Lords Sitting of 19 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 Bristol.

U.N. CONFERENCE ON TRADE AND DEVELOPMENT
2.36 p.m.
LORD BROCKWAY: 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 proposals were made by the United Kingdom delegation to the United Nations Conference on Trade and Development at Delhi, and what conclusions to assist the developing countries were reached by the conference.]
THE MINISTER OF STATE, BOARD OF TRADE (LORD BROWN): My Lords, the policy of Her Majesty's Government towards the UNCTAD in New Delhi was outlined by my right honourable friend the President of the Board of Trade in his speech to the Conference on February 6, the text of which has been placed in the Library. The Conference is not scheduled to end until March 25. It is not possible, therefore, to give an answer to the second part of the Question.
LORD BROCKWAY: My Lords, while I appreciate my noble friend's reply, may I ask him this question? In view of the rather disappointing proceedings at the Conference in New Delhi, and of the very great urgency of trying to find some solution to the poverty of one third of the world, would Her Majesty's Government consider, as an alternative, consultations between the International Monetary Bank, the United Nations Special Development Fund, and Agencies of the United Nations such as the Food and Agriculture Organisation directly with the countries concerned, so that we may be saved from the disaster of world hunger in the next decade?
LORD BROWN: My Lords, I certainly take note of my noble friend's suggestion. But I would point out that the kind of measures which are required by the current situation or—may I put it this way?—the "haves" or "have-nots" is essentially a matter for wide international agreement, if anything is to be achieved.

DIRECTOR OF AVIATION SAFETY
LORD TREFGARNE: My Lords, I beg leave to ask the first Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether they are yet In a position to announce who will succeed Mr. W. E. Griffiths as Director of Aviation Safety when Mr. Griffiths retires on April 1.]
LORD BESWICK: My Lords, my right honourable friend the President of the Board of Trade will make an announcement about this and related matters before the present Director of Aviation Safety retires.
LORD TREFGARNE: My Lords, I am most grateful for that reply.

THIRD LONDON AIRPORT: SITING INQUIRY
2.39 p.m.
LORD TREFGARNE: My Lords, I beg leave to ask the second Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government when they will announce the nature and terms of reference of the Inquiry into the siting of London's third airport.]
LORD BESWICK: My Lords, the Government have nothing yet to add to the statement of February 22: the constitution of the new Committee of Inquiry, including their terms of reference and composition, are still under consideration, and an announcement will be made as soon as possible.
LORD TREFGARNE: My Lords, I am most grateful for that reply also. Would not the noble Lord appreciate that the need for this Inquiry to get

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under way is most urgent? Can he give any indication of when the Government are likely to reach a decision in this matter and make their announcement?
LORD BESWICK: My Lords, I quite agree with the noble Lord about the necessity for speed in this matter. The announcement will, of course, follow the discussions which we are intending to have with members of the Opposition.
EARL JELLICOE: My Lords, I am glad to hear the noble Lord's reference to such discussions. May I ask him when they are likely to begin and whether it is proposed in some way to associate this House with them?
LORD BESWICK: Yes, my Lords. Frankly I had hoped they would have begun this week, but certain other events have rather put them back for a day or two, in any case, but they will be taking place in the next two or three days. Although it will depend to some extent upon whom the Opposition wish to represent them, I would certainly expect that some of the noble Lords from the Opposition in this House will be connected with the talks.
LORD OGMORE: My Lords, may I ask whether any discussions are going to take place about the necessary international airport which is not connected with London?
LORD BESWICK: My Lords, there are no talks about any other airport. I am talking, as the noble Lord knows, about the Committee of Inquiry to look into the Third London Airport.
LORD OGMORE: My Lords, does the noble Lord remember that only last week he assured me that very great importance was attached to an international airport which is not going to be the Third London Airport? In view of that assurance, I am asking whether any talks are envisaged with regard to that particular airport?
LORD BESWICK: My Lords, not within the next two or three days, at any rate.

BUS SERVICES IN CENTRAL LONDON
LORD INGLEWOOD: 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 are satisfied with the frequency and regularity of buses running in Central London and what improvement they may have in mind to meet the interests of passengers.]
THE MINISTER OF STATE FOR COMMONWEALTH AFFAIRS (LORD SHEPHERD): My Lords, bus operations are a matter for the London Transport Board, not for Her Majesty's Government. The main concern of my right honourable friend the Minister of Transport is to create conditions in which all public transport can contribute fully to meeting the needs of London. This she intends to achieve through a reorganisation of transport by which responsibility for London's buses and Underground railways, together with wider transport planning powers, will be transferred to the Greater London Council. The same authority will therefore be responsible for major elements of public transport, traffic and highways.
LORD INGLEWOOD: My Lords, may I ask the noble Lord: Why this change of policy?—because on previous occasions I have always been given details of the buses running in Central London, without any reference to day-to-day management. Can the noble Lord give me any figures to-day which compare with those he gave me three years ago? Further, can he give us any assurance about bus fares, which are high enough in London at the present time? Can he say whether there is any truth in the stories now going round that Londoners will be expected to pay more?
LORD SHEPHERD: My Lords, first of all, I did not reply to the noble Lord three years ago. This is one of the crosses I did not have to bear three years ago. There has been no change of policy. The White Paper of 1966 drew particular attention to the need for integration between public transport, highways and traffic measures. As to the details of

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particular bus routes, this is an operational matter and I have always understood—particularly from noble Lords opposite—that it was not felt right for the Government to interfere or to take an interest in the everyday management of the Board. Turning to the question of fares, I believe the noble Lord will be aware that the London Transport Board made an application for increased fares. This was approved by the Prices and Incomes Board. It has now been referred to the Transport Tribunal and I believe that there will be a public inquiry.
LORD INGLEWOOD: My Lords, will the noble Lord look again into this question? Even though it may not have been the noble Lord, one of his noble friends answered this question, and I should like to think that the noble Lord was able to do at least as well as any of his noble friends on that Bench, if not better. It is really a great help to many Londoners who use buses to know, broadly, how the buses in the centre of London are running during the busiest times of the day. There is a widespread feeling that, even allowing for the fact that the increase in general traffic makes bus operation difficult, the service in Central London gets worse and worse, and now the passenger has again to bear the extra cross of higher fares.
LORD SHEPHERD: My Lords, I recognise that in certain parts of London and at certain times of the day conditions are more difficult than they were some years ago. On the other hand, because of certain measures taken by the London Transport Board there is an improvement. If my memory is correct, the noble Lord referred to the loss of services due to staff shortages and its effect upon the scheduled mileage. I think he asked this Question in 1965. I understand that the situation has improved and that today there is less than half the loss there was then because of staff shortages. Many operational steps have been taken by the Board, and I think there is an improvement in transport services, although some of us from our own experience may feel that there is still room for improvement.
LORD POPPLEWELL: My Lords, in his original Answer my noble friend men-
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tioned the reorganisation of London Transport, including Underground railways. Would my noble friend say whether our mutual friend the Minister is also going to consider the question of underground motorways, in order to take the long-distance through-traffic in London away from the surface streets, particularly in view of the great increase in motor traffic that will occur over the next two or three decades?
LORD SHEPHERD: My Lords, the arrangements that I mentioned in my Answer apply strictly to the buses and the Underground services now being provided. The Greater London Council are the traffic and highways authority for London, and it is for them to decide the manner in which the present traffic problems in London should be solved.
LORD MERRIVALE: My Lords, with a view to improving the flow of surface public transport in London, can the noble Lord say to what extent consideration is being given by Her Majesty's Government to what is being done in Paris, where they have entirely reserved parts of streets for certain types of vehicles?
LORD SHEPHERD: My Lords, the Ministry of Transport are always looking to experiments that are being conducted in other cities. In the case of London, the responsibility has been placed directly on the Greater London Council, and, as the noble Lord will be aware, certain experiments are being undertaken in regard to having a route specially set aside for buses. This idea is in its early stages and it is too soon to know whether it has served its purpose.

MERSEY TUNNEL (LIVERPOOL/ WALLASEY) BILL [H.L.]
2.46 p.m.
THE CHAIRMAN OF COMMITTEES (THE EARL OF LISTOWEL): My Lords, I have been asked by the Promoters to postpone the Third Reading of this Bill. Therefore, with my apologies to your Lordships, I propose not to move the Third Reading this afternoon. I will put the Bill down again shortly for an agreed date.

SHOPS (SUNDAY TRADING) (No. 2) BILL [H.L.]
LORD DERWENT: My Lords, I beg leave to introduce a Bill to amend the Shops Acts 1950 to 1965 in relation to Sunday trading and Sunday employment in shops, and for connected purposes. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read 1a.—(Lord Derwent.)
On Question, Bill read 1a, and to be printed.

BUSINESS OF THE HOUSE
THE LORD PRIVY SEAL (LORD SHACKLETON): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, that leave be given to the Lord Beswick to advance the Third Reading of the Public Expenditure and Receipts Bill from Tuesday the 26th instant to this day, and that the Bill be taken first this day.—(Lord Shackleton.)
On Question, Motion agreed to.

PUBLIC EXPENDITURE AND RECEIPTS BILL
Read 3a, and passed.

AGRICULTURE (MISCELLANEOUS PROVISIONS) BILL
2.50 p.m.
LORD BESWICK: My Lords, I beg to move that Part III of this Bill be postponed until Thursday next. This, your Lordships will remember, is for the convenience of noble Lords from Scotland.
Moved, That Part III of the Bill be postponed until Thursday next.—(Lord Beswick.)
On Question, Motion agreed to.
LORD BESWICK: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Beswick.)
On Question, Motion agreed to.
House in Committee accordingly.
[The EARL OF LISTOWEL in the Chair.]
Clause 1 agreed to.
Clause 2 [Regulations with respect to the welfare of livestock]:
On Question, Whether Clause 2 shall stand part of the Bill?
EARL FERRERS: Before we pass on to the Amendments on the Marshalled List, I should like to take the opportunity, if I may, of discussing this clause as a whole. In this clause we are giving the Minister powers to regulate the dimensions and layout of the accommodation for livestock, the lighting, heating, cooling, ventilation, drainage, water supply for livestock, the density of population at which animals may be kept, the type of food upon which they may be fed and a number of other things. These are very wide powers indeed, and no mention has been made as to what these specific regulations will be. We are merely giving the Minister power to make the regulations. I should like to give the noble Lord, Lord Beswick, if he would be so good, the opportunity to tell the House a little of what the Minister has in mind as to what these regulations might be and the form which they might take. I am bound to say that I speak as one involved in the industry

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of agriculture, and also as one involved in the methods of intensive keeping which are directly affected by this clause, and therefore of course I declare a direct interest in the Bill and indeed in this clause.
Intensive methods of husbandry have really come into prominence only in the last ten years or so. They started with the broiler industry and then in the egg producing industry, and indeed the rabbit industry, and now more latterly they have affected pigs, cattle and sheep. Indeed, this intensivism is only the application of business methods and scientific principles into the agriculture industry, and few would consider this to be unwelcome. But, of course, along with this increase of intensivism has come a wave of public opinion which has virtually said that these methods are unnatural, unfair and indeed unkind, and one might almost assume therefore unBritish. An eminent lady has written a book on the subject and led the campaign for the protection of intensively kept animals. Much of this campaign, sponsored from the highest of motives, earns the greatest respect. I am merely anxious, as I am sure all noble Lords would be, to see that the correct balance should be kept. And who knows what that balance is between, on the one hand, what one might describe as the sympathetic point of view and, on the other, the practical? Nobody likes cruelty, and legislation could and should be produced to prevent this.
It is true that intensivism is not natural, but of course it does not follow that it is therefore necessarily cruel. A lot of what we do nowadays is not natural; indeed much of it could also be described as cruel. What could have been less natural than the experience I suffered the other day, not exactly uncommon or unknown to your Lordships, of being packed tight into a Tube train with a pair of doors closing behind one; so tight that the suitcase one was carrying one could hardly hold on to, and equally so tight that one could not leave go of it. One could not sit down, and when one stood up one's head hit the ceiling. If such conditions had prevailed among animals one would have had the whole gamut of the Ministry, the R.S.P.C.A., Ruth Harrison, the lot down one's throat,
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but because it happens to human beings it is accepted as being tolerable.
BARONESS SUMMERSKILL: If I may intervene, I was following the noble Earl's analogy. Would he not agree that the torture he experienced was self-induced?
EARL FERRERS: I did not think it was at all self-induced; I was pressured from all angles, upwards, downwards and sideways. However that may be, the point I wish to make is that although things may be in the strict sense unnatural they need not be and should not be cruel. I should hope that we could somehow devise a system whereby the intensive systems of poultry keeping, which have come to stay and must continue, can be allowed to continue in a way in which they need not be cruel. But, of course, both the broiler industry and the egg industry, and increasingly the pig industry and others as well, operate on very fine margins indeed, and the profitability of, for instance, poultry production can be measured in pennies per bird and the profitability of egg production can be measured in pennies per dozen. Indeed the square footage allowed per animal is measured in decimal points of a square foot.
If the Government are going to bring in regulations to make alterations essential I would ask the noble Lord, Lord Beswick, what it is that they have in mind. Are they, for instance, going to say that the present density of population in the case of broilers, which at the moment is 0·6 or 0·5 square feet per bird, should be increased, as suggested by the Brambell Committee, to 1 square foot per bird? If so, this kind of alteration will have a very great effect on the whole economics of the production, in this case of broilers, and indeed in the case of eggs on egg production.
In this day and age, where one finds that the world population is likely to increase from 3,000 million to 6,000 million over a period of 40 years, from 1960 to 2000, obviously methods of production of cheap food have to be canvassed and introduced and used as well and as efficiently as possible, at the same time being humane. I should like to see this food produced as humanely as we can, but I would give the Government this warning. When they introduce these regulations I would ask them to move cautiously, because small

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moves in the intensive systems of husbandry can have very substantial effects on their economies, and an extravagant alteration made all at once could upset the whole balance, which is already a tender one, of systems of producing food at an economic cost which, after all, is one very important thing. I hope that the noble Lord may be able to give your Lordships some idea of what the Government have in mind with regard to the regulations for which they are seeking power under this clause.
LORD BESWICK: I quite understand the position of the noble Earl, and I think he has presented his point of view very fairly indeed. If possible I should like to avoid a detailed discussion of what may or may not be in these regulations because it is a little early to do this. The regulations themselves, when drafted, will have to be laid before both Houses of Parliament, and there will be an opportunity for full discussion of them when they are laid. I assure the noble Earl that before they are actually drafted there will be the most thorough consultation with all the interests involved—and by that I mean not only the interests concerned with the production of foodstuffs in this way and the caring for livestock, but also the animal welfare societies and organisations.
As the noble Earl says, the clause confers wide powers on the Minister; but I can say that it is not intended immediately to use these powers as widely as they are laid down. When the Government announced their decision on the recommendations of the Brambell Report, it was explained that they intended in the main, to proceed by introducing codes of recommended practice, and I think that course, which we discussed on Second Reading, commended itself to your Lordships. Initially, the codes will be confined to one or two specific matters where welfare requirements are relatively clear; for example, there is the question of the minimum iron content in manufactured calf foods; there is the provision of lighting for routine inspection purposes in pig and poultry houses and there is the possibility of dealing with the problem of the docking of tails of cattle. But such questions as environmental conditions and the mandatory standards on densities, are problems where it is thought
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that we need much more information. There is a certain amount of research going on in these fields, as the noble Earl will know, and not until we have established certain facts would it be wise to bring forward new regulations.
Therefore, on the understanding that the regulations when drafted will be open to discussion, and that before they are drafted there will be the most thorough consultation with the interests involved, I hope that the noble Earl will be satisfied in giving the Minister the permissive powers which this clause provides.
3.2 p.m.
LORD CONESFORD: I hope that the Minister has not decided that the provision of sufficient room for an animal will not appear in these regulations. When I heard my noble friend talk about how insufficient was the room that he sometimes found on the Underground railway, the distinction occurred to my mind, and I think to the minds of many other noble Lords on both sides, that after all, he was not continuously in this position on the Underground, whereas some of these miserable animals are perpetually in a position of having so little room that they cannot even move about. I think that this is an indecent horror and a disgrace to the human race, and I greatly hope that the Government have not decided that this problem of grossly insufficient room—I am not saying that this applies universally—is too difficult for the matter to be included in the regulations when they are made.
LORD NUGENT OF GUILDFORD: May I thank the noble Lord for his answer to my noble friend, who I thought presented the case extremely well. There is a problem here. We all have nice feelings about animals, but there is also the commercial consideration to be borne in mind. For myself, having had some years in the past in the Ministry of Agriculture, I have great confidence in that Ministry's capacity to consult with both sides here, with those who produce food and with the consuming interests, who are naturally concerned to get food as cheaply as possible—and, indeed, with the general public, who are most sensitive to the point that has been made by the noble Baroness and by my noble friend Lord Conesford. Certainly we should not wish to see animals permanently constricted, as was my noble friend in the

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Underground railway; nor, indeed, would animals thrive like that. But I have, as I say, great confidence in the most experienced officials and well-tried methods of consultation in the Ministry, and I am sure that with a certain amount more research work, which I think is probably needed, the right balance can be struck here. I am sure that this is the right way to proceed: first, to establish the codes of practice, and then to introduce regulations. I think it will be possible in this way to achieve a result which will be satisfactory to everybody.
EARL FERRERS: May I just say one word in thanking the noble Lord for having explained this matter as well as he has, and for having gone as far as he has? Like my noble friend Lord Nugent, I am quite certain that the officials in the Ministry will do all they can to come to a fair conclusion. I am most grateful for the views which the noble Lord, Lord Conesford, put forward, because there is a real point here. On the one hand, one has to prevent cruelty; equally, there is the other point, that margins are finally fixed and at some point one has to try to make the decision which is the correct, the fair and the just way to do it. I am grateful to the noble Lord opposite for having gone as far as he has done to answer the point.
Clause 2 agreed to.
Clause 3:
Codes of recommendations for the welfare of livestock
3.—(1) The Ministers may from time to time, after consultation with such persons appearing to them to represent any interests concerned as the Ministers consider appropriate,—
(a) prepare codes containing such recommendations with respect to the welfare of livestock for the time being situated on agricultural land as they consider proper for the guidance of persons concerned with livestock; and
3.7 p.m.
THE EARL OF SELKIRK THE EARL OF SELKIRK moved, in subsection (1)(a), after the first "livestock ", to insert "including the size of the accommodation provided". The noble Earl said: I quite agree with the noble Earl, Lord Ferrers, that this is a question of balance, and this, I think, is what we should try to obtain. But I do not hold the view that commercial in-
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terests and inhumanity necessarily go hand in hand. I believe that there are many improvements which could be made but which would not necessarily make a particular arrangement non-commercial. I think the Government are proceeding in a wise way with this Bill. In Clause 2 we shall have what I suppose are statutory orders that will have the force of law, and in Clause 3 we shall have a code which will not have the force of law but, none the less, will be relevant to the way in which things are done, and, what I think is most important, relevant to the future; because after all, this is going on for all time and, as has been said intensive cultivation is a comparatively recent growth. But we must take it as axiomatic that in one way or another it is going on. To my mind, the important point about the code is that it will indicate the sort of way in which buildings and accommodation will be provided.
We are in a slight difficulty here, because often it is not useful or profitable to discuss either statutory orders or, indeed, a code of regulations in this House because we find it difficult to amend them. Therefore I think the present is a proper time to discuss roughly what it is intended to be included in the code. I know that there are differences of opinion on this subject, but we have in the Brambell Report, in Chapter 4, an extremely authoritative statement. This matter has been gone into by people of high authority who have devoted their lives to the study of animal behaviour, and I think therefore that we should treat it with the greatest respect.
I have put down my Amendment in order to be quite certain that this problem of accommodation will be included within the code. There is nothing about it in paragraph 3, which deals with the code; there is reference to dimensions in paragraph 2. I want to be quite certain, as I think we should, that this is a matter which will be dealt with properly in the code. The words which have been used by the Brambell Committee, speaking, as I say, with great authority, are these—and I should like to quote them to your Lordships:
"An animal should at least have sufficient freedom of movement to be able without difficulty to turn round, groom itself, get up, lie down and stretch its limbs."
In Scotland, we used to have something called "the little ease". I am

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told that students of torture in the Middle Ages found this to be an extremely effective way of obtaining information, confessions or other statements from prisoners. It was a room in which there was neither adequate space to stand up nor to lie down. It had the advantage that no apparent bodily harm was done to the prisoner—that is to say, no damage to the skin. In practice it was a very efficient way of getting such information as the inquisitors wanted. The same sort of problem exists at present. The description in the Report of what is required is not precise as to metres, feet or inches, but a general description is supported by the leading authorities on the study of animal behaviour and animal requirements. I mention particularly Dr. Tinbergen, who is the leading authority in the world on animal behaviour.
I should like an assurance from the noble Lord on this matter. I should like this Amendment to be accepted to make certain that those who formulate the code recognise the importance which Parliament attaches to this point. This need not adversely affect the commercial development of intensive agriculture to which we attach such importance, but I feel that public opinion demands that it should be conducted in a way which the public consider to be satisfactory in the handling of animals. I put forward this Amendment since I want to be assured that suitable recommendations to cover this particular point will be included in the code. I beg to move.
Amendment moved—
Page 3, line 5, after ("livestock") insert the said words.—(The Earl of Selkirk.)
LORD SOMERS: I should like to support this Amendment very strongly. I listened carefully to the points put forward by my noble friend Lord Ferrers, and of course one must look at both sides of the question; the farmers' interests and the interests of the country at large must be considered. But in the parallels which my noble friend drew with someone's being confined in an Underground train, he omitted to point out that a human being has the faculty of reason: he knows why he is being confined. My noble friend would realise that he would not be confined for long; he would realise that he went in of his
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own free will and would very shortly be coming out again. But although an animal is conscious and capable of feeling pain and other sensations, it is not a reasoning creature and does not realise those things—it is conscious only of what it feels at the moment. This Amendment is most important, and I hope that the Committee will accept it.
VISCOUNT MASSEREENE AND FERRARD: I also should like to support my noble friend's Amendment. As the noble Lord, Lord Conesford, said, it is extraordinary that in a civilised community we should, because of our food needs, allow animals to be so confined that they cannot turn round, stretch themselves or clean themselves. It is very cruel. There would be a terrible uproar if animals in zoos were confined as they are confined in factory farms. I agree that the commercial aspect is involved, but I cannot believe that to give an animal sufficient room to stretch its limbs, or a bird room to clean itself or to extend its wings, would require much in the way of extra accommodation. One must have a building for the purpose, and the expense involved would not be great if it were slightly larger. Therefore, I hope Her Majesty's Government will accept this Amendment.
LORD HENLEY: I have every sympathy with the noble Earl's Amendment, and I agree that these systems of keeping animals are deeply repugnant to us, but I feel that the Amendment adds nothing to the Bill. We have given to the Ministry of Agriculture general indications of the kind of things which we want them to consider with regard to the welfare of animals. To pick out one single example and pinpoint it does nothing more than show the flag to a certain section of the community, who are rightly worried about this matter. It seems to me that this diminishes the strength of what we seek in this particular case. Therefore, while sympathising with what has been said about the repugnant nature of this method of keeping animals, I do not think the Amendment adds anything and I feel that the Government should reject it.
LORD KILBRACKEN: I am in great sympathy with all the supporters of this Amendment, and I avoid intensive farming as much as I can. But there is

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already provision in Clause 2 for regulations to be laid down as to the dimensions and layout of accommodation. There is no point whatever in drawing attention to it again in Clause 3.
THE EARL OF SELKIRK: May I point out to the noble Lord that Clause 2 is a statutory requirement prosecutable by law? At present there are many places where the quotation which I made cannot be fulfilled. The code is a guide for conduct in the future, it is setting a rather higher standard than that which exists at present. That is why I have put it in Clause 3.
VISCOUNT MASSEREENE AND FERRARD: May I point out that there was a Gallup Poll on this subject? Eighty-seven per cent. of the people approached agreed that it was extremely cruel to keep animals so enclosed that they could not turn round, and 91 per cent. of people approached thought it disgraceful that a bird was so restricted that it was unable to stretch its wings or clean itself.
BARONESS PLUMMER: I agree with the noble Earl, Lord Selkirk, that the code is for the future, but surely all this is covered by the words in paragraph (a) namely, "with respect to the welfare of livestock". Therefore one does not need to pinpoint anything else. The "welfare of livestock" includes accommodation.
EARL FERRERS: One interesting point about this discussion is that everyone seems to be agreed, though I am not quite certain what we are agreed about. The noble Earl, Lord Selkirk, rightly made the point that it is cruel or inhuman to keep animals in such a way that they cannot stand up, sit down or preen themselves. This would be largely agreed by all. But it does not necessarily follow that all factory farming falls within this ambit. It does not. Certain forms of factory farming can be described as cruel. Indeed, the forced feeding of cockerels is obviously cruel and I should be well content to see that kind of thing finished. But to say that all forms of intensive livestock keeping fall within the same ambit as my noble friend Lord Selkirk has suggested because they restrict the animals to a certain extent, is wrong. We want to be absolutely clear what we are agreeing about.
3.20 p.m.
LORD BESWICK: My Lords, I, too, agree with what has been said about the importance of accommodation. That is not in dispute between us, and the Brambell Committee emphasised the importance of accommodation. However, I would ask the noble Earl not to press his Amendment, not because we do not accept the importance of accommodation, but because there are, after all, other important matters. Knowing the noble Earl's long Parliamentary experience, I could have understood his approach had he pressed for the same wording in Clause 3 as there is in Clause 2. In Clause 2 it is stated that as well as accommodation there are such facilities as,
"lighting, heating, cooling, ventilation, drainage, water supply and otherwise to be provided in connection with any accommodation ".
All these are important, and if we just put in one item and not the others it tends to emphasise the importance of that aspect and not the others. They are all important. The code of practice is now being considered by the Farm Animal Welfare Advisory Committee, and how the draft of the code is framed will partly depend upon their advice. Indeed, I could not here make a definite commitment about one of these matters in regard to the Bill. I think that would be wrong in view of the procedure to which we are committed.
I would also add this. The noble Earl said that he wanted to make absolutely certain—those were his words—that the problem of accommodation was dealt with in the code. But, of course, the clause itself only gives permissive power to the Ministers. It says, "The Ministers may from time to time". They do not have to bring codes forward. But they intend to do so and I shall be surprised if they do not contain some of the matters about which we have been speaking. But the noble Earl cannot be absolutely certain of this even if his Amendment is accepted. Because therefore I do not think it would strengthen the Bill, because I assure him that the importance of accommodation is accepted by us all, and because these are matters which are at the present time being considered by the Farm Animal Welfare Advisory Committee, I hope he will withdraw his Amendment.
BARONESS SUMMERSKILL: I am sorry that I cannot agree with my noble friend. I think this Amendment is crucial. I agree with him that if Members of this House saw a crate of birds of any kind crushed together we should be appalled and would demand their release on humane grounds. But we are not legislating for the people who are sitting in this House. All legislation which embodies controls is not generally intended for the majority; it is intended for the lawless minority. It is intended for that minority who in this case do not have the same humane feelings as my noble friend.
We are not legislating for humane farmers, kind people who recognise that this form of intensive breeding is a form of cruelty to animals. We are legislating here in order to control a minority of people whose first priority is commercial gain, not humanity. Unless my noble friend embodies this Amendment and makes it clear beyond all doubt that the law will not tolerate this treatment of animals, he will be losing the only opportunity we have of controlling this minority.
LORD BESWICK: May I help my noble friend? We are not talking here about a proposed law. We are talking about a proposed code of practice which will not be legally enforceable.
BARONESS SUMMERSKILL: My noble friend must not quibble with me—and he and I have been in both Houses long enough to know that that is a quibble. He knows perfectly well that if a code of practice—and I am prepared to call it that—is embodied in this Bill, then those who are guilty of not observing it are indeed guilty men, and can have a finger pointed at them by every organisation concerned with protecting animals. Later on failure to observe it may be regarded as a very serious offence. If my noble friend cares to call it a code of practice, then I insist upon that code of practice, and it makes my case even stronger.
There are those who say, as did my noble friend, that after all this is not really so important. If you give an animal enough light and air, why trouble about including accommodation? We have today had the noble Earl opposite introducing the analogy of being crushed in a Tube train. May I introduce an
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analogy? In our country to-day we recognise that putting a human prisoner in a cell, where he has light, water and food and from which he is allowed out for certain sanitary purposes and so on, is not enough. We say that every day that prisoner should also be taken into a yard and given exercise. It is laid down by those who prescribe conditions for prisoners that if we are to treat them in a humane manner they must be given not only light and food but also adequate exercise. That is what we are asking for to-day for these animals.
LORD CHAMPION: I strongly support everyone who is anxious about the welfare of livestock. But to deal with the thoughtless, cruel, over-profit-seeking minority there is Clause 2. I imagine that under Clause 2 it will be the job of the Minister to ensure that in laying down the law on this he will set out standards below which no one dare fall, as otherwise he will be in trouble, and that the purpose of Clause 3 is to endeavour to secure a code of conduct which people will be asked to try to reach within a reasonable sort of period. If a code of conduct for the welfare of animals is to be set up or declared, the standard of accommodation and all the matters which have been implied in the speeches on this Amendment will be included.
I think the Minister must be very tough under Clause 2, but under Clause 3 he will set standards which people will be expected eventually to attain. If they do not, the failure will then be used, as in subsection (4) of Clause 3, as evidence in the court against someone who failed eventually to bring his establishment up to a reasonable standard. I am bound to say that I think Clause 2 is going to be tough—it ought to be and it is intended to be—and that Clause 3 will enable a gradual lifting of the standards above those laid down in Clause 2, and to a very much higher standard than we have in many establishments at the present time.
LORD STRANGE: I should like to support the Amendment of the noble Earl, Lord Selkirk. Before the last war I experimented in breeding cages, which were then a new thing—and a farmer always experiments in everything new. I suppose I had a couple of dozen cages,

