Lords Sitting of 11 December 1969

Preamble
The House met at three of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Winchester.

DERELICT LAND
LORD GARNSWORTHY: 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 it is correct that derelict land is increasing by 10 acres a day.]
THE PARLIAMENTARY SECRETARY, MINISTRY OF HOUSING AND LOCAL GOVERNMENT (LORD KENNET): My Lords, the answer is "No". I am glad of this opportunity to refute this mistaken figure which is being widely quoted in the Press at the moment, and even appeared in this year's Reith Lectures. It is based on a misunderstanding, which I shall now explain.
Since 1964 there have been annual surveys of derelict land. The figures to the end of 1968 show an increase of 13,870 acres in land classified as derelict, and that is of the order of 10 acres a day. But this does not mean that land is being despoiled at that rate. The figures reflect new survey work and the fact that, owing in particular to railway and colliery closures, land which has long been despoiled is being classified as derelict as it ceases to be put to operational use. In other words, what is increasing is the amount of despoiled land which is ceasing to be despoiled, and thus becomes eligible for reclamation. That increase is good news, not bad. Nevertheless, a misunderstanding has arisen, and I am looking into the way the statistics are presented to see whether they can be made more clear.
LORD GARNSWORTHY: My Lords, while appreciating the reply of my noble friend and also its significance, may I ask him if he is satisfied with the present rate of reclamation and whether he anticipates that there may be some early
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indication of improvement in the situation?
LORD KENNET: My Lords, I do not think that anyone can be satisfied with the present rate. It is increasing: it ought to increase faster. As the House will know, Exchequer grants are now available to local authorities at the rate of 85 per cent. in development areas and 50 per cent. elsewhere. The latter figure will be increased to 75 per cent. in the intermediate areas, if the Local Employment Bill goes through Parliament, as it should.
LORD MOLSON: My Lords, will the Parliamentary Secretary indicate what is the acreage that is being reclaimed every year?
LORD KENNET: My Lords, the last annual figures—that was in 1967—show an acreage of 2,695 acres.
LORD SILKIN: My Lords, can my noble friend say whether the additional figures of derelict land include pit heaps which are about to be reclaimed.
LORD KENNET: My Lords, they include pit heaps which are no longer being worked and therefore are eligible for reclamation.

TAX LEGISLATION AND INLAND REVENUE STAFF
3.8 p.m.
THE EARL OF DUNDEE: 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 their attention has been drawn to the Fifth Report of the Estimates Committee (Session 1968–69) which states that the errors and delays resulting from the overwork of the Inland Revenue Department are causing widespread distress and hardship for which there is no legal right of redress, and that the fundamental cause of the Inland Revenue's plight is the growth in tax legislation over the last few years, and whether Her Majesty's Government will take any steps to remedy this state of affairs.]
LORD BESWICK: My Lords, the Government are now studying the Report, and as soon as they have fully considered its recommendations they will give their observations to Parliament in a White Paper.
THE EARL OF DUNDEE: My Lords, I am grateful to the noble Lord for that Answer, but may I ask whether he is aware that the Inland Revenue is physically incapable of bearing the burden of the extra work which has been imposed upon it during the last five or six years, that it is no uncommon thing for six months to be taken over answering a letter, and that the correspondence is often equally bewildering to the writer and to the recipient?
LORD BESWICK: My Lords, I am not sure that the latter part of what the noble Earl said is fair, but as to the first part it is a fact that an enormous burden has been put upon the Inland Revenue and we should all like to lighten it.
LORD BLYTON: My Lords, while recognising what the Report says about the distress caused by the problem that has been raised, may I ask whether my noble friend is aware that if we get the value-added tax there will be chaos and disaster in future?
LORD BESWICK: My Lords, I think there is a good deal in what my noble friend says. It is also fair to say that when we brought in a tax that did not add to the burden on the Inland Revenue —namely, the selective employment tax —we had even greater criticism from the other side.

TAX RELIEF ON BANK INTEREST
THE EARL OF DUNDEE: 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 whether any guidance has been given to the Inland Revenue concerning the allowance or disallowance of bank overdraft interest as a deduction from taxable income.]
LORD BESWICK: My Lords, instructions have been circulated by the Board of Inland Revenue to inspectors of taxes concerning the provisions of the Finance Act 1969 relating to tax relief for payments of interest, including interest on bank overdrafts.
THE EARL OF DUNDEE: My Lords, is the noble Lord aware that the complexity of this matter has been enormously increased by the decision to make retrospective the disallowance of interest on old overdrafts incurred a long time ago? And is he aware that, particularly in the case of agricultural estates, where owners may have to go back ten or twenty years into their accounts to discover how much overdraft has been incurred, how much in respect of maintenance, which is disallowed, and how much in respect of improvements, which is allowed, the difficulty will be quite insuperable?
LORD BESWICK: My Lords, I agree with the noble Earl that there are many complexities about this subject. At the same time he will probably agree that the position which appertained before, under Section 200 of the Income Tax Act 1952, gave rise to an economic situation which was quite intolerable.
LORD INGLEWOOD: My Lords, could the noble Lord say whether a copy of the instructions to which he has referred has been placed in the Library, or could be placed in the Library, in order that some of these many complexities might be simplified in our minds?
LORD BESWICK: No, my Lords, a copy has not been placed and could not be placed in the Library. It is an internal instruction from the Chief Inspector to the inspectors of taxes. But there is a Press statement which sets out the matter in some detail and which I will send to the noble Lord; or, if he will wait till the New Year, a more comprehensive booklet is to be published.
LORD INGLEWOOD: My Lords, may I ask whether the noble Lord would also put a copy in the Library, because I do not suppose I am the only Member of this House who will be interested?
LORD BESWICK: My Lords, I would do that; but I think that the other booklet which is now being prepared and

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which will be issued in the New Year will possibly be more helpful. I think I should wait till then.

IMMIGRATION: OVERSEAS ADVICE AGENCIES
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 action has been taken to establish advice agencies for intending emigrants to Britain at places of departure in Commonwealth countries.]
THE MINISTER OF STATE, FOREIGN AND COMMONWEALTH OFFICE (LORD SHEPHERD): My Lords, since the Commonwealth Immigrants Act 1962 came into force, British High Commissions in Commonwealth countries have provided advice for intending emigrants to Britain. As a result of the Government's decision last May to make entry certificates compulsory for dependants coming here for settlement, staffs of immigration sections at High Commissions have been strengthened where necessary to enable them to continue their advisory function.
LORD BROCKWAY: My Lords, I should like to thank the noble Lord for that Answer. Is he aware that many of us are receiving reports from India and Pakistan which confirm the warnings that were given of the cruel effects of ineffective administration in this matter? Is he aware, for example, that illiterate families living in Gujerat have to travel 300 miles before reaching the High Commission agencies, and that in the Punjab they often have to travel more than 100 miles, when they have never been more than 10 miles from their village? They often have to travel with their children and take them back before a decision is reached. Are Her Majesty's Government prepared to accept two suggestions? One is that there should be effective communication with these applicants before they leave their villages and, secondly, that voluntary agencies should be encouraged, as they would be more acceptable than Government officials.
LORD SHEPHERD: My Lords, I would not accept in full the strictures of my noble friend. Conditions have
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been very much improved by the increase in the number of staff in our High Commissions who now deal with emigration. Even if there were advisory committees I do not believe we should be able to assist, if I take the example of my noble friend, somebody who lives 300 miles from a main town. Naturally we will consider anything we can do to help people. There is a limit to how far we can go in such a country so large as India or Pakistan.

GOVERNMENT STATEMENTS
LORD BESWICK: My Lords, at a convenient moment after half past three my noble friend the Leader of the House will be making a Statement on environmental pollution, after which he will make a statement on Peers' expenses, allowances and car allowances. This will be followed by a Statement on Upper Clyde Shipbuilders Limited by my noble friend Lord Delacourt-Smith.

COPYRIGHT (ROYALTIES ON RECORDS) BILL [H.L.]
LORD WILLIS: My Lords, I beg leave to introduce a Bill to amend the law relating to royalties on records of musical works. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read 1a. —(Lord Willis.)
On Question, Bill read 1a, and to be printed.

SEA FISH INDUSTRY BILL [H.L.]
THE LORD CHANCELLOR (LORD GARDINER): My Lords, this is a straight Consolidation Bill and, except that one or two further repeals are added, it is substantially the same Bill as I introduced last Session, to which your Lordships gave a Second Reading, and which went in the usual way to the Joint Committee on Consolidation Bills. It was towards the end of the Session and the Joint Committee were so occupied with the Statute Law (Repeals) Bill that they were unable to consider this Bill as well. Therefore, it is now reintroduced earlier in the Session. If your Lordships give

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the Bill a Second Reading, it will of course go back to the Joint Consolidation Committee in the usual way. I beg to move.
Moved, That the Bill be now read 2a. —(The Lord Chancellor.)
On Question, Bill read 2a, and referred to the Joint Committee on Consolidation Bills.

ANIMALS BILL [H.L.]
3.18 p.m.
THE LORD CHANCELLOR: My Lords, I beg to move that this Report be now received.
Moved, That the Report be now received.—(The Lord Chancellor