thoughts about this matter than I r m, and I would prefer to leave it to him. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
VISCOUNT DILHORNE VISCOUNT DILHORNE had given notice of his intention to move, in subsection (6), to leave out all words after "offence under this section", to the end of the subsection, and insert "unless he acted without a claim of right made in good faith". The noble and learned Viscount said: I put down this Amendment to bring subsection (6) of Clause 12 into line in use of language with the Amendment I had hoped to make to Clause 2(1)(a). Clause 2(1)(a) deals with what is meant by "dishonesty", and says that conduct is not to be regarded as dishonest if a person
"appropriates the property in the belief that he has in law the right to deprive the other of it, or that he would have the other's consent if the other knew of the appropriation and the circumstances of it".
The language here differs and I think that it is intended to have the same effect. I believe that it is undesirable that we should use two different formulae for providing exactly the same purpose, but as my Amendment was not carried into Clause 2(1)(a) of the Bill, with these words of explanation I will not seek to carry those words into Clause 12(6). Therefore, I do not propose to move this Amendment.
VISCOUNT COLVILLE OF CULROSS: This Amendment has much the same sort of object as that which has just been mentioned by any noble, and learned friend. There are two separate places in the Bill where a defence is raised relating to what the accused thought that the owner might have done in the circumstances. The first is Clause 2(1)(a), and the second is in subsection (6) of Clause 12 The

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formulae are different, and I should have thought that in the circumstances the courts would tend to look for some different intention in Parliament's mind if different words were used. I still believe that it is exactly the same concept which applies in each case. Therefore, I have ventured to put forward a formula in Clause 12 which corresponds with the necessary alteration of wording, a formula which has already been discussed in Clause 2(1)(a). I hope that this may appeal to the noble Lord, Lord Stonham, for the sake of consistency and to avoid argument later on. I beg to move.
Amendment moved—
Page 6, line 3, leave out from ("or") to end of sine 4 and insert ("that he would have the owner's consent if the owner knew of his doing it and the circumstances of it."—(Viscount Colville of Culross.)
LORD STONHAM: The Amendment proposed by the noble Viscount, Lord Colville of Culross, is to delete the words
"in the belief that in the circumstances of the case the owner, if asked, would have even consent to his doing it"
and to substitute the words in the Amendment, so that the subsection would then read:
"A person does not commit an offence under this section by anything done in the belief that he has lawful authority to do it or that he would have the other's consent if the other knew of the appropriation and the circumstances of it."
As the noble Viscount said, his Amendment makes a drafting change with the object of assimilating the drafting so far as possible to that of Clause 2(1)(b), and the words of the clause as drafted follow the provisions of Section 217(2) of the Road Traffic Act 1960. I am grateful to the noble Viscount for pointing this out. I agree that there is great merit in consistency, and I would advise the Committee to accept the noble Viscount's Amendment.
Clause 12, as amended, agreed to.
Clause 13:
Abstracting of electricity
13. A person who dishonestly, with intent to cause loss to another, uses without due authority, or causes to be wasted or diverted, electricity supplied by or to the other shall on conviction on indictment be liable to imprisonment for a term not exceeding five years.
5.37 p.m.
VISCOUNT DILHORNE VISCOUNT DILHORNE moved to leave out "with intent to cause loss to another". The noble and learned Viscount said: It may be for the convenience of the Committee to discuss with this Amendment No. 28A, which is consequential. I understand from my noble friend Lord Colville of Culross that his Amendment, No. 29, is also consequential. I think it is a slight variant of the words that I have put down, but the point is the same.
This matter is dealt with in paragraph 85 of the Committee's Report. The paragraph deals with the clause relating to the abstraction of electricity, and the Report says:
"It seems to us right to limit the offence to 'dishonestly' misusing the electricity, so that a claim to be entitled to use it would be a defence."
That language does not contain anything about its being an offence if committed not only dishonestly but also "with intent to cause loss to another". If the Amendments which I am now moving are made, the clause will accord with the passage in the Committee's Report which I have just read out.
The word "loss" in this context is defined by Clause 33 as meaning a loss "in money or money's worth". To constitute an offence under this clause it has to be established that somebody has dishonestly, with intent to cause loss in money or money's worth to another, used without due authority, and so on, electricity. Why should it be necessary to prove that the intention of the accused was to cause monetary loss to another person? Very often—I should think in the majority of cases—the person who abstracts electricity for his own use does not think about the other person, or about the Electricity Board which is supplying the electricity. Although, in my view, it is right that there should be a criminal offence for dishonestly abstracting electricity, it appears at the same time to be wrong in principle that the prosecution should have to prove the motive for that piece of dishonesty. Here again we have the requirement to prove motive as part of the criminal offence.
I believe that this doctrine of motive emanated from a university to which I did not go. I think it might be called the "Cambridge heresy". But, at any

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rate, why should it be here? I looked to see what the Committee had to say with regard to these words, and this is all they said:
"It also seems right, and in accordance with the scheme of the Bill, to require an intention to cause loss to another."
It does not, I must confess, seem to me to be right, and I suggest that it cannot be said to be in accordance with the scheme of the Bill. There has been a special provision for many years—I think right back to 1916—for dishonestly abstracting electricity, and the reason is that electricity is not property which is capable of being stolen, and therefore special provision had to be made for it. In relation to theft of anything which is capable of being stolen, under the clauses of the Bill which we have already considered it is not necessary to prove the motive for the theft. Why should it be necessary when special provision is being made for what may be called "stealing" electricity? It really cannot be said to be in accordance with the scheme of the Bill when this Part of this Bill—we shall come later to fraud and blackmail—is dealing with theft, and it is no part of the offence of theft to prove what the motive of the theft may be.
This is an important matter of principle. I am very much against introducing into our criminal law, save in the most exceptional cases, the requirement that the motive of the accused must be proved. Here it is quite clearly sought to impose that requirement, and in my belief it is wrong to do so. This Amendment makes it an offence dishonestly, without due authority, to use electricity or cause it to be wasted or diverted, and I think that that is not only simpler but also better. I beg to move.
Amendment moved—
Page 6, line 16, leave out ("with intent to cause loss to another").—(Viscount Dilhorne.)
VISCOUNT COLVILLE OF CULROSS: I most warmly support my noble and learned friend on this matter. I think that not the least of the arguments—in fact, perhaps the most important of all—is the one that he has touched on: that this is only a specialised form of theft which has to be dealt with separately because of the nature of electricity. I shall take a lot of persuading by the noble Lord, Lord Stonham, that there should be an ingredient in this form of theft which
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does not appear in the general form of the offences under Clause 1.
There is another point which is perhaps not so important, but to which I shall return time and time again in the subsequent clauses of this Bill. I want to know to what extent this clause preserves the scope of the existing criminal law. I have seen that in paragraph 8 of Schedule 2 there is created a new criminal offence to do with telephones and the dishonest use of a public telephone with intent to avoid payment. I am told—and perhaps the noble Lord, Lord Stonham, could confirm whether or not this is so—that the existing offence under the Larceny Act, vague and difficult to construe though it may be, is sometimes used to deal with people who make false "999" calls on the telephone.
I have done my best to analyse that particular action which at the present moment I believe to be criminal. So far as I can see, it certainly does not cause loss to anybody, because it is everyone's right to make a "999" call and to use the electricity involved without paying for it. The trouble is that it puts a great deal of confusion and difficulty in the way of those who have to answer the call, whether it is the police, the fire services, the ambulance or whoever it may be. Equally, since no payment is required in any event, the offence in Schedule 2 is not apt, because that says, "with intent to avoid payment", and, as I have said, no payment is required. If this form of social nuisance and tiresomeness is properly dealt with under the Larceny Act as it stands, by prosecution for maliciously and fraudulently abstracting electricity, then I believe it cannot be dealt with under this Bill. I should like the noble Lord to explain why the law is being changed in this way and to explain the justification for making this existing criminal offence criminal no more, if I am right in my understanding of the matter. I shall be very glad if he will deal with that, as well as the main point of principle raised by my noble and learned friend.
LORD AIREDALE: I, too, should like to support this Amendment to leave out these words. The clause, with these words included, reminds one of the bad old days before the introduction of the statutory offence of taking away a motor vehicle without the owner's consent;

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because in those bad old days it was no offence to drive a motor vehicle away and to abandon it, not intending permanently to deprive the owner. Something had to be done about that, and the device was used of charging the person who drove the vehicle away with stealing the petrol. Everybody was very uncomfortable about that, because it was quite obvious that in many of the cases the thief, or the person who drove the car away, never thought about the stealing of any petrol. The position was so unsatisfactory that it was necessary to do something, and so the statutory offence of taking away without the owner's consent was introduced.
We have the same situation here. If we must have in this clause a specific intent to cause loss to another, then the position in many cases will be very uncomfortable. It will be quite obvious that the person who stole the electricity was not thinking in terms of depriving somebody else of money or money's worth, and it would be much better if we could leave those words out.
LORD CHORLEY: There is a good deal to be said for this Amendment, and I am very much impressed by what the noble Lord, Lord Airedale, has said. These cases will be tried by juries, and it will be open to them to award serious punishment. If the argument is put to the jury that the man's intent was not to cause loss to the electricity company at all but just to benefit himself, it may not be too easy for the judge to remove that from the minds of the jury after a speech by a skilful advocate.
I have had cases of this kind at quarter sessions in which a person in very hard circumstances was cut off, and in which there was a good deal of sympathy on the part of the jury. The man, being a bit of a scientist, reconnected himself, and it took the jury very nearly two hours to find him guilty under the present law. I can quite imagine that if it is argued that the man's intent was not to cause loss to the electricity company, but just to see that his wife and family were not left freezing in the cold, it might then be difficult to get a conviction from the jury, although that was reasonable. I think, therefore, there is a good deal to be said for this Amendment, or for something on those lines.
LORD HURCOMB: May I ask the noble Lord when he replies to explain exactly what these words do? I used to have a good deal to do with the electricity supply industry, and I cannot quite imagine circumstances in which someone can use or divert for his own purposes electricity to which he is not entitled, without causing loss in some way or other to someone. Of course, he will come along and say, "I only diverted a small amount. The electricity generating authority would not have been able to shut down a set, and in point of fact it has made no difference at all".
But why should anybody who has acted dishonestly have to be in the position of saying that he did not really do anyone much financial damage? It seems to me that, both from the practical point of view, as well as from the point of view of the arguments which have been so powerfully deployed, these words are at least superfluous if not harmful, and I hope the noble Lord will make it quite clear why the are in.
LORD STONHAM: It has been a most interesting debate. I wonder if I could deal first of all with the points raised by the noble Viscount, Lord Colville of Culross, about the "999" calls—the false calls, the malicious calls, and so on. In the view of the Government it would be inappropriate in a Theft Bill to seek to deal with malicious, or indeed obscene, telephone calls; but in any event there is no need to do so because they are dealt with specifically by Section 66 of the Post Office Act 1953. Under that section it is a summary offence punishable by a fine not exceeding £50 or one month's imprisonment, or both, if any person:
"(a) sends any message by telephone which is grossly offensive or of an indecent, obscene or menacing character;
(b) sends any message by telephone, or any telegram, which he knows to be false, for the purpose of causing annoyance, inconvenience or needless anxiety to any other person; or
(c) persistently makes telephone calls without reasonable cause and for any such purpose as aforesaid".
In addition, a person making a false "999" call to the police is likely to commit an offence under subsection (2) of Section 5 of the Criminal Law Act 1967, which came into force on January 1 of this year. Section 5(2) of that Act says:
"Where a person causes any wasteful employment of the police by knowingly making

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to any person a false report tending to show that an offence has been committed, or to give rise to apprehension for the safety of any persons or property, or tending to show that he has information material to any police inquiry, he shall be liable on summary conviction to imprisonment for not more than six months or to a fine of not more than £200 or to both".
I hope the noble Viscount will therefore accept that Clause 13 is not concerned with the dishonest use of the telephone, which is specifically dealt with by the new offence inserted in the Post Office Act 1953 by paragraph 8 of Schedule 2 to this Bill.
May I now come to the other points which have been raised by noble Lords who have spoken? The noble Lord, Lord Hurcomb, asked me precisely what purpose is served by the words which it is proposed to leave out. My belief is that they do not do very much, and I prefer to deal with the arguments of the noble and learned Viscount, who has a general objection to the use of the words "intent to cause loss" or "a view to gain" as a test of criminality. The Criminal Law Revision Committee included in Clause 13 the words which it is proposed to delete because they, the Committee, thought them "in accordance with the scheme of the Bill" (they use these words in paragraph 85 of the Report), and the words have value as indicating the nature of the mischief at which the clause is aimed. On the other hand, the words are not in my view essential to the clause, in order to limit it, as are, in my view, the similar words in other clauses. It is difficult to think of any conduct which would be covered by the clause if the words were deleted which ought not to be criminal or ought not to be dealt with in a Theft Bill.
Accordingly, I would advise your Lordships to accept this Amendment and, of course, the second one, which is consequential on the first. If the two Amendments are made, I think the clause will read very well, and will be easily understood—namely,
"A person who dishonestly uses without due authority or causes to be wasted or diverted, any electricity shall on conviction on indictment be liable to imprisonment for a term not exceeding five years".
I hope your Lordships will agree to these Amendments.
VISCOUNT DILHORNE: I should like to thank the noble Lord most sincerely for accepting this Amendment. I was not suggesting that these words limited the scope of the clause. What I was saying, and what I feel is the case, was that in practice it would be difficult in many cases to get the conviction which the facts of the case warranted if these words were retained. I think it is an improvement of the Bill to leave them out. I am very grateful to the noble Lord for accepting these Amendments.
VISCOUNT DILHORNE: This Amendment is consequential on the last one. I beg to move.
Amendment moved—
Page 6, line 18, leave out ("electricity supplied by or to the other") and insert ("any electricity").—(Viscount Dilhorne.)
5.56 p.m.
LORD AIREDALE LORD AIREDALE moved to leave out Clause 13 and insert the following new clause:
Abstracting of electricity
"13. Any person who dishonestly causes electricity to be used, wasted or diverted, shall on conviction on indictment be liable to imprisonment for a term not exceeding five years."
The noble Lord said: I think the only substantial point left to be discussed under this Amendment is whether the words "without due authority" are necessary as well as the word "dishonestly", because the clause in the Bill uses both. It says,
"dishonestly uses without due authority…electricity",
et cetera. I should have thought it that the objection to having the words "without due authority" in the clause was that it would allow a person to escape from conviction under this clause if he took the electricity in circumstances amounting to what up to now has been known as obtaining by false pretences.
Perhaps I could best explain this by giving an example. Suppose some public-spirited woodworking company said that on Thursday evenings members of the local Sea Scouts could use their carpenters' shop and the electric machinery in it for boat-building, and one Thursday evening a dishonest youth

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came along and said, untruthfully, "I am one of the Sea Scouts; may I use the workshop?". And suppose the foreman in charge of the workshop says, "if you are one of the Sea Scouts, that is the arrangement, and you can". In those circumstances, that young man gets due authority to use the workshop, and he may use the electric-powered machinery. But for the words "without due authority" having to be satisfied in this clause, that young man would be caught as having committed an offence under this clause, and one would suppose that that was right and that that was what was intended. But if the words "without due authority" are kept in, then that young man is going to escape, because the foreman will have given him due authority, notwithstanding that he was not entitled to it, he not being a Sea Scout. He will have been given due authority, and he will escape conviction under this clause.
I do not think that can be intended; and that, I think, is the only point left that needs to be discussed under my proposed new clause in place of Clause 13. But that is the point and I hope it is a good one. As the Government are at present in the mood to accept Amendments, I hope that this one will prove acceptable. I beg to move.
Amendment moved—
Leave out Clause 13 and insert the said new Clause.—(Lord Airedale.)
LORD STONHAM: It is not a question of mood: I am always in the mood. It is a question of argument; and the clause as amended, after accepting the two Amendments moved by the noble and learned Viscount, appealed to the Government as making for the right words. I wonder whether I could just slowly read them again to the noble Lord, Lord Airedale. The clause as it is now amended reads:
"A person who dishonestly uses, without due authority, or causes to be wasted or diverted any electricity shall on conviction on indictment be liable to imprisonment for a term not exceeding five years."
The noble Lord, Lord Airedale, wants it to read:
"Any person who dishonestly causes electricity to be used, wasted or diverted…"
But the amended clause of the noble and learned Viscount Dilhorne now employs
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the words, "A person who dishonestly uses electricity himself"; and Lord Airedale's draft applies only to "any person who dishonestly causes electricity to be used wasted or diverted". The noble Lord thinks his words are wide enough to cover the person who dishonestly uses the electricity himself; but I think it desirable that the clause should be clear on this particular point.
The Amendment has only just been accepted and it does not give me much chance to think about it. I may be doing an injustice to the noble Lord, Lord Airedale, by not having understood entirely what he said. Without any discourtesy either to the noble Lord or to the noble and learned Viscount, I think this Amendment ought to be withdrawn and then, if we feel after consideration that there is anything in it, I can communicate with both the noble and learned Viscount and the noble Lord and let them know.
LORD SOMERS: If you use electricity, you surely cause it to be used.
LORD STONHAM: Yes, I know; but it is not as clear, in my lay submission, as the words now used in the clause as amended. I hope that what I have put to the noble Lord is fair. I am not necessarily saying that he is wrong. I simply think the clause as now worded is better and achieves the purpose better. If the noble Lord will withdraw his Amendment I will look at it and if I find there is anything in it (or even if I do not) I will write and let him know. I do not know whether the noble and learned Viscount wishes to make any observation.
VISCOUNT DILHORNE: I think myself there is a distinction between the word "uses" and the words "causes to use", because "causes to use" implies that you have employed somebody else to use. At least it is open to that argument. I am doubtful whether what I and the noble Lord, Lord Airedale, want to achieve would really be achieved by the use of those three words instead of the one word "uses".
LORD AIREDALE: I am obliged to the noble Lord. In view of his undertaking I will certainly withdraw my Amendment now. I think I made it clear

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that the substantial point simply is that a fraudulent person can, by some fraudulent dodge, persuade another to give him authority in certain circumstances to use electricity; and if he does so and actually obtains due authority, he escapes from being caught under this clause. That would seem to be wrong. There is no need for the words "without due authority" because we have already got the word "dishonestly", and that should suffice. That is the point. I will certainly withdraw the Amendment now and perhaps return to it later.
Amendment, by leave, withdrawn.
Clause 13, as amended, agreed to.
Clause 14, agreed to.
Clause 15 [Criminal deception]:
VISCOUNT DILHORNE VISCOUNT DILHORNE had given notice of an Amendment, in subsection (1), to leave out "permanently". The noble and learned Viscount said: This is really consequential on the Amendment which was moved to Clause 1. As we are proceeding on the basis—which I hope will prove utterly wrong—that that will be cancelled out, I shall not move this Amendment, which is consequential to what is in the Bill.
VISCOUNT DILHORNE VISCOUNT DILHORNE had given notice of an Amendment, in subsection (1), to leave out all words after "to obtain or to retain" to the end of the subsection. The noble and learned Viscount said: This is consequential upon Clause 6. Whether Clause 6 stays in the Bill is a matter of some doubt at the present moment, but this Amendment is consequential upon Clause 6 going out. As Clause 6 remains in, I do not think there is any need for me to move this Amendment.
6.5 p.m.
VISCOUNT DILHORNE VISCOUNT DILHORNE moved to leave out subsection (3). The noble and learned Viscount said: This Amendment raises a question of some importance and some substance. If the Committee would allow it—I know I have been talking a great deal—I should like to say a little about this subsection. We have now got away from the part of the Bill which is under the heading of "Theft…" and we are coming to the part of it which has the heading "Fraud and blackmail". This
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Amendment is to leave out subsection (3) of Clause 15. The clause is really a very curious one, because it creates no fewer than three different criminal offences, each one of which is put under the heading of Criminal deception.
First of all, in Clause 15(1), the offence of criminal deception is defined as follows:
"A person who by any deception dishonestly obtains property belonging to another, with the intention of permanently depriving the other of it, shall on conviction on indictment be liable to imprisonment for a term not exceeding ten years."
Then, in subsection (3), you get another offence of criminal deception and it is worded very differently. It reads as follows:
"A person who dishonestly, with a view to gain for himself or another, by any deception induces a person to do or refrain from doing any act shall on conviction or indictment be liable to imprisonment for a term not exceeding two years."
Two offences are given the same label with different ingredients contained in this clause. But it yet contains in subsection (2) a very distinct offence. It reads:
"A person who by any deception dishonestly obtains credit or further credit for himself or another (whether for performance of an obligation which is legally enforceable or of one which is not) shall on conviction on indictment be liable to imprisonment for a term not exceeding five years."
That is a very wide provision. It means that if anyone deceives his bank manager and so dishonestly obtains an extension of his overdraft he will be committing a criminal offence. However that may be, it seems to me wrong that in a Bill of this character these three offences should be all dealt with at the same clause. They ought to be in separate clauses. But the point of substance on which I wish to address the Committee is this: whether it is right to have two distinct, but in many respects similar, offences of criminal deception. One has to compare subsection (3) with subsection (1). Subsection (1), as I have indicated, covers any dishonest obtaining by deception of property belonging to another with the intention of permanently depriving the other of it. To constitute an offence under that subsection, it has not to be proved—and I ask the Committee to note this—that the obtaining was with a view to gain for himself. There is no

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requirement to prove that motive. All you have to prove is "dishonestly…with the intention of permanently depriving the other" and obtaining by deception.
When you come to subsection (3), which contains the other criminal deception offence, one sees that to constitute an offence under that subsection does not require any proof of intent permanently to deprive. I must say that it strikes me as very curious that the Committee—and these are recommendations of the Committee—should have recommended in the same clause the creation of two offences both called "criminal deception"; one which requires proof of an intent permanently to deprive but no proof of the motive—no proof that it was done with a view to gain—and the other which requires proof with a view to gain but no proof that it was done with an intent permanently to deprive. I find it quite illogical and I cannot see the basis for it.
Subsection (3) is very wide. There is one further difference between this subsection and subsection (1) which deals with the obtaining of property dishonestly by deception. Subsection (3) deals with the inducing of a person to do or refrain from doing an act by deception. It seems to me that it would be quite possible to incorporate in one subsection a provision that a person who by any deception dishonestly obtained property belonging to another, with an intent permanently to deprive the other of it, or induced a person to do or to refrain from doing any act, would commit an offence. You could run the two together, if the two offences had the same ingredients, but here they do not have the same ingredients.
In paragraph 99 of their Report the Committee put forward the objections which they saw to what is now Clause 15(3). The paragraph states:
"The objections put forward to Clause 12(3)"—
that is now Clause 15(3)—
"were these.

(i) The terms of Clause 12(3) 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 Clause 12(3).

(ii) The offence itself would be a preparatory one…

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(iii) The offence would cover many minor cases of deception of various descriptions which public opinion has not regarded, and would scarcely now regard, as requiring the application of the criminal law to them—for example, offences by traders, advertisers, applicants for employment and persons soliciting the temporary use of an article or some service. The offence would also cover deceptions of a kind which, though criminal under the existing law, are only punishable with minor penalties on summary conviction—for example, using an out-of-date season ticket…"

Then it goes on:
"No such general extension of the criminal sanctions against deception is called for. Serious cases are adequately covered by the other provisions of the Bill together with other general offences such as forgery or perjury, less serious cases by special provisions dealing with and adapted to a wide variety of subjects."
They say that overlapping is another objection:
"There would be overlapping between the offence under Clause 12(3)"—
which is now Clause 15(3)—
"and other offences under the Bill, including the complete overlapping (save for the penalties) with the other two offences under Clause 12 itself."
I find that very difficult to follow, as the the ingredients of the other two offences under Clause 15 differ from the ingredients under Clause 15(3).
Finally, the Committee state this objection, and I ask your Lordships to note these words:
"It is illogical that, while appropriating property generally without an intention permanently to deprive the owner is not made theft or any other offence…and obtaining property by deception without such an intention is not made an offence under Clause 15(1)"—
as it now is—
"deception in order to obtain the loan of a thing will be an offence under Clause 15(3)."
So under this particular provision, despite all the argument we have had against making dishonest borrowing an offence, here it is made an offence, and recognised by the Committee to be made an offence, where the borrowing is dishonest because it has been induced by deception.
Those are the objections the Committee stated to subsection (3). In paragraph 100 of their Report they go on to deal with their conclusions. I do not propose to read the whole of that very long paragraph, but I should like to remind the Committee of what they said in answer

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to the objection they had made themselves when they said it is illogical that while appropriating property generally without an intention permanently to deprive the owner is not made an offence, deception in order to obtain the loan of a thing will be an offence under this provision. This is what they said:
"It is recognised that it may seem curious that deception in order to obtain the loan of a thing should be an offence under Clause 12(3)"—
which is now 15(3)—
"when temporary appropriation generally is not an offence. But it is not necessarily an objection to a Bill that it omits to provide for some kinds of conduct comparable with others for which it does provide. Moreover there are, as mentioned in paragraph 56, objections to making temporary appropriation criminal and the offence under Clause 12(3) does at least require that the loan should have been obtained or sought by deception and with a view to gain.
One member of the Committee remains unable to accept the view that the arguments in this paragraph are sufficient to outweigh the objections to Clause 12(3) set out in paragraph 99."
Apart from those references I do not find anything in this part of the Report which explains why again the words "with a view to gain" are inserted—again, the requirement to prove motive; and I would remind the Committee that "a view to gain" means a view to getting money or money's worth. Contrast that with Section 15(1) which is the more serious offence of the two. If you are convicted under subsection (1), you are liable to a maximum of ten years' imprisonment. Under subsection (3) you are liable to a maximum of two years. But for the more serious offence no proof of motive is required at all.
As I have said before, and I fear as I shall say again, it seems to me that it is wrong in principle to require proof of motive, and it is not at all clear from the Committee's Report why they require that in Clause 15(3). If your Lordships would look at Paragraph 96 on page 45 of the Report, you will see that the Committee seek to give examples of cases which they say would be covered by Clause 15(3). They say:
"Examples of the cases which will be covered,—
and then, in italics—
"provided that there is dishonesty, are given below."
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There is no suggestion there of the further qualification that provided it was with a view to gain for himself. The only condition is "provided that there is dishonesty". The first example given is:
"Inducing a person to release the offender from payment of a debt or to give him a rebate or allowance".
Here they say that the offender will not obtain property, so he will not gain money from the operation. I can only see its being regarded as money's, worth if the release from payment of a debt is treated as money's worth. I am not sure whether money's worth would be so interpreted, and if it is not, this example which they say would be Covered by subsection (3), provided there is dishonesty, would not be covered as the clause now stands.
They give as example No. 2:
"Obtaining employment or some other contract or opportunity to get money or money's worth."
And No. 3 is:
"Various minor cases such as obtaining the loan of an article or obtaining a service, without property, where no question of credit arises."
Does that amount to doing something with a view to gain for oneself of money or money's worth? I should have thought not and I should think that the examples the Committee gave of cases they would like to see covered in subsection (3) show that they did not think that it was a necessary ingredient then to include the words "with a view to gain for himself" in the provision. They put them in later, it is true, but I fail to find any reasoning for their doing so.
There is one other matter with which I should like to deal. On the same page, it says:
"The purpose of creating the offence is to provide for relatively minor cases not falling within the main offence of obtaining property by deception under Clause 12(1), within obtaining credit by deception under Clause 12(2) or within procuring by deception the execution of a valuable security under Clause 15(2)…".
Here the Committee are saying that one of the purposes of this provision is to deal with relatively minor matters not falling within Clause 15(2). On the previous page, at the end of paragraph 95, dealing with this subsection (2), they say:
"The offence is in fact covered by the general offence of deception "—

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under Clause 15(3)—
"…except that the maximum penalty for the latter offence will be only two years' imprisonment."
Now, which is it? In paragraph 95 they say that Clause 15(3) covers Clause 15(2) and in paragraph 96 they say that it does not. I hope that the noble Lord, Lord Stonham, will be able to tell us which view of the Committee is the right one. But if it does cover Clause 15(2), then either one or the other is unnecessary.
The point I want to finish on, in moving this Amendment, is that it seems to me especially wrong that the ingredients for the criminal offence of criminal deception should differ, as they clearly do, in subsection (1) and subsection (3) of this clause. It may be that if we want criminal deception to extend beyond the dishonest obtaining of property to inducing a person to do or to refrain from doing any action, we should put further words in subsection (1), but let us have one subsection dealing with the matter not two. It may be that the noble Lord, Lord Stonham, will seek to attach importance to the fact that there is a difference in maximum penalties. We sometimes worry too much about what maximum penalty is prescribed, because I do not think that the courts look at that so very much. In a case of criminal deception the punishment would be determined according to the nature of the case and not according to the maximum punishment fixed by Parliament for the worst case of its kind. So I think there would be no objection to amending subsection (1) to bring in "inducing a person to do or to refrain from doing an act"; but for the same offence of criminal deception we cannot have two different criteria. I beg to move.
Amendment moved—
Page 7, line 21, leave out subsection (3).—(Viscount Dilhorne.)
6.27 p.m.
LORD WILBERFORCE: My noble and learned friend Lord Dilhorne has delivered a devastating criticism of Clause 15(3), but I venture to add a few words because in conversation about this Bill in a number of quarters I found no provision which has given rise to so much anxiety as this. Everybody to whom I
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ventured to speak about the Bill has said that this is a provision which is much too wide, much too dangerous and which must come out, if the Bill is to be a good Bill.
My noble and learned friend has directed attention to the paragraph in the Committee's Report about this matter and perhaps it is worth adding to what he said that subsection (3) represents, as the Committee itself makes plain, a compromise between two different approaches, each of which was evidently favoured by some members of the Committee. So we are not here in the presence of a unanimous Committee recommendation but in the presence of a compromise and, it seems apparent, an unsatisfactory compromise.
The two points of view are set out in paragraph 97 of the Report. One view was to have a perfectly general offence of criminal deception, on the lines of subsection (3). Obviously there are merits in that. There would be one generality and clearly that appealed to some members of the Committee. On the other side was the alternative, which we find at the top of page 46, to create certain specific offences, on the lines of Clause 15(1), which deals with the classic obtaining of property by false pretences, and of subsection (2), which deals with credit and certain other matters about valuable securities in other parts of the Bill. That is what one might call the particularised approach, which was favoured by certain members. We have here both the particular offence and the general offence, which, as my noble and learned friend has pointed out, overlap, while at the same time introducing inconsistent ingredients into the specific offence in the last clause. It seems that this cannot be the best possible solution.
What has gone wrong in this clause? I venture to suggest that it is not difficult to see what has gone wrong and what requires to be put right. One sees this from paragraph 96, which sets out what subsection (3) is aimed at producing. The simplest point which the paragraph makes is that there is nothing in Clause 15(1) and (2) or anywhere in the Bill which deals with services. The whole of the Bill is concentrated on property. We have property defined, as we know, in

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Clause 4 as "money and all other property". But it does not include services—although the American comparable law does include services as something valuable, which, in their conception, can be stolen. On the conception of this Bill services are distinguished sharply from property, and that is why we get into this difficulty in Clause 15. Clause 15(1) deals with dishonestly obtaining property, and Clause 15(2) with dishonestly obtaining credit.
The Committee propose to deal with that problem in this way. They evidently contemplate that most services of any importance will be covered by subsection (2), because you will be asking for credit; and then they say: "Oh well, only minor services require to be covered, and that can be dealt with in subsection (3)—services where you do not ask for credit" Surely, that is a completely false approach. Services may be of the greatest possible value in the modern world: repairs to machinery—one can think of any number of things. To say that if you obtain services by deception you are thereby normally seeking credit is surely the wrong approach. That is the exceptional case, not the normal case. What one requires to do is to deal directly with cases of services, and not to divide them between a rare case where services are given against credit, which they say is covered by subsection (2), and then have to have the residual subsection (3) to deal with so-called minor cases, but which I suggest are major cases, where credit is not obtained.
The solution—and I think it corresponds closely to what the noble and learned Viscount was suggesting—is to expand subsection (1), and possibly also subsection (2), so as to deal with these matters which the Committee, or the minority of the Committee, think require to be covered by subsection (3). Services are the most important ingredient. There is also the case of a debt or rebate. This is very much in the credit sort of field, and one would think that there would be no difficulty in adjusting one or other of the subsections to deal with it. Omitting the picturesque case of obtaining a low handicap in a horse-race by a false pretence—an example which I must say appeals to me, though it is one which I think we ought not to be too careful about legislating against—that leaves
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out the case of loans, which, as the noble and learned Viscount pointed out, is covered by subsection (3)—quite illogically, from what has been said as regards loans in the rest of the Bill.
There is the other point about subsection (3), which again emerged from the noble and learned Viscount's; argument. You are put in this dilemma: that either you have to retain these words,
"with a view to gain for himself or another",
which introduces all the objections which the Committee have already heard and accepted against legislating subjectively, or you have to take out those words, in which case the clause really has no content at all, because then it would relate simply to a person who dishonestly by any deception induces a person to do or refrain from doing any act—any act in the world, irrespective of whether it produces any benefit to the person deceiving or anybody else: a clause which surely could not have been acceptable to any members of the Committee who put this forward.
So, with great earnestness, I respectfully invite the members of the Committee to support the noble and learned Viscount to remove subsection (3). And I invite the noble Lord, Lord Stonham, to deal with any cases which in the opinion of the Committee require to be covered by this clause by an expansion of the preceding subsection.
LORD CHORLEY: I find myself in full agreement with what has been said by the two noble and learned Lords who have just addressed the Committee. I am a great supporter of this Bill as a whole, but if there is one part of it that I think is unsatisfactory, it is Clause 15. As the noble and learned Lord who has just sat down said, it has given rise to more criticism, certainly among academic lawyers, than any other part of the Bill. What the noble and learned Lord said about services is very true. In modern times services are more and more important; and there have been some cases which have come to my knowledge in which prosecutions have not been possible because under the present law obtaining services by false pretences is not a crime. Except in a narrow number of cases, this Bill does not make, it a crime, and that obviously is a serious defect—a defect which has, as the noble

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and learned Lord pointed out, been put right in the United States and also, I believe, in some Commonwealth countries.
The noble and learned Lord pointed out that Clause 1 re-establishes, in a way, the familiar offence of obtaining by false pretences, using the term "deception" instead of "false pretence". But one of the difficulties that has arisen repeatedly in dealing with cases of obtaining by false pretences is that the pretence must relate to some matter in the present or in the past, and a future false pretence does not bring the man within the criminal law. It looks to me as if this defect will remain exactly as it is, and, so far as I can see, this Bill will not clarify the law at all. I may be wrong about that, and I await the Minister's advice on the subject. I do not want to say more about that, but it does not seem to me that the new proposal is much of an improvement.
But it is really subsection (3) that is very serious indeed. It is arguable that subsection (3) makes the ordinary case of obtaining a contract by fraud a criminal offence. It is not phrased exactly on those lines, but it is arguable that this is so. That is a view which a number of my colleagues have taken of it. If, every time a contract is induced by fraud, there is to be the possibility of an indictment, this will be a very serious matter. It is going to involve many people who feel that they have been cheated. Cheating is going on all the time, but at the moment you can bring an action, if it is a small case, in the county court or, if it is a serious case, in the High Court, for the tort of fraud, and on the whole I think experience shows that that is the best way of dealing with it. But if everybody who is in this state is to be allowed to bring a prosecution, it will lead to a very serious state of affairs, and one which I am sure would not appeal either to the sensible lawyer or to the sensible layman. I hope that, by one means or another, the Government will succeed in finding some method by which the ordinary tort of fraud in connection with a contract or obtaining something else is not made a criminal offence indictable before a jury.
LORD LEATHERLAND: The point that we are immediately considering, I
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believe, is subsection (3) of this clause. I listened with some interest to the noble and learned Viscount, Lord Dilhorne, when he quoted from the Report of the Criminal Law Revision Committee. The Committee set out four or five possible offences which might fall within this subsection, but according to the noble and learned Viscount, he did not think—and I do not think the Committee really thought—that those offences were appropriate for being dealt with in the manner suggested in subsection (3). I know in my own experience of an incident for which subsection (3) was precisely and exactly tailored. This happened forty years ago, when I was a young sub-editor with one of our national Sunday papers.
It was a quarter to twelve on a Saturday night; we had just put one edition to bed, and another was due in a quarter of an hour. I was sitting drinking the proverbial tea with the editor when in came a message: "There's a man outside with a fine story". The editor said: "Charles, go and see what it is". I went and saw the man. He was an Irishman wearing tattered clothes, and he produced a letter from his parish priest in Ireland saying that his poor old aunt had died and left him £50,000. So I immediately sat down at the typewriter and created a wonderful romantic story of this poor, unemployed man roaming half-starved about London suddenly becoming possessed of a fortune of £50,000.
I showed it to the editor. He said, "That's fine". I said, "Don't you think we ought to ring up the priest?". He said, "No; we haven't time". So it went on the front page in the next edition. Less than three-quarters of an hour later we had the police telephoning us from Piccadilly Circus saying that this man had been showing a cutting from that morning's paper saying that he had come into £50,000, and had already managed to borrow two lots of £10 from unsuspecting people. It seems to me that that person is described in subsection (3). He dishonestly deceived me by inducing me to do something; to wit, write that story. It seems to me that this particular subsection is precisely tailored for that type of offence. It may be suggested that the man could be caught under subsection (1), but I should say—not necessarily in this case of mine but in some similar

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Cases—the evidence might not be sufficient for a conviction under subsection (1). Subsection (3), I suggest, would be a very valuable safety valve, which would certainly catch the man I have referred to.
LORD HENDERSON: He certainly caught you all right.
6.42 p.m.
LORD STONHAM: Not for the first time, I am grateful to my noble friend Lord Leatherland for a valuable contribution. It had a great deal more sense than many I have listened to. This illustrates in a very marked way the difficulty in which we continually find ourselves in this Committee. I know that noble Lords do not like references to the Criminal Law Revision Committee, and I have made very few—fewer than almost anyone else. But in this debate the noble and learned Viscount read out, quite fairly and at some length—and it was necessary to do so—what the Committee said, their views and their deliberations and the conclusion they finally came to. I thought I heard the noble and learned Lord, Lord Wilberforce, refer to a minority of the Committee. So far as the advice they gave on which this clause is based is concerned, whatever the differences of view—whether there was one dissentient or a minority larger than one—what we are considering now is their majority view. They considered it for a long time and went into it very carefully. Therefore I refuse to believe that the majority advice that they gave was not of very great value.
The other difficulty we are in is this. It is perfectly proper and right to say that it is the duty of your Lordships to consider what is put before us and to criticise it. But, excepting the contributions which have been made to this particular debate, it often happens that contributions are made which obviously reveal that those who have made them either do not understand the particular Amendment or certainly do not understand its place in the scheme of things. But eventually, unless we decide not to divide, we have a large number of Peers come in and vote, and only a minority can have the least idea of what it is about. We are then making a decision on something which a number of extremely eminent lawyers have spent—not
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only on this particular part, but collectively—a good many years. This leaves me in a position of particular difficulty, because, thinking as I do that we are putting sound proposals before you, and soundly backed proposals, it is very difficult nevertheless to answer these long arguments on points of detail in a way which is acceptable to your Lordships. Therefore, I can only put the point of view that I have.
The noble and learned Viscount, Lord Dilhorne, suggested that subsection (3) and subsection (1) of Clause 15 could run together if they contained the same ingredient. But that is against the great objection that has been made. The whole point of having the separate offences in subsection (1) and subsection (3) is that they cater for different circumstances, circumstances which cannot be met by offences with the same ingredient. Therefore we must have two different subsections. Subsection (1) is concerned with the obtaining of property subsection (3) is concerned with acts induced with a view to gain. The noble and learned Viscount suggested that there was inconsistency between paragraph 95 and paragraph 96 of the Committee's Report. Paragraph 95 says, in effect, that all offences under subsection (2) are covered by subsection (3). Paragraph 96 says that some offences are covered by subsection (3) which are not covered by subsection (2). I see no inconsistency in that at all. It is perfectly right. Therefore, I cannot accept those points as criticisms.
To my mind, the really irresistible argument in favour of subsection (3) is that it creates a general offence:
"A person who dishonestly, with a view to gain … by any deception induces a person to do or refrain from doing any act "
shall be liable to up to two years' imprisonment. I see nothing difficult about subsection (1) or subsection (2) both having a very much higher level of maximum penalty than subsection (3). This is a general offence which does not correspond to any existing offence, as I understand it, in any Statute. But it has, I think, a considerable value because it may be used in future in cases where we think there is wrongdoing which should be punished but which cannot be punished at present.
As I understood it, one of the criticisms of the noble Lord, Lord Chorley,

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was that there were some offences which in his view would escape subsection (3). If that is so, then they escape now, and this is something we will look at. It is an argument not for deleting the subsection but for enlarging it.
LORD CHORLEY: It was the point of the noble and learned Lord, Lord Wilberforce, about services, which I think is very good.
LORD STONHAM: But it is not an argument for taking out the subsection; it is an argument for looking at it and seeing whether the umbrella covers all we want it to cover. In saying that, I do not for a moment accept that it does not cover it. I should like to look at these things. But it seems to me that the provision that a person who
"dishonestly, with a view to gain for himself or another, by any deception induces a person to do or refrain from doing any act shall on conviction on indictment be liable to imprisonment for a term not exceeding two years"
is a pretty wide coverage. The noble and learned Viscount quoted examples—I do not want to repeat them—given by the Committee of the kind of offences which are not at present covered by a penalty but which will be covered in future. Therefore, we are doing something new, and this overall general offence will replace a number of offences of deception in existing Statutes. But the main object of creating the offence is to cover cases of dishonest deception which the Committee considered ought to be made criminal and which are not, or may not be, covered by the present general law, or the main offences of obtaining property by deception under subsection (1) or obtaining credit by deception under subsection (2).
Several valuable speeches and suggestions have been made, but in the main they are not arguments for removing this subsection: they are arguments for reconsidering it and for enlarging it. We shall be glad to look at that possibility, but the particular Amendment that we are considering at the moment is whether or not the subsection should stay in the Bill. I think it should—or an enlarged or amended one should—because otherwise, if we take out the subsection, this quite important purpose of roping in offences which will then be subject to
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Penalties—acts which are not at present subject to penalties—will be defeated. Therefore, while repeating that I shall look at everything that has been said with a view to amending this subsection, and probably enlarging it—which seems to be the general view—I think it ought to remain in the Bill at the present stage.
LORD CONESFORD: I should like to put one question to the Minister. Is it his view that in subsection (3) the words, "to do … any act" include the entering into any contract from which advantage is expected? This is almost the precise point raised by the noble Lord, Lord Chorley. And if it does include entering into any contract, is it the view of the Government that that is the intention? That would be a most important thing, and none of the examples given in the Report of the Committee seems to indicate that they intended to go quite so wide.
LORD STONHAM: I presume that the noble Lord includes in his definition the supposition that the act is dishonestly done?
LORD CONESFORD: Yes, certainly.
LORD STONHAM: I am advised that the answer is yes, that "doing an act" includes entering into a contract.
VISCOUNT DILHORNE: I find it surprising that the noble Lord should think the criticism of this Committee is that this particular provision is too narrow. Up to now we have drawn a distinction between different forms of fraud. There is fraud which is subject to the Common Law, and for which one can get damages, and there is fraud which it has been thought right to make subject to criminal sanctions. The reason why I regard this particular Amendment as being so important is not only that there is no corresponding provision in any Statute that I know of—that is nothing against it—but because, so far as I can see, this subsection makes any form of fraud criminal. Of course fraud involves dishonesty; it would not be fraud unless there was dishonesty. And when the noble Lord says that he will consider enlarging the scope of this subsection I reply that I do not see how he can make it any wider than it is. It is because it is so wide and so general that I think it is wrong.

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I thought that the noble Lord, Lord Chorley put the case very powerfully when he said that anyone who gets a contract signed by fraud will commit a criminal offence; anyone who gets another person to do anything by deception—and deception involves dishonesty—will commit a criminal offence. That is a tremendous enlargement of our criminal law. I quite recognise, as my noble and learned friend has said, and as I sought to indicate, that we want to cover a slightly wider field than the obtaining of property by dishonest deception; and one could include services in subsection (1). But to retain this subsection, which is of such a general character and really abolishes the distinction between fraud which is criminal and
Resolved in the affirmative, and Amendment agreed to accordingly.
On Question, Whether Clause 15, as amended, shall be agreed to?
EARL ST. ALDWYN: I wonder if I might raise one point before we proceed. I wonder if we could have a little clarification as to the programme of business this evening. I had understood last night that there was some intention of having dinner and continuing after dinner. That, I understand, is not now contemplated.
fraud which is not, is, I believe, going too far. If any change is required in subsection (1) I should like to leave it to the Government to provide the drafting of it. But I feel strongly about subsection (3); I think it ought to be out of the Bill. Therefore, if my noble friends, and those who have heard this argument, will support me, I shall seek to excise it, leaving it to the Government to draft any words they like to bring services back into subsection (1).
6.55 p.m.
On Question, Whether the said Amendment (No. 33) shall be agreed to?
Their Lordships divided: Contents, 42; Not-Contents, 37.

CONTENTS

Airedale, L.

Erroll of Hale, L.

Monson, L.

Albemarle, E.

Ferrier, L.

Moyle, L.

Audley, Bs.

Foot, L.

Oakshott, L.

Barrington, V.

Gray, L.

Rea, L.

Boston, L.

Grimston of Westbury, L.

Remnant, L.

Bridgeman, V.

Hacking, L.

St. Aldwyn, E.

Chorley, L.

Hawke, L.

Sempill, Ly.

Clifford of Chudleigh, L.

Henley, L.

Somers, L.

Coleraine, L.

Inglewood, L.

Strange of Knokin, Bs.

Colville of Culross, V.

Jellicoe, E.

Thorneycroft, L.

Craigavon, V.

Kilmany, L.

Thurlow, L.

Dilhorne, V. [Teller.]

Kinnoull, E.

Vivian, L.

Drumalbyn, L.

Mills, V. [Teller.]

Wilberforce, L.

Elliot of Harwood, Bs.

Milverton, L.

Windlesham, L.

NOT-CONTENTS

Addison, V.

Kinloss, Ly.

Rowley, L.

Beswick, L.

Leatherland, L.

Royle, L.

Bowles, L. [Teller.]

Lindgren, L.

St. Davids, V.

Burden, L.

McLeavy, L.

Segal, L.

Champion, L.

Maelor, L.

Shepherd, L.

Cooper of Stockton Heath, L.

Milner of Leeds, L.

Sorensen, L. [Teller.]

Delacourt-Smith, L.

Morris of Borth-y-Gest, L.

Stonham, L.

Gaitskell, Bs.

Parker of Waddington, L.

Strabolgi, L.

Gardiner, L. (L. Chancellor.)

Peddie, L.

Taylor of Mansfield, L.

Greenway, L.

Phillips, Bs.

Wells-Pestell, L.

Henderson, L.

Plummer, Bs.

Wright of Ashton under Lyne, L.

Heycock, L.

Popplewell, L.

Hilton of Upton, L.

Raglan, L.

Perhaps the Chief Whip could give us an indication of what is going to happen.
LORD BESWICK: I am very sorry that there was some misunderstanding about dinner. On reflection, we hoped that we would save an hour by not having a dinner break, especially as I understood that certain members taking part in this discussion wanted to get away by 8 o'clock. What we are now hoping is that we might make progress to Clause 20. At an earlier part of the evening

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it was suggested that we might reach Clause 20. We have been delayed a little more recently, but perhaps we could see how things go for the next half hour and then come to a decision.
VISCOUNT DILHORNE: Following on what the noble Lord has said, may I say that I doubt (although I do not think any of us have been trying to hold up proceedings) whether we could get to Clause 20 without going to a late hour and thus exhausting me—not that that matters—and exhausting the noble Lord, Lord Stonham. We have been here since a quarter past three, and he has carried the heaviest burden of the lot. I would suggest that we try to get on as quickly as we can and try to rise somewhere just after half past seven.
LORD BESWICK: Perhaps we could get another few minutes after half past seven, probably to about eight o'clock. The noble and learned Lord, the Lord Chancellor, will be here very shortly. I accept what has been said about the exhausting character of the discussion, and particularly what was said about my noble friend Lord Stonham. He will be reinforced in a few minutes' time. Perhaps we can see what progress we make within the next half hour or three quarters of an hour, and I am sure that we can come to a reasonable arrangement.
VISCOUNT DILHORNE: I hope so. I am not getting any reinforcements; the reinforcement I had has deserted me. May I ask the Deputy Chairman of Committee whether he has put the Question, That the clause stand part, because I think there are one or two points to be raised on this Motion.
VISCOUNT COLVILLE OF CULROSS: I think the Question was put, and I should like to raise one point about it.
LORD STONHAM: May I interrupt the noble Viscount? I am not sure what Motion we are on. The noble and learned Viscount had an Amendment down, No. 34A. I did not think it had been called, and I wondered whether we could get that out of the way.
VISCOUNT DILHORNE: I think No. 34A just falls, because it is part of subsection (3); and I think that No. 35 falls, too. I thought we were on the Question, That the clause stand part.
THE DEPUTY CHAIRMAN OF COMMITTEES: My advice to the Committee is that Amendments Nos. 34A and 35 both fall, and I have put the Question, Whether Clause 15, as amended, shall stand part.
7.8 p.m.
VISCOUNT COLVILLE OF CULROSS: That is what I thought, and I am glad to have it clarified. What I am hoping very much the noble Lord, Lord Stonham, with his great patience and courtesy, will do before Report stage is to consider very carefully, as he promised, what has been said about the contents of Clause 15(3). I know that it has now been struck out, but there may well be parts of the offence which it contained that ought still to be in the Bill somewhere or other—perhaps in Clause 15(1) or 15(2) or in a new form of 15(3) altogether.
Perhaps he will also be so good as to look for one moment at paragraph 99(iii) of the Criminal Law Revision Committee's Report. He will see that they are dealing with the objections put forward to Clause 15(3) as it was drafted when it was in the Bill. Then they say—and I do not think this is just an objection; this is what everybody agrees would be the effect of this subsection if it were in the Bill—it would cover many minor cases of deception and so on. For example, it would cover:
"using an out-of-date season ticket or committing the offence recently created by s. 13(b) of the Severn Bridge Tolls Act 1965 … of fraudulently claiming or taking exemption from tolls."
Let us suppose for a moment that the Government are reconsidering the whole of the contents in relation to the more general form of criminal deception, with the idea perhaps of putting it back in some form or another. If that is what the Criminal Law Revision Committee thought was covered by their Clause 15(3), I do not agree with them.
This is only an example. But if one is intending to cover somebody who fraudulently claims or takes exemption from tolls, that is not done with a view to making a gain for oneself or for anyone else; it is done with a view to causing loss to another. I do not know that that is right at all. I do not know whether these criteria of the financial gain and loss are the correct ones to put in

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this Bill at all. But there is another inconsistency, as I see it, in the draft attached to the Criminal Law Revision Committee's own Report, in that they say that the offence covers certain matters when, so far as I am aware, it just does not.
It seems to me that this is something which really ought to be considered. Of course, it would mean widening the offence still further. That may be objectionable. But if the Criminal Law Revision Committee thought that it ought to cover this sort of thing, and yet they draft a clause which does not do so, we have here a conundrum which must at some stage be cleared up. Perhaps that type of consideration could be brought into account when the noble Lord is reconsidering this matter, because I feel quite certain that we shall not have heard the last of this. I hope that we have not heard the last of it, and that we shall have positive propositions put forward by the Government now, with the assistance of all the drafting skill that they have at their command, so that we can try to pinpoint exactly what sort of action, dishonesty, should be covered by this type of offence and how it should be properly put into the Bill. I hope that the noble Lord will consider the point that I have made.
VISCOUNT DILHORNE: There is one point that I should like to raise, in view of what my noble friend has said. He has read from a passage at page 47 of the Committee's Report. I think he was wrong in saying that the Committee wanted subsection (3) of this clause to cover the kind of offences to which he referred. But they said that it did cover them, and they went on to say in that particular passage:
"No such general extension of the criminal sanctions against deception is called for."
One of my objections is that it has been too wide and covers things where an extension of the criminal sanctions to those particular things is not called for.
May I just say this to the noble Lord. He will appreciate, I am sure, from what I have said, that I am not against this offence of criminal deception applying in certain circumstances in relation to services. I think it may be difficult to draft, but I think we have now paved the way to enable the Government to put
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forward a draft, starting with a clean sheet which I hope, when we have seen it, will be able to command general acceptance.
LORD WILBERFORCE: I do not want to prolong this discussion unduly, but I should like to draw the attention of the noble Lord to paragraph 4, where one has the words "whether deliberate or reckless" in parenthesis. I do not want to start a debate at this stage on "recklessness"; but if the noble Lord looks at the Report of the Committee at page 49, paragraph 1, at the top of the page, leaves me with the impression that whereas the Committee recognises that there is a difference of judicial opinion in certain cases as to what "recklessness" means, they have not really resolved that in this paragraph. "Recklessness" is a rather dangerous word. It has a certain meaning in the civil law. As the Report makes clear, it is being used in the Prevention of Fraud (Investments) Act, and a number of judges have expressed themselves in quite different terms as to what it means. I cannot find anything here which revolves the meaning of that word in an) one particular sense, and I would hope: that if this phrase is to stay in—it may be that when the clause is adjusted it can go—it ought to be made rather more clear than it is. I will not repeat what I have said about services, because I think the noble Lord knows what view I have on that point already.
LORD STONHAM: The position is perfectly clear, and the task before me is perfectly clear. How on earth I am ping to accomplish it I do not yet know. But certainly in response to the noble Viscount, Lord Colville of Culross, I will look particularly into this point, especially with regard to what the Committee actually intended. But I would point out—this is no carping point—that sub-paragraph (iii) at the top of page 47, which both Lord Dilhorne and Lord Colville of Culross quoted, were objections which were put forward, as they are perfectly well aware. When the noble and learned Viscount quoted the words,
"No such general extension of the criminal sanctions against deception is called for",
this was part of the objection which the Committee in fact discarded because they decided on having a clause in the Bill.

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So I cannot accept that these are being quoted as an expression of view. I know they were not, and Lord Dilhorne did not quote them as an expression of view. But I wanted to make that point clear.
We shall look fairly at this matter and do the best we can. It may be that we shall be able to discuss our ideas before the Report stage in an informal way to see whether we can pool ideas.
Clause 15, as amended, agreed to.
Clause 16:
False Accounting
16.—(1) Where a person dishonestly, with a view to gain for himself or another or with intent to cause loss to another,—
(a) destroys, defaces, conceals or falsifies any account or any record or document made or required for any accounting purpose; or
he shall, on conviction on indictment, be liable to imprisonment for a term not exceeding seven years.
7.17 p.m.
VISCOUNT DILHORNE VISCOUNT DILHORNE moved, in subsection (1), to leave out "with a view to gain for himself or another or with intent to cause loss to another". The noble and learned Viscount said: To my mind this Amendment raises another most important question, and I am sorry that it has come on at this hour, because I think that a discussion on it is bound to take a considerable time. But perhaps we can break off if need be.
Your Lordships will remember that in Clause 13 we have the words "with intent to cause loss to another". Then in Clause 15(3), we again had requirement of the proof of motive, "with a view to gain for himself or another" Now, in Clause 16, which deals with false accounting, the two are married up and the clause begins with the words:
"Where a person dishonestly, with a view to gain for himself or another, or with intent to cause loss to another, falsifies accounts …"
That again requires proof of motive, and I personally think that, quite apart from that fact, this is an undue limitation on this clause, bearing in mind that gain and loss here mean, in relation to Clause 33, monetary gain or money's worth, or the loss of money or the loss of money's worth. One finds many cases of falsifica-
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tion of accounts, as they are still called, where the falsification is not to gain money, not to cause anyone else to lose money, but to cover up a defalcation that has occurred, it may be a considerable time before. With these words in, it does not seem to me that falsification of accounts would in those circumstances be covered, and I think that it ought to be covered.
In my view, this clause is too narrowly drawn to enable that to be covered. In many respects I think that this clause is a considerable improvement on the present law. But that I think is defective. I do not see any need to prove the motive for the dishonest act. Once it is established that the act was dishonest, that the destruction, the defacement, concealment and falsification of the accounts was dishonest, should not that suffice? Why go on to attach to that dishonesty a particular motive?
I am putting this as shortly as I can. The Committee said in paragraph 103 of their Report:
"We considered whether to limit the offences to falsification to the prejudice of an employer or to make them, as now, general so as to cover falsification to the prejudice of anyone."
I do not mind that formula, which one could easily apply, but then they go on to say:
"We decided in favour of the latter course, partly in order to deal with cases of dishonesty which would not otherwise be covered and partly in order to avoid argument whether falsification in a particular case was for the purpose of defrauding the employer or somebody else. In consequence of widening the offences the clause applies to using documents as well as to falsifying them; but as a corollary the offence under the clause is limited to documents required for accounting purposes instead of including documents of all kinds."
So far I find myself in complete agreement with what they have said: that it is not confined to falsification to the prejudice of an employer but is intended to be general so as to cover falsification to the prejudice of anyone. They then go on to say:
"The practical effect, however, will be little, if at all, different."
Then this is all they say about the inclusion of the requirement to prove motive:
"The offence is also brought into line with the scheme of the Bill generally by the requirement that it should be committed dishonestly

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and with a view to gain or with intent to cause loss to another."
That is all that is said about the novel requirement of having to prove, in addition to dishonesty, the motive with which the dishonesty was committed. So, nothing more having been said than that and bearing in mind that no such motive has to be proved in relation to theft, I suggest that it is an undue narrowing of the clause. I should have been much happier if the draftsmen had stuck to the language of the Committee when they said "falsification to the prejudice of anyone". I believe that that is what one has to look at. One has to look at the consequences to the person who is deceived by the false accounting or concealment or destruction of documents. That should be the test, instead of looking at it the other way round and seeing what benefit the criminal sought to obtain for himself or someone else and then seeking to define that by saying that it must be a financial gain or a financial loss that he intends to cause. I think that there is something here which requires to be looked at. I should be much happier if these words were omitted. I beg to move.
Amendment moved—
Page 7, line 29, leave out from ("dishonestly") to end of line 30.—(Viscount Dilhorne.)
VISCOUNT COLVILLE OF CULROSS: I will do my best to be short on this matter, but this is an extremely complicated subject. If we have to adjourn discussion of this clause until to-morrow that will be a pity, but it may be inevitable. Clause 16 is said by the Committee to replace three provisions of the existing law, Sections 82 and 83 of the Larceny Act 1861 and the whole of the Falsification of Accounts Act 1875. But it does not replace the whole of Sections 82 and 83, because those two sections of the existing law are also dealt with, in part, in Clauses 18 and 19 of this Bill.
There are two main considerations which ought to be brought to the forefront of this discussion. First of all, in regard to the words which have been' quoted by my noble and learned friend
"The practical effect however will be little, if at all, different",
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I would ask: Is that so, or is it not so? And if there is any difference, is it justified? The second consideration is whether the Bill correctly draws the new offence so as to cover all the things which ought to be covered, and whether, when the Committee say, in that bleak phrase, that the offence "is brought into line with the scheme of the Bill generally" this requirement of financial gain or financial loss is in accord with the scheme generally; and, if it is, whether it should be and whether it is the right scheme. I am sorry to approach the matter in this bold, flat way in respect to the recommendations of the Criminal Law Revision Committee on this point, but I am perturbed about this and I will attempt to explain why.
Let me deal first with the Falsification of Accounts Act. It is, I think many of your Lordships will agree, a very difficult and unsatisfactory measure, but I do not think that the existing law confines the application of that Act to cases where the falsification is don, a view or an intent to financial gain or loss. I have looked with great care at the case of Drewett, in the Justice of the Peace Reports, volume 67, at page 37, to see what Lord Chief Justice, Lord Alverstone, had to say about a case which came before the Court of Criminal Appeal, or whatever is equivalent in 1905. There was a question whether the chairman of quarter sessions had misdirected himself, and the Lord Chief Justice, who was dealing with the directions, quoted from the chairman:
"I directed the jury that even if they believed the story told by the prisoner, namely, that she had, unknown to her employers, introduced into the business of which she was the manageress private moneys of her own and in order to repay herself without their knowledge she had falsified the accounts, this would be no defence to the offence with which she was charged."
That was one of the directions, and there were a number of others. Later on the Chairman of Gloucestershire Quarter Sessions told the jury that
"if they were satisfied that the prisoner had falsified her accounts either in order to help herself out of financial difficulties"—
that would be gain for herself as long as the financial difficulty had not yet occurred but if it had already occurred then I think it would not be covered—
"or for the purpose of concealing from the directors the true condition of the company"—

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that might or might not be covered by the question of financial gain or loss—
"or misleading the shareholders or the public as to its financial soundness"—
I should have thought that there could be no doubt that that is not covered by the expression "with intent to cause financial gain or loss"—
"it would be their duty to find her guilty".
That was the direction.
This particular case resulted in the conviction being quashed on the grounds that the whole question of fraud had been withdrawn from the jury, but I do not read the judgment of the Lord Chief Justice as going so far as to say that had the question been properly put to the jury in Drewett, then those types of intent which the prisoner might have had would have been outside the scope of the Falsification of Accounts Act. If they were not outside—and are not now outside—that Act, then the law is being changed when this Bill, in Clause 16, attempts to confine the intent which is relevant for the purposes of this offence to one of financial gain or loss.
One must then pass to the two sections of the Larceny Act 1861. Section 83 is the more important in this respect. The Falsification of Accounts Act applied to clerks and servants, whereas Section 83 applies to anyone who is a director, manager, public officer, or member of any body corporate or public company. In both of those cases the Bill expands the type of person who may fall within the offence under this clause. Nevertheless, Section 83 says that a director, or the other people mentioned, shall be guilty of the offence if with intent to defraud he destroys, alters, mutilates or falsifies any book, and so on. Then later on it says:
"…if he makes a false entry in any book of account."
That is the relevant part of the existing section for the purposes of this clause.
I think the important words in that section are, "with intent to defraud". The last thing I wish to do is to get involved at this stage of the evening in a discussion about the width of the proper application of the decision in the case of Welham, but it is very clear if one looks at Archbold on this subject. At paragraph 2043, when discussing offences,
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including that under Section 83 of the Larceny Act 1861, the learned editor of that book takes the view that the Welham definition of "defraud" may well also be applicable to cases under Section 83 of that Act. The Welham definition of fraud was, of course, a definition for the purposes of the Forgery Act, but what it said, and said most clearly, was that for the purposes of that Act an intention to defraud was not solely confined to an intention to cause gain to oneself or to somebody else, or to cause loss to another. It had a much wider application.
There are other conflicting opinions in different branches of the criminal law about the meaning of "defraud". There was a recent case about using an Excise licence on a vehicle, where the word "defraud" was interpreted narrowly. On the other hand, an Opinion by Lord Tucker in your Lordships' House in 1957, when dealing with conspiracy to defraud, interpreted that expression widely enough to cover the case of somebody who, with the intention to defraud a Government Department, used some form of criminal action to stop that Government Department carrying out a duty which, had it known the true facts, it was bound to carry out to prevent, in this case, I think, the sale of metal behind the Iron Curtain. There are these various definitions of "defraud" for the purposes of various criminal offences.
One then comes to see whether or not the scheme of this Bill is consistent about the matter. I regret to tell your Lordships that I cannot see that it is, because I have already said that some of the contents of Section 83, and indeed of Section 82, of the Larceny Act 1861 are contained in Clause 18 of this Bill; others are contained in Clause 19. Of course, Clause 18 includes other things as well. It includes matters which come from Sections 27 to 30, I think, of the Larceny Act 1861, where the same phrase, "with intent to defraud" is found.
In Clause 18, there is no confinement of the intention to one relating only to pecuniary gain, financial gain and financial loss. Yet in Clause 15, despite the same origin, despite the same words in the original Larceny Act 1861, "with intent to defraud", here is this very confinement about which my noble and learned friend Lord Dilhorne has spoken. Therefore, I cannot see that there is a

185
pattern in this Bill at all. In some cases the Committee seem to have taken the view that there should be this narrow definition; in others they have not.
Then one looks at the very wording which my noble and learned friend has quoted from paragraph 103,
"… so as to cover falsification to the prejudice of anyone."
That, if ever there was an instance, is the definition in Welham, or something very like it, and yet they have not carried it out; and they have not, I think, reproduced the existing law; or, at any rate, there may be some question whether they have. It is perfectly true that the clause goes beyond the directors and the managers of the company, and the servants and the agents, under the 1875 Act. But when one is taking account of what ought to be the new offence of falsification of accounts, one collects together all the old references and gets rid of them. One sees whether they should apply generally—and the Criminal Law Revision Committee say that they should—and then one takes into account what should be the breadth of the offence.
There is certainly an argument, if one finds that the Bill as a whole has a pattern, for sticking to the pattern. But if one finds that it has not, when the same intent to defraud is the origin of this clause and of Clause 18, and there is no consistency; when one finds the Criminal Law Revision Committee saying that what they intended to cover was falsification to the prejudice of anyone; and when one adds in the doubts whether the existing law as it now stands is covered adequately by this present clause, and one thinks whether or not one would wish the sort of example which my noble and learned friend gave, of the person who covers up a previous defalcation by subsequently falsifying the accounts (and he, as I understand it would not now be caught) then one is in grave doubt as to whether this test in this clause is right.
I should be very glad to hear the noble and learned Lord the Lord Chancellor explain a little more closely than has been done in the Criminal Law Revision Committee's Report, how this confinement of the intent can be justified either by relation to the existing law or by relation to what the law ought to be, because I
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do not believe that in either context it is right at the present moment.
LORD PARKER of WADDINGTON: I am afraid that I came in rather late to the argument that is going on new, but one thing, I think, is clear; that this Bill is really a lawyers' paradise, and in the time I have been here I have never heard so many learned opinions. But at the end of the day I am thinking—and I am willing to be corrected—that this is not a Fraud Bill but it is a Theft Bill, and it seems to me that that is the pattern which the Criminal Law Revision Committee have set themselves. That is why they have talked about depriving of property and the kindred offence of doing something for gain or to cause loss. I can quite understand the argument that there are cases here which are not covered, but I venture to think it is because this is not a Fraud Bill but a Theft Bill.
7.37 p.m.
THE LORD CHANCELLOR: I approach this matter with even more humility than the noble Viscount, Lord Colville of Culross. I have not, of course, had the advantage of hearing the discussion on the previous Amendments, because of the continuance of the all-Party Conference on House of Lords Reform which has precluded me from being here. Nor have I the advantage of being familiar with Drewett's case, though I shall have an opportunity before the Report stage.
VISCOUNT COLVILLE OF CULROSS: I am very sorry: I did give notice of that matter.
THE LORD CHANCELLOR: It is not the noble Viscount's fault. But I had not anticipated that I should be dealing with this Amendment myself: I thought that it would be my noble friend Lord Stonham. But, as I understand it, this clause is intended to replace Sections 82 and 83 of the Larceny Act 1861 and also the Falsification of Accounts Act 1875. Sections 82 and 83 respectively create offences of "keeping fraudulent accounts" and "wilfully destroying books" and so on, which may be committed by "a director, public officer or manager of any body corporate or public company" and which require an "intent to defraud". The 1875 Act creates an offence of

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falsifying accounts which can be committed only by a "clerk, officer or servant" and which again requires an "intent to defraud".
The clause goes wider than the provisions which it replaces, since it deals with false accounting by any person and is not confined, as the previous offences were in essence (although their drafting may permit a wider construction), to acts done to defraud a body corporate or other employer of the offender. Now it is said, as I understand it, that Clause 16 undesirably narrows the existing law because of the meaning given in Welham's case to the words "intent to defraud". I am in this difficulty about Welham's case, that I think it was the noble Viscount who nominated me for appearing for the appellant, or something of that kind, and so I suppose although we take the same view I ought not to say whether we think that your Lordships' House were right in deciding Welham's case as they did.
There a sales manager had witnessed forged hire-purchase agreements upon which finance companies had advanced money to his company, and when charged with forgery had put forward the defence that he had not intended to defraud anyone but had believed that the forged agreements were being used to make it appear to the authorities that the finance companies were not evading certain credit restrictions. The House held that in intending to induce the authorities to do something that they would not have done but for his deceit the sales manager had an intent to defraud the authorities. There are, of course, critics of the present Bill who have argued from this case that, although the Criminal Law Revision Committee intended the words "with a view to gain for himself or another or with intent to cause loss to another" in Clause 16 to replace and be equivalent to the words "with intent to defraud" in the enactments which Clause 16 replaces, the clause is narrower than the previous enactments, which would cover, for example, a falsification of accounts to cover up a previous defalcation or to avoid or mislead a Board of Trade inquiry where the falsification was not "with a view to gain".
The effect of the decision in Welham's case is no doubt a matter for legal argument, but the reasoning in that case
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rested almost entirely on a review of the history of offences of forgery, and it was held by the Court of Appeal subsequently, in the case of Manners-Astley last year, that the definition of "with intent to defraud" in Welham's case is not a final and authoritative definition of the phrase for all purposes. There is a strong argument for taking the view that in the Acts replaced by the present Bill "to defraud" means to deprive of something by cheating or similar means, and that, accordingly, Clause 16 does not create gaps (in the sense of not going as wide as the existing law) in the way that has been alleged. If what I have said is contradicted in Drewett's case, then obviously I shall have to consider it.
It may be said that even if this is right, the Bill ought to go wider than it does and make criminal certain fraudulent acts which may not be criminal now, but it would really be outside the general scope of the Bill to deal with conduct which is not, broadly speaking, done with a view to gain or to cause loss to another; and, in any event, such conduct may already be criminal under other provisions. For example, falsification of accounts with intent to deceive a Board of Trade inspector may in some cases be an offence under Section 5 of the Perjury Act 1911 under which it is an offence knowingly and wil-fully, otherwise than on oath, to make a statement false in a material particular in various types of document, including an account or a balance sheet, which is required to be made by any Act of Parliament.
It is possible that a case can be made out—and here I am coming back rather to what the noble and learned Lord, Lord Parker of Waddington, said—in the field of falsification of accounts and in relation to other clauses of the Bill for creating new types of criminal liability in respect of conduct which the Criminal Law Revision Committee did not treat as within their terms of reference. But (and I think this is important) there would be obvious dangers in precipitately creating new offences without the kind of study in depth which is made by the Committee and your Lordships may think it wisest that any widening of the law going beyond the scope of the present Bill should be left to be considered as part of the comprehensive programme of modernisation and codification of the Criminal Law,

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using the full resources of the Criminal Law Revision Committee, the Law Commission and the Home Office, to which the Government are now committed. This is, after all, a Theft Bill, and it is limited to this field.
The Amendment proposed by the noble Viscount, Lord Colville of Culross, really seeks to achieve in another way the purpose of the Amendment of the noble Viscount, Lord Dilhorne. The words which it is proposed to substitute for "or … cause loss to another "would apparently cover everything that is covered by those words, since something done to cause loss to another would be something done to prejudice his rights; but the subsection would then also cover, for example, the dishonest falsification of accounts to deceive an investigating official who might discover some previous irregularity. If it were desired in principle to extend the clause in the way contemplated by the Amendment, the drafting of it would need further study, and it would be a matter for consideration whether it would be better to make an Amendment on the lines proposed by the noble and learned Viscount's solution, by deleting the references to gain and loss. It is, however, for the reasons I have ventured to give, the Government's general view that the subsection should stay as it is. This, however, of course, is without prejudice to reconsidering everything which has been said on this Committee stage.
VISCOUNT COLVILLE OF CULROSS: I am grateful to the noble and learned Lord for saying that he will reconsider this matter. I knew about Manners-Astley, but then I drew his attention—and perhaps he would be kind enough to look at this as well—to another case which dealt with criminal conspiracy, conspiracy to defraud. That was a case called Board of Trade v. Owen. It was in that context, which is a different context from that of forgery, that at any rate the noble and learned Lord, Lord Tucker, decided or took the view that "defraud" had this wider meaning. So it is not only in the context of Welham that this concept crops up in the criminal law. It appears in other types of criminal cases; and I do not tie the argument for one moment just to Welham. It should be thought about in the more general context.
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I take very much to heart the point made by the noble and learned Lord, the Lord Chief Justice, that this is a Theft Bill, but I have two points to make on it. First of all, if one looks at Clause 18, one finds that for some reason—and this is very much mixed up with the accounts clause with which we are dealing, because some of it is derived from the very same sections of the old 1861 Act—there is no such test of financial gain or loss there; none it all. The Committee thought it inappropriate there. If that is so, why is it appropriate to confine Clause 16 in this way? The second point is this. If by any chance the existing law bears an interpretation wider than that which is put down in this clause, confined to financial gain and loss, then it is all very well to say that one should leave the general reconsideration of the offences beyond the scope of theft to the codification of the law, but this Bill repeals all the existing criminal law in this respect. Section 5 of the Perjury Act is there, but as I understand it the maximum offence is less and, anyway, it is hardly the place that it one would expect to look, in a sensible, modern, revised criminal law, for something to do with false accounting. One's first impression, if one was dealing with false accounting in a context where part of the general matter that is being repealed and re-enacted is not confided to financial gain and loss, would be that it is not completely inconceivable that the rest of it would be dealt with in the same way.
So I am asking the noble and learned Lord to see whether, if one is going to confine the Theft Bill in this way, it is right at the same time to repeal all these old offences, because it may be that there is a gap. There is no other Bill before the House to fill that gap, and there may be these defalcations previously committed which the falsification of accounts would then be carried out in order to hide, which are no longer criminal. Perhaps they are not now; I do not know. But if they are now, then the repeals in the Schedules to this Bill will leave a gap in the criminal law which is not filled and which, indeed, will have to await, after no doubt considerable thought and study by the Criminal Law Revision Committee or the Law Commission, the introduction of a Bill at

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some later stage. What is to happen in the meantime? Are these people to get away scot free; and is it the right way to draft this Bill so that they do? I would most earnestly ask the noble and learned Lord to consider that sort of point, despite the general context which the noble and learned Lord the Lord Chief Justice pointed out.
VISCOUNT DILHORNE: Before the noble and learned Lord the Lord Chancellor replies, may I say something in respect of what he said?—and I hope that this is the last time that I shall say anything on this Bill to-night. Of course, this is a Theft Bill, but the Long Title is:
"An Act to revise the law of England and Wales as to theft and similar or associated offences …"
and the particular clause we are dealing with, Clause 16, comes under that Part of the Bill entitled "Fraud and blackmail." Therefore, with the greatest respect to the noble and learned Lord the Lord Chief Justice, I do not think it is any argument in opposition to an Amendment to what is included in the Bill under the marginal note of "False accounting" to say that this is a Theft Bill. Once Clause 16 is there—although it may be that it ought not to be in the Bill; and I am not seeking to argue that—surely we ought to try to get it as right as we can.
The noble and learned Lord the Lord Chancellor explained how it was that this particular formula had come to be used in the beginning of the clause. He referred to Welham. Of course there is some degree of controversy about whether the decision in Welham applies in any field other than the field of forgery. I am not concerned to enter into that argument or discussion at all. What I want to seek to achieve is that whatever the law has been in the past, however vague or uncertain it has been in relation to falsification of accounts, at least when this clause is passed it should be clear and adequate.
The draftsman has taken one view of what "intent to defraud" in this field meant: that it meant there must be an intent to deprive or cheat someone of money or money's-worth and gain that kind of benefit. That is what I might call the narrow view. I do not think it covers
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the field that ought to be covered. I gave a single instance, that of the man who has defrauded, who has taken the money (whether it be by theft or by any other way) and who is using false accounting to mislead people, to cover up what he has done. I do not think it can be said in that case that it has been done with a view to gain or with a view to causing loss to another, because that has already occurred. I would ask the noble and learned Lord the Lord Chancellor to look at it from that angle. I think my noble friend Lord Colville has made a very powerful case indeed.
I am not seeking to justify an alteration on the ground of Welham or of anything else like that. I am merely saying that if we are to get this right we ought to broaden the statement of intent, if you like to call it that; and I believe the right words to do that are the words the Committee themselves used, "to the prejudice of another". But if the noble and learned Lord the Lord Chancellor said—as I gather he has said; and perhaps he will confirm it—that he will really seriously consider with the noble Lord, Lord Stonham, and others what has been said on this important part of this debate, I personally would not wish to continue it any further at this late hour. If I am right in interpreting the Lord Chancellor as having said that he will do that, then I would ask leave to withdraw the Amendment.
THE LORD CHANCELLOR: Yes, I will certainly consider it. Apparently the noble Viscount, Lord Colville of Culross, said that he was going to refer to the Drewett case. This point had not reached me. May I just say, so that it is on the Record and so that the noble Viscount can consider it before the Report stage, that as I understand the position in Drewett there was a woman employed by an hotel charged under the 1875 Act with falsifying the hotel books. She put up the defence that she had done so in order to reimburse herself for money which she had put into the hotel to cover up extravagances and expenditure on its behalf, not wishing her employers to know what she had been doing. She was convicted at quarter sessions, but the conviction was quashed on appeal on the ground that the chairman of quarter sessions had given a

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wrong direction on the question of intent to defraud and had not left to the jury the question of whether there was such an intention.
It is suggested to me—and, as the noble Viscount will follow, I have only just seen this and have not had time to consider it myself—that it is clear from the judgment of the Court of Crown Cases Reserved that they took the view that the jury might on the facts have convicted, if the summing-up had been satisfactory, on the ground that the accused had an intent to defraud in the sense of causing loss to her employers. Therefore, although the question under the 1875 Act was strictly not whether or not the woman had acted with a view to gain but whether she had acted with intent to defraud, there seems to be no difference in substance and she would equally have been guilty under Clause 16.
The noble Viscount referred to examples given by the chairman of quarter sessions in Drewett's case; that is to say, examples of her possible intentions in making the defalcations, and suggested that the decision of the Court of Crown Cases Reserved did not mean they were bad in law. What Lord Chief Justice Lord Alverstone said in referring to the summing up was:
"The concluding part of the summing up, 'I told the jury in conclusion that if they were satisfied that the prisoner has falsified her accounts either in order to help herself out of financial difficulties or for the purpose of concealing from the directors the true condition of the company, or misleading the shareholders or the public as to its financial soundness, it would be their duty to find her guilty' seems to me to be objectionable because of the introduction of the last two alternatives—"
VISCOUNT COLVILLE OF CULROSS: This is a misquotation.
THE LORD CHANCELLOR: Oh, is it?
VISCOUNT COLVILLE OF CULROSS: I have the Report here. What he said was:
" … seems to me, although not so objectionable as the first two portions,"—
and this is a very important difference—
"to be objectionable because of the introduction of the last two alternatives, which were consistent with innocence. Practically the chair-
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man withdrew from the jury the question of the intent to defraud. I regret that we cannot allow the conviction to stand."
THE LORD CHANCELLOR: What the Lord Chief Justice appears to have been saying was that Drewett should not have been convicted if the jury had found that the purpose of the defalcation was to conceal from the directors the true position of the company or to mislead the shareholders or the public as to its financial soundness—the last two alternatives, as he calls them. This seems to support the construction of the 1875 Act, because the point was that in the event of either of the last two alternatives there was no intent to defraud the employers within the meaning of the 1875 Act. If that is right, the 1875 Act depends in substance on there being a view to gain or intent to cause loss to another; and the Bill does not cut down its effect.
I will say nothing further, because I have not had the opportunity to study this; but the noble Viscount will no doubt consider that also before the Report stage. This is not an easy Bill, as we all know. The Committee said of this offence:
"The offence is also brought into line with the scheme of the Bill generally by the requirement that it should be committed dishonestly and with a view to gain or with intent to cause loss to another."
I should like to have an opportunity of reviewing this clause and particularly the question of whether there really is a gap; and if there is a gap, whether it is one which ought to be filled by this Bill or left for the wider reform which is to follow.
VISCOUNT COLVILLE OF CULROSS: In which case the noble and learned Lord will presumably look at the repeals; or he might have to.
VISCOUNT DILHORNE: In the light of what the noble and learned Lord the Lord Chancellor has said—and this is, as I think the Committee will recognise from what has been said, a very difficult question—I ask leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 16 agreed to.
Clause 17 agreed to.
LORD STONHAM: I think that we have done very well to-day in dealing with seven clauses, and that this would be an appropriate time to adjourn the Committee. I beg to move that the House do now resume.
Moved, That the House do now resume.—(Lord Stonham.)
On Question, Motion agreed to, and House resumed accordingly.
House adjourned at one minute past eight o'clock.