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and I put in some pullets which had been allowed free range and were ready to lay. I let them out by the middle of the winter, because I thought it was inhuman. Of course I like animals—I like some animals better than I like human beings, and I would not confine those wretched hens in those cages.
Since then that system has become an enormous business and nobody has mentioned this point. I do not know how much money is invested in the battery hen business, but it is a very large figure; and any farmer who goes into this business always has a large capital cost hanging over his head. Before I retired to the Isle of Man I must have farmed for 30 years, I suppose, off and on, and I appreciate that hens usually die in debt; but they are less likely to die in debt if you do not put up a building costing thousands of pounds. It is a balance between your feeding stuffs and your egg production; and if you add the capital cost of these huge, automatic buildings to that, the food supply has to go up by only a point or two and you will lose a lot of money. I am speaking from the commercial point of view. I said, first, that it is inhuman, and I still say it is inhuman.
I did not perhaps quite follow the point the noble Lord, Lord Somers, made, but I would say this to him. It is inhuman to hens, just as it would be to human beings, to be shut up. Before they go into the brooder, the battery laying plant, they must have a certain amount of outdoor life. They must get a bit of fresh air, and they must have a little exercise for their limbs; and in that open-air life they learn all the reflexes which make hens happy—to make dust baths, to clean themselves and so forth. They cannot even scratch in these things. They are deprived of these reflexes, and are shut up.
I trust this Amendment will go through, but I appreciate that an enormous capital investment is involved throughout the country, and I would suggest that the change be done gradually so that farmers can get out of it. The point which the noble Baroness, Lady Summerskill, made—I would almost call her my noble friend, although I am a Cross-Bencher—is of course absolutely true. Commercial people are not interested, or should not be if they are going to make a success
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of their business, in anything but getting money out of it. But I think the battery breeding people of this country are on a very dangerous wicket themselves. They have enormous capital investments, their buildings are deteriorating, and it needs the price of food to go up only very little and hens will again die in debt.
LORD BALERNO: May I take up the point which the noble Baroness, Lady Summerskill, made regarding the commercial aspect? It struck me—I may be wrong—that there was a tone of contempt in her voice when she referred to the commercialism in livestock production. Commercialism is essential. The Annual Price Review enables a farmer to recoup his increased costs in any one year to the extent of only about three-quarters of those total costs. The balance, the farmer is told by the State, he must take up by increased efficiency. Therefore the pressure is put on him to move into more intensive systems than he is using already.
I agree with what my noble friend Lord Selkirk has said about the animals being kept under decent conditions, but you must not blame the farmers unduly, because they are themselves under considerable pressure every year to cut their costs in some way and to make some financial improvement, which is covered by the term "commercial", in their methods of productivity. One hopes and expects that the code will prevent them, in pursuit of greater efficiency, from doing things which are inimical and harmful to the animals, but I think we must remember the point that the farmers themselves are under considerable pressure.
LORD CONESFORD: I think I am the first lawyer who has intervened on this particular point, and I would say at once that I fully understand the Minister's objection to putting these words in here, an objection also expressed by the noble Lord, Lord Henley, and others. I do not think these words would be completely effective to achieve the object of the mover of the Amendment, because this code is only something that may be made. The words in the clause as it stands are quite general enough to include this provision, without specific mention of it. Nevertheless, I think that the universal sympathy for the Amendment which has been expressed in all the speeches is very natural, and the object

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behind that universal sympathy certainly ought to be achieved.
I very much agree with what the noble Lord, Lord Champion, said: that we must consider this together with Clause 2. My noble friend Lord Selkirk, who moved the Amendment, read out a sentence, your Lordships will remember, that appears in what I think is generally called the Brambell Report. It is the last sentence in paragraph 37, and I think that what the Committee wants to be certain of is that those words in the Report are carried into legal effect. I think the noble Baroness would be completely satisfied if that were done. If I may read the sentence again, it says:
"An animal should at least have sufficient freedom of movement to be able without difficulty, to turn round, groom itself, get up, lie down and stretch its limbs".
I do not believe there is anybody in this Committee who does not think that that is right; and if that is right, it ought to be secured, in my respectful suggestion, under Clause 2. If it were so secured, I do not think we need worry about these words under Clause 3. I intervene only to say that this Bill, in its final stages, should certainly ensure that that recommendation is carried into legal effect, and, if that were done, I do not think anybody would suggest adding these particular words in Clause 3. They would be open, I think, to some of the objections to which the Minister has drawn attention.
THE EARL OF SELKIRK: The noble Lord asked me why I put the Amendment in here. The reason was to draw out the very point which has been drawn out. As the noble Lord, Lord Henley, said, we do not get anywhere with that. But we do not get anywhere with any Amendment on this point, because it is up to the Minister to draw up his regulations under either Clause 2 or Clause 3. Now, if I may say so to the noble Lord, Lord Champion, it is my anxiety that the regulations under Clause 2 will not be tough. I do not think they can be tough, and really for the reasons which my noble friend Lord Balerno gave—because you cannot put farmers out of business. It will be very difficult to make extremely tough regulations under Clause 2, and my anxiety about putting these words in
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Clause 2 is that they cannot yet be fulfilled.
But what I want from the Government is an assurance that they will be the objective to which the Government are working. If the noble Lord can give me that assurance, I will very willingly withdraw this Amendment. But can he give me that assurance? Can he give me any assurance that the words which have been quoted by myself and my noble friend Lord Conesford are going into the code? If he will give me that undertaking, I will certainly withdraw this Amendment.
LORD BESWICK: I am much obliged to the noble Earl. May I make two points? One is that if the words went in they would have absolutely no practical effect. But the noble Earl is absolutely right: the debate which he has stimulated has emphasised the words which are in the Brambell Report, and supported the point of view which has been expressed to the Minister in other ways. With all that pressure, with all that feeling, with all the knowledge at the disposal of the Minister, I give this assurance to the noble Earl: that I should be very surprised indeed if the code, when it is drafted after consultation—and the Bill commits the Minister to consult with the interests concerned, including the Farm Animal Welfare Standing Advisory Committee—did not have one item in it relating to this problem of accommodation. This is the objective to which we are working; and, although I cannot at this moment commit the Minister, because he has to consult the other people, I think I can say that the code will almost certainly contain references to accommodation.
THE EARL OF SELKIRK: Can the noble Lord say that by Report stage he will give us a firm undertaking that words approximating to these will appear in the code? I should like his undertaking that he would try to do that.
LORD BESWICK: I cannot give that assurance; but I will see what I can do. But words approximating to those of the noble Earl's Amendment would not have any effect at all. One must go into much more detail in the code if one is going to have any effect on day-to-day husbandry. But I will see what I can say further at Report stage.
THE EARL OF SELKIRK: With that assurance, I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
Clause 3 agreed to.
Clauses 4 and 5 agreed to.
Clause 6:
Powers of entry, etc.
6.—(1) A person duly authorised in writing by the Minister may at any reasonable time enter upon any land, other than premises used wholly or mainly as a dwelling, for the purpose of ascertaining whether an offence under this Part of this Act has been committed on the land.
(3) A person authorised as mentioned in the foregoing provisions of this section to enter upon any land—
(a) shall if so required produce evidence of his authority before entering and while present on the land;
3.42 p.m.
LORD NUGENT OF GUILDFORD LORD NUGENT OF GUILDFORD moved, in subsection (1), after "by the Minister", to insert "and qualified as a veterinary surgeon". The noble Lord said: I beg to move Amendment No. 2 which stands in my name, and it may be for the convenience of the Committee if I discuss at the same time No. 3. These Amendments concern a point that I made on Second Reading, and although it is a small one I think it is of great importance. The Amendments are designed to ensure that the official making an inspection is fully aware of the hygiene precautions necessary when visiting an intensive livestock unit. The Amendment would in terms require that the inspecting official should be a veterinary surgeon, because he would know the various disease risks, depending on the type of livestock concerned, and could be relied on to take the proper precautions.
To make clear the cogency of this argument, perhaps I should give a brief description of the chief diseases which afflict livestock, and particularly intensively kept livestock, which now covers the whole field of livestock. Individual livestock farmers, certainly the progressive ones, go to very great trouble and to great expense in order to protect their livestock against these disease risks. To begin with, foot-and-mouth disease is something that we are all much aware
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of; but this disease (caused by a virus which attacks hooved cattle) is only one of the many viruses which attack livestock and cause immense economic loss. Foot-and-mouth is relatively simple, because it is notifiable; and where there is an outbreak cattle and livestock have to be slaughtered, and compensation is payable. But there is, in fact, a whole range of these various virus and bacteria infections which affect livestock.
With chicken, there is fowl pest, a notifiable disease, that used to be compensated on slaughter, though it no longer is. In most cases when one of these diseases attacks the livestock the farmer has to treat it himself with veterinary advice and with the best modern drugs and antibiotics available. But the outbreak of one of these diseases in livestock checks the production or growth of the livestock, probably causes mortality and invariably causes very heavy economic loss which might be crippling to the farmer and certainly would wipe out his profit margin for the year for that particular batch of livestock. It is under stand-able that the efficient livestock farmer takes great pains nowadays to protect his stock against the spread of these various diseases.
With pigs one finds the devilish virus pneumonia which affects most of the pig herds in this country. Also, there is swine fever, which temporarily has been stamped out although the extremely unpleasant African swine fever is now moving up through Europe and may come here at any time. With chickens there is a whole range of infections, infections such as infectious bronchitis and fowl pest, which I have mentioned, fowl paralysis, mycoplasma, any of which can cause farmers great economic loss. With cattle and calves there is brucellosis and salmonella—just to mention a few of the diseases with which our livestock must live. And, of course, there are other diseases, like blue tongue, for cattle, which is lurking in North Africa and is tending to move into Europe.
Most of these diseases are caused by viruses. Usually the virus is persistent, highly infectious and able to for sometime without a host. It is wind-borne and is easily carried on the clothes of individual human beings who visit the stock. It can be carried easily on coats or shoes, in hair or on hands, and is

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easily transferred from one livestock unit to another. And this is the point. If an inspector goes to a livestock unit to make one of these inspections and then has to leave that farm to go to another, unless the proper precautions are observed he may very easily transfer one of these unpleasant and dangerous diseases from one livestock unit to another. In the research institute of which I have the privilege to be the chairman we are required, when going in, even to the semi-infected area, to change into clean clothes inside the unit and when we come out to go through a shower bath and to leave the clothes behind. One cannot require such precautions on every farm that is inspected, but there is a range of simple and relatively practicable precautions which can be carried out. For instance, gumboots can be washed in disinfectant, clean overalls can be supplied by the farmer and then left behind, an expendable that could be provided. Hands can be washed, car tyres can be washed with disinfectant. These are the basic minimum precautions which should be carried out when going from one unit to another. On farms this is what farmers themselves do when going between different units, which they keep far enough apart to reduce the danger from wind-borne infection.
All these considerations apply to my second Amendment, which is to subsection (2), in relation to the local government inspector who is inspecting for the purposes of checking the diet of the livestock concerned just as much as to the inspector in subsection (1), who is actually looking at the animals. The inspector for diet would almost inevitably have to go into the house where the animals or birds were kept, and therefore all the same dangers would occur. I make the point most cogently. Here we have inspectors who are going to ensure that a minimum standard of health and welfare is being exercised for these animals. It would be utterly absurd if, in the process, the inspector happened to transfer the disease from one unit to another. It is in order to obviate this particular risk and to ensure that these inspectors are able to carry out their work with the confidence of the farming community, that I move this Amendment, and I trust that the Government will be able to accept it.
Amendment moved—
Page 4, line 4, at end insert ("and qualified as a veterinary surgeon").—(Lord Nugent of Guildford.)
LORD HENLEY: I am not in general hostile to this Amendment, but there is one question that arises—it is really a logistic one. If one narrows the inspectors down so that they must be veterinary surgeons, are we not putting on the veterinary profession more than they can do? There is already a shortage of vets, for a number of reasons. I agree that, so far as medical work is concerned, part of medicine must be designed towards prevention rather than cure. But it seems to me that the jobs envisaged could be carried out perfectly well by properly qualified inspectors who need not be qualified vets. The work is not so difficult that it could not be learned and done properly, and at the same time confidence would be given to the farming community being inspected. I have no doubt that in an ideal world the inspectors would be qualified vets, but it does not seem to me that here it is necessary for them to be. It might even be a disadvantage, in that it would require the use of vets for work which might be done better by other people.
VISCOUNT MASSEREENE AND FERRARD: I should like to support what as been said by the noble Lord, Lord Henley. I was about to make the same point, and he took the words out of my mouth. I am glad that he did, because he could say them much better. I also support what has been said by my noble friend Lord Nugent. It is important that these diseases should not be carried, but the point is: Are there enough qualified veterinary surgeons to perform these services?
LORD INGLEWOOD: It is not often that one has the pleasure of preferring the words put in the Bill by the Government to an Amendment proposed from one's own Front Bench, but I believe that on this occasion, having heard the Minister's arguments, I shall prefer the Bill as it stands. We have just heard that to insist on veterinary surgeons making all these visits would put a great strain on our limited number of surgeons and take them away from work which many of us may think more important than paying these visits. The Minister

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or a local authority would not be able to authorise a visit unless there was a veterinary surgeon able and free to make it, and we must bear in mind that veterinary surgeons employed by local authorities to be at their beck and call are very few—if, indeed, they exist at all. It also could be that a number of visits which ought to be made in the interest of the welfare of animals would not be made.
I do not want noble Lords to think that I do not appreciate the point made by my noble friend Lord Nugent about the carrying of disease from one farm to another—something about which we are particularly sensitive this spring. If we are to restrict these visits to qualified veterinary surgeons we ought, as the next step, to say that no-one should ever go on anyone else's farm, for what ever purpose, or go inside any building in which stock are housed, unless he is a veterinary surgeon. Although I can see a little of the trade unionism behind the Research Institute which has put my noble friend up to proposing this Amendment, I think that he is asking a little too much. At this stage at least, the interest of the animals, which is what we are concerned with here, rather than the interests of the vets, would probably be advanced far more by leaving the drafting of the Bill as it stands.
LORD ROYLE: I, too, appreciate what the noble Lord, Lord Nugent, is trying to do but I am wondering whether it is practicable. Looking at the various clauses in Part I of the Bill we see all manner of things which do not apply to a veterinary officer at all. Why should it have to be a veterinary officer who goes on to a farm to see that no unnecessary pain or distress is brought upon the animals? Why is it necessary to have a veterinary officer to safeguard the welfare of livestock, with particular reference to their housing, feeding, et cetera? Why is it necessary that it should be a veterinary officer who would advise on livestock, and so on? In respect of the provisions in every one of the clauses in Part I of the Bill it seems to me that other people, rather than veterinary surgeons, are qualified to carry out the duties.
I would remind the noble Lord, Lord Nugent, that the first words of Clause 6 refer to:
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"A person duly authorised in writing …"
It is not a question of any Tom, Dick or Harry going on to the farm. These are authorised people. I would say to the noble Lord, who made a moving reference to foot-and-mouth disease, that surely the provisions ensure that the veterinary surgeon would have to paddle through a tray of Lysol or something of that kind. Why cannot anybody else who is an authorised officer do the same? I can see where the noble Lord is going, and what he is driving at, but it seems to me completely impracticable in these circumstances to keep out everyone except a veterinary officer.
BARONESS SUMMERSKILL: I support my noble friend Lord Boyle He has listed a number of things that veterinary officers, who I understand are in short supply in the farming world, would have to do. If we take human beings as an analogy, the equivalent would be the Health Service, and no one would suggest that doctors should be required to do these things. They would be done by ancillary workers. I should have thought that in the farming world there would be ancillary workers, sufficiently qualified and with a high standard of behaviour, who could be trusted and who could quite well perform some of these functions.
3.56 p.m.
LORD BESWICK: The noble Lord, Lord Nugent, gave us a very weighty and informed warning about the Sanger of the spread of infection from farm to farm, and I think it would be well if his words were heeded. But I agree with what has been said by other noble Lords, and by my noble friend Lady Summers-kill, that we should have difficulty in limiting the people engaged in this work to qualified veterinary surgeons. After all, the State Veterinary Service, which will be responsible for the inspection work under this Bill, has technical staff trained to assist in disease prevention and control. As the noble Lord, Lord Nugent, will know, they have been working for some years past and are well aware of the dangers of which he spoke. It is our intention that in the first place, as I indicated during the Second Reading debate, they should assist in some of the inspections required under Part I of the Bill; but they will be working under

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the supervision of the Ministry's veterinary staff. Later on, when we have our codes and when practices have been established, when it is purely a question of seeing whether the practices which have been laid down and generally accepted are being applied, it is likely that these trained technical officers will be able to work on their own.
As my noble friend said, there will be ancillary workers, and the fact is that local authority staffs do not include qualified veterinary officers who could do this work. At least that applies so far as most of the local authorities are concerned. The ancillary workers will be dealing with matters with which they are trained to deal. Those dealing with feeding-stuffs will include officers who are concerned with local authority inspections and services under the Food and Drugs Act. I should have thought they were likely to be very responsible people who would well understand the kind of difficulties that we know exist at the present time. They will have to take samples and carry out analyses of foods. They will be professional people, but they will not necessarily have to be qualified veterinary surgeons.
As they will be officers who have not been engaged in this sort of work on the farms before, there will be a special guidance circular to which they will have to work, and I can assure the noble Lord that what he has said—and I quite appreciate the importance of it—will be brought home to the officers who work with the local authorities in enforcing the provisions in the regulations. I hope that, with that assurance, the noble Lord may consider that he has usefully brought some dangers to our attention, and that we shall be particularly careful, as a result of what he has said, to ensure that these dangers are counteracted.
LORD NUGENT OF GUILDFORD: May I thank the noble Lord for giving such serious consideration to the point I made, which I appreciate did not win general support. I am grateful to him for recognising the weight of it. Let me assure my noble friend Lord Inglewood that the advisory Veterinary Research Institute was not in any way responsible for the views I put forward; in fact it may even be surprised by them. I merely put forward views common with
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livestock farmers, who have great anxiety on this point. It is entirely a production point.
I realise the difficulty which would arise if we wrote into the Bill the requirement that veterinary surgeons must carry out all these inspections. On the other hand, I am bound to say that my ingenuity would be puzzled to compose an Amendment on the lines which the noble Lord has so graciously offered to me. I recognise that trained assistants, certainly in the Ministry of Agriculture, would be adequate for this work, and if the noble Lord would make sure that the Chief Veterinary Officer of the Ministry was himself responsible for the general standard of their training, I am sure they would observe the necessary veterinary precautions in carrying out their inspections.
With regard to local authority inspections, these are more difficult because they do not come under the Ministry and its officers, but I take the point which the noble Lord made, that these inspectors are professional or semi-professional men, concerned, as he says, with the administration of the Food and Drugs Act and therefore well able to take a responsible view; and, provided that a special guidance circular goes out, again with the approval and with the responsibility of the C.V.O. behind it, I have no doubt that local authorities could effectively carry out these inspections with full precautions. With the valuable assurances that the noble Lord has given us, I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
4.3 p.m.
LORD BALERNO LORD BALERNO moved, in subsection (3)(a), to leave out "if so required". The noble Lord said: I beg to move the Amendment standing in my name on the Marshalled List. The usual thing that happens on a farm is for an inspector to arrive without having given prior notice, and I think that this is to be expected for a lot of his work would go by the board were it compulsory for him to give notice in writing beforehand. I am proceeding therefore on the assumption that as a rule the person authorised will arrive at the farm without due notice. So I think it is essential that he should declare himself immediately on arrival

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as a person authorised under this Act for the welfare of animals.
The fanner himself cannot be expected to be around on his farm all the time. Some farm labour is extremely efficient and intelligent; other farm labour is not so bright, and we have to cater for both kinds. A large number of people visit farms. Some visit regularly and are known to the farmer and his workers, and are accepted right away. But, by and large, it is expected of people who visit a farm that they should declare themselves and their business on arrival. To go round a farm without having declared oneself, and unknown to the farmer himself, or without having declared oneself to the nearest farm-worker, is something to be deplored, and it will not help the enforcement of the Act if the animal welfare officer, as envisaged by the noble Baroness, Lady Summerskill, goes snooping round the farm. After all, a policeman declares himself when he goes on a farm by his uniform, and so does an inspector from the R.S.P.C.A. And I think that the animal welfare officer, when he visits a farm, should be required to declare himself in some way, not necessarily to the farmer, but to the first person he meets: that he should take the necessary steps to acquaint somebody in the farm of his arrival.
Amendment moved—
Page 4, line 18, leave out ("if so required").—(Lord Balerno.)
BARONESS ELLIOT OF HARWOOD:
I agree with my noble friend Lord Balerno that an extraordinary number of people come on to one's farm. Often they are officials of one kind or other, but some of them may be trying to sell fertilisers or machinery. Farmers never know who is calling. As my noble friend said, the fanner himself may not be about, and an ordinary agricultural worker may not know whether the person who has arrived is expected or not and would not like to say that the caller must not go here or there because he would not know whether he was acting rightly or wrongly. A person authorised under the Bill should have to declare who he is, and what he is there for, the moment he walks into the farmyard. I should like to support my noble friend's Amendment.
LORD BESWICK; May I assure the noble Baroness and the noble Lord, Lord Balerno, that this is not intended to be in any way a charter for snoopers. In the ordinary way, Ministry inspectors will be required to make their presence known to the farmer or his staff before making their inspections. Indeed, there will be little point in going round inspecting the premises unless they are able to discuss the matter with the farmer or his staff and give advice.
In many cases there will be no need to pull out a card or identity document. Everything, as the noble Lord knows, is on a basis of friendliness. Many people from the Ministry and the advisory services visit the farms, and relations are friendly. If the Amendment were accepted, not only would it be mandatory for the inspectors to prove their identity when they entered a farm, but they would also be required to prove identity at intervals during their stay on the farm, and possibly before they leave. So far as the Ministry's officials are concerned, there is no problem. As yet no tradition has been built up with local government officers, but the same kind of practice will be established by them—namely, they will make their presence known and the inspection will be done on a co-operative basis with the farmer and his staff.
On the other hand, there may be odd cases where there is an emergency, when, for example, it is thought that there is an animal suffering. In such an emergency it may be desirable, because there is not a member of the farm staff about, for the inspector to go on to the farm to wherever he has reason to expect there is a suffering animal. In that unlikely, but nevertheless possible, case, it is thought that it would be better if he were able to go there, without breaking any law, and carry out his inspection.
There is one other point that I would make to the noble Lord. In many of these matters one likes to keep to the established legal terminology and established legal practices, and I gather that the actual wording in this Bill is the same as that in the various agricultural Acts—the Diseases of Animals Acts of 1950, Section 6, the Agriculture (Poisonous Substances) Act 1952, the Food and Drugs Act 1955 and so on: there are four or five other precedents. No difficulty has ever arisen in

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those cases, and I cannot see that there could be any difficulty in this case. Nevertheless, it may still be that, because the noble Lord has raised this point—as he did on Second Reading, before the matter had been fully aired—it will be understood much more clearly that in the ordinary way it will be desirable to make absolutely certain when the inspector visits the farm that his presence is known to the farmer or his staff. But, bearing all the other points in mind, I hope that the noble Lord will be able to withdraw his Amendment.
LORD HENLEY: I do not know whether the noble Lord feels that in these days of documentation it might be good planning for all people who have rights of inspection automatically to carry some sort of card on them, like a driving licence, which they would merely produce if they were asked. This would seem to get over most of the difficulties mentioned by the noble Lord, Lord Balerno, and the point raised by the noble Lord, Lord Beswick, that there may be occasions when the person concerned may have to go on in a hurry. One carries so many papers in one's pockets now that it seems to me it would be quite easy to carry a small thing like a driving licence which just says who one is. I believe that the Gas Board now adopt this method.
LORD BESWICK: On that point, as the noble Lord will see, it is stated in the Act that
"if so required the officer shall produce evidence of his identity ".
Whether that evidence is in the way of a card or some other document I do not know, but obviously he must now carry some proof of identity.
LORD NUGENT OF GUILDFORD: I should like to thank the noble Lord for going some way to meet the point put by my noble friend Lord Balerno; and I am glad that he accepts the weight behind the Amendment. This touches on a point I was making earlier about the risk of spreading disease. Normally, I am sure it is most desirable that the farmer should know that he is being visited and should assist the inspector with any hygiene regulations that he has
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on the farm. For that and other reasons, I am sure that the best thing is for the inspector to contact the farmer on arrival. What I should like to hear—and I think the noble Lord has pretty well said it—is that the normal practice will be to contact the farmer or to let him know when the inspector is coming, which of course is the normal practice that the veterinary officers of the Ministry now observe when coming for other purposes. If we can have it firmly on the record that it will be the normal practice for the inspector to make contact with the farmer by one means or another on arrival, or before arrival, I am content to leave the flexibility which at the end of the day I realise the Minister must have if he wants to visit in an emergency. If we could get that, I would advise my noble friend to be content with it as a valuable achievement.
LORD BESWICK: I think I practically said what the noble Lord asked for, but I will read out again the note from which I was speaking. Normally Ministry inspectors will be required to make their presence known to the farmer or his staff before making their inspection, and we should expect that local authorities would instruct their officers similarly.
LORD BALERNO: I am grateful to the noble Lord, Lord Beswick, for his helpful reply, and his assurance that the action which the Amendment was intended to effect is so clearly stated in the code of practice adopted for the work of the servants of the Ministry of Agriculture. My apprehensions were not so much about the Ministry officials as about local government officials. My own personal experience, which perhaps I should divulge, was inspection by Water Board officials without any notice whatever. I have heard also of Inland Revenue officers visiting farms in connection with rating without letting their reason be known; and this has occurred in respect of other things, such as inspectors for P.A.Y.E. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 6 agreed to.
Clause 7 agreed to.
Clause 8:
Interpretation etc. of Part I
8.—(1) In this Part of this Act—
"livestock" means any creature kept for the production of food, wool, skin or fur or for use in the farming of land or for such purpose as the Minister may by order specify.
4.17 p.m.
LORD BALERNO LORD BALERNO moved, in subsection (1), to leave out "creature" and insert "vetebrate animal". The noble Lord said: I beg to move Amendment No. 5. In his reply to my previous Amendment the noble Lord, Lord Beswick, referred to the phrase, "a person authorised shall if so required", as being a phrase quoted previously in Acts immemorial in connection with farm livestock. The purpose of this Amendment is to continue the view put forward by the noble Lord, Lord Beswick, that present Acts of Parliament should contain the same phraseology as has been used before.
What I object to in Clause 8 is the use of the word "creature" in the phrase, "Livestock' means any creature … ". I have checked on previous Acts affecting livestock. I have gone back for 150 years—I do not say this is conclusive or exhaustive, but it is the best that I could do—and "creatures" is not used. The great Act was the Cruelty of Animals Act 1876, where the word "animals" is clearly used, and not the word "creatures". This was repeated in the Protection of Animals Acts 1911 and 1912. The word "animals" has been used regularly in other Acts since then, and the word "creatures" has not been used at all.
I submit that the right word to use is "animal". The word "animal" does not have such a long pedigree as the word "creature", but in Murray's Dictionary it has its antique uses. The word was first reported as being used in 1398. In Murray's Dictionary it is in common usage. The definition of the word in common usage is:
"A brute or beast as distinguished from man".
There are other definitions which support that. I would call to your Lordships' memory what the noble Lord, Lord Strange, said when he was speaking a few moments ago. He said that he
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liked some animals better than human beings. The word "animal" can be use as descriptive of man, but it is always used contemptuously or humorously; and when in use as an adjective, the word "animal" always refers to bestial characters of the human race, unless it is used by divines and theologians, who sometimes use the word in another sense.
I would therefore ask the Government to accept the word "animal" instead of "creature", for "creature" definitely embraces the human race as well as the animal race, and there are many more examples of that, both Biblical and non-Biblical, right down to the present day. The definition would be much better if "animal" were substituted for "creature". The reason why I have added "vertebate" is to save the welfare officers some work; otherwise, if we do not use that restriction, we shall extend their work to quite impossible lengths.
Your Lordships will notice that the clause says:
"'livestock' means any creature kept for the production of food, wool, skin or fur or for use in the farming of land …".
I imagine that "for use in the farming of land" relates to horses. But there are other animals, including worms, which are kept "for use in the farming of land" and are probably much more important than horses. This would also apply to bees. It would be interesting to set: a welfare inspector looking to see whether some bees were too closely housed together. That could be possible. Silkworms would also come in. Therefore I suggest that for better understanding the word "vertebrate" should be associated with the word "animal". I beg to move.
Amendment moved—
Page 5, line 33, leave out ("creature") and insert ("vertebrate animal").—(Lord Balerno.)
4.22 p.m.
LORD CAWLEY: I support my noble friend very strongly. When I was at Oxford I read zoology, which was the science of animals, not creatures. An "animal", we were taught at that time—I do not know what it means now—was any living thing which is not a plant. A "creature" comes from the Authorised Version of the Bible, the Creation, and you may remember how The Victorian writer of hymns said:
"All things bright and beautiful
All creatures great and small".

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This is an extremely imprecise definition. If this definition remains, then bees are undoubtedly covered because they produce food; fruit flies for genetic experiment would not be covered. Snails to be sent to Soho for eating would be covered, but not slugs. Mealworms which are used for feeding reptiles would be covered; beetles, perhaps, would not be. Water fleas, which one can buy at various shops for feeding fishes, would undoubtedly be covered, but ordinary land fleas certainly would not. I recommend this definition. It is a modern definition, and I am sure it is what Her Majesty's Government mean, and we do not really want any of these ambiguous phrases to remain on the Statute Book.
LORD INGLEWOOD: While I have found no reference in the Bill to fleas, land or water, I should like to make a point about one or two classes of unfortunate creature mentioned in Clause 43. I hope the Minister will not overlook their particular interests when considering whether or not to accept my noble friend's Amendment. Clause 43 refers to the "catching or taking [of] fish or shellfish", and I should think that under normal practices there are few creatures which deserve more protection from overcrowding than shellfish.
LORD BESWICK: I am much obliged to the noble Lord, Lord Inglewood, for that support. The noble Lord, Lord Balerno, has obviously done a good deal of research since we last considered this matter; and I, with a little assistance, have also done some. His case, as I understand it, is that in all the literature and documents he has considered "creature" includes man, but "animal" does not. On the other hand, I find that Dr. Johnson said that, "Man is a tool-making animal". Aristotle said, "Man is a political animal". Sir Thomas Browne said, "Man is a noble animal", and there are other examples. Moreover, although the noble Lord said that the word "animal" had been used in other Acts, the fact is that in the Agriculture Act 1947—and there is no better authority in farming circles—the word "creature" is used. As for the noble Lord, Lord Cawley, who quoted again the words of the good old hymn:
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"All things bright and beautiful
All creatures great and small"—
LORD CHAMPION: That is it.
LORD BESWICK: My noble friend Lord Champion is very well versed in these matters. He could probably quote for me two verses on, where the same hymn says:
"The rich man in his castle
The poor man at his gate
God made them high or lowly
And ordered their estate."
I do not accept that. I think this hymn is a poor authority to quote. I prefer to rest my case on the 1947 Act, and I hope that on reflection the noble Lord will agree with this and also that if we use the word "animal" we shall still be inclined, according to Dr. Johnson, Aristotle, Sir Thomas Browne and also Burke, to include a human being and probably to exclude the very creatures the noble Lord, Lord Inglewood, referred to. I hope, therefore, that the noble Lord, Lord Balerno, can see his way to withdrawing this Amendment.
LORD KILBRACKEN: Would the noble Lord agree that, although man is both a creature and an animal, and certainly a vertebrate animal, he is very seldom a creature kept for "the production of food, wool, skin or fur", and that he is not "kept for use". I do not think a man can be kept. A woman can be kept. Perhaps this is what is disturbing the noble Lord opposite. But I do not see that a man is ever kept "for use in the farming of land", and I do not see how the definition can possibly in any case refer to a human being.
LORD CAWLEY: Is the noble Lord aware that in the latest edition of Hymns Ancient and Modern the offending verse has been expunged?
LORD BESWICK: I hope the same doctrine will not be applied to my Bill.
LORD BALERNO: I am quite unrepentant. I think that, although the noble Lord, Lord Beswick, has been able to pick out a few quotations, including one from Dr. Johnson, by far the weight of argument in Murray's Dictionary is in favour of "creatures" to include human beings, and the word "animals" to exclude human beings. The weight of example was there. Anybody, by looking through a dictionary of quotations, as I have done

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also, can get the odd example where the word "animal" is applied to man. But, as a rule, where it is applied to man it is in a humorous or contemptuous manner. If the word "creature" was used in the 1947 Act, of which I was unaware, all I can say is that that was another example of the slovenliness of those in charge of the Government at that time, to have allowed that to creep in.
When this point and the definition of the word "animal" was debated two years ago in this House, and the noble Lord, Lord Champion, was sitting where the noble Lord, Lord Beswick, is now, he was so persuasive that he completely charmed me against my better judgment, but on reflection, and after reading the Report, I am still convinced that I was right. But I yielded to his charm and, having yielded to his charm, perhaps it would be invidious if I did not yield now to the charm of the noble Lord, Lord Beswick. I do not see sufficient support from the animal world on this side of the Committee to insist that the word "animal" be substituted for the word "creature". If I did, I would stand by my Amendment, but as it is, I beg leave to withdraw it.
Amendment, by leave, withdrawn.
Clause 8 agreed to.
Clause 9 agreed to.
Clause 10:
Provisions supplementary to s. 9 in England and Wales
10.—(1) Subject to the provisions of this section, no sum shall be payable in pursuance of section 9 of this Act in a case where—
LORD BESWICK: This is a paving Amendment. I beg to move.
Amendment moved.
Page 7, line 13, leave out ("states") and insert ("contains a statement")—(Lord Beswick.)
On Question, Amendment agreed to.
LORD BESWICK: This also is a paving Amendment. I beg to move.
Amendment moved—
Page 7, line 25, leave out ("states") and insert ("contains a statement")—(Lord Beswick.)
On Question, Amendment agreed to.
4.32 p.m.
LORD NUGENT OF GUILDFORD LORD NUGENT OF GUILDFORD moved, in subsection (1), after paragraph (c), to insert:
"( ) the tenancy in question was the subject of a written agreement entered into less than five years before the termination of the tenancy and containing notice that the holding or the part of the holding, as the case may be, would be required by the landlord within that period for development purposes and the development is commenced within the period of six months following the termination of the tenancy; or".
The noble Lord said: This Amendment was moved and voted down by the Government on Report in another place. I make no apology for moving it again now because the Parliamentary Secretary then undertook to study the point and put down an Amendment, if thought necessary, for consideration here. I must confess to the noble Lord, Lord Beswick, that I am disappointed not to see a Government Amendment on the Marshalled List on this point. I had rather hoped that in the calm atmosphere of your Lordships' House this point might have had more objective consideration than perhaps it had in another place.
The purpose of the Amendment is quite a narrow one. It is to enable a landlord who is intending to develop a piece of land but who expects a delay for a period of less than five years—and of course there may be many reasons for a short delay, such as financial stringency, local government problems, and so on—to let the land to a tenant for such limited period without incurring the liability to pay the increased compensation which this Bill provides; namely, an extra four years' rent in addition to the one or two years' compensation which is now operative. Obviously, if such a saving provision is not made a landlord in such circumstances would simply decide not to let the land at all, because if he did he would be out of pocket, and he would rather leave the land standing idle than involve himself in such a transaction; and clearly this would be against the public interest.
The Government position in this has been that they would rely on the Agricultural Holdings Act 1948, Section 2 of which allows the Minister to approve short-term lettings which would not involve the landlord in paying compensation. This is quite a good technical answer, but. I do not think it is an entirely

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practical one. It is for this reason I am moving my Amendment, in the hope that I shall persuade the noble Lord, Lord Beswick, to look at this point again. The 1948 Act, Section 2, procedure involves the landlord in making a formal application to the Minister, and it then involves the Minister's officials making inspections, with the normal administrative delays which go with that. The noble Lord, Lord Beswick, will be aware that he has had particularly strong representations from the County Councils Association on this point, and in the course of the discussions with the County Councils Association the Ministry officials admitted that if no change in the law was made it would be necessary for the 1948 procedure—and I quote:
"to be operated a little more liberally in future, in view of the high cost to a landlord of dispossessing a tenant."
I think this makes my point, that the Section 2 procedure under the 1948 Act is not really suitable for this purpose, and it will strain it to require that this particular need should be met in that way. If we leave the Bill as it now stands, there will be a considerable risk that where landlords have a piece of land which is not to be developed for a year or two they will be deterred from a short-term letting and so the land will stand idle, which will obviously be against the public interest. I hope the noble Lord will agree that this is a good case, and that he will accept my Amendment. I beg to move.
Amendment moved—
Page 7, line 30, at end insert the said paragraph—(Lord Nugent of Guildford.)
LORD INGLEWOOD: On this occasion I should like to support my noble friend Lord Nugent of Guildford, and I do so very warmly. I hope the noble Lord, Lord Beswick, will see that this is not a political Amendment attempting to destroy the main purpose of the clause. Far from it; it is an Amendment based on common sense and an understanding of land management, and is aimed at dealing with a number of cases which will probably grow as our network of motorways is extended over the countryside. For example, this network did not exist when the 1948 Act was debated in Parliament, and the procedures under the
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1948 Act, on which I believe the Minister in another place professed to rely, are really not appropriate to these times as they have developed over the last twenty years.
What we are concerned with here is food production and the proper as of land, and it cannot be responsible for us to leave the wording of this clause in such a way that there may well be an increasing number of cases where owners of agricultural land are encouraged to leave it out of production for a number of years. I should like to think that the noble Lord, Lord Beswick, sees this problem in this light and not through politically tinted spectacles, because there really is substance in my noble friend's Amendment.
LORD HENLEY: I have nothing to add to what the noble Lord, Lord Nugent of Guildford, and the noble Lord, Lord Inglewood, have said. I entirely support them. I am sure that the provisions of Section 2 of the 1948 Act are unsuitable for the sort of situation we are discussing, and it is not desirable that it should be impossible to achieve the intended result. Yet that is what will happen unless the Government give way to some extent on this matter.
LORD BESWICK: I accept what the noble Lord, Lord Inglewood, said, that this is not a political matter. As the noble Lord, Lord Nugent, said, it was discussed at some length in another place and the views of the County Councils Association were unanimous. Nevertheless, they came to the conclusion that, despite what has been said, the provisions of the Agricultural Holdings Acts were sufficient to meet the sort of case envisaged by the noble Lord.
As noble Lords know, and indeed as has been mentioned, Section 2 of the Agricultural Holdings Act, 1948, provides for the creation of lettings and licences which are not full agricultural tenancies. Therefore they do not entitle the tenant or licensee to the security of tenure and compensation rights which belong to a full agricultural tenancy, nor to the new payments under the present Bill. Such lettings and licences require the consent of the Minister of Agriculture, Fisheries and Food, for obvious reasons: that if they did not, it would make a

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nonsense of the 1948 Act. But I think the noble Lord, Lord Henley, has in mind that when the landlord wishes to come to this short-term agreement it is unsuitable to have a year-to-year basis because of the uncertainty which may attach to his application. But I can say to noble Lords that the Minister authorises me to say that such an application may expect to have a sympathetic hearing and to secure consent where there is a reasonable prospect of development within the reasonably near future. Consent would be certainly for one year and if the same reasonable prospect of development remained at the end of that year the same undertaking holds good: that an application put forward in those circumstances could expect a sympathetic hearing and to receive consent.
If the Amendment in the name of the noble Lord, Lord Nugent of Guildford, were accepted, then it would take away from the tenant the protection which he has under the present law, and indeed it would become the standard practice (I hope that the noble Lords, Lord Inglewood and Lord Henley, appreciate this) of landlords, if entering into a new agreement, to ensure for themselves the protection which this Act would then give in its amended form. If there were even the slightest possibility of development the landlord would seek the protection of this provision and then the security of the tenant, where there was no real danger in the next four or five years of any development in the area, would be lost.
LORD INGLEWOOD: May I ask the noble Lord whether he can explain a little more what he means about standard practice, which I think is rather a hard suggestion, because this particular Amendment surely is intended to cover only a very limited class of circumstances, and furthermore only a short period of time? You can hardly have standard practice covering lettings of all sorts where those circumstances do not apply. The noble Lord will correct me if I am wrong. I understand my noble friend's Amendment would cease to have effect after five years.
LORD BESWICK: If a landlord was seeking a new tenant, if there were the slightest possibility of development in the area he would seek to cover himself
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by the provisions of the Act as amended by the noble Lord's Amendment, and therefore the proper protection of the tenant would disappear. I therefore come back to what I said originally: that where there is a genuine case, where there is a reasonable prospect for development, and where the landlord would not therefore wish to undertake a new tenancy which carried with it the provisions of the Bill as now laid down, if he makes an application under the 1948 Act I give the assurance that that application would receive a sympathetic hearing and, in the majority of cases, if the application was soundly based it would be accepted, not only that year but the following year.
The noble Lord said that the procedure of Section 2 of the 1948 Act was time consuming and ponderous. I would say that it need not be. The Minister's powers to consent are delegated to the country agricultural executive committees and they and their officials are familiar with the local conditions and are prepared to come to a conclusion quickly. Therefore problems of delay need not arise. Although I see that the noble Lord is trying to put forward a reasonable, solution to what is undoubtedly a difficulty, I hope that he, for his part, will see that the solution, although it meets the problem he has in mind, would create other problems and unfairnesses, and he may well on the basis of the assurance I have given see fit to withdraw the Amendment.
LORD NUGENT OF GUILDFORD: May I thank the noble Lord for his attempt to give us a helpful answer? I confess I should have preferred to see an Amendment of this kind in this Bill, because I think on the whole it would more effectively have met the point I am making. Certainly the last thing I wish to do, and I am sure my noble friends wish to do, is to deprive tenants of the benefits this Bill will give of the extra four years' compensation. In the circumstances, I would advise my noble friends that we should accept the Minister's assurance, despite our doubts about the suitability of the 1948 Act procedure to meet the point. The noble Lard has been good enough to say that the county agricultural committees will be able to reach quick decisions on these matters. That will put them on their mettle, and we shall expect them to do so. Further-more, where there is a real prospect of

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fairly early development within three years, these consents will be given in a genuine case so long as the case is clearly made. But whether it will be given does depend on the Government and on the Ministry of Agriculture really fulfilling the noble Lord's assurance. How ever, I think we can accept it is good faith and hope that they will fulfil it. With that, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
LORD BESWICK LORD BESWICK moved, after subsection (6), to insert:
"( ) The provisions of Schedule (Transitional provisions relating to payments under s. 9 in England and Wales) to this Act (which contains transitional provisions for certain cases) shall have effect for the purposes of this section in its application to England and Wales."
The noble Lord said: Your Lordships were good enough to agree to Amendments Nos. 6 and 7, and No. 9 stands together with them. I still think it would be for the convenience of us all if the discussion were on the Schedule. Briefly, the new Schedule provides for a transitional problem brought to the notice of the Minister in another place. He agreed to meet it. The Schedule, I think it will be agreed, meets it, and this Amendment paves the way for it. I beg to move.
Amendment moved—
Page 8, line 30, at end insert the said new subsection—(Lord Beswick.)
On Question, Amendment agreed to.
Clause 10, as amended, agreed to.
4.47 p.m.
Clause 11 [Provisions supplementary to s. 9 in Scotland]:
LORD BESWICK: I beg to move that Amendments Nos. 10 to 15 be postponed until Thursday.
Moved, That Amendments Nos. 10 to 15 inclusive be postponed until Thursday next—(Lord Beswick.)
On Question, Motion agreed to.
Clauses 12 to 16 agreed to.
Clause 17 [Interpretation etc. of Part 11]:
LORD BESWICK: The purpose of this Amendment is simply to make it clear
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that Clause 17, the interpretation clause for Part II, applies also to the Schedules related to Part II, that is, the existing Schedules 1 and 2 and the two new Schedules, one of which will be proposed later to-day. I beg to move.
Amendment moved—
Page 15, line 35, at end insert—
("( ) References in this section to this Part of this Act include references to Schedules 1, 2 (Transitional provisions relating to payments under s. 9 in England and Wales) and (Transitional provisions relating to payments under s. 9 in Scotland) to this Act")—(Lord Beswick.)
On Question, Amendment agreed to.
Clause 17, as amended, agreed to.
[Clauses 18 to 20 deferred until Thursday, 21st March.]
Clause 21 agreed to.
Clause 22 [Amount of general drainage charge]:
On Question, Whether Clause 22 shall stand part of the Bill?
LORD INGLEWOOD: I gave notice to the noble Lord who replied to the Second Reading debate that I should like to raise several questions on this Part of the Bill, and on Clause 22 I wondered what sort of representations or appeal an individual could make, and whether the noble Lord was satisfied that there were limits under the Bill to the amount both of a general and of a special drainage charge which any river authority was in a position to raise. Furthermore, can the noble Lord give us an assurance that the change in basing these general and special charges from the now obsolete Schedule "A" assessments to this new system does not, in fact, create a valuation problem which is going to take a great deal of time before it is fixed and settled, or is going to throw up new problems, and so perhaps encourage us to look for yet a third basis of fixing these particular charges?
LORD HILTON OF UPTON: As the noble Lord, Lord Inglewood, would know, the whole basis of assessments has been changed and at the moment I have not the answers to his questions at my fingertips. But I think we shall be returning to this subject of drainage charges at the next sitting on this Bill, and, if the noble Lord will agree, it will be more convenient for me to delay giving him the information for which he has asked until the resumed Committee stage.
LORD INGLEWOOD: I will do everything possible to meet the convenience of the noble Lord provided I do not miss my chance of an answer to these questions; and I hope he will see that that does not happen.
Clause 22 agreed to.
Clause 23 [Amount of special drainage charge]:
4.51 p.m.
On Question, Whether Clause 23 shall stand part of the Bill?
LORD INGLEWOOD: Again, I gave the noble Lord notice that I was going to ask a simple question in regard to Clause 23. It was just to make clear whether it is within the power of a river authority to raise a special drainage charge on part of its area and whether, if it does in fact raise such a charge, it must do so over the whole of its area. This is most technical.
LORD HILTON OF UPTON: And for that reason I hope that the noble Lord will agree to the same arrangement as I suggested with regard to his other questions.
EARL FERRERS: With the greatest respect, my noble friend agreed provided that he does not lose the opportunity of raising the questions again. If the clause is put and agreed to, surely he has lost his opportunity. Might it not be for the convenience of the Committee if this clause were also postponed until the next time we meet as a Committee?
LORD BESWICK: We are in something of a difficulty. I understood the noble Lord to say that he had given notice to my noble friend, and in fact notice of these questions has not been received.
LORD INGLEWOOD: I was under the impression that I gave notice on Second Reading, and I assumed that these questions would be dealt with and that the Minister in charge of the Bill would be able to answer without difficulty.
LORD BESWICK: The noble Lord said that he proposed to ask certain questions. I am sorry if there is a misunderstanding here. I wonder whether the noble Lord would accept this from me. We had hoped to make progress on this Bill, excluding the Scottish clauses,
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and to adjourn at around 5 o'clock. If we reach the end of this section, it is quite right that this clause will be put. If I undertake to provide full answers to the noble Lord's questions certainly by Report stage would that be acceptable to him?
LORD INGLEWOOD: I think that is a bit hard. The noble Lord, Lord Hilton, and I were both concerned on the Committee on the 1961 Bill when it was discussed in another place, and therefore it is not completely novel to either of us. All that I was asking was for certain assurances on what I should have thought were quite simple points. I in fact went to great pains to say that I was going to do this, and I did not think I was going to present any difficulty, nor would I ask any question to which the answer was not straight in the brief with which some of us are familiar. I do not want to put noble Lords in any difficulty, but I think these points are such that it would help the people who ultimately have to pay these various drainage charges if there were quite clear and simple answers on the Record. I do not know quite what the noble Lord in charge of the Bill feels that he can do. I do not want to be difficult. I assured the noble Lord, Lord Hilton, earlier this afternoon that I had no intention of being difficult.
LORD BESWICK: The noble Lord has put his points, and I am afraid the detailed answers are not available. I am sorry, but I gather that the line of communication has not been so open as I thought it was. If the noble Lord does not wish this clause to be put, I think it would be convenient if we adjourned at this stage and resumed on Thursday.
LORD INGLEWOOD: If it were possible for all the answers to be given in a short composite speech by the noble Lord on the Question, That the clause stand part—I refer to the last clause in this Part of the Bill—I would raise no objection. Perhaps that would allow the noble Lord to make a little further progress.
LORD NUGENT OF GUILDFORD: I wonder whether I can help the noble Lord, Lord Beswick. As we have a few minutes left and there is still a further Part of the Bill with which we could deal, would it help the noble Lord if we agreed to postpone dealing with Part IV

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of the Bill, the land drainage section, until Thursday, and deal with Part V now in order to dispose of the single major Amendment which occurs there?
LORD CHAMPION: I do not want to be sticky about this, but at the outset of the business to-day it was decided to postpone only the Part of the Bill that deals with Scottish matters and nothing else. I should have thought that there is a little difficulty here. It seems to me that the noble Lord, Lord Inglewood, is entitled to an answer to his questions. I am bound to say that it looks to me as though the Department, on going through the debate on Second Reading, did not select this as they ought to have done, in order to brief Ministers with a reply to these points. I am rather disappointed that my old Department, with which the noble Lord was associated, have not in fact done this. I think we could well now adjourn this Committee stage of the Bill, which I understood was to be at 5 o'clock, at this point, and resume this Part of the Bill at a later stage. This will then permit my noble friend to have ready all the answers to the noble Lord, Lord Inglewood, who, from the way he has put the matter to the Committee, I am sure deserves the fullest possible answer. I rather hope that my noble friends will agree to this course, which I think in the circumstances would be a wise one.
EARL FERRERS: That may well be to the convenience of the noble Lord, Lord Inglewood. Like the noble Lord, Lord Champion, I was also under the impression that only Part III was to be postponed until Thursday. Speaking for myself, I have an Amendment down on Part V which, if we conclude the proceedings now, will not be taken until Thursday, when I cannot be here. I do not know what one can do about this.
LORD BESWICK: We were making good progress, and I am sorry that we have run into this problem, when we could have reached our target quite well. The noble Lord has said that his questions are simple ones. I had no knowledge at all of any notice being given to me, and I am informed that they are most complex in their nature. This is information which has just reached me, and it just is not feasible to give an
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answer off the cuff. I would therefore undertake to see that the answers are secured, but I could not possibly give them at this moment. Now we have reached the question as to how I can satisfy noble Lords opposite, who have been most helpful. We had hoped to adjourn round about 5 o'clock for the purpose of going on to other business, arranged through the usual channels, which would meet the convenience of others whose time is also limited. It is almost 5 o'clock. I wonder whether it would not be a more tidy arrangement that we should leave this here. Certainly the Clause 40 point which the noble Lord has in mind could probably be discussed at length on the Report stage.
LORD INGLEWOOD: I do not wish to be difficult if noble Lords opposite can find some way on Report stage of letting those who are going to pay these charges learn through Hansard what the position is it would be most helpful. I do not want to be the cause of any change of arrangements made through the usual channels but when I heard the noble Lord say that these were complex questions, I felt that in a sense I had been vindicated and could not be accused of raising small points to which one ought to know the answer. If they are as complex as the noble Lord says, that is all the more reason for our having some sort of answer. I will not press for any answer now if the effect is to hold up the business of the House.
LORD HAWKE: I think that my noble friend is being too accommodating. This is a case of an important Bill being considered on Committee stage, and for some reason or another the Minister in charge has not been briefed on the answers to some important questions. I do not think that we ought to jump one stage of the Bill to meet anybody's convenience. The solution suggested by Lord Champion is perfectly correct. It is now five o'clock, we should adjourn these particular clauses and receive an answer on the Committee stage. If my noble friend Lord Inglewood then wishes to put down an Amendment on Report stage, he will have his opportunity.
LORD NUGENT OF GUILDFORD: I wish to thank the noble Lord, Lord Beswick, for trying to meet all parties.

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It is not entirely possible to meet everybody's convenience. As my noble friend Lord Ferrers has indicated, he will be sadly put out by continuing the debate on this Part of the Bill on Thursday; but we are all servants of the House before our own convenience, and I am sure that we shall all accept the unofficial arrangement that to-day's Committee stage proceedings on this Bill should end at five o'clock. My noble friend Lord Inglewood has made his point. Our time has now run out, and I think we should agree to adjourn the debate now and continue it on Thursday.
EARL FERRERS: I also am grateful to the noble Lord, Lord Beswick, for suggesting that my Amendment might reappear at Report stage. I understand that it is necessary to have these arrangements through the usual channels whereby debates come to an end at a certain time. Unfortunately, sometimes the arrangements do not filter through to everybody, and I shall certainly be content, as I cannot be here on the second day of the Committee stage, to put down the Amendment on Report stage.
LORD BESWICK: I am grateful to everybody for the helpful spirit which has been shown. For the benefit of the noble Lord, Lord Hawke, I would say that it was not my own convenience which was being served; there were others to be considered—very busy people who are engaged in important business in serving their country, who were not able to get down here until about five o'clock. We hoped that we could use the time up to five o'clock. On the other hand, there are others from North of the Border whose clauses could best be discussed on Thursday, and we went to the trouble of postponing those clauses until Thursday. We were trying to come to a rather complicated arrangement. I feel that it would be better now if we adjourned. Therefore, I beg leave to move that the House do now resume.
LORD MERTHYR: I will first put that the debate on Question, That Clause 23 stand part of the Bill, be now adjourned until next Thursday.
On Question, Motion agreed to, and debate adjourned accordingly.
House resumed.

WILLS BILL
Brought from Commons, read 1a, and to be printed.

THEFT BILL [H.L.]
5.5 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 MERTHYR in the Chair.]
Clause 18:
False Statements by Company Directors, etc.
18.—(1) Where an officer of a body corporate or unincorporated association (or person purporting to act as such), with intent to deceive members or creditors of the body corporate or association about its affairs, publishes or concurs in publishing a written statement or account which to his knowledge is or may be misleading, false or deceptive in a material particular, he shall on conviction on indictment be liable to imprisonment for a term not exceeding seven years.
VISCOUNT DILHORNE VISCOUNT DILHORNE moved, in subsection (1), after "affairs", to insert:
"or to induce any person to become a shareholder or member thereof or to entrust or advance any property to such body corporate or association".
The noble and learned Viscount said: I think that it would be for the convenience of the Committee, and will possibly save time, if we discuss together the first four Amendments in my name on the Marshalled List. I beg to move the first one now, and, if need be, I shall move the others in due course.
Clause 18 of the Bill purports to reproduce Section 84 of the Larceny Act 1861. This matter is dealt with in paragraph 105 of the Committee's Report. Section 84 of the 1861 Act was—and I quote the Committee's words:
"originally intended for, and is primarily concerned with, fraudulent statements in prospectuses."
It is clear from the Committee's Report that that is what Clause 18 is intended to cover. I regret to say that it does not

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appear to me to do so. It seems to me to be far narrower in its scope than the section which it replaces, in one very important respect. Clause 18 makes it an offence only if the written statement or account is published with intent to deceive members or creditors of the body corporate or unincorporated association. But are not prospectuses commonly issued to induce members of the public to subscribe for shares? As Clause 18 stands, it does not appear to me to cover that. It covers only publication of a prospectus which is false in a material particular if the publication is with intent to deceive someone who is already a member or creditor of the company. I cannot see any reason for narrowing the clause and giving it a more limited application than the section which it is to replace. It is to make the clause apply also where the intent is to induce members of the public to buy shares that I have tabled this Amendment.
May I turn to Section 84 of the 1861 Act? That section makes the publication of a false prospectus an offence if published
"with intent to deceive or defraud any member, shareholder or creditor of such body corporate or public company".
That corresponds to Clause 18. But Section 84 goes on:
"or with intent to induce any person to become a shareholder or partner therein or to entrust or advance any property to such body corporate or public company".
There is nothing in Clause 18 which corresponds to that. It seems to me that the omission leaves a wide gap in the criminal law. My Amendment is designed to fill the gap and designed, as I think was the Committee's intention, to make Clause 18 correspond to, and cover the same area as, Section 84 of the 1861 Act. Incidentally, the clause itself does not refer in terms to shareholders, and I think that there is an advantage in using words which are generally understood; and the 1861 Act does so. No reason is given in the Committee's Report for narrowing the clause; and, if it is the intention to narrow it, I hope that we shall be told why it is done—if, indeed, there is any reason for doing it. The notes in Annex 2 say that the clause corresponds to Section 84. I hope that I have said enough to show why I think that that is not the case.
I should like to turn to the next Amendment, No. 38, which seeks to leave out the words "may be". The words in the section of the 1861 Act are:
"which he shall know to be false in a material particular".
I ask this question: is this clause intended to cover more than that? As worded it applies not only to the publication of a written statement or account, which the accused knows to be misleading, false or deceptive, but also to one which he knows may be misleading false or deceptive. May I also ask what is the intention behind the addition of the words "misleading" and "deceptive"? Either they add nothing to what is covered by the single word "false", or they extend the scope of the clause beyond that of Section 84. The Committee's Report is entirely silent about this, just as it gives no reason for the insertion of the words "may be". It was held in the case of The King v. Kylsant—a decision in this House in 1932—that a statement is false in a material particular, although no one specific statement of fact contained in it is false, if when taken as a whole what it implies is false on account of what it does not state. In the case of The King v. Bishirgion, decided in 1936, it was held that a statement may be false if there is an omission which makes that which is stated affirmatively untrue, in the sense that it creates clearly and intentionally an impression or belief in the mind of the public which is wrong.
I think it is now clearly established that the word "false" covers both a statement which is misleading and which is deceptive. Why then insert these words in this clause when they do not appear in Section 84 of the 1861 Act? If, as I think, they add nothing to the meaning of "false", surely it would be better to leave them out. If they are intended to add something, I should like to be told what in fact it is that they add. I should have thought that the courts would be likely to conclude that the words "misleading" and "deceptive" would not have been added by Parliament without good reason. But bearing in mind what the word "false" covers, as I have just said, I think it would be difficult to say what more the words "misleading" and "deceptive" in fact cover. For is not a deceptive statement a misleading one, and a misleading one deceptive? I should

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have thought that this was the case, but if I am wrong about that, wherein lies the difference?
I fear some of your Lordships may think that this is a somewhat hair splitting point to take, but in this Bill every single word used is of importance and will fall to be carefully considered by the courts. It is therefore essential that we should use the most precise language, and the clearest language, possible so as to leave the meaning not in doubt. It is one thing to establish that a man knew that what he was publishing was false. The questions which the jury will then have to consider in relation to that are: was this statement false in a material particular, and if so did the accused know it? As the clause stands, the questions which they will have to consider appear to be somewhat different. They will have to consider not only whether the statement was misleading, false or deceptive, but also: might it have been misleading, false or deceptive? If they answer that question in the affirmative, then they will have to go on to consider: did the accused know it might have been?
This seems to me to introduce a new element. Recklessness is not involved under the language of Section 84. A man may take the greatest care to state a complicated matter accurately, and not intending to convey any misleading impression, and yet an honest man might say that notwithstanding all the care he had taken he recognised that the statement might be misleading. No doubt the draftsman of this Bill has taken the greatest care to see that it is not misleading, but I think he might be prepared to admit that he knew that parts of it might be misleading. He might admit, for instance, that it was not readily apparent from subsection (3) of Clause 4 that if you picked a bluebell and pulled up the roots you might be convicted of stealing it. Of course a man could not be convicted under Clause 18 unless it was shown that he had an intent to deceive. But if he had such an intention he would publish a statement that was false, that was misleading, that was deceptive—not one that might be false.
Those are the reasons why I think the words "may be", "misleading" and "deceptive" would be better left out of this clause. They are not in the 1861
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Act, and although this clause is meant to correspond with Section 84 of that Act, as I have sought to show it does not appear to me to do so. I think the Committee thought it did, and I this k they were wrong in so thinking. I beg to move.
Amendment moved—
Page 8, line 16, after ("affairs") insert ("or to induce any person to become a shareholder or member thereof or to entrust or advance any property to such body corporate or association")—(Viscount Dilhorne.).
5.15 p.m.
LORD STONHAM: The noble and learned Viscount, Lord Dilhorne, moved Amendment No. 37A and suggested that we might consider in one discussion the next three following Amendments, and I am very grateful for that suggestion. I think he dealt with each one in turn, and I should like to deal with the matter in the same way. Clause 18 penalises a company director or other officer of a body corporate or unincorporated association who, with intent to deceive its members or creditors about its affairs, publishes a misleading, false or deceptive statement or account. The noble and learned Viscount quite rightly said that the provision which we are making here is intended to replace Section 84, of the 1861 Act, and on this point—the subject of Amendment No. 37A—he said that the Bill as it stands at present is far narrower in its scope than the provision which it is intended to replace. I accept that, but I do not accept that the Bill as a whole does not provide for a complete replacement of Section 84.
If it were accepted, Amendment No. 37A would widen the offence so as to apply to publishing a false statement with intent
"to induce any person to become a shareholder or member thereof"—
that is, a body corporate or association—
"or to entrust or advance any property to such body corporate or association".
As I understand the noble and learned Viscount, his Amendment would insert words similar to those included in Section 84 of the 1861 Act. But the Criminal Law Revision Committee, in revising Section 84, sought as usual in dealing with the 1861 and the 1916 Acts to get rid of repetitions or unnecessary provisions as they regarded them, and to

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simplify what in their view had to be preserved. The reason why they left out the words at present in Section 84 was that they thought this part of the offence under that section would be sufficiently covered by what is now subsection (1) of Clause 15, and with this the Government agree.
VISCOUNT DILHORNE: Would the noble Lord indicate where they said that in their Report?
LORD STONHAM: I cannot immediately inform the noble and learned Viscount. This I understand is the position.
VISCOUNT DILHORNE: The noble Lord said that the Committee expressed this view. I must say that I am not aware of anything in the Report which they published which expressed this view. I looked through it very carefully before putting down the Amendment, but I could find nothing in the Report to justify that statement.
LORD STONHAM: My understanding of the position (I will give the noble and learned Viscount such reference as I can when I can) is that subsection (1) of Clause 15 in fact covers a number of the Amendments which we are to discuss, and I would again ask your Lordships to consider that subsection. It says:
"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",
and so on. Then it goes on:
"For purposes of this subsection a person is to be treated as obtaining property if he obtains ownership, possession or control of it; 'obtain' includes obtaining for another or enabling another to obtain or to retain…"
The noble and learned Viscount then went on to deal with the "share-pushing" part of the offence. Publishing a false statement with intent to induce a person to become a shareholder or member, assuming, as one would, that the intent is that the person induced should pay for his shares or membership, will amount to obtaining or attempting to obtain property belonging to another, contrary to subsection (1) of Clause 15. Even if the money for the shares is to go not to the offender but to the company or to somebody else the case will
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still be covered, because under the provision to which I have referred "obtain" includes obtaining for another or enabling another to obtain; and if by any chance the person induced is not to pay anything for the shares or membership, there seems no strong reason why the conduct should be criminal—at least, criminal under the clause.
As to deception with intent to induce a person to entrust or advance property to the body corporate or association, this again will clearly fall under subsection (1) of Clause 15 if the offender intends to deprive the victim permanently of his property, which of course will ordinarily be the case. If not, then the conduct would fall under subsection (3) of Clause 15. The noble and learned Viscount may well say that, for the reason that the Amendment is consequential on the removal of subsection (3), it should be accepted, but I would say that the argument is still valid on the ground that for all practical purposes the conduct is covered by subsection (1) of Clause 15. But in any case it can be reconsidered in the light of the form which Clause 15 ultimately takes after the Report stage.
I would remind the noble and learned Viscount that the case will certainly be covered if subsection (1) of Clause 15 is amended, as he suggested on the fourth day, to bring in the words, "inducing a person to do or to refrain from doing an act". Apart from the offences under Clause 15 and Clause 18, which we are now considering, there will still remain the elaborate provisions of the Companies Act 1948 as to the information which must be given in circulars concerning new issues of shares and debentures, and the offences under the Prevention of Fraud (Investments) Act 1958 and the Protection of Depositors Act 1963.
On the point that the noble and learned Viscount raised about the reference by the Criminal Law Revision Committee to Clause 15, I now understand that the Report did not precisely deal with this point, but the Committee did not set out to deal in the Report with every point they considered. We know, because my Department was represented on the Committee and provided their secretaries, that their views were as I have given them.

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The second Amendment is to delete the words "or may be", and the noble and learned Viscount asks: are those words intended to cover more? The plain answer is that they are, because the point is that if those words were left out the effect would be that the prosecution would have to prove that the person concerned knew that the statement or account actually was false. As the clause is drafted, it will cover a case where the person concerned knows that the statement may well be false but has not troubled to check it or has deliberately shut his eyes to the possibility that it may be false. In our view, the clause as drafted, with the words "or may be" in, will cover statements made recklessly, whereas if the Amendment was accepted it would not.
It seemed to the Criminal Law Revision Committee, and it certainly seems to the Government, right that the clause should cover recklessness, and from the remarks which the noble and learned Viscount made I believe that he thinks so, too; but apparently there is a difference of opinion on this point about the actual effect of either leaving the words in or taking them out. We certainly think that it is necessary for the protection of the public to cover reckless statements. Although the corresponding offence under Section 84 of the Larceny Act 1861 does not cover recklessness, the analogous offences of fraudulently inducing persons to invest money under Section 13 of the Prevention of Fraud (Investments) Act 1958 and the Protection of Depositors Act 1963 apply to reckless statements which are misleading, false or deceptive; and the clause as it stands is therefore substantially similar in effect to those sections.
Finally, I come to the words "misleading" and "or deceptive", which, under Amendments 38A and 38B, it is proposed to leave out. The noble and learned Viscount said, "Surely they cannot have been added to the Bill without good reason". It is true that Section 84 of the 1861 Act refers only to a statement or account which is "false in any material particular", and here again the noble and learned Viscount mentioned the Kylsant case. That was a case under Section 84 of publishing a false prospectus, and the decision was that a prospectus may be "false in any material particular" if, taken as a whole, it con-
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veys something which is false even though no single statement in it is untrue. In our view it is clearly useful to incorporate this idea in the replacement of Section 84, and the words "misleading, false or deceptive", quite apart from being used in similar circumstances under two fairly recent Acts, convey this idea. They are also used for this purpose in the definition of the comparable offence of fraudulently inducing persons to invest money in the other Act I have mentioned.
In the Government's view, with this precedent before us the omission from Clause 18 of the words "misleading" and "or deceptive" might suggest that the offence is narrower than is in fact intended. I have endeavoured to answer all the noble and learned Viscount's questions, and I hope he will agree that I have done so.
LORD CHORLEY: I should like to say just a word or two about what the Minister has just said. I agree with him on this question of the use of the three words "misleading", "false" and "deceptive". I think the noble and learned Viscount has a very good case legally; and it is quite clear that on the Kylsant case and on other cases the word "false" has been given, and very properly given, a rather wider meaning than the ordinary layman might attach to it. But it is, I think, very important that as far as possible this Bill should meet the requirements of the ordinary layman; and to the layman what was said in the prospectus in the Kylsant case was, of course, true. It was simply that something important was left out. I have often found that even law students find it difficult to understand how a statement of which every word was true could properly be described as false. I entirely accept that in the Kylsant case it was a proper decision.
From the point of view of the person reading this Statute it might be better to have the additional words although possibly, from a strictly drafting point of view, they are not required. Therefore I would agree with the view put forward by the Minister for the retention of these words. I did not altogether agree with what he said about the words, "or may be". In effect he stated that a reckless statement of this kind ought to be punished. I will accept that; but it is difficult to get a connotation of recklessness

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out of the words "or may be". I should have thought it would have been better to have used the word "reckless" which is a good word in this connection. Moreover, it has been indicated by learned judges in a number of cases that a certain type of conduct when it becomes reckless is properly punished as criminal. If the draftsman means "reckless", then I suggest it would have been better to have used the word "reckless". The words "or may be" are much wider and do not necessarily connote recklessness at all.
There is another point. My noble friend referred to Clause 15(1) which to a large extent puts the present crime of obtaining by false pretences into the Bill. But there is one very important difference. In order to be found guilty of obtaining by false pretences under the present law, or, as I understand it, obtaining by deception, you have actually to obtain. The offence which is established by Clause 18 does not only punish this sort of conduct when it is successful. As I understand it—though it is possible that I have misread the words—it seems to me that the mere attempt to do this or the mere conduct which falls within the words used in the clause is enough to establish the offence. It certainly goes a great deal further than obtaining by false pretences under its form under the old Act or under its form under Clause 15(1).
It may be that in this type of case it is right to go further, because the use of false statements in connection with companies is a very serious business, and the sort of men concerned with these company statements are men who ought to know a great deal better than the ordinary kind of criminal who comes before the magistrates' courts or quarter sessions in the ordinary way. Therefore, it may be that it is right to have a much wider form of words in this case. I have not yet made up my mind about this; but it seemed to me that this was a point of some importance that I ought to mention to the Committee.
LORD HAWKE: May I ask the Minister two questions on this clause which would be of concern to the ordinary individual who may be the director or owner of a company just as much as to the lawyer? Clause 18(1) refers to a statement which may be misleading. It is extremely difficult sometimes when a
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company is making a statement about something, perhaps its profits for the past six months, to make a statement which some person may not twist round into meaning something different from what is intended. Could that be held to be "misleading", or is it a defence that he did not do this to deceive and that his intentions were honourable? Is that a perfect defence? That is my first question.
There has been great play made with tying-up this clause with Clause 15(1), which reads:
"A person who by any deception…obtains property…with the intention of permanently depriving the other of it…"
Some optimistic business people may make statements which they may believe but which may be misleading. They have no intention permanently to deprive a would-be lender of his property; they have every intention to repay it in, say, ten years. But one knows that through false optimism it has been a false, reckless and misleading statement. Is that the correct reading of this situation?
LORD STONHAM: So far as this particular matter raised by the noble Lord, Lord Hawke, is concerned, I would point out that the clause requires that it be a statement which "to his knowledge" may be misleading, false or deceptive. Therefore a person would not be guilty merely because the statement might be misleading, and so on, by an objective test. So far as the noble Lord's second question was concerned, again it must be by an objective test. But I am glad to have the support of my noble friend Lord Chorley in thinking that these words should be retained. It is curious; in the first of the two Amendments the Government were accused of being too narrow and I suggested that the other part is covered by Clause 15(1). On the other two points, it was suggested that we were going too wide. It may be that we have struck the happy medium.
5.36 p.m.
VISCOUNT DILHORNE: I wish I could take that view. It seems to me that the noble Lord has the worst of both worlds. That is the difference. If I may, I will now take the matters in reverse order, having heard what the noble Lord has said. It is quite true that you find the words "misleading and

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deceptive" in the Prevention of Frauds Act; but you do not find them in Section 84. I do not attach any great weight to that; but, personally, I should have thought it easier to explain to a jury the meaning of the word "false" (which is so clearly established) than it would be to explain the full meaning of these three words. However, that is a matter on which different views may be taken. But when it comes to the words "or may be", I was interested to hear the noble Lord say that they were there to introduce the concept of recklessness. I do not think that that is at all satisfactory as an explanation; because the way this clause is drafted does not bring that into one's mind at all. Speaking from memory (I have not looked it up), I think that the Prevention of Fraud Act uses the word "reckless". If it does, and if that is what is meant to be covered here, I think that a rewording of this clause is desirable.
But may I come to the part in which I am glad to have had the support of the noble Lord, Lord Chorley; that is, the first Amendment that I moved? I really think, with great respect, that Lord Stonham's reply to that Amendment was most astonishing. When one looks at the Report one sees in paragraph 105, line 2, the firm statement from the Committee that this clause "replaces 1861 s. 84." When one looks at the notes in the Annex one sees it stated in the clearest terms that—"The clause (it was then Clause 15) corresponds to"—those are the words used—"1861 s. 84". The noble Lord, Lord Stonham, gets up and admits straight away that it does not correspond. He says that it is narrower. He says that the part which is narrower is covered by Clause 15(1), and that that was the Committee's view.
There is nothing in this Report to indicate that the Committee had that view. We are now told that, because the secretaries of the Committee were in the Home Office, it was so. But I find that very difficult to accept—and I say so frankly to the noble Lord—because the offence created by Clause 18 is entirely distinct from the obtaining of property by criminal deception with intent to deprive under Clause 15(1). I am dealing with the intent of the conduct under Clause 18, and there the conduct which is made criminal is the publication of a written
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statement or account which to the knowledge of the maker of it
"is or may be misleading, false or deceptive in a material particular"
and the publication is with intent to deceive. The offence is the mere publication of a false, misleading document with intent to deceive, and the only question raised by my first Amendment is as to the extent of the intention.
Contrast that with the offence under Clause 15(1). Under Clause 18 the offence can be committed without any property being obtained, without any intention of permanently depriving anyone. The publication is the gist of the offence. All I am seeking to do is to make the scope of Clause 18 correspond to Section 84, because, as it now stands—and the noble Lord does not dispute it—"False statements by company directors etc." (that is the marginal note) can be prosecuted under this clause only if made
"with intent to deceive members or creditors of the body corporate…"
—that is to say, the existing shareholders. I cannot see that where a false prospectus has been issued to induce shareholders to join a company you can say that is the same offence as obtaining property by deception under Clause 15(1).
The noble Lord's argument goes neither one way nor the other. If he is right in what he says about Clause 15(1) he has demonstrated, I think, that the whole of Clause 18 is unnecessary. I should prefer, and I should have thought it desirable, that if we are to have a clause in a Bill which is stated to correspond to an existing section dealing with this subject, it ought to cover, as the existing section does, the publication
"with intent to induce any person to become a shareholder or member or to entrust or advance any property to such body corporate or association."
Those are words taken from Section 84 of the 1861 Act.
I am looking at this matter from the point of view of the practitioner. If you are considering under what clause the offence should be charged, and you find this clause dealing with false statements by directors, and you are familial with Section 84, and you have read the Committee's Report, you would expect to find this clause covering it. But it does not. And you are thrown back, so we are

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now told—you will not find any trace of it in the Committee's report—to Clause 15(1). I do not think that that will do. I hope that the noble Lord will think about what I have suggested with regard to the words "or may be". It really would be better, if you mean "recklessly" to say "recklessly". But with regard to my first Amendment, the present wording of Clause 18 does, to my mind, leave a serious gap in the existing law; and I am not in the least satisfied, so far, with what the noble Lord has said.
LORD STONHAM: With regard to the suggestion of the noble and learned Viscount that the words, "or may be" do not bring to mind the concept of recklessness, I think this is a matter of opinion. As it stands, the clause reads:
"Where an officer of a body corporate or unincorporated association…with intent to deceive members or creditors of the body corporate or association about its affairs, publishes or concurs in publishing a written statement or account which to his knowledge is or may be misleading, false or deceptive in a material particular…"
and so on. The very concept that, although to his knowledge it may be false in a material particular, yet he goes on and does nothing about it, is a virtual definition of recklessness. In my view, the whole concept is there.
VISCOUNT COLVILLE OF CULROSS: I think that my noble and learned friend Lord Dilhorne had a point. After all, the noble Lord, Lord Stonham, relied on, among other things, the 1958 Act, the Prevention of Fraud (Investments) Act, because that is where the words "misleading, false and deceptive" are found. But Section 13 of the Act says this:
"Any person who, by any statement, promise or forecast which he knows to be misleading, false or deceptive, or by any dishonest concealment of material facts, or by the reckless making "—
dishonestly or otherwise—
"of any statement, promise or forecast…"
Why does not the noble Lord follow both bits of the 1958 Act?
LORD STONHAM: It appears that my noble and learned friend the Lord Chancellor is going to join in the discussion, but I must just reply to this point. The noble Viscount, Lord Colville of Culross, said that his noble and learned friend
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had a point. The noble and learned Viscount, Lord Dilhorne, has had a point every time. My difficulty is that nobody in the Committee ever thinks that I have a point. So far, I have accepted three Amendments, and three Amendments have been carried against the Government. At no time have I declined to look at any point, or to consider it, but at no time has any noble Lord in the Committee ever said, "Yes, I think you are right" or even that I may be right—
VISCOUNT COLVILLE OF CULROSS: I have.
LORD STONHAM: I should hope—not because I concede that noble Lords always have a point which I always look at—that noble Lords will do me the same justice; and not be like Major-General Egerton in the Civil War who, before he went into action, used to pray to Almighty God "that we may be right because as Thou knowest, we shall never change our minds".
5.47 p.m.
THE LORD CHANCELLOR (LORD GARDINER): If I am allowed to join in, I would do so only to suggest that the words "or may be", which are very simple English words, may be better than "recklessly". I say that because of a case that I was in, which is referred to in Archbold at page 814. On the word "reckless", it says:
"In The Queen v. Bates—
this was in 1952—
"Mr. Justice Donovan ruled that the word 'reckless' in Section 12(1) of the Prevention of Fraud (Investments) Act 1939—"
now Section 13(1) of the Prevention of Fraud (Investments) Act 1958—
"was to be given its ordinary meaning and was not to be restricted to recklessness involving dishonesty and he so directed a jury.
"In The Queen v. Mackinnon in 1959 Mr. Justice Salmon expressed a contrary view and ruled that the word 'reckless' in the section referred to a dishonest or fraudulent statement as distinct from one which was made with an honest belief in its truth. Mr. Justice Salmon was assisted in arriving at this conclusion by the use of the term 'fraud' in the Title of the Act and by the fact that fraud is the essence of the other offences created by the Section.
"Mr. Justice Donovan's direction was approved by the Court of Criminal Appeal in The Queen v. Russell in 1953 but as in that case the jury had not been asked to return

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a verdict on account of containing the word 'reckless' this was admittedly obiter.
"In The Queen v. Grunwald and others"—
this was in 1960—
"Mr. Justice Paull said he could not entirely agree with either Mr. Justice Donovan or Mr. Justice Salmon and he directed the jury that before they could convict under the section they must be satisfied of three things: that a statement or promise was in fact made; that it was a rash statement to make or a rash promise to give; that the person who made the statement or promise had no real basis of fact on which to support the statement or promise."
A greater variety of judicial opinion one can hardly imagine, and this does not seem to me to suggest that the words "or may be" are frightfully complicated, whereas the word "recklessly" is frightfully simple.
LORD STONHAM: May I now continue what I was saying to the noble and learned Viscount? I do not think that he has made his point on "may be", and I do not think he has made his point on "misleading" and "deceptive". Of course, I will look at these words again, but I am bound to say that that is my view now. With regard to the point raised on Clause 15(1), there is a great deal to look at in what the noble Viscount said, and I will certainly do so. When he said that on my argument the whole of Clause 18 is redundant, I cannot agree. Clause 18 covers the part—the narrow part, if you like—of Section 64 of the 1861 Act, which is not covered by Clause 15(1), because there would or might be no obtaining of property. I hope that noble Lords will also look at these points.
VISCOUNT DILHORNE: I am not seeking to press the Committee to accept the words in the other three Amendments, though I think that they can be argued. I am not all that happy about the phraseology, and I am glad that the noble Lord has said that he will look at it. I agree about the difficulties in the construction placed on the word "reckless", but as it stands there does not enter into this any conception of "reckless". The really important Amendment is the first one. I hope the noble Lord appreciates that just as he seeks to defend the present clause on the ground that it applies even when there is no obtaining, I defend the Amendment because it is only to enlarge the intent to what it was in the 1861
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Act. In view of what the noble Lord has said, I do not propose to press the Amendment now. I hope that he will meet it, because I believe that it will be a great advantage to practitioners and others to find the law relating to false prospectuses so far as possible contained in one clause of the Bill, as it was in one clause of the Larceny Act. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 18 agreed to.
Clause 19:
Suppression, etc. of documents
19.—(1) A person who dishonestly, with a view to gain for himself or another or with intent to cause loss to another, destroys, defaces or conceals any valuable security, any will or other testamentary document or any original document of or belonging to, or filed or deposited in, any court of justice or any government department shall on conviction on indictment be liable to imprisonment for a term not exceeding seven years.
5.52 p.m.
VISCOUNT COLVILLE OF CULROSS VISCOUNT COLVILLE OF CULROSS moved, in subsection (1), to leave out "dishonestly, with a view to gain for himself or another or with intent to cause loss to another", and insert "for any fraudulent purpose". The noble Viscount said: Again it might be a good idea if we discuss with this Amendment the next Amendment in the name of my noble and learned friend Lord Dilhorne, and also the two Amendments to subsection (2), because the points are very similar.
In paragraph 106 of their Report, the Criminal Law Revision Committee say that Clause 18 replaces Sections 27 to 30 of the Larceny Act 1861. Some parts of those sections relating to stealing were taken out by the 1916 Larceny Act, but there remains a residue concerned with destroying, obliterating, defacing and concealing various documents. There is a number of other offences which the Committee say are mostly covered by the residue of these sections. They mention stealing, forgery, malicious damage and offences under the Official Secrets Act, and they give an example of a case which they thought might not be caught. They say:
"It seemed to us that it might provide the only way of dealing with a person who, for example, suppressed a public document as a

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first step towards committing a fraud but did not get so far as attempting to commit the fraud".
So the first subsection says, "for any fraudulent purpose". Here again in Clause 19 I want to pose the question of whether that is wider or the same as the financial test which Clause 19 produces in both its halves.
There is a rather obscure case on Section 30 of the old Act which concerns a document which gives a bailiff authority to go into a house and seize goods. If the intent of taking away that document was simply to deprive the bailiff of his authority, that would not be caught by the gain and loss criterion in the Bill. Perhaps a better test is to take an example, which may not be very common but could happen, relating to a will or some other court or Government document which relates to the guardianship of children. Suppose that a person destroys a will so as to prevent the provisions which appoint somebody guardian of certain children coming into operation. If the decision in Welham is right, and instead of destroying that will he had forged it, he would be guilty under Section 2(1)(a) of the Forgery Act of an offence and the penalty would be life imprisonment as a maximum, though I have no doubt that it would not be awarded. I do not think that that kind of case is covered by this clause. Clearly it is not covered by Clause 15(1), and the noble Lord cannot go back to that because children are not property. It is not covered by stealing or by the Official Secrets Act, and it is not forgery. It is dealt with separately.
If the Committee are right and it is an offence under existing law, it might be covered by malicious damage. I have done my research on that, and the only thing I can find is not satisfactory. We should have to combine Section 61 of the Malicious Damage Act, 1861, with Section 14 of the Criminal Justice (Administration) Act, 1914, with Section 1 of the Malicious Damage Act, 1964, and all that would happen, unless the will was less than £5, would be that an offender would only go to the magistrates' court and the maximum penalty would be two months or £5. Clause 19 says seven years' imprisonment. Just because this test of pecuniary gain or loss is put in, we have to fall back on another offence
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of a rather complicated nature which carries a very small penalty. I do not think that this is satisfactory.
My Amendment No. 42 relates to Section 32(2) of the Larceny Act of 1916. Here again we find that the old Act says, "with intent to defraud or injure any other person". Whatever one may think of the meaning of "defraud" in the context of the Larceny Acts. Section 32(2) goes farther than that and says, "or injury to any other person". Again the Bill which the Committee drafted replaces this with the financial test. I do not think that this can be right at all. I fancy that as a result there will be gaps left in the law. If your Lordships look at the definition of "valuable security" in Clause 19(3), I should have thought that it was perfectly possible that someone might under Clause 19(2) destroy or do something to a valuable security which comes within the prima facie meaning of this subsection, but do it not with a view to gain or intent to cause a loss but—the old case that we had before—to cover up a past defalcation. Then, of course, it is not an offence under this Bill. I would venture to suggest that it might easily be an offence under Section 32(2) of the 1916 Act, and that is said to be replaced.
Here are, I suggest, two lacunæ left in the criminal law by the insistence on this financial test in clause after clause of this Bill. I should be grateful if the noble Lord, Lord Stonham, would explain to me, if these lacunæ are in fact filled elsewhere in the Bill, how this is so, or why it is that the Government have now decided that offences of this sort shall no longer be criminal. I beg to move.
Page 8, line 29, leave out from ("who") to end of line 30 and insert ("for any fraudulent purpose").—(Viscount Colville of Culross.)
VISCOUNT DILHORNE: It might be convenient for the Committee to consider the alternative Amendment, No. 40, which is in my name, at the same time as this Amendment. They are both directed to the same point, and I should like to say a few words in support of what my noble friend has said. When one looks at subsection (1) one sees that that again is intended to produce what is contained in Sections 27 and 30 of the Larceny Act 1861; and, as my noble

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friend has said, both those sections contain the words "for any fraudulent purpose". I take it that the words "for any fraudulent purpose" really mean about the same as the word "fraudulent", and in this Bill "dishonestly" is intended to take the place of that word. That is made clear in paragraph 39 of the Report. So, to give subsection (1) the same scope as the sections in the 1861 Act, all we want is the word "dishonestly" or the words "for any dishonest purposes".
Again, as my noble friend has pointed out, we have these expressions, which are now familiar, "with a view to gain" and so on, and "with an intent to cause loss", meaning in each case financial gain or financial loss. It does not seem to me that it can be argued that this subsection corresponds with the sections that it replaces unless it is assumed that "any fraudulent purpose" is restricted to the purpose of securing monetary gain or of inflicting financial loss.
One gets no light on this point, I am sorry to have to say, from the Committee's Report, because all that the Report says is that this limitation is in accordance with the scheme of the Bill. I find it difficult to detect any scheme in these provisions. It may be thought that the observations of their Lordships in the Welham case in this House, which was a decision on the Forgery Act, do not apply in relation to the words, "with intent to defraud ", "fraudulent" or "for any fraudulent purpose" in the Larceny Act. I do not take the view that the same words used in different cases generally require to be interpreted differently. I take the Welham decision as being applicable generally to those words unless the particular context in which they are used shows that a different interpretation was intended in a particular section; and I cannot find it in these sections.
I think that my view is reinforced by what was said recently in the Court of Appeal in a decision on the Larceny Act, and not on the Forgery Act, in which the meaning of the word "fraudulently" fell to be considered, in the cause of The Queen v. Thorpe. There, Lord Justice Winn said that a person who entrusts property to another is—and I quote his words—
"defrauded if his property is applied in a manner which he to the knowledge of the accused would not have authorised."
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He later said:
"If the accused person had applied the property, money or other thing to a purpose and use which he well knew would not have been authorised by the depositor of it, then he has thereby, reacting knowingly and intentionally and not through any misconception of the material facts, defrauded the depositor."
So here, in a case on the Larceny Act, it was held that "defrauding" went wider than just "for the purpose of financial gain" or "causing financial loss".
This, I submit, supports the view that I have expressed, that this subsection in fact covers a narrower field than the section it replaces. Neither of the passages from the judgment which I have cited gives any support to the idea that the accused's conduct could be fraudulent only if its purpose was financial. The idea that there is an intent to defraud, fraudulent conduct, or a fraudulent purpose only when the purpose is to cause financial loss or gain emanates, I believe, from Cambridge, and is in my opinion a heresy. If, as I think. "for any fraudulent purpose" has a wider meaning than the language of this subsection, then this subsection ceases to cover conduct which up to now has been criminal, and a gap will be left in our law.
Assuming that I am wrong about this, I must go on to suggest that the effect of the subsection as it now stands is to make conduct which should be treated as criminal free from any criminal sanction. Should not a man who deliberately suppresses a will to obtain for himself custody of a child be liable to be convicted of a criminal offence? Should he not be caught by this subsection? As his purpose was not for financial gain or loss, as the subsection stands he will not be caught. If he forges a will for the same purpose, he commits a crime; if he suppresses an existing will for that purpose, he does not. That does not seem to me to be either logical or right. If he destroys an original document filed in any court of justice his object may not be financial; it might be to escape conviction for an offence. But unless it is financial, his conduct in destroying the document will not be criminal under this subsection. No doubt other examples could be given. It is for those reasons that I feel the language of this subsection is too narrow; too narrow for these

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modern times, and narrower, I believe, than the existing provisions in the 1861 Act.
I should now like to turn to subsection (2), about which my noble friend spoke at the same time. Here, again, we are told by the Committee that subsection (2) reproduces the substance of the offence under Section 32(2) of fraudulently procuring the execution of a valuable security. They say that the language has been altered so as to accord with other provisions of the Bill relating to offences of deception. It does not appear to me to be accurate to say that the language accords with the provisions of the Bill relating to deception when in Clause 15(1) you do not find the words "with a view to gain" et cetera. So here again we have what I have called the Cambridge heresy; and here again it is a particularly glaring instance, because whatever view may be taken of the words "intent to defraud", this Section 32(1), which purports to be reproduced in this subsection, says, as my noble friend pointed out:
"with intent to defraud or injure any other person ".
These are important matters; they are very detailed. I feel that here, as indeed on all these matters, we have established a case for the noble Lord, Lord Stonham, to answer.
LORD STONHAM: I agree with the noble and learned Viscount that it is a detailed case that he has put forward, and certainly it is a case to answer. While it is, of course, for Parliament to discuss and come to a decision on these Bills, and indeed it is a responsibility which we must discharge, I find increasing difficulty in grasping all the arguments and certainly the references to different Bills as they are spoken. Noble Lords have quite rightly done their research, but it is exceedingly difficult on the instant to get up and answer a case of this kind. Therefore, inevitably, except when I come to the conclusion immediately that a noble Lord is most certainly wrong and I try to prove it, I must always say that an argument will have to be looked at in detail; the written word will have to be carefully studied. I say that with regard to all these points.
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But, having said that, I will now try to answer to the best of my ability the points which have been raised. First of all, may I take Amendment No. 39 Moved by the noble Viscount, Lord Colville of Culross, to insert the words "for any fraudulent purpose". This is where I disagree. I understand that the broad purpose of the noble Viscount is to restore to the subsection, to attract to the subsection, as it were, the wide or wider meanings of fraud and intent to defraud which I believe are covered in the criminal law generally as a result of the decision in the forgery case, the Welham case, to which the noble and learned Viscount made reference. We debated earlier in Committee—
VISCOUNT COLVILLE OF CULROSS: I am sorry to interrupt the noble Lord, but I do not want him to get my own argument wrong. I am not saying, and I have never said, and I am certainly not in a position to say, whether or not Welham applies under the Larceny Act. Who am I to say that? All I am suggesting is that it may do, and there is some evidence to suggest that pure financial gain and loss is not the only essence of defrauding under the Larceny Acts. Therefore I am putting my Amendment forward only on the basis that it may be wider than what the Bill says. I am not trying to attract Welham.
LORD CHORLEY: May I add to that that there was a case in the Court of Appeal Criminal Division some months ago in which they used the Welham case; it was embezzlement, actually. So there is this possibility of the view taken in the Welham case being applied to this enactment when it is an Act.
LORD STONHAM: Do your Lordships see what I mean? This is the position we are in. But I want to seize on the one point arising from the noble Viscount's intervention. That is, in our view, the words which we now have in the subsection
"with a view to gain for himself or another or with intent to cause loss to another"
are for the same purpose as that for which the noble Viscount wishes to insert "for any fraudulent purpose", and they have, in our view, broadly the same effect and also, in our view, the merit of being clear. I know the noble

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Viscount objects to this, but the Government are firmly opposed to referring to "fraud" in the definition of any of the new offences precisely because of the difficulty which the word causes now in interpretation of the present law. Therefore we want to avoid the use of those words. The noble Lord said, quite rightly, that all our proposals in the Bill replace sections of existing legislation which include the words "for any fraudulent purpose". That is agreed. But we believe we have words which are somewhat better.
Reference has been made to the Larceny Acts, and I understood the noble and learned Viscount to say that the present clause here is not so wide as existing legislation is. He committed himself to the statement that the clause does not cover, or will cease to cover, conduct which is now criminal under the present law. He gave a number of examples, one being that if a man destroys a will he is not caught. I may have missed some qualifying words of the noble and learned Viscount. But in the words of the clause, if a man
"dishonestly, with a view to gain…or with intent to cause loss"—
VISCOUNT DILHORNE: The noble Lord is missing the whole point by inserting those words. I gave instances of where a man might for another motive destroy or suppress a will, and I pointed out that if he forged a will instead of suppressing an existing one he would be guilty of criminal conduct, but if he merely suppressed or destroyed an existing will with a motive other than that of financial gain to himself—and he might well have such a motive—he was not caught. The noble Lord misrepresents me, otherwise I would not have interrupted.
LORD STONHAM: I thought it possible I may have missed some words, and I said so, but the noble and learned Viscount knows that I would not knowingly misrepresent him.
May I try to deal with some of the points of the noble Viscount, Lord Colville of Culross, particularly about a will? He gave a hypothetical case, and indeed Lord Dilhorne also referred to a will. We do not believe that suppressing a will in order to obtain guardianship (which is a remote contingency, I would suggest) is covered by "fraudulent pur-
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pose" in the 1861 Act. This is the view we have, and this is one of the difficulties of a discussion of this kind. If I may invite comparison between what we are now proposing and Sections 82 to 84 of the Larceny Act, Clause 18 of this Bill, in our intention, only replaces Section 84 of the 1861 Act, and Section 84 goes wider than Sections 82 and 83, because each of them requires an intent to defraud, whereas Section 84 requires an intent to deceive or defraud; and it was because of the wide nature of the offence under Section 84 that the Criminal Law Revision Committee found it necessary to draw Clause 18 of this Bill (Clause 15 of their draft Bill) more widely than the offences under the Bill which depend on being committed with a view to gain or an intention to cause loss.
The noble Lord gave a hypothetical case which, as I understand it, he thought would be caught by Section 30 of the 1861 Act. Section 30 is concerned with court records and legal documents other than wills, and the appropriate provision in the law as it exists at present is in Section 29—
VISCOUNT COLVILLE OF CULROSS: That is right.
LORD STONHAM: —of the 1861 Act. An offence under Section 29 requires a fraudulent purpose, and the question of how wide the section is depends on the view taken as to the meaning of "fraudulent purpose" in the context of the Larceny Act. It may be that it would cover the noble Viscount's hypothetical case, but we do not think it has the wide meaning which in some quarters it is argued to have in the Welham case. On the other hand, if it is argued that Clause 19 is not wide enough, perhaps that argument tends to overlook that some of the things which it is desired to cover in it will probably be theft. For instance, if I take a will and burn it, whatever my motive for burning it, I shall almost certainly be stealing the will. It is true—and this is, I think, the noble and learned Viscount's point—that it might be possible to destroy a will without appropriating it, and therefore without an offence under Clause 1 of this Bill being committed, or there might be circumstances where it would be difficult to prove an appropriation; but in our view Clauses 1 to 19, taken together, do not

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seem to leave any serious gap, although of course I want to study the cases which the noble and learned Viscount suggested would not be covered. It seems to me, in the kind of case mentioned by the noble Lord, a remote possibility, if it arose, that a theft would not indeed be committed.
I will now turn to the further points made by the noble and learned Viscount and his reference to the Welham case as to the nature of an intent to defraud. For the reasons which I gave during earlier discussions, the Government are satisfied that the view that has been stated is not a correct view of the meaning of "fraudulent purposes" in the relevant sections of the 1861 Act, and it is relevant to say that those sections are headed by the words "as to larceny of written instruments", which in our view is a clear indication that they were intended to deal with conduct akin to larceny. I think I should also add that whatever the present law, we have tried to take the opportunity in this Bill to deal generally with the destruction and concealment of wills and other documents. But as with other clauses—and here the noble Lord does not agree—we think it is undesirable to widen the Bill without good cause, and in our opinion it would be wrong to do so because the alleged gap in the criminal law is outside the general field of theft and similar or associated offences covered by the Bill.
Some of the suggestions which have been made for amendment of the offences which it was thought they would cover might almost be taken to be outside the Long Title of the Bill. In any case, it is not clear that for practical purposes such cases as have been suggested by the noble and learned Viscount, Lord Dilhorne, any real gaps exist in this subsection as drafted. It has been said, and it may be said again, that it does not cover the dishonest destruction of a will or a share certificate out of spite, or some similar reason, but it is likely in such a case that there would have been intent to cause loss to another.
On the other hand, it does not seem to us appropriate that an offence under this subsection should extend to a person who dishonestly destroys any original document filed in any Government De-
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partment. I am quoting from the section, except that I am omitting words which are not directly relevant. That could make the subsection apply to a Government clerk who destroys a document in order to conceal the fact that he has delayed replying to it. We are quoting hypothetical cases, and that indeed is a fair one. In the first place I pointed out the difficulty of giving a complete, and certainly giving a highly satisfactory, reply, but I have done my best to cover as many points as possible, and I will certainly study closely everything that has been said.
VISCOUNT DILHORNE: Before my noble friend makes a further speech, as I am discussing my Amendment at the same time I should like to say that I appreciate that the noble Lord, Lord Stonham, is in a position of some difficulty and is doing his best to meet the many points that have been raised. I am sorry to disappoint him but I really cannot think his answer on this is satisfactory. It does not satisfy me. I am glad he is going to look at it again, but I should like to indicate now why I think it is unsatisfactory. He says that "fraudulent purposes" has the limited meaning of financial gain or financial loss, as if that were established by decisions. I do not think it is at all.
VISCOUNT COLVILLE OF CULROSS: Hear, hear!
VISCOUNT DILHORNE: And it is on that assumption that he says he does not think the cases instanced by my noble friend and by me were covered by the 1861 Act. That is an assumption for which I do not think there is any authority. That is the heresy which I am sorry to see the noble Lord has followed. This is fundamental; it goes to the root of this Bill, and this thesis which is put forward by the noble Lord has never been considered or discussed in the Committee's Report. One does not find a word about "fraud", "fraudulent purposes", "fraudulent intent", and so on, having this particular limited meaning.
Let us see what this thesis means. It means that when we find the very same words used in the Forgery Act they are to be given an entirely different meaning from the words when used in the Larceny Act. I find that difficult to accept. I do not think it is right, unless, as I have

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said, the particular context of the clause in which they are used shows that they are meant to be used with a different meaning. But putting these provisions in the Bill prevents any court in the land saying that "fraudulently" or "for a fraudulent purpose" in the Larceny Act means the same as it does in the Forgery Act. We are therefore making this clause much narrower than the existing law if the Welham decision applies also to the Larcency Acts generally, which I think it does.
I put my argument on another ground, which I do not think was followed by the noble Lord. This is a Bill to bring the criminal law up to date. We are not just trying to restate existing laws in different language; we are not saying that we shall not put something in here because it was not in the Act of 1861. I concluded my argument by suggesting that it really was illogical that a person could go to prison for forging a will if he forged it for a purpose that was not financial, but was not punished if he destroyed or suppressed an existing will, unless the motive was financial; and I was saying that, whatever may be in the 1861 Act, our existing law ought to cover those cases as well as the case where it is done for financial gain.
I know that the noble Lord is in difficulty about dealing with these points. I wish he had been a little more forthcoming in his answer. I think it would be a great mistake if this Bill were so worded as to exclude the possibility of its being held that the Welham case applies to larceny just as much as it does to fraud. Finally, when the noble Lord seeks to rely, as he did, on the wording of the old Act, and says that it shows that this offence is akin to larceny, I would ask him to bear in mind that there is nothing in the definition of "larceny" which supports the view that it must be with a view to gain or causing financial loss.
LORD CONESFORD: I shall not detain the noble Lord for more than a moment. What strikes me about this clause as it is now drafted is that it is obviously too narrow. Clearly, if you destroy or deface a will for a wholly improper motive, such as was given in an example by my noble friend Lord Colville of Culross, that ought to be within the criminal law. I offer this
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only as a suggestion: if the word "fraudulently" will not do, and the word "dishonestly" will not do, I wonder whether he would consider the possible use of the word "maliciously"—with an improper motive. It strikes me that if the words "fraudulently or maliciously" were used it might possibly meet some of the problems that have been raised.
LORD STONHAM: I should like to make it clear that when I mentioned that some offences, in my view, should not be in this Bill, I was not suggesting they should not continue as criminal offences. The noble and learned Viscount said just now that I was suggesting that fraudulent purpose depended only on gain or loss. I do not believe that. He said I appeared to have swallowed that heresy. It is one heresy I have not swallowed. The only suggestion I would make is that I believe this Bill may not be appropriate for some of these offences. That is all. If I am wrong, I will come back and say so. The noble and learned Viscount said that this is a Bill to bring the criminal law up to date. Indeed it is. There are some things we have not even discussed because everybody is in agreement. Great strides have been made in bringing the law up to date—penalties and so on. I should not like it to go out that because there has been a good deal of criticism of this Bill we do not agree, broadly speaking, that it does make great strides forward.
VISCOUNT COLVILLE OF CULROSS: I hasten to give the noble Lord, Lord Stonham, a point as soon as I possibly can, and of course I concede that one. Would the noble Lord think about this? First of all, he did not deal with subsection (2). I shall not go over the arguments or move the Amendment when it comes up. There it is "defraud or injure". What does the existing law mean there? It is not just "defraud", and therefore it is not just whatever limited ambit that is meant to cover under the existing law. Parliament has already given it a wider definition, and here it is being cut down. We are faced with the position that my noble and learned friend envisaged: that we shall have until such time as we produce another Bill, with perhaps another subject matter, this very strange situation that forgery of a will with non-financial interest will

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be a severely punishable offence and the suppression of a will with the same interest will be no offence at all.
I fully accept that there may have to be a limit on what is in the Bill, but would the noble Lord, Lord Stonham, look at the repeals? All we are asking is to avoid leaving lacunae. There may or may not be lacunae, but what the Bill does is repeal the whole of the 1861 Act and the whole of the 1916 Act. There is no room left for consideration whether or not these offences ought to be wider than they are in the Bill. There will be no criminal law governing it at all, unless I am quite wrong in my researches. If the noble Lord wants to limit his Bill to financial gain and loss, let him do so, but not repeal all the old law on the subject. Let us go on having a criminal code which deals with these anomalous cases, and which in due course will be replaced by some new Bill or series of Bills which fill up the gaps. If we are going to accept this financial limitation clause after clause in this Bill, there must be an undertaking by the Government to consider the whole matter of repeals. I am sure the noble Lord would be prepared to accept that, and I am sure the noble Lord sees the significance of what I am saying, in view of the last speech he made. If the noble Lord will say that he will take that into account (he need only nod his head) I think we have got as far as we can on Clause 19 this afternoon; and I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
VISCOUNT DILHORNE VISCOUNT DILHORNE had given notice of an Amendment, 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: I do not propose to move this Amendment, in view of the clear assurance the noble Lord has given to reconsider the points I have made.
VISCOUNT DILHORNEhad given notice to move, in subsection (2), to leave out the same words. The noble and learned Viscount said: I do not move this Amendment, for the same reason.
Clause 19 agreed to.
Clause 20:
Blackmail
20.—(1) A person is guilty of blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces; and for this purpose a demand with menaces is unwarranted unless the person making it does so in the belief—

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

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

(2) The nature of the act or omission demanded is immaterial, and it is also immaterial whether the menaces do or do not relate to action to be taken by the person making the demand.
6.35 p.m.
VISCOUNT DILHORNE VISCOUNT DILHORNE moved, in subsection (1), to leave out "A person is guilty of blackmail if, with a view to gain for himself or another or with intent to cause loss to another" and insert:
"obtaining any property or valuable thing or the execution, acceptance, endorsement or alteration of any valuable security or to inducing a person to do or refrain from doing any act".
The noble and learned Viscount said: I think it might be for the convenience of the Committee if Amendments Nos. 43A and 44 were discussed together. They raise one issue in relation to this clause, and it is a distinct issue from that in No. 44A in the name of the noble Lord, Lord Stow Hill, and my noble friend Lord Colville of Culross. May I say at once that I think it would be a great improvement to have just one clause dealing with what is commonly known as blackmail, but if we are to do so it is very desirable and very important that it should be what one might call a pretty comprehensive clause. One criticism of this clause is that it is not sufficiently comprehensive. You can surely blackmail to induce a course of conduct, to make a person do or refrain from doing any act, and this is, in part, recognised in the Sexual Offences Act 1956, for by Section 2 of that Act it is made an offence to procure a woman by threats, by intimidation, to have unlawful intercourse. If this clause stands as it is, it will not be an offence to procure by blackmail the consent of an adult to an act of homosexuality.
If one looks at the existing sections which this clause is intended to replace,

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one finds that under Section 29(1)(i) of the Larceny Act uttering any letter or writing demanding of a person with menaces and without reasonable proper cause any property or valuable thing is an offence. And subsection (1)(ii) of that section makes the sending of a letter accusing or threatening to accuse a person of a serious crime or of soliciting homosexual conduct if done with intent to extort or gain any property or valuable thing an offence. Section 29(2) deals with blackmailing someone to execute or alter or destroy a valuable security, and there we have the words again "an intent to defraud or injure any person", which must be wider than the words, "with a view to gain to himself or another or with intent to cause loss to another", because this is limited to financial gain and financial loss.
It is clear, I would suggest, that under Section 29 of the Larceny Act what is commonly called blackmail is not restricted to blackmail for a financial purpose. This Clause 20 is Section 31 of the Larceny Act makes an offence a threat to publish libellous matter, with intent to extort a valuable thing, and also an offence if done to induce any person to confer or procure for any person any appointment or office of profit or trust. So there we have the existing law giving an instance of blackmail to induce a course of conduct, which is made a criminal offence. This particular clause does not extend to cover blackmail to induce a course of conduct unless the purpose is financial gain or loss. I ask the noble and learned Lord, the Lord Chancellor, who I understand is going to reply, why this limitation of the existing law?—because that is really what it is.
Some offices give great status and even in these days are without financial rewards. The Chairman of the British Museum Trustees holds a position of great status. And I wonder if anyone holds the view that blackmail to procure the appointment of someone, or to prevent someone from getting promotion in a business, should not be criminal and dealt with by this Bill. A man who gets no promotion will suffer no financial loss, unless the failure to get the money he would have got if promoted can be regarded as financial loss. I rather doubt whether it can be. When a man says
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that he has lost so many pounds on a day's racing, one does not understand by that that he is including the amount he would have won if the horses he had backed had passed the post first. Should it not be made clear in this clause that blackmail, not just for financial gain or to cause loss, but also to induce any person "to do or refrain from doing" an act, is criminal?
May I turn again to the Report of the Committee? At paragraph 117 they say that "gain is ordinarily the purpose of blackmail". By that they mean, presumably, financial gain. While I would not question that statement, surely it is true to say that financial gain is by no means the sole purpose, or always the purpose, of blackmail. Why should not this clause cover other forms of blackmail as well? The paragraph reads:
"Gain is ordinarily the purpose of blackmail, and in this respect the offence would correspond to criminal deception, which seems right".
When one looks at the offence of criminal deception in Clause 15(1) one sees that it does not correspond.
The Committee then go on:
"It seems right also that the offence should apply to making a demand with intent to cause loss to another."
The Committee give an example. They say:
"A person might threaten to do something unpleasant to another if he would not destroy letters."
It is rather a novel conception to me that the destruction of letters always involves financial loss. The publication of old love letters may be quite embarrassing. Could the threats of a man who was extremely unpleasant to his former mistress if she did not destroy letters he had sent her be regarded as menaces with a view to financial gain or to causing financial loss? Unless it could, it will not be covered by this clause. Yet, as I understand the Committee's Report, they wanted cases of this kind, of which they gave this example, to be covered. As it stands, the clause does not seem to me to do so.
So I propose by my Amendment that these words should be left out and words should be inserted in their place, so that the clause would read:
"A person is guilty of blackmail if, with a view to obtaining any property or valuable

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thing or the execution, acceptance, endorsement or alteration of any valuable security or to inducing a person to do or refrain from doing any act…"
and so on. If the Amendment were made I think that this clause in this respect would cover much the same field as the provisions of the Statutes which it replaces. Indeed, I have sought to adapt my Amendment to these old provisions. I have put it more generally by saying:
"inducing a person to do or refrain from doing any act"
and I should have thought that there were advantages in so doing. I have not limited it to seeking to use menaces for the purpose of seeking to secure promotion or an appointment or to stop someone being appointed. I have dealt with this matter as shortly as I can. I beg to move.
Amendment moved—
Page 9, line 10 leave out from beginning to ("he") in line 11 and insert the said new words.—(Viscount Dilhorne.)
VISCOUNT COVILLE OF CULROSS: I need say only a few words, because my noble and learned friend has covered this field in rather fuller terms than I think I should have been able to. I am afraid that my Amendment on this point, No. 44, is defective, but the object was quite simple. It was to point out what seemed to me to be perfectly plainly an instance in the existing law, under Section 31 of the Larceny Act 1916, which is being replaced, where the test could quite clearly not be confined only to financial gain and loss; and I wanted to know why it was that the Government wished to confine the law in the way this Bill does.
A trust need not be paid; an office of trust need not be paid. At the present moment, it is covered by blackmail. Under the Bill it would not be covered by blackmail. There must be a reason for the change. None is given in the Report. None was given, so far as I know, in the reply to the Second Reading debate. It may be the right thing to do. But I should have thought that either we decide to leave all the matters in the present law which do not concern themselves with gain and loss as they are, to be dealt with by other legislation, or we insert a proper and comprehensive new provision in this Bill. If there is some part of the existing criminal law which is not being re-
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placed, I greatly hope that the noble and learned Lord will say why.
6.46 p.m.
THE LORD CHANCELLOR: Before I reply it would help me to know—because the noble Viscount says that he knows his Amendment is defective, and I have not the faintest idea about it—what it is supposed to mean. The words of the existing section are:
"or to induce any person to confer or procure for any person any appointment or office of profit or trust."
The noble Viscount's Amendment says:
"any appointment of office or trust."
I simply do not know what it means.
VISCOUNT COLVILLE OF CULROSS: It is perfectly true that my Amendment is quite defective. I am simply concerned with the trust. I am concerned with the procuring, or inducing a person "to confer or procure for any person any trust". That is something that may not be paid. That is the point that I am making. It may not be paid. There may be no financial involvement at all, so far as I can make out.
THE LORD CHANCELLOR: I am much obliged. This is an important clause which we have not seen before. In the interests of time, I will not read Sections 29, 30 and 31 of the Act which are our present laws and how extraordinarily complicated they are, trying to embrace every conceivable kind of thing! The Committee found that they were obscure and most complicated. Of course, the first of these, which is in Section 29(1)(i) of the Act, is the offence of uttering
"any letter or writing demanding of any person with menaces, and without any reasonable or probable cause, any property or valuable thing."
Then, subsection (1)(ii) and (iii) deal with accusing or threatening to accuse a person of any of certain serious offences with intent to extort or gain any property. Subsection (2) deals with compelling or inducing a person, by force, or by accusing or threatening to accuse him of certain serious offences, to execute a valuable security. The offences under this section carry life imprisonment.
Section 30 applies to any person who
"with menaces or by force demands of any person anything capable of being stolen with intent to steal the same".

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The penalty there is five years' imprisonment. Section 31 applies to publishing or threatening to publish any libel or other matter with intent to extort or to procure an appointment for anybody. That carries only a two-year penalty.
As a result of the way in which the courts have interpreted "menaces" in Section 29(1)(i) the scheme of the offences in Sections 29 to 31 has become altered. Originally, in the corresponding earlier legislation, the word was understood to refer only to threats of personal injury or damage to property, and the offence was more akin to robbery; it had nothing to do with blackmail, in the sense of threatening to publish discreditable information about a person. Blackmail in the ordinary sense was dealt with mainly under Section 31. Since then, the courts have given an extended meaning to "menaces" in Section 29(1)(i), so that it covers almost any kind of threat.
While this has the result that blackmail, provided that the threat is contained in a letter or other document, is punishable with imprisonment for life, it is not entirely satisfactory because the words "without any reasonable or probable cause" give but little guidance as to when it is justifiable to use threats in support of legal or other honest demands.
Another result of the wide meaning now given to "menaces" in Section 29(1)(i) is that it completely covers Section 29(1)(ii), which applies to uttering a letter accusing or threatening to accuse a person of certain serious offences, and also most of the other provisions in Sections 29 to 31 so far as written threats are concerned. The offence under Section 30 depends on demanding with menaces or by force with intent to steal. Here also the courts have interpreted "menaces" to mean practically any threat, so that the offence under the section has been turned from what was, in effect, attempted larceny into blackmail.
The next difficulty about the existing law was the vagueness of the expression "without any reasonable or probable cause". The learned members of the Committee will remember a case involving the Motor Trade Association who maintained price maintenance, which in those days was perfectly lawful, and the Motor Trade Association were a most
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respectable body. They maintained prices in this way. If you joined you had to comply with the rules; if you sold under the maintained prices, you could be fined. If you did not pay the fine you could be put on the stopped list and would not get supplies from manufacturers.
The perfectly respectable secretary of the Motor Trade Association was prosecuted because they said that for him to write to people who had broken the rules and say, "If you do not pay £100 you will be put on the stopped list" was blackmail. He was convicted and the conviction was upheld in the Court of Criminal Appeal. In a subsequent civil case before the Court of Appeal the Court said that that was wrong and that it was not blackmail. The Court of Criminal Appeal said they would go on following their own decision. The matter was ultimately put right in the House of Lords, in Thorn v. Motor Trade Association, when it was held that the civil Court of Appeal was right and that the Court of Criminal Appeal was wrong, and that it was not blackmail.
Another anomaly in the present law is illustrated by the contrasting cases of Dymond and Bernhard. In Dymond a girl wrote a letter threatening to summon the prosecutor for indecently assaulting her. She was charged with uttering a letter, contrary to Section 29(1)(i). The trial judge refused to allow her to give evidence in support of her complaint of indecent assault and she was convicted. The Court of Criminal Appeal affirmed the decision. The decision proceeded on the basis that she had no reasonable or probable cause for making the demand, and that her belief that she had a reasonable or probable cause would not be a defence.
In Bernhard a Hungarian woman orally threatened a married man in England that unless he paid her money which she claimed he owed her under an agreement, in consideration of her having been his mistress, she would tell his wife and the Press of the association. She had previously consulted a Hungarian lawyer who had advised her, wrongly, that the agreement was legally valid—as it would have been in Hungary, but it was illegal in England. As there was no written threat she was prosecuted under Section 30 for demanding money with menaces

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with intent to steal. The defence was that there was no intention to steal because there was a "claim of right" on account of the agreement. The trial judge directed the jury that there could be no claim of right in such a case because there was no right to make the demand, and the accused was convicted. The Court of Criminal Appeal, however, quashed the conviction, on the ground that her belief that she was entitled to the payment was a claim of right, so there was no "intent to steal".
As the Criminal Law Revision Committee pointed out in paragraph 114 of the Report, the effect of these decisions is that a mistaken belief in the existence of a reasonable or probable cause is not a defence to a charge under Section 29(1)(i), but a mistaken belief in a claim of right is a defence to a charge under Section 30. They had come to the conclusion by this time that the law was so confused and unsatisfactory that it was necessary, as they said, to go back to first principles and to consider, looking separately at the two ingredients of the "demand" and the "threat", what kind of conduct should amount to blackmail. It seemed reasonably clear to them that the offence should include at least making an improper demand of a financial character, accompanied by threats; and that it should apply to a threat to injure a person or damage his property unless he paid something to which the person who made the demand did not pretend to be entitled. There was also, the Committee thought, no doubt that it should be blackmail for a person to demand something merely as the price of not revealing some discreditable conduct of which he happened to know. The difficulty arose where the person who made the demand thought that he had a valid claim.
So far as concerns the subject matter of the demand, the Committee's view was that an offence should be committed where the demand was made "with a view to gain" or "with intent to cause loss to another"; and subsection (1) provides accordingly. Gain is ordinarily the purpose of blackmail, and in this respect the offence will correspond to criminal deception. It also seemed right that the offence should apply to making a demand with intent to cause loss to another, without a gain for the offender, since although
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this would be unusual it might occur. Provided that the element of gain or loss is present, the subsection makes no distinctions as to the subject matter of the demand; the Committee considered that to preserve the distinctions in the present law in this respect would be inconsistent with the policy of creating uniform offences.
In relation to the Amendment proposed by the noble and learned Viscount, the objection to his previous Amendment, the one that has not been moved, was that it proposed the deletion of the words "with a view to gain for himself or another or with intent to cause loss to another" in Clause 20(1), which would have made the clause undesirably wide. The arguments against that Amendment apply equally to the present Amendment because of its inclusion of the words "to do or refrain from doing any act". Those words cover everything covered by the preceding words of the Amendment, because the Amendment is first of all very specific and narrow, then very wide. It seeks to insert, in place of the existing words:
"obtaining any property or valuable thing or the execution, acceptance, endorsement or alteration of any valuable security…"—
that is getting somebody to hand this over. But the phrase,
"or to inducing a person to do or refrain from doing any act"
seems to include everything which precedes it, and to be enormously wide. If the proposed Amendment were made, the blackmail offence created by the Bill would go far wider than the existing law, since it would apply to acts which contained no property element; and threats of all kinds for all sorts of purposes would be criminal unless—
VISCOUNT DILHORNE: Does the noble Lord say that the existing law does not apply in relation to an appointment to a trust, to acts which do not involve property?
THE LORD CHANCELLOR: I have not yet come to the Amendment in the name of the noble Viscount, Lord Colville of Culross.
VISCOUNT DILHORNE: I made that point in my speech.
THE LORD CHANCELLOR: Yes, I will deal with that point, because it arises

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directly on the noble Viscount's Amendment. If the proposed Amendment were made the blackmail offence created by the Bill would go far wider than the existing law, since it would apply to acts which contain no property element; and threats of all kinds for all sorts of purposes would be criminal unless the person making them believed, and so on.
It may be said that the limitations of the existing law are no argument against extending the offence created by Clause 20 to conduct, not now criminal, which would commonly be regarded as blackmail. But not only would the offence then extend to conduct which had nothing to do with property, and was therefore outside the scope of the present Bill; it would extend also to conduct which might or might not be morally reprehensible but which probably ought not to be criminal at all, and certainly should not carry a penalty of fourteen years' imprisonment.
I think one has only to think for a moment to realise how often people say "if you don't do so-and-so, I shall do so and so"—or, in the words of the Amendment, "refrain from" doing something. In some cases it would make blackmail co-extensive with rape or attempted rape. It would be both rape and blackmail to procure sexual intercourse by threats.
Again, it is so wide that it might be blackmail to demand that someone should resign from a society or club under threat of exposing his misconduct. It seems clear that it would be unwise, without a study in depth of the implications of any change in the law, to extend blackmail beyond the restricted compass recommended by the Criminal Law Revision Committee. Blackmail is in its essence a crime of dishonesty. The almost invariable object is to get money. That is what people ordinarily mean by "blackmail". The Committee have covered the case of causing somebody loss rather than money necessarily being handed over to a blackmailer. But once you go outside that, and, having seen somebody cheating at cards in your club you say to him, rather reasonably I should have thought, "I do not want to get you into trouble, but unless you resign I shall be bound to tell the committee what I saw", and once you get away from the field
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of doing it dishonestly for the purpose of gain or in some cases for the purpose of causing loss to somebody else, then you widen the field enormously.
It is quite right to say that there is one case which was covered by the previous law but which is not now covered, and that is the question of appointments. The words which I think the noble Viscount meant to put down are broadly similar to those in Section 31 under which any person who with intent
"to induce any person to confer or procure for any person any appointment or office of profit or trust…publishes or threatens to publish any libel upon any other person…or threatens to print or publish…or prevent the printing or publishing of matter touching on any other person"
is guilty of an offence punishable with two years' imprisonment.
VISCOUNT COLVILLE OF CULROSS: I meant to put down exactly those words. I simply meant to reproduce the existing law.
THE LORD CHANCELLOR: That is what I imagined. The insertion of the words in the Amendment does not seem necessary. If a person blackmails to procure for himself or another any appointment or office of profit or trust which carries a remuneration or some other financial advantage, it will have been done "with a view to gain for himself or another" and will be covered by the clause as drafted. The words which it is proposed to insert would therefore extend the clause only to cover unwarranted demands with menaces to procure unremunerative appointments. Even if this should occur, it seems that most likely people would regard it as reprehensible, but not criminal.
I am quite prepared to consider this matter again, but what I cannot accept is that what has been called the theme of the Bill—that when we are dealing with dishonesty we want to see whether somebody is doing something for gain or possibly to cause other people loss—is something which comes from Cambridge. This Report is a unanimous report of 17 lawyers, 7 High Court Judges of great experience in criminal cases, the Director of Public Prosecutions, the Chief Magistrate and the Common Serjeant. The noble and learned Viscount, when my noble friend referred to the Home

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Office, said that there was a Home Office secretary. It was not a Home Office secretary; it was Sir Kenneth Jones, the head of the Legal Department of the Home Office.
VISCOUNT DILHORNE: I think the noble Lord, Lord Stonham, said that the secretaries came from the Home Office. I was quoting his words.
THE LORD CHANCELLOR: I am sorry. I thought he said that the Home Office were represented on it. But on this point I should have thought that one wanted to see how often this sort of peculiar case arose. I honestly do not know what a trust is, but somebody blackmails somebody in order to get an appointment—I think I understand that. An office of profit I understand. I suppose an office is some unpaid appointment or trust, whatever that means, and the question is: Is it worth covering?
All I can do, not having the enormous experience of the Committee, is to look at every case which had ever been decided under the old Section 31. When I say "had ever been decided", I mean of course "had been reported", because those are the only ones I can know about. Now, for over a hundred years, only two cases have ever been reported at all under the section and neither of them deals with this point in any way at all. One was The King v. Menage, which was in 1862. The headnote reads:
"Where a person indicted under the Statute for feloniously sending a letter threatening to accuse the prosecutor of an infamous crime with an intent to extort money, both the threat and the intent may be inferred, even against the declarations of the prisoner at the time and in the absence of express proof from the letter itself, from his previous and contemporaneous and even his subsequent conduct and from expressions of third parties".
That does not seem to help at all. I expect the noble Viscount will take it from me that the other case does not help either, as it deals with whether a libel has to be in writing or whether it can be orally.
If the noble Viscount will find me any reported case under this section of blackmail ever having been used in relation to an appointment or office which is unpaid, then that would raise some case for saying that it might be desirable to retain this provision, but the Committee's
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view seems to have been that it was not really worth while keeping it. I do not know what inquiries they made themselves about whether it was worth keeping this, but unless the noble Viscount can find some case it seems sensible to accept the Committee's view about it. It would be a very extraordinary thing— would it not?—for somebody to blackmail somebody else in order to get a wholly unpaid office, although it could happen. I could conceive somebody going to the Prime Minister and saying, "Unless you make me Lord Lieutenant of Surrey I am going to reveal something unpleasant which I know about you." But it does not seem to happen in real life, and for those reasons I should have asked the Committee not to accept the Amendment. But this is just the sort of point which one would like to consider and, in view of what has been said about Cambridge, ask other members of the Committee, "Do you still feel that you were quite right about this, and have you in all your experience found any cases where people have blackmailed in order to get some unpaid office?" From that point of view one would like to consider it again.
VISCOUNT COLVILLE OF CULROSS: It is very easy to make this into a joke, and I suppose that the joke really lies at the door of Parliament in 1916. It is not my fault that I suggested these words; they are in the Act of Parliament now. I really approach this matter from a rather different point of view from that of the noble and learned Lord the Lord Chancellor. I am not suggesting that anybody goes to the Prime Minister and tries to blackmail his way into an unpaid position. What I mistrust is this fundamental reliance, in clause after clause of this Bill, on financial gain and financial loss and nothing else.
When I find that there are criminal acts, although they may be obscure in the existing law, which are outside those definitions, and I find not one single, solitary word in the Criminal Law Revision Committee's Report to explain why they are proposing to change the law, why they are proposing to narrow the criminal law, why they are proposing to abolish those criminal offences, then I am afraid that I am suspicious. I cannot help it if there were 17 extremely

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eminent lawyers of one sort or another who sat upon this matter. I consider it to be the job of this House and of Parliament as a whole to see whether this Bill is right. Therefore I am afraid that I am not in the least repentant about bringing this matter forward, and I should like the noble and learned Lord the Lord Chancellor to consider it in the whole terms—not only the terms of this Amendment, but in the terms of the Amendment of my noble and learned friend Lord Dilhorne—because I do not think it can be taken on its own.
LORD HAWKE: May I ask the noble and learned Lord whether he could give an assurance to somebody who is not a lawyer? Can he give an assurance that somewhere in this Bill it is a criminal offence for, for instance, a producer to say to a leading lady, "I will give you a part if you live with me", or similarly with two males, even though the acts demanded were not criminal in themselves?
THE LORD CHANCELLOR: No, it does not. This is a Bill dealing with crimes of dishonesty. The circumstances to which the noble Lord, Lord Hawke, refers, if there were threats of that kind, would amount to rape; and indeed it is one of the objections to the Amendment of the noble and learned Viscount, Lord Dilhorne, that we should then get duplication. But it certainly would not be covered by this. It would amount to the crime of rape if a woman were threatened and intercourse took place in those circumstances; but this is a Bill dealing with crimes of dishonesty.
LORD HAWKE: Does that apply to males, too? Would that apply if the subject of the threats was a male?
THE LORD CHANCELLOR: That, I am afraid, I cannot answer off-hand, but I will certainly consider it. But it is not the sort of thing with which this Bill is at all intended to deal.
VISCOUNT COLVILLE OF CULROSS: I think it is Section 2 of the Sexual Offences Act 1956.
THE LORD CHANCELLOR: I am much obliged to the noble Viscount. That covers men as well as women, does it?
VISCOUNT COLVILLE OF CULROSS: I am not sure.
THE LORD CHANCELLOR: It is certainly an offence against the law, but it is not a thing which it is intended should be covered by this Bill. I remember looking back when the noble Viscount was talking about the 1861 Act, and I think I am right in saying that the marginal note to the relevant sections in the 1861 Act, if I can find it, makes it clear that, again, those sections were really dealing simply with crimes of dishonesty. I remember that the marginal note has words to that effect. I am sorry, I have lost the relevant passage, but I will send it to the noble Viscount. I know that the 1861 Act has a marginal note which seems to make it quite plain that it is dealing simply with crimes of dishonesty; but I will certainly consider what both the noble and learned Viscount and the noble Viscount have said.
7.13 p.m.
VISCOUNT DILHORNE: I should like to say a word or two in reply to the noble and learned Lord the Lord Chancellor, who poked fun at the Amendment that I had drafted. I do not myself mind that at all. The noble and learned Lord the Lord Chancellor began by reminding the Committee of what the problems were which the Criminal Law Revision Committee had tackled. They are all set out in that Committee's Report, and I think a great many of us have read them. They did not, of course, bear upon the Amendment that I tabled. Then he came to the paragraph which did bear upon it, paragraph 117. The Lord Chancellor read that paragraph, but he stopped short of the example which the Committee gave, which they obviously intended to have covered, which I referred to in my speech when moving the Amendment, and which I submit to your Lordships is clearly not covered by the clause as it stands although it appears that the Committee wanted it to be covered. The noble and learned Lord did not deal with that point at all. He talked about the width of my Amendment, and said that because of the final words of it, which would make it read:
"with a view to…inducing a person to do or refrain from doing any act",
the earlier words were entirely unnecessary. That may be; but I think it is wise to put in the earlier parts as well,

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because they are parts of the existing law.
When the noble and learned Lord tries to suggest that those words, and the expansion of the intent with which an offence is committed, would lead, if they were included, to a person who found a member of a club cheating at cards and who went up and demanded his resignation from the club being guilty of conduct which would amount to blackmail, I must say to the noble and learned Lord that I wholly disagree with him, because he has omitted to pay any attention or make reference to the fact that it can be blackmail only if there are unwarranted demands. In the very case he gave as his example no one would suggest for a moment that the demand for resignation in those circumstances was unwarranted.
My noble friend Lord Hawke raised a question with regard to sexual conduct. Under Section 2 of the Sexual Offences Act it is made an offence to procure a woman by threats, by intimidation, to have unlawful intercourse. Of course, if, by threats, you induce a woman to submit to rape, and she does submit, it is rape, as the noble and learned Lord the Lord Chancellor said. But it certainly is not rape merely to threaten her with a view to getting her to consent. That would be blackmail. Then my noble friend Lord Hawke raised the question of homosexual conduct. The noble and learned Lord the Lord Chancellor said that he did not know the answer to that. I would put this to him, that if by menaces the consent of an adult over 21 was procured to an act which is now lawful, thanks to Lord Arran's Act, that would not be an offence of its own. Unless it comes within this clause, it would not be criminal. But should it not be criminal?
It comes back to this. Each time we consider a clause like this, first of all the argument is whether it was or was not part of the earlier law. That is very relevant for consideration. But the real question is, irrespective of whether it was part of the earlier law or not, ought it to be part of the law now? If you are going to put into the Bill—and I welcome it—a clause entitled "Blackmail", it really
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ought to cover the field of conduct of blackmail, and not be limited just to blackmail for financial gain or to cause loss. It is even more limited than the word "property", to which the noble and learned Lord referred, because it has to be "money or money's worth", and there must be a distinction between "money or money's worth" and "property". The existing law refers to "property"; so this clause as it stands is narrower than the existing law. But, however that may be, surely what we ought to consider is: what should this clause cover? I believe it should cover menaces, unwarranted demands, made with a view to inducing a course of conduct.
I do not think it really is any answer merely to say that this is a Theft Bill and involves dishonesty. I think I am right in saying that not every clause of this Bill involves dishonesty when creating a criminal offence. But that, surely, is no answer. The Long Title of the Bill includes the words "similar or associated offences". Demanding with menaces has been associated with theft in the Larceny Act 1916. I cannot myself believe that it would be at all wrong to include a section which covers the whole field in a Bill of this character, but what I am sure would be wrong would be to include a section which covers only part of the field and leaves a large and important part uncovered.
I understood the noble and learned Lord the Lord Chancellor to say—and I hope he will correct me if I am wrong—that he will give very serious consideration to this. Meanwhile, I shall seek to convince him—he may be reluctant to be so convinced—that when I referred to the heresy as a heresy emanating from Cambridge those words were not wholly unjustified.
THE LORD CHANCELLOR: Apart from the last remark, I certainly confirm what the noble and learned Viscount has said. Of course it is very important to get this right, and we cannot take too much trouble with it. But apart from the unpaid appointment or office of trust, I do not think there is anything which would have been blackmail before which is not going to be blackmail now. With regard to the example which the Committee took, they might have been right

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or wrong. I should have thought they were right and not wrong, but they say:
"So far as the subject-matter is concerned we consider that the offence should be committed where the demand is made 'with a view to gain' or 'with intent to cause loss to another'. Gain is ordinarily the purpose of blackmail, and in this respect the offence would correspond to criminal deception, which seems right. It seems right also that the offence should apply to making a demand with intent to cause loss to another. The latter would be an unusual case, but it might occur".
Then—and this is the sentence to which the noble and learned Viscount took exception—the Committee said:
"For example, a person might threaten to do something unpleasant to another if he would not destroy letters."
The noble and learned Viscount said that that is not a case of loss. I thought that in law all property has some value; it may be very minimal, but it is unusual even to say that somebody can tear up your letters and they have not caused you any loss. Even pieces of paper—
VISCOUNT DILHORNE: As the noble and learned Lord will realise, under Clause 33 it is not a question of whether the letters have any value, whether they are worth just the paper they are written on or not; the question is whether they are money or money's worth. That is a different concept.
THE LORD CHANCELLOR: I would respectfully differ. I should have thought that even letters had some money's worth and some value, and that it would be a case of causing loss to someone else. Then they conclude:
"The present law distinguishes between demanding that a person should hand over property, execute a valuable security, or give an appointment; but it does not seem necessary to limit the offence to these cases. Other blackmailing threats are conceivable, for example a threat in order to cause a person to abandon a claim. To avoid drawing distinctions between different kinds of threats would also be in accordance with our policy of creating uniform offences".
This, therefore, remains a Bill dealing with dishonesty. I regret myself that the Committee has not had the advantage of hearing the views of either of the noble and learned Lords who I feel sure know more from practical experience about these things than we do ourselves. But I will gladly consider all that.
May I withdraw a remark I made? What I had in mind was the previous dis-
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cussion on the previous three sections of the Larceny Act when my noble friend Lord Stonham was dealing with it and rather the same argument was being put forward by both sides. It was said on one side that this deals only with dishonesty in relation to documents; on the other hand, it was being said that there might be a will which you wanted to destroy, even though you were not going to gain anything and nobody else was going to lose. When I said that we are not really dealing with that in this Bill, what I had in mind was that the three sections in the earlier Act which were being referred to are headed by the words, "As to the larceny of written instruments". That is all that that section was meant to deal with. If you go right outside, nobody would advance the proposition that, whatever belief you had or whatever anybody thought about reasonable or probable cause, a bookmaker could not possibly be prosecuted because he said to a punter, "If you do not pay I shall report you to Tattersall's". This is common form. But when one thinks how often people threaten in the sense of saying, "Unless you do this, I shall do so-and-so"; unless this is to be limited (as it always has been in the past, with the sole exception of the unpaid offices, to cases where there is an intention to gain financially or cause somebody else to lose) it would, I should have thought, become impossibly wide and include all sorts of cases which, whatever else they have been, have never been blackmail in England before.
LORD HAWKE: I am still not clear on the point about homosexual offences. I hope that before the next stage of the Bill the noble and learned Lord will arm himself with the information to make it absolutely clear that offering a job in return for homosexual acts or threatening dismissal if homosexual acts are not performed, does indeed become blackmail either under the present Bill or under some other Bill.
THE LORD CHANCELLOR: I think there is no doubt that it does elsewhere; but not under this Bill.
VISCOUNT DILHORNE:In the light of what the noble and learned Lord Chancellor has said, I will not prolong, this matter. I think we could debate this for a considerable time. Perhaps also there

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could be a long debate on what is meant by "money or money's worth"; but as I understand that it is going to be looked at again, I ask leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
7.25 p.m.
LORD STOW HILL LORD STOW HILL moved to add to subsection (1)(b)
"and unless it is reasonable and proper so to make and so to reinforce the demand".
The noble Lord said: I beg to move the Amendment which stands in the name of the noble Viscount, Lord Colville of Culross, and in my name, to insert into the definition of what is blackmail the words which are printed on the Marshalled List. This Amendment is directed to a rather different aspect of the definition of blackmail contained in the Bill. May I, in a word, seek to point to the change that we wish to introduce? As the clause at the moment reads, a person commits the offence of blackmail if, with the relevant intent, he makes "any unwarranted demand with menaces". If a menace is proved to have been uttered, you have to ask what is "unwarranted" in that context. Menaces are unwarranted unless the person making the menace does so
"in the belief—

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

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

As that clause now reads, when a person is charged with blackmail and is shown to have made a threat with the object which is described in the clause, the court is, in effect, required to look into his mind and to answer simply these two questions: In the belief (and I emphasise "in the belief") of the person charged, had he "a reasonable grounds for making the demand"? That is the first question. Secondly, did he believe that the use of the menace in question was a "proper means of reinforcing the demand"?
In other words, the menace in question is warranted or unwarranted according to the answer to the question, one way or another: Did he so believe? A person, in other words, makes a menace which is not an unwarranted menace and which does not give rise to the commission of
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an offence under this clause if he himself genuinely believed that he had the right to make the demand which he made and that the making of the threat to reinforce the demand was a proper way of going about it. It is an entirely subjective test. The jury simply has to ask itself: Did he himself believe in a word that he was acting reasonably?
What the noble Viscount and I seek to do is to impose a further test which has to be satisfied before it can be said that a threat which has been uttered is a threat which is not an unwarranted threat. The further qualification that we seek to introduce is that not only in the belief of the accused person does his conduct have to seem to be reasonable, but that in the opinion of the jury (what-ever the accused person may think about it) it was reasonable and proper to make the demand and to seek to reinforce the demand by making that threat. In other words, what we seek to do is to add to the purely subjective test at present expressed in the clause an objective test as well. The person must himself believe that he is acting reasonably and the jury must also think, that in fact what he has done is reasonable in the circumstances.
That is the general object of this Amendment. I should like, before beginning to embark upon my argument in more detail, to make one or two general observations. The first is this. I believe that all noble Lords will agree that in the calendar of crime there is no crime so deadly as blackmail. It ruins families; it breaks up marriages; it drives the victim to despair and sometimes to suicide. That is the history of blackmail. It is a crime which is abhorred, I should have thought, as much, indeed more, than almost any other crime contained in our Common Law and in our Statute Law. It is of great importance that we should be absolutely, certainly right in the way in which we define blackmail in this completely new measure. We really must know what blackmail is and our definition of blackmail must be complete. It must be "viable", to use the term which is used in almost every context in these days. It must hold water. It must lead to sensible results. The proposition which I have advanced before your Lordships is that if the test is simply a subjective one we are placing the potential victim

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in a wholly unacceptable state of danger.
When I ventured to make a similar point on Second Reading of this Bill I took for the purpose of illustrating my argument the case of a lady who was pregnant as the result of her association with a man who was married and who refused to accept any responsibility for the child that was on the way. In the opinion of the woman concerned, he was behaving in an altogether disgraceful way. If she had threatened to write to the Press; threatened to tell his wife who knew nothing about it; threatened to burn his house down, threatened to throw bricks through the window—uttered all sorts of threats—a jury might well conclude that she herself thought it was a perfectly reasonable and proper thing to do. I do not want to run away from the wording in the clause of which I remind your Lordships. The words are:
"… in the belief … that he has reasonable grounds for making the demand; and … that the use of the menaces is a proper means of reinforcing the demand."
Consider that hypothetical case. The woman in question cannot procure from the man responsible any maintenance for the child. A jury may well think that if she uttered a threat of the sort that I have described, she was genuinely of the belief, first, that she had reasonable grounds for making the demand for maintenance—most juries would think that she had—and secondly, they might well think that the woman in question honestly believed that the use of menaces, the use of the threat to burn down the man's house, to tell his wife, to ruin him, to expose him, to write to the Press, was a proper means of reinforcing her demand.
The more vicious she was, the more venomous she was in her hatred of the man, the more likely would the jury be to believe that, in point of fact, she genuinely entertained the opinion which she had to establish with regard to her conduct. In the dock might be a person wholly incapable of any moderation at all, bristling with hatred, utterly unreasonable, jaundiced, vicious, evil in every way. The more the person accused was possessed of those qualities the more likely would it be that the jury thought that person entertained the belief set out in the terms of this Bill. To create
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that as a defence to a charge of blackmail was, I should have thought, of very very doubtful wisdom.
The noble Viscount, Lord Colville of Culross, and I seek to introduce the further safeguard that it must be for the jury, in addition, to come to the conclusion that the threat of the behaviour in question was reasonable and proper, that is to say, was in their opinion as a matter of fact reasonable and proper. In the case which I have instanced, if the woman had threatened to burn down the man's house, to throw acid on his wife—anything of the sort—no jury would think that was a reasonable and proper way to behave, even if she, being carried away by the full force of her venom, thought it was. In those circumstances, if the jury thought that a threat of that sort, whatever she thought about it, was an unreasonable threat, she would be convicted of the offence of blackmail. That is as I believe the law should be, and the noble Viscount, as I know because we have discussed it, also shares that view. I hope to commend that view to your Lordships.
When I ventured to advance that argument on Second Reading I was rather taken to task by my noble friend Lord Chorley, who reproved me, saying he was sorry to find that apparently I had aligned myself with those who feel that the guiltiness of a person's mind ought to be measured in objective terms. Stung by that reproof I repaired to the Library and searched my conscience, but I am bound to say that I am still completely impenitent: I am sorry not to be, able to say that in the presence of the noble Lord. I still think, with great respect to him, that I am right.
Perhaps I may, in passing, refer to one other aspect of the argument which the noble Lord, Lord Chorley, used in his refutation of that which I had sought to put before your Lordships' House. He said that, after all, the case of Bernhard, to which the noble and learned Lord, the Lord Chancellor, referred, was almost exactly the same as the case that I had instanced. If I may just remind your Lordships, the case of Bernhard was that of a Hungarian lady who had come to this country and who had, I think, had a child by someone, and had threatened to tell his wife, to write to the Press, and so on. If I may say so with great respect

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to the noble Lord, Lord Chorley, that case was utterly different from the one which I instanced, for two reasons. In the first place, in that case the accused person had actually got an agreement to pay maintenance from the man who was the father of her child; and secondly, as the noble and learned Lord, the Lord Chancellor, reminded your Lordships, she had gone to the trouble of taking the advice of a lawyer who was a Hungarian and who, apparently, gave her advice which was not justified in terms of the law of this country. That was the case of a person who was seeking to enforce a demand which she genuinely believed she was entitled to in law, having been so advised by a lawyer to whom she had gone.
More than that, that was a prosecution—I looked at the case again—as the noble and learned Lord, the Lord Chancellor, said under Section 30 of the Larceny Act 1916, the issue in which was whether it could be shown that she had, in effect, sought to steal by the demands that she had made. The Court of Criminal Appeal said that she could not very well be held to be guilty of attempting to steal something which she genuinely thought she was entitled to, having received legal advice to that effect. So the issue before the Court was an entirely different one from the issue raised in the sort of case I was assuming in my argument before your Lordships' House, in which the lady in question had nothing to sustain a demand except her own sense of what general justice and right should accord to her. The case to which the noble Lord referred does not, so I submit to your Lordships and to him, in the least invalidate the argument which I am presenting.
If your Lordships should desire to look at the case—and I say this in the presence of the very distinguished Chairman of the Committee who again, I am glad to say, is here to-night—the reference the Report gives of that case, namely, 1936 2 King's Bench, page 264, is wrong. It is two volumes away—1938 2 King's Bench, page 264. I agree the fact that it is two volumes away does not make much difference to the train of my argument, but if anybody wants to look at it he will find it easier to refer to the right rather than to the wrong volume.
Again, may I respectfully say to the noble and learned Lord, the Lord Chancellor, that it does not seem to me to afford a conclusive answer to say that so many members of the Committee, of the very great learning and experience which I at once—among the foremost, I hope to do so—concede that they have, came to the view opposite to that which I am propounding to your Lordships. The Committee gave the most anxious and careful thought to the question whether you should have simply a subjective test or whether you should also have an objective test as well. I read, with the greatest of care and attention, the weighty and careful arguments deployed in the relevant paragraphs of the Report.
May I cite one or two passages, because they seem to me to have achieved a result which is almost opposite to that which they set out to achieve in defining the offences?
In paragraph 119, they cite the following case:
"A may be owed £100 by B and be unable to get payment. Perhaps A needs the money badly and B is in a position to pay; or perhaps A can easily afford to wait and B is in a difficulty. Should it be blackmail for A to threaten B that, if he does not pay, A will assault him—or slash the tyres of his car—or tell people that B is a homosexual, which he is (or which he is not)—or tell people about the debt and anything discreditable about the way in which it was incurred?"
The paragraph goes on to say that on one view that should not be blackmail, and on the other it should be, and then expresses the Committee's view, which is as follows:
"In our opinion this goes too far and there are some threats which should make the demand amount to blackmail even if there is a valid claim to the thing demanded. For example, we believe that most people would say that it should be blackmail to threaten to denounce a person, however truly, as a homosexual unless he paid a debt.'
May I say with respect that I could not agree more? It seems to me that it would be utterly outrageous if the law of this country provided that because A owes a sum of money, B may threaten to denounce him as a homosexual whether he is or whether he is not, in order to enforce this debt, provided B thinks honestly that it is fair to do so. If this is the law, it seems to me that we are right back in the jungle, and I entirely agree with the Committee when they say that that should not be the law. That sort of threat,

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and the threat to slash tyres, and the examples I ventured to enumerate in giving the example of the pregnant lady, are utterly unreasonable. If citizens who, human nature being fallible and human will being weak, have put themselves in a position in which they can become victims of blackmailers are to be subject to treatment of this sort without the intervention of the criminal law, I can only repeat that surely we are right back in the jungle.
I would have thought that the conclusion from the Report so far should be that a purely subjective test was not enough, and the Committee should have gone on to embody also the objective test which the noble Viscount and I seek to put into the clause. They gave most careful thought to that and came to the conclusion that they ought not to do it. They set out their reasoning in paragraph 122, the gist of which can be put in their words:
"But we decided finally not to include the requirement. To require that an honest belief, in order to be a defence, should be reasonable would have the result that the offence of blackmail could be committed by mere negligence (for example, in not consulting a lawyer or, as did Bernhard, in consulting the wrong kind of lawyer)"
I think that I do the Report justice when I say that that sentence contains the core of the argument which influenced the Committee against the adoption of the objective test. With great respect, is that really a realistic view? Can you by negligence accuse a man of being a homosexual? Can you by negligence say that you will burn his house down? One can by negligence indulge in conduct which on reflection one would have preferred not to have followed, and in that event most juries would say that it was not unreasonable, human beings being such as they are, for the accused in these circumstances to embark on that conduct. But if we had an objective test, it would be the right test where there was a vicious person who genuinely believed that almost any conduct was open to him to secure his objective and, in consequence, made threats utterly outrageous and intolerable in civilised society.
For these reasons, I greatly hope that the Government will give further consideration to this provision. If I may say so, with respect to the noble and learned
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Lord the Lord Chancellor, it is not really enough to say simply that the Committee formed a view one way with 11 the weight of experience that they have behind them. I am respectfully arguing that, after carefully weighing the different alternatives" the Committee came to a conclusion which is in the circumstances erroneous. I hope that the noble and learned Lord, or the noble Lord, Lord Stonham, will be able to inform your Lordships that they think that there is matter for serious consideration in this argument and that they will further consider it. If they are prepared to give that assurance then, speaking for myself (I cannot speak for the noble Viscount), I should be satisfied and not seek to divide the Committee. But I put it to the Government that this is a matter of grave substance. Blackmail is a hideous offence. The very name has something deadly and noisome about it. We really must get it right and not expose citizens who have the ordinary frailties to which we are all subject to predicaments which may mean utter ruin for themselves and their families and the destruction of their minds and lives. I beg to move.
Amendment moved—
Page 9, line 17, at end insert ("and unless it is reasonable and proper so to make and so to reinforce the demand."—(Lord Stow Hill.)
7.47 p.m.
VISCOUNT DILHORNE: I should like to say a word in support of the powerful speech which the noble Lord, Lord Stow Hill, has made. I must say that on reading the clause I was in doubt as to whether it was intended that the test should be wholly subjective or partly subjective and partly objective. I found it difficult to construe because of the use of the words "reasonable grounds" and "proper means", both of which seem to me to indicate, in relation to consideration on grounds as distinct from the belief, and in relation to the consideration of means as distinct from the belief about them, that the intention was that an objective test would be applied and that it would be a matter for a jury to consider objectively. I found it difficult when I read the Report to see what the Committee had recommended.
The noble Lord, Lord Stow Hill, says that his Amendment is contrary to one

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of their recommendations. So it is, but it is not contradictory to the very next paragraph in the Report. That is why I am in a real difficulty here. In paragraph 118, dealing with reasonable grounds, the Committee say:
"As to the illegality of making the demand we are decidedly of the opinion that the test should be subjective, namely, whether the person in question honestly believes that he has the right to make the demand. This means in effect adopting the test whether there is a claim of right, as in 1916 s. 30, and not the test whether there is in fact a reasonable cause for making the demand, as in 1916 s. 29(1)(i)."
Nothing can be clearer than that.
But then, if the Bill is to adopt the test of the claim of right, why do we find in the clause the words, "reasonable grounds"? I find that very puzzling, because a claim of right may be wholly unreasonable. It may be bad in law. But however bad in law it may be, so long as it is bona fide it is a valid defence to a charge of stealing. That is obviously the intention here. So it seemed to me, on reading that, that if the Committee meant that it should be a claim of right it was wrong in the Bill to use the words, "reasonable grounds". But there is no doubt that in that paragraph they meant that part to be wholly subjective.
Then, at the end of paragraph 120, coming on to the proper means which they are there discussing, they say at the end of the paragraph:
"For reasons similar to those given in paragraph 118 concerning the demand we think that the only satisfactory course would be to adopt a subjective test and to make criminal liability depend on whether the person who utters the threat believes in the propriety of doing so."
There again it is clear beyond doubt that they wanted the whole thing to be so far entirely objective. Then came paragraph 122, which the noble Lord, Lord Stow Hill, read, which is to the same effect. But that is followed by paragraph 123; and that paragraph, I think, causes great difficulty. The Committee are discussing what word should go before the word "means", and they consider three words: "legitimate means", "fair means" or "proper means". In the middle of the paragraph they say:
"Any of the three words would, we think, be suitable. 'Fair' would be a good test for a jury to apply."
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That must mean an objective test; it cannot be anything else. They go on to say:
"It might also be a little more favourable to the accused, because a jury might think that even if the accused had behaved improperly, the prosecutor behaved so badly that it was fair that he should be treated as he was."
That can mean only the application by the jury of an objective test as to whether the means were fair: They go on:
"There seems little difference between 'legitimate' and 'proper'. On the whole, 'proper' seems the best word. 'Proper' directs the mind to consideration of what is morally and socially acceptable, which seems right on a matter of this kind: 'legitimate' might suggest that it is a purely legal question whether the accused had a right to utter the menaces."
I hope that I have understood the Committee correctly. This careful choice of the word which should precede the the word "means" is obviously based on the Committee's belief that that would be a matter for the jury to consider: that they would have to consider whether the means were proper means. I find paragraph 123 (I am sorry to have to say this) wholly inconsistent with what has preceded it, because surely what they have said before is that a man when charged with this offence can say: "I honestly believed that the grounds I had for making these demands were reasonable. You may all think that that is absolutely wrong, and that no sensible person could have thought them reasonable. But that does not matter, because I honestly believed that they were reasonable grounds. What is more, although you may think that these means were grossly improper, that again does not matter. I thought that they were proper in the circumstances. That was my honest belief, and unless the prosecution can establish (if the onus is on them) that I did not have that belief, then, however unreasonable may be the grounds for my action in your opinion, however improper the means I have pursued may be in your opinion, that does not matter. You must acquit me." So far as I can see, under the clause as it now stands, a judge would have to give a direction on those lines. But I cannot think, in the light of paragraph 123, that that is what the Committee, at the very end of this long and careful consideration of this whole matter, really wanted. I cannot see how paragraph 123 fits in with that at all. So, while I wish to support the noble Lord,

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Lord Stow Hill, I feel that if his solution is adopted it really will accord with what, taking it as a whole, seems to me, despite the passages to which I have referred, to have been the real thought of this Committee.
I want to raise another matter in relation to this clause on which I am not clear. On whom does the onus lie of proving that the demand with menaces was unwarranted? It is expressed:
"and for this purpose a demand for menaces is unwarranted unless the person making it does so in the belief.…"
So that it is unlawful unless the person can bring himself within certain conditions. That, I should have thought, placed the onus of proof on the defence. But I do not think it is by any means clear, and lack of clarity on this is going to lead to considerable argument in the courts. I may have missed it, but I cannot find anything in the Committee's Report dealing with the party on whom the onus of proof will rest. I should have thought that it should rest upon the defence, as it is a matter peculiarly within the knowledge of the accused, and it is an exception which provides him with a defence. It is a matter of defence, and is not a matter which the prosecution ought to be required to be negative.
It is extremely difficult, as has been said already, to deal with these matters in detail in debates in Committee, and, indeed in debates on Report. I hope that this will be given serious consideration, and I would say, whatever be the view taken, that this part of this clause certainly requires to be redrafted to make it clear beyond all peradventure which is intended: whether the test is intended to be objective or subjective, or partly objective and partly subjective; and on whom the onus of proof lies. It seem to me that the question of belief must always be subjective. To the question whether the grounds are reasonable, or the means are proper, I think one can apply an objective test—and it seems that it would work all right. If a man made demands on grounds which no one could consider reasonable, and used wholly improper means to seek to enforce those demands, is it right that he should not be convicted under this clause? If a jury came to the conclusion that the grounds were reasonable and the means were proper, then there is the further question: Did he
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believe them to be so? To that ought to be applied the subjective test.
I do not expect the noble and learned Lord, the Lord Chancellor, at this hour (I see the noble Lord, Lord Stonham, nearly as anxiously as I am), to give a detailed answer to this to-night. I have spoken at this length only because it is a question on which I, like the noble Lord, Lord Stow Hill, feel very strongly, and I hope that with a joint effort we may be able to induce the Government to make some changes in this provision.
8.0 p.m.
THE LORD CHANCELLOR (LORD GARDINER): There is no point in the Bill which is more important than this, because one of the defects of the existing law is that you have one section on which things clearly are subjective, and another on which they are clearly objective. If a jury had to find whether there was reasonable and probable cause they never understood (I myself have never understood) what "probable" in that context means. It is a very unusual expression, "probable cause". And it was the objective test which caused most of the trouble. So nothing was more important than the consideration which the Committee gave to the question whether, first in relation to the demand and secondly in relation to the threat, the test should be subjective or objective.
I should like here just to say this, if I may. There seems to be, from the many times the noble and learned Viscount has said the same thing, a sort of impression growing up in the Committee that the Criminal Law Revision Committee are people who are rather anxious to narrow our criminal law, and are rather keen that people should be able to commit crimes without being punished for them. Blackmail, my noble friend Lord Stow Hill said, is a terrible crime. Of course it is a terrible crime. But whether it should be extended to things which have never previously been blackmail is quite another matter. But there cannot be any reason to suppose that a number of our most eminent Judges, and the Director of Public Prosecutions—not usually thought of as a man who wants people who have committed shocking acts not to be prosecuted and punished for them—are anxious to

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narrow the law in the way I have mentioned. What has been very largely running through several of these Amendments is whether, as seems to have been suggested in some quarters, the Committee have omitted all sorts of things that have been crimes before, so nobody will be able to be punished for them now, or whether that is not so, or whether, in the few cases in which it might be so, like offences without profit, they are really worth worrying about.
My difficulty at this hour is, of course, that this is a very long part of the whole section of the Report. A great deal of it has been read, but of course it was very important to decide whether the test should be subjective or objective. There can be absolutely no doubt at all of what the Committee have done. There is one passage in one paragraph which I think is perhaps confusing, but they themselves were quite clear as to what they were doing when they said:
"As to the illegality of the demand we are decidedly of the opinion the test should be subjective".
Then they went on to say the same about the threat, and the clause itself is quite clear:
"unless the person making it does so in the belief—

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

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

So it is perfectly plain that in the section this is subjective. It is, of course, equally plain that in the Amendment which my noble friend Lord Stow Hill has moved an objective test is introduced. So we are getting back again to the position that it is what the jury think and not what the person himself thinks.
VISCOUNT COLVILLE OF CULROSS: It is both.
THE LORD CHANCELLOR: Here, of course, it is additionally complicated, because my noble friend's Amendment does something which, even under the existing law, does not happen; that is, he is saying that on one point there must be both a subjective test and an objective one.
VISCOUNT COLVILLE OF CULROSS: On both points.
THE LORD CHANCELLOR: The Amendment has the effect that the clause contains both the subjective and the objective test; that is to say, to escape being guilty of blackmail a person making a demand with menaces would have to believe that he had reasonable grounds for making the demand, and that the use of menaces was a proper means of reinforcing the demand. But the jury would also have to be satisfied that the demand and the menaces were objectively reasonable and proper.
VISCOUNT COLVILLE OF CULROSS: Hear, hear!
THE LORD CHANCELLOR: I am glad the noble Viscount agrees. As amended, the clauses would enable an accused person to be convicted even though the jury thought his conduct was reasonable and proper, if they thought that he did not think it was. This may or may not have been intended—
LORD STOW HILL: If I may say so, it was certainly intended. Two tests were propounded. I certainly intended that both should be fulfilled.
THE LORD CHANCELLOR: I am much obliged. It is agreed that it does mean this. It would mean that if the standards of the accused are rather higher than the standards of the jury, then he would be convicted because, although the jury thought that what he had done was perfectly proper, they came to the conclusion that he did not think it was himself.
LORD STOW HILL: Certainly. If he thought he was uttering an unwarranted threat, I do not see why he should not be convicted, even if the jury thought his behaviour was reasonable.
THE LORD CHANCELLOR: Then this makes a double scope. I think my noble friend would agree that this has never been the law at all in any part of this field. We have had the cases in which it is subjective; we have had cases in which it is objective; but we have never before had a case in which it is both.
In the case of the Hungarian woman, she would be liable to be convicted because she went to the wrong lawyer. She may have believed—you can get it

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both ways—that she is entitled to do something, but then a jury, on being apprised, "Oh, but that is not the law; she had no right to demand the money at all," would no doubt come to the conclusion it was not proper.
LORD STOW HILL: I am sorry to interrupt the noble and learned Lord the Lord Chancellor. I should have thought that certainly it was one view of Section 29 of the 1916 Act that it imposed both tests.
THE LORD CHANCELLOR: Of course, this is in effect adopting the test where there is a claim of right, as in Section 30, or the objective test as to whether there is in fact a reasonable cause for making the demand.
The Committee pointed out all the difficulties which had arisen in trying to make it objective. They say:
"To adopt the objective test seems to involve almost insuperable difficulty. It would be necessary either to set out the various kinds of demand it was considered should be justified or to find an expression which would define exactly these kinds but not others. The former course might clearly be possible but the tradition would have to be very adaptable, involve the risk which attempts …"
My noble friend has not attempted that, he has done the other. And they said:
"There is much room for disagreement as to what kinds of demand should or should not be treated as justified. The latter course seems impossible, having regard to the results which are followed from making liability depend on the absence of a reasonable or probable cause".
Of course, in the Amendment everything will turn, I suppose, on the jury's view of what is reasonable and proper. One jury may very well take one view, one take another; and we get back all the difficulties which already exist in "reasonable and probable cause". If this is an offence of dishonesty, as it is, then it ought, I should have thought, to depend on a subjective test. If somebody, in fact, owes me money, the question, "What am I entitled to say to get paid?" is very much a matter of opinion. What is right or wrong ought primarily to depend in the offence of dishonesty as to whether or not I was entitled to do what I have done. I am clearly entitled to say, "If you do not pay me I shall see a solicitor". That is where the demand is one which lies in law. But if I
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honestly believe that it lies in law, I ought not to be convicted of an offence of dishonesty. The circumstances vary very much.
I am in this difficulty: that the Report is a lengthy one, but nothing can be clearer than that the Committee, having considered the whole history, and knowing the sort of cases which the courts get, through their great experience, came to a very clear conclusion that the test ought to be subjective and not objective. In view of the lateness of the hour, I will not refer further to particular passages of the Report. I will certainly consider what has been said. I think it is of great importance, and its particular importance is that, with this Amendment, Clause 20 would be stricter against the defence than Section 30 of the 1916 Act, and a whole lot of people who have never previously been able to be convicted of blackmail could be prosecuted for blackmail now. But I will certainly consider it further.
On the question of onus of proof, I should have thought that if the onus is not on the defence it is one of these cases in which there is in practice an evidential burden, and that it is not the sort of case in which, by the nature of the evidence that is called for the prosecution, the accused can get out of going into the witness box. At the end of the day, no doubt the ultimate onus would be on the prosecution.
VISCOUNT DILHORNE: While I agree with that, may I say that there is great importance in making it quite clear that the burden does not lie on the prosecution in establishing the negative—that the belief was not held. I think that ought to be made quite clear. While I am on my feet, may I say one other thing? Would the noble and learned Lord consider making it a requirement in an offence of blackmail for the consent of the Director of Public Prosecutions to be required before proceedings are instituted?
THE LORD CHANCELLOR: Certainly I will consider the latter point, and I think there is a large body of opinion in favour of making these all evidential burdens only. I think that is because there is a difficulty in directing juries satisfactorily as to the difference between the burden of proof

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beyond reasonable doubt and that of proving on a balance of probabilities, and it is impossible politically to impose the former on the defence. Secondly, the provisions imposing a burden of proof on the defence have little effect in practice, because juries are inclined to disregard the direction and merely decide which side they believe. Thirdly, there are objections in principle to saying that if the jury are left in doubt on an issue they should convict. But I think all this is actually under consideration by the Criminal Law Revision Committee at the present time. I will certainly consider these points.
VISCOUNT COLVILLE OF CULROSS: I have not intervened in this debate so far because I entirely agree with what the noble Lord, Lord Stow Hill, and my noble and learned friend have said, but one point arises out of the Lord Chancellor's reply. I think it is possible—and I say this with great hesitancy—that it may be a mistake to rationalise the question of whether you have subjective or objective, or both, from the premise that this is an offence of dishonesty. I know that in theory it is an offence of dishonesty, and if you follow that theory through, logic would certainly lead you, as in Clause 2 of the Bill, to impose a subjective test. On the other hand, the noble Lord, Lord Stow Hill, said—and I agree with him—that this is a particularly abhorrent offence, and it may well be that one ought not to allow one's rationalisation to overcome the real abhorrence of this offence. It may be that even if we do, in the result, produce a test which is more strict than Clause 30 and brings in people who are not covered under the law as it now stands, that may be the right thing to do. In this Bill we are talking about what the public understand these offences to be, and I do not think they would necessarily say we had made a mistake if we extended in this field a little further than the law is now, and a little further than "dishonesty" might itself suggest.
THE LORD CHANCELLOR: I appreciate that. But the reason why blackmail is such a terrible offence is because it is the kind of case which it is. If you are going to extend it to all sorts of cases in which people say, "If you do not resign from the club"—
VISCOUNT COLVILLE OF CULROSS: With great respect, I am not talking about that.
THE LORD CHANCELLOR: Is there any evidence that the existing law ought to be wider than it is? If so, where is the evidence, because that is the effect of what is proposed, and this very experienced Committee did not think this. Is there anybody in England who would be more likely to know than the Director of Public Prosecutions if people are not being prosecuted who ought to be? At the moment, I remain quite unsatisfied that we ought to apply blackmail to a class of things to which it has not been applied at all in the past.
VISCOUNT COLVILLE OF CULROSS: The noble and learned Lord is not taking my point. I am not talking about the gain-loss criteria at all. I am simply following the noble and learned Lord's point. He says, "If you have this double test it may be that people who can escape conviction now because they can show their belief was honest, although the jury would not say it was reasonable, would be convicted if we applied the double test." I think the public may say that is right. We have had the debate on the gain-loss criteria and I am not talking about that now. I am talking about the fact that some individual cases would be found guilty under this double test which at the present moment get off.
THE LORD CHANCELLOR: That would mean that somebody who is honest and not dishonest would be liable to 14 years' imprisonment. I cannot think that is right.
LORD STOW HILL: In view of the undertaking given by my noble and learned friend that he will carefully go into this question, which I regard as fundamental, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
LORD AIREDALE: I do not think the discussion of this Amendment will take long. The words "do or do not" are words of emphasis which are much favoured by orators, but I do not believe that they add anything at all to the meaning of subsection (2) of Clause 20. The clause would mean exactly the same

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if these words were omitted. I beg to move.
Amendment moved—
Page 9, line 19, leave out ("do or do not").—(Lord Airedale.)
THE LORD CHANCELLOR: At this hour, it is a great pleasure to me to agree with the noble Lord that it does not make the slightest difference whether these four words are in the clause or whether they are not, and he is quite right in saying that they are there solely for emphasis. That being so, I am entirely in the hands of the Committee and I do not propose to oppose this Amendment or to say anything, except only that I started off by saying just now, "It does not matter in the slightest whether these four words are in the clause or whether they are not". I have to confess to the noble Lord that I added the words "or whether they are not" for the purpose of emphasis. They were strictly unnecessary, but I should have thought this particular emphasis was a good one in this particular clause. It is rather a thing that one wants to emphasise, but I quite agree that it does not alter the meaning at all. Having said that, I do not mind in the slightest whether those words are included in the clause or whether they are not.
LORD AIREDALE: I think we had better put the matter to the vote, but I hope we shall be able to decide it by the strength of our voices, without having to go through the Division Lobby.
On Question, Amendment agreed to.
Clause 20, as amended, agreed to.
Clause 21:
Handling stolen goods
21.—(1) A person handles stolen goods if (otherwise than in the course of the stealing) knowing or believing them to be stolen goods he dishonestly receives the goods, or dishonestly undertakes or assists in their retention, removal, disposal or realisation by or for the benefit of another person, or if he arranges to do so.
8.19 p.m.
LORD AIREDALE LORD AIREDALE moved, in subsection (1), after "benefit of" to insert "himself or". The noble Lord said: This is an Amendment to the clause which deals with persons who hitherto have been called "receivers of stolen
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goods" but who, after this Bill becomes law, will be called "handlers". The purpose of the Amendment is to discover whether there is a lacuna in the first subsection, where it uses the expression, almost at the end, "for the benefit of another person" and omits the handler himself, making it read (with the Amendment)
"for the benefit of himself or another person".
Under subsection (1) it is made an offence for a person who believes goods to have been stolen dishonestly to undertake their removal or to arrange to do so for the benefit of another person, but only for the benefit of another person.
May I give an example? Suppose a well known receiver of stolen goods is approached by a thief who is a friend of his; and suppose the thief says to him, "Can you sell a stolen lawn-mower for me?". The receiver may say, No, I don't think I can, but, as it happens, I should very much like a lawn-mower myself". The thief may say to him, "Well, you've been a good friend to me in the past, and if it is any good to you you can have it for nothing if you make arrangements to collect it from my place and take it to yours". And the receiver says, "Very well, I will make the arrangements". He makes the arrangements with a third person with a van to collect the lawn-mower next Tuesday from the thief's house and to take it to the receiver's house. In the meantime the police seize the lawn-mower and come upon this proposed transaction. Presumably they would wish to prosecute the handler for an offence under this clause, and presumably under this clause as now drafted the handler would escape.
LORD STONHAM: May I interrupt the noble Lord to ask him where the police seize the lawn-mower?
LORD AIREDALE: The police seize the lawn-mower—shall we say?—either in transit or before the journey begins at all. They may raid the thief's premises and seize the lawn-mower before the journey begins and they may seize a letter in which the receiver says he is making these arrangements to have it collected. When the receiver, or "handler" as he is now to be called, is charged under this clause, he will be able to say, "Oh, but I have got a good defence here, because the transaction was not for the

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benefit of another person; it was for my benefit. It was not for the benefit of the thief. If I had paid him for the lawn-mower it would have been, but as he was giving it to me for nothing this does not redound to his benefit and it is only for mine". In order to bring the handler within the first subsection it seems to me that you need to insert the words "himself or" in front of "another person", so as to make it an offence if it is done for the benefit of himself or another person. I beg to move.
Amendment moved—
Page 9, line 29, after ("of") insert ("himself or").—(Lord Airedale.)
LORD STONHAM: I was not wholly clear about the purpose of this Amendment before I heard the noble Lord's speech, and I am very doubtful that I am clear about it now, but I am quite certain that the case of the lawn-mower is covered, because the accused has arranged to receive the lawn-mower even before sending the van, and the benefit test does not apply to receiving. Carefully reading subsection (1) again, one sees that it says:
"A person handles stolen goods if (otherwise than in the course of the stealing)"—
in other words not stealing—
"knowing or believing them to be stolen goods he dishonestly receives the goods."
Whether he receives them for consideration—that is to say, gives the thief something—or in the noble Lord's case gives him nothing at all, he well knew that they were stolen goods and therefore he dishonestly receives them, and he certainly dishonestly undertook to assist in their retention.
There is another unintended effect of the noble Lord's Amendment. Let me now put up a hypothetical case of the actual stealer of goods who has temporarily put the stolen goods somewhere with the intention of later moving them elsewhere or disposing of them. He is doing so for the benefit of "himself" and he therefore will be committing the offence of receiving under Clause 21 if we amended the clause as the noble Lord suggests. The Criminal Law Revision Committee thought it was reasonable that the thief should be guilty of receiving if, after the theft, he did some of the things mentioned in subsection (1) of Clause 21
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for someone else—for example, if he helped the receiver to dispose of the goods which he had himself earlier stolen. But it was not the Committee's intention, and certainly is not the Government's intention, that the thief should be guilty of an additional and more serious offence under Clause 21 if he merely took steps to dispose of the stolen goods for his own benefit; and that seems right.
There is another aspect that might bear consideration with regard to this Amendment, and that is the case of the person who does not receive the stolen goods but arranges for their disposal and then takes the proceeds; but he is already covered by the joint effect of Clauses 21 and 23. I am sure it was not the noble Lord's intention by means of his Amendment to turn a thief into a receiver and thereby make him liable for the more serious offence or more serious sentence, when in fact he is not doing any of the things referred to in subsection (1). The key words which are the real reply to the noble Lord are those at the end of the subsection, the words "or if he arranges to do so", because in the lawn-mower case the man who is to get the lawn-mower has arranged to receive; and it applies to the other words "dishonestly receives the goods". So unquestionably the case that the noble Lord cited is covered by the clause as it stands The man is caught. I think unquestionably also the effect of accepting the Amendment would do something which the noble Lord apparently does not want to do and certainly the Government do not want to do. I hope with this explanation he will feel able to withdraw his Amendment.
LORD AIREDALE: I accept that my Amendment may be faulty in the form in which it is put down if it were to have the effect of making the principal thief also capable of being found guilty of handling, because I know that the Committee were very anxious that this should not happen. But I was not satisfied with the remainder of the Minister's answer, if I may say so. I very carefully posed a case in which the handler had not yet received the goods and in fact never did receive the goods but was only making arrangements.
LORD STONHAM: I must interrupt the noble Lord when he says that he was only making arrangements. He had

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made the arrangements, and he is caught by the clause. There can be no equivocation about that. He is caught by the clause.
LORD AIREDALE: I am sorry, but I do not accept that the words, "for the benefit of another person" do not also apply to the words, "if he arranges to do so". It is the fact that the benefit is not for another person but solely for himself that, in the instance that I have given, enables him to escape. That is how I see it, and I am not satisfied with the reply. The Minister said at the outset that he had not quite understood what the argument was going to be in support of the Amendment. Will he kindly look at the matter again, because I really think there is a lacuna here. I am quite prepared to be persuaded otherwise, but not upon the argument so far advanced. Can I have an assurance that the matter will be looked at again?
LORD STONHAM: Certainly; I am most ready to give that assurance. I am bound to say that while of course I will look at it again, I do not think there is a vestige of a case in what has been put forward. However, I will study it and see whether there is any possibility that I am wrong, and I hope I shall be able to satisfy the noble Lord, if I am still of the opinion that I am now, that the cases that he has cited are covered. If not, I will certainly tell him so.
LORD AIREDALE: That is certainly fair enough, and I am pleased to ask leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
8.32 p.m.
On Question, Whether Clause 21 shall stand part of the Bill?
VISCOUNT DILHORNE: I share the difficulty that the noble Lord, Lord Stonham, expressed a little time ago, on hearing these intricate arguments advanced across the Floor at this late hour. But I must say that on the Question, Whether the clause shall stand part, listening to the noble Lord, Lord Airedale, I thought there was a point which required consideration. That was not what led me to my feet, but I should like the noble Lord if he would to have a further look at the word "handling" which is attached to this clause. I think it is not unimportant.
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Unlike all the other clauses we have been referring to, this clause makes a considerable extension in the existing law. I do not object to that at all; I am in favour of it. But "handling" seems to me an inapt word, and one which may be slightly misleading to a jury. I may be wrong, but to me "handling" implies some form of physical contact with the goods, and I do not think there is any way of avoiding that implication. But quite clearly this clause goes far wider than that. It covers anyone who dishonestly arranges the disposal or sale of stolen property. He may be miles away from the goods; he may never handle them, and they may never come into his possession or control. I think the use of this word "handle" in a case of that character may well lead to a sort of defence being put forward which ought not to be open. I do not think it is apt, and it may lead to trouble.
The meaning of "receiving" is tolerably clear, but that word alone will not do. The clause covers both receiving and dealing with stolen property. A receiver deals with it, but not all those who deal with it are receivers. I find it difficult to think that you can find one word which will correctly describe the ambit of this clause and, rather than have the word "handles", which I think is just as inapt as the word "receiving" in the sense that it does not cover the whole depth of the clause, ask the noble Lord to consider whether it would not be preferable here to use just the words "receives" and "deals with", instead of the word "handles" in line 25.
There is one question to which I should like an answer. I do not ask for an answer to-night, but I should like to have one before we get to the Report stage. To prove an offence under Clause 21 is it intended that it should be necessary to prove an intention permanently to deprive? The clause itself does not require it. It might be that this is intended. But if it is not, is it not illogical to require proof of that intention to justify Conviction for stealing and not for an offence under this clause, particularly when the borderline between the participating in the stealing and the offence which is now called "handling" is so indistinct, and I think it is recognised by the Committee that the two offences overlap? It seems to me illogical.

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Of course, if a man receives stolen property with the intention of returning it to its owner he will not be guilty under this clause, for he would not have done anything dishonest in relation to the goods. But suppose at the time of his receipt he had not that intention. Suppose that another Goya is stolen and the receiver, knowing it to be stolen, decides to offer to return it if a contribution is made to a named charity. Would he be entitled to be acquitted if he were prosecuted under this clause? It could not be said that that receiver had an intention permanently to deprive. I raise this question, and I should like an answer to it. If, as may be the case, no such intent has to be proved when a man is charged under this clause, I hope that the noble and learned Lord the Lord Chancellor, and the noble Lord, Lord Stonham, would both consider that that reinforces the argument for doing away with "permanently" in the definition of theft.
8.36 p.m.
LORD AIREDALE: I should like warmly to support what the noble and learned Viscount said at the beginning of his speech. The word "handling" seems to be rather confusing if it is going to be applied, as it is in some cases under this clause, where people have never seen the goods let alone handled them—people who have made arrangements hundreds of miles away for dealing with goods with which they would never come in contact at all. Surely we could get rid of this difficulty by abandoning this expression "handling". Instead of beginning with the words, "A person handles stolen goods if" Clause 1 could begin with the words, "A person shall be guilty of an offence if". Then subsection (2), instead of beginning, "A person guilty of handling stolen goods", could begin, "A person guilty of committing an offence under the preceding subsection shall, on conviction", and so on. It seems unnecessary to import the word "handling stolen goods" into a subsection which deals not only with handling but with many other aspects of dealing with stolen goods.
LORD STONHAM: I welcome the statement by the noble and learned Viscount that he agrees that in this Bill we should enlarge the present net cover-
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ing the offence which we generally call "receiving". I am also glad that he is not satisfied with the word "receiving". Quite obviously, we could not use the word "receiving" and then have that in the definition. I am rather surprised that there is this thought that the word "handles" could be misunderstood by a jury, because subsection (1) really is a definition of what we mean by "handles". We say so. In other words, we give it a handle. Then we explain just what we mean by "handling".
I will certainly look at this point again, but I am grateful to the noble Lord, Lord Airedale, for drafting on his feet. I find it most difficult sitting down. Just at the moment, the suggestions that have been made do not exactly appeal to me as being an improvement. We could bring in the word "dishonestly" in the sense of "dishonestly deals in". But whether the words "deals in" would be less likely of misunderstanding, prefaced by the word "dishonestly", than "handles" as defined in the subsection—
VISCOUNT DILHORNE: I suggest that one should keep the other words. All that I am suggesting is that one should take out the word "handles" so that it reads "A person receives and deals in stolen goods". One would merely change the word "handles". One would not alter anything else.
LORD STONHAM: "Receives" and "deals in": I will certainly look at that. With regard to the points which the noble and learned Viscount raised but on which he did not require an immediate answer. I will certainly see that they are dealt with, but I can see that the clause as drafted means that the offence will apply to a person who receives or otherwise deals in stolen goods knowing or believing them to be stolen. The proposed extension to goods believed to be stolen is a substantial change which the Committee discussed in paragraph 134 of their Report. We believe that it will remedy a serious defect in the present law, which requires actual knowledge that the property is stolen to be proved by the prosecution. Often guilty knowledge, as distinct from belief, does not exist, although the circumstances of a transaction are such that the receiver ought to be guilty of the offence. A man

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who buys goods at a very low price from an unknown seller may not positively know that the goods were stolen and may ask no questions, but it might be clear on the evidence that he believed they were stolen and it seems to us right that the person handling the goods should be guilty if he believed they were stolen. I will certainly look at these points. Although I would not pretend that this is a major matter, your Lordships have given me a problem in finding another name which will satisfy me.
Clause 21 agreed to.
Clause 22 agreed to.
Clause 23 [Scope of offences relating to stolen goods]:
On Question, Whether Clause 23 shall stand part of the Bill?
8.43 p.m.
VISCOUNT DILHORNE: I raised a point on this clause on Second Reading. It is raised at this late hour in the hope that the noble Lord, Lord Stonham, can now deal with it. I have not tabled any Amendments to this clause—not on account of what the noble and learned Lord, the Lord Chancellor, said about the temerity of tabling Amendments to this Bill, for the Lord Chancellor has clearly established that the Bill is a child whose paternity is no longer in question, but because I want to raise this question so that I may hear from the Government the extent of the scope of this clause.
In paragraph 137 of their Report the Committee say that there does not seem to be any reported case of a prosecution for receiving the proceeds of stolen property until 1953. It is clear that such prosecutions could have been brought since at least 1861. Since that decision in 1953 such prosecutions may have become more common than they used to be. Recently I had to deal with a case in which a lorry driver was charged with receiving stolen property in the following circumstances. He had been deceived into taking his lorryload of goods to the wrong destination. He went to the destination at which he ought to have delivered his load; he was told that it was to be taken somewhere else, and the thief went on board with him and they got to a farm. The lorry was unloaded, and the lorry driver got suspicious. The thief got over £100 from the lorryload of goods
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and the lorry driver was given £10 or so to keep his mouth shut. It was a clear bribe for that purpose.
The lorry driver was charged and convicted of receiving stolen property I do not doubt that it was right that conduct of that sort by the lorry driver should have met with a criminal sanction, but is it right that it should be labelled "receiving stolen property", or, as it will now be, "handling stolen property"? I ask this because when one gets particulars of a man's previous convictions, one gets the nature of the offence and not very much information about it. It may well be that if that man's record shows the conviction of the offence of "receiving stolen property" or "handling stolen property", when one remembers the kind of offence for which the lorry driver was convicted, it will be unduly prejudicial if he is convicted again of some other offence.
Therefore, I should like the noble Lord, Lord Stonham, seriously to consider whether one could not give some special label, which is more apt than the label "handling stolen goods", to the offences which fall within subsection (2). This is even more important when one realises that under subsection (2) a man may be prosecuted not only for handling stolen property, or because he has handled some of the cash into which the property was converted, but also because he has handled something bought with that cash. There seems to be no limit to the way in which one can go down the chain, provided one can prove dishonesty. Subsection (2)(a) "directly or indirectly represent" is very wide, as is paragraph (b):
"directly or indirectly represent or have at any time represented the stolen goods".
It is also important to see that the offence of handling goods covers, by virtue of subsection (4), goods obtained by blackmail, and anything into which they have been converted, and also goods obtained by criminal deception and what they have been converted into.
I hope that I have understood this clause correctly, but it would be useful to break this down a little and to put some other label on this kind of offence. To see offences of the kind comprised within Clause 23(2) all put under the heading of "handling stolen goods" may be very misleading indeed when one

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comes to consider a person's previous convictions.
LORD STONHAM: I will certainly look at this clause in the light of what the noble and learned Viscount has said, and particularly at subsection (2). What he has in mind is clarification—to make it more readily understood in the courts. Certainly we should not be prepared to narrow the effects of this. I understood that the noble and learned Viscount generally welcomed our concept.
VISCOUNT DILHORNE: I think that I have not made my point clear. I was pointing out the width of this clause and saying that it went right down the chain. The Committee say that once the goods are tainted, anything into which they are converted is tainted. I was not complaining of that. I was saying that when one sees recorded "handling of stolen goods" on a person's previous convictions relating to something into which stolen goods have been converted, something which may have changed form half a dozen times, it is a misleading description. Again it is a question of labelling.
LORD STONHAM: Yes. I will certainly look at that. As regards the example which the noble and learned Viscount gave on Second Reading, and which he repeated to-night, about the lorry driver who got £10 out of a consignment, in my view such an offence would certainly count as handling or receiving; indeed, that would be a clear case of receiving. One would not expect him to get a heavy penalty in the courts; but certainly he is caught by the clause. And, of course, he would not have been far down the line; he was in at an early stage. But I will look at that point.
LORD AIREDALE: I noticed that subsection (3) begins with the word "But". I question whether any sentence in the English language can properly begin with the word "But". I know that a very great poet once began a famous poem
"And did those feet in ancient time."
Perhaps that was the precedent of which the draftsman was thinking.
LORD STONHAM: There is also a much-quoted poem in the higher circles which begins with the word, "If".
LORD AIREDALE: That is all right.
LORD STONHAM: "If" is generally approved, but "But" is not. I am always in favour of short sentences and sometimes it is very difficult to avoid "But". But knowing the noble Lord's welcome proclivity for pointing out these excrudescences, I will certainly look at that one, too.
Clause 23 agreed to.
Clause 24 [Going equipped for stealing, etc.]:
8.52 p.m.
VISCOUNT DILHORNE VISCOUNT DILHORNE moved, in subsection (1), after "burglary" to insert "or". The noble and learned Viscount said: I think I can move this and the other Amendment quite shortly, and I hope they can be dealt with quite shortly. When I read subsection (1) of this clause I was a little puzzled by it. It says:
"A person shall be guilty of an offence if, when not at his place of abode, he has with him any article for use in the course of or in connection with any burglary"—
I understand that—
"theft"—
I understand that—
"or criminal deception."
Now a pen is a very useful weapon in criminal deception for signing some document. Does this really mean that if you are carrying your own pen on the way to perform criminal deception you are guilty of two offences—first, of carrying the pen, and, secondly, of criminal deception? It does not seem to me that you could be proved to be carrying a pen for use in criminal deception, without in fact executing or attempting to execute the criminal deception.
LORD STOW HILL: What about spectacles?
VISCOUNT DILHORNE: Some people always wear spectacles. But is there any point in making this a criminal deception? If you borrow someone else's pen, that is all right. But if you take your own pen is it right that that should be an offence? That was my line of thought when I first read this subsection. Then when I read the Committee's Report to

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see what they were thinking about, they just said this:
"The offence will also cover carrying things about for use in forms of criminal deception such as confidence tricks."
We all know what a conjurer takes around with him, but I did not realise that people who engaged in confidence tricks took around things of that sort.
LORD CHAMPION: What about gold bricks?
VISCOUNT DILHORNE: I do not know whether they carry gold bricks around. Nowadays, they carry the gold itself. But I do not know whether the three-card trick is regarded as a confidence trick. If so, it presumably would be criminal deception. If it would, then if you are found carrying a pack of cards on your way to the Grand National by train, I suppose you run the risk of being convicted under this clause of carrying something which is available for use for the three-card trick. But they could not prove that you were going to use it for the three-card trick unless they saw you playing or attempting to play it.
Therefore, in all seriousness, I wonder whether it is really necessary to make this extension to criminal deception. I think this is new. I am not sure that there is anything in the Larceny Act which says that carrying articles about with you for use in obtaining goods by false pretences, or money by false pretences, is a crime. I think this is quite new and unnecessary, and therefore I would prefer to see it out. I beg to move.
Amendment moved—
Page 10, line 38, after ("burglary") insert ("or").—(Viscount Dilhorne.)
LORD STONHAM: The noble and learned Viscount began with a short list of articles, very innocent articles, of everyday use, and made it appear that it would be absurd if it could be alleged that such articles might be used for criminal deception, and to support a charge under this clause of the Bill. But the real test is whether or not the article is being carried for a guilty purpose, and it would be equally possible for the noble and learned Viscount to build up a long list of innocent articles which would apply equally to burglary or theft. For example, if you were wearing an ordinary scarf, it could be argued that you could
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use it to wear as a mask to cover your face in order to commit a burglary or something of that kind. The point is whether or not you are carrying these things with a guilty purpose. It would have to be proved that the article was for use
"in the course of or in connection with any burglary, theft or criminal deception."
Therefore, if the objection is raised about innocent-seeming articles which could form the subject of a charge, the answer is that it could be equally the case with burglary with the same articles.
This is an extension of the present position to cover the deceiver, the confidence trickster. As my noble friend Lord Champion said, why should it be any less an offence for a chap to carry his gold brick or marked playing-cards, with which he was going to deceive people and carry out a confidence trick? Why should that be any less serious than somebody else carrying the tools of his trade with the guilty purpose of making burglarious entry? This is an extension. This is something which we thought ought to be done in order to give us a chance of picking up and charging people. Although some people may laugh about gold bricks and about this form of deception, the victims do not laugh. They can be very seriously troubled. Since the same criticisms which the noble and learned Viscount made of criminal deception could apply equally to burglary or theft, I hope he will agree that the subsection should remain as it is.
VISCOUNT DILHORNE: I simply am not satisfied with that answer at all. I am sorry, but the noble Lord has not appreciated the point. It is nonsense to say that an article such as a pack of cards can be compared with a jemmy. You have no difficulty at all, if you find a man walking about the streets near your home in the hours of darkness carrying a jemmy, in concluding that he is intending to use that for the purpose of burglary. It is no answer to say that in some cases you cannot prove it. He might have a scarf in his pocket and not be intending to use it. The question which I put to the noble Lord, and which he has not answered, is: what kind of articles does he think you can prove are being carried about for use in criminal deception, unless you are in a position

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to prove that the criminal deception has itself been attempted or committed? If you can prove that, you ought not to make it an additional offence to have carried the articles on the way to the criminal deception. That is the point.
I will not pursue it now, but it seems to me unnecessary, and I cannot get any assistance from the Committee's Report to explain to me what kind of articles they have in mind and why they think, in those circumstances, it is possible to prove what the intended use was in a case of criminal deception, such as one can in burglary and in theft. A man has a whole pocketful of car keys and is wandering around a line of cars and you can deduce what his purpose is. But it does not necessarily follow from the mere possession of a marked pack of cards, or of dice which are weighted, that they are ever going to be used for criminal deception.
LORD AIREDALE: We are discussing a clause which is preceded by the words,
"Possession of housebreaking implements, etc."
and a clause the sidenote of which reads,
"Going equipped for stealing, etc."
We have not had a single example of the kind of circumstances in which this clause would apply to a proposed offence of criminal deception, as distinct from burglary or theft; and unless the Minister is able at Report stage to give us an example of how this clause can be expected in any circumstances to apply to criminal deception, then surely the answer is going to be to leave out of the clause the words "criminal deception".
LORD STONHAM: I am beginning to get resigned to the belief that I shall never make an answer to the noble and learned Viscount on this Bill which will satisfy him.
VISCOUNT DILHORNE: The noble Lord will keep on trying, I hope.
LORD STONHAM: I shall certainly keep on trying, because I imagine that the light will eventually break with one or other of us. I do not know whether it was my way of putting it, but in his reply I think the noble and learned Viscount seized on a false analogy. It
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was he, in his opening speech, who was talking about a pen as an instrument that could be used for a wrong purpose. But the real comparison is not between a marked pack of cards and a jemmy, but between a marked pack of cards and an innocent article such as, for example, a screwdriver. A typical article so carried about would be a prospectus about a fraudulent mushroom firm which could be used by a confidence trickster for purposes of deception. But I will accept the invitation of the noble Lord, Lord Airedale, and come back on Report, when we reach this section of the Bill, with a much longer list.
VISCOUNT DILHORNE: I do not know whether the longer list will prove any more convincing, but I am open to be convinced, as I always am. I ask leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 24 agreed to.
Clause 25 [Search for stolen goods]:
9.4 p.m.
VISCOUNT COLVILLE OF CULROSS VISCOUNT COLVILLE OF CULROSS moved, in subsection (2), to leave out "An officer of police not below the rank of superintendent", and insert "A chief constable". The noble Viscount said: We might be able to deal with this Amendment quite quickly, and I shall certainly try to make my speech with such speed as I can. Subsection (2) of Clause 25 changes the law by giving power to a police officer of the rank of superintendent and above to issue a written authority for the search of premises in the conditions that are set out in the subsection. At the present moment, the only person who can do that is a chief constable. Everybody else has to go and get a warrant from a justice of the peace. The Criminal Law Revision Committee justified the change in paragraph 155(ii) of their Report by reference to the increase in the size of the police forces. I do not wish to press this Amendment to-night, but I should very much like to know what the noble Lord, Lord Stonham, has to say, and whether he can tell us if there has been a real demand from the police for this extension.
There is, I have no doubt, a balance here. On the one hand, there is the

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requirement of speed, whereby you can get the police into a house where there are stolen goods or where they suspect that there are; and, on the other, there is the very important need to protect the police from the results of their own occasional mistakes. One knows that they take the greatest trouble when they are going into other people's property, either if they are going to do it on the written authority of the chief constable or if they are going to do it with a warrant from a justice of the peace, but occasionally mistakes occur; and in this sort of field, where the criterion is that the person who is in occupation of the premises in question must have been convicted of dishonesty or it must be a house in which there previously lived somebody who was convicted of handling stolen goods, it is precisely the sort of circumstance where the criticism can be made out that once a person has been convicted the police do not leave him alone. I do not believe this for a moment, and I am sure it is not so; but if the police make a mistake that sort of criticism is open against them.
There was a tremendous fuss the other day—and I am sure it was justified—about a search warrant which was issued to search the house of Lady Diana Duff-Cooper, and there was an Adjournment Debate upon it in another place. That is not an exact analogy, because in that case there was a magistrate's warrant.
LORD STONHAM: And also in that case the person in occupation had not been convicted of stealing or receiving in the preceding five years.
VISCOUNT COLVILLE OF CULROSS: Of course not; but perhaps the noble Lord will let me make my point in a moment. That was a case where there was a mistake, and it was admitted in the other place by the Under-Secretary of State. What I want to use that case for is to illustrate the question of speed, because on that occasion—and this comes out of the OFFICIAL REPORT of the proceedings in another place—the anonymous telephone call which started it off arrived at New Scotland Yard at 10.45 p.m.; at 11.15 (that is, half an hour later) the station sergeant applied to a magistrate for a warrant; and at 12 o'clock (that is, only an hour and a quarter after the anonymous telephone call first
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arrived) four police officers were at the front door of the house concerned. If that is the sort of speed with which this can be done—and done properly, of course, in a proper case—I do not understand what the difficulty is about getting a justice's warrant. If the difficulty did arise, I could understand the need to extend the power below the rank of chief constable, but if this case is typical of the speed with which a warrant from a justice can be obtained then I do not understand what the need is for the extension.
It may be that the noble Lord, Lord Stonham, will tell us that there are cases where justices cannot be got hold of in the middle of the night with that speed, and it may be that in those circumstances this change is right, but I am very concerned that this Amendment should be considered by the Committee in the context of the need to give the police the protection they deserve and require when they are having to undertake this rather disagreeable duty. I shall certainly listen with great care to what the noble Lord says. I will not press this Amendment to-night; but I think it is important and deserving of the full consideration of the Committtee. I beg to move.
Amendment moved—
Page 11, line 19, leave out line 19 and insert ("A chief constable").—(Viscount Colville of Culross.)
LORD STOW HILL: I should like to say just a word on this Amendment. I personally hope that the Government will not give way on this matter. Nobody could be more sensitive than I to criticisms made of the police from lime to time. I agree that they have a most difficult task; and they fulfil it to the admiration not only of the British public but I believe of the whole world. It would be lamentable if we considerably enlarged the risk of their coming into conflict with public complaint by making a change in the existing law which was not necessary. Personally, I do net think we are unduly enlarging that risk. An officer who has succeeded in reaching the rank of superintendent—and I am proud of such experience as I have had that enables me to form a judgment which at least satisfies me—is, I should have thought, an officer, who could be well trusted to exercise this power. Whatever the police do, now and again they will

579
be criticised. We should try to protect them, but I believe that they are ready to face that possibility as one of the unfortunate risks of their occupation.
What is the case for this change? My noble friend Lord Stonham will doubtless tell us. I can well imagine the sort of situation in which it would be very important to have this new power in the face of the scale on which crime is now committed; and particularly crime in the form of large-scale theft. I can well imagine a situation late at night when a lorry is seen going into premises such as are described in the clause and where it is highly probable that it is loaded with a cargo of stolen cigarettes, goods stolen from docks or warehouses or something of the sort. It may be that if the premises can be examined within a very short space of time the police can bring a prosecution which, if one, two or three hours were to elapse before the search warrant was available to be used, it would be quits impossible to prove. The lorry goes into the premises and within ten or twenty minutes it is completely unloaded; the stolen goods upon it are salted away; the lorry is disguised; the number plates are changed, and all the rest. If a search warrant can be issued almost at once, that process can be interrupted and the theft detected. If a justice of the peace has to be found, perhaps roused from his bed, or if the nearest chief constable available in these very large forces has to be contacted, critical time may elapse—it may be half-an-hour, one hour or two hours—and by the time the warrant is available for use it may be quite impossible to discover any evidence of the theft.
I simply instance the kind of case in which a lorry has been "hi-jacked" or loaded with stolen goods and brought into premises where it is to be unloaded. That is a simple example. At this late hour I do not seek to multiply the examples, but I should be surprised if my noble friend Lord Stonham had not in mind, supposing the Committee wished to hear them, a great number of examples of this kind in which this power would be of great value. I am glad that the Government have made this change. I greatly hope that it will not enlarge the risk of criticism of the police, which personally I do not think will be the case,
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in view of the fact that an officer of the rank of superintendent will be empowered to issue the warrant.
9.13 p.m.
LORD STONHAM: I can assure my noble friend, Lord Stow Hill, while thanking him for his support and for the examples he has given, that we have no intention of giving way on this Amendment. I hope also that, after the explanation for which he asked, I shall be able to carry the noble Viscount, Lord Colville, with me. He asked first of all whether there was a demand from the police for this change. Our understanding is that the chief constables welcome the extension of the power to superintendents, while recognising that it must be exercised responsibly and at an appropriate level—for example, by the superintendent in charge of a division, or the head of a particular force's C.I.D. We shall have opportunities, by means of Home Office circulars or otherwise, to see that the importance of exercising discretion in using the power is clearly understood.
I thought that the noble Viscount, Lord Colville of Culross, made very heavy weather of this. One almost had the impression, particularly through his reference to a recent case, that either chief constables already had unlimited power or that in future superintendents would have similar power. What we are doing here is to suggest that a lesser power than that which resides in chief constables under Section 42 of the 1916 Larceny Act should be given in this Bill to superintendents. I say a lesser power because under the 1916 Act the chief officer of the police can authorise a search if the person in occupation at the time of the authorisation has been convicted at any time of any offence involving fraud or dishonesty and punishable with imprisonment, or secondly, if the occupier or any other person who has been in occupation during the past twelve months has been convicted at any time of receiving stolen property or harbouring thieves. We are limiting; we are not doing it for any time or under any period.
Under the Bill our proposal is that a conviction of the past or present occupier must have been within the preceding five years, and the restriction, therefore, will diminish a little the powers of

581
search, especially as the occupier may well have been in prison for a good deal of the five years. The Criminal Law Revision Committee considered it was wrong that a conviction, however old, should count against a person for this purpose. Thieves and receivers should not be more alarmed than at present; they should be less alarmed, because it will not count for ever: there is a five years' limitation.
The real criticism of the noble Viscount was, in effect, that we were going lower down the ranks in granting this power, even though to only a limited extent. But the amalgamation of police forces, which has gone a very long way and is rapidly going further, will mean there will be, to take Lancashire for example, 15 or 16 chief officers who, following amalgamation, will find their present commands may well be in charge of superintendents. Take, for example, Salford, the town of my noble friend Lord Royle, which is on the edge of Manchester. Saving his presence, just as you realise you are in Salford you are through it. But Salford has a chief constable, a chief officer of police, who has these powers at the present time. We are merely saying that, sensibly and responsibly, somewhat lesser and more restricted powers should be given to superintendents. I think it is necessary, and as my noble and learned friend Lord Stow Hill has pointed out, I could give other examples. It is not merely necessary; it will greatly help in catching thieves, recovering stolen goods more quickly, and in defending the public.
VISCOUNT COLVILLE OF CULROSS: If that is so—I do not want to prolong this discussion—it must be (the noble Lord Lord Stonham did not mention this) because at present it takes too long to get a justice's warrant. This is the point I was making. I do not think he altogether understood my argument. I should like to read what he has said, and perhaps he will be so good as to read what I have said. I was on a slightly different point. In view of the hour I should like to go away and do that. Meanwhile, I ask leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 25 agreed to.
LORD STONHAM: We have not made as much progress with the Bill as we had hoped. I know that there was a general hope that we should finish the Committee stage to-night. But we have gone a long way. We have now been discussing the Bill in Committee this evening for 4½ hours, and I think it would meet the general wish of your Lordships if I now move that the House be resumed and that the Committee stage be resumed on Thursday. I beg to move.
Moved, That the House do now resume.—(Lord Stonham.)
On Question, Motion agreed to, and House resumed accordingly.

MEDWAY WATER (BEWL BRIDGE RESERVOIR) BILL [H.L.]
Presented, and read 1a.
HOUNSLOW CORPORATION BILL [H.L.]
Report from the Select Committee that the Petition of the Confederation of British Industry has been withdrawn; Bill committed to the Committee on Unopposed Bills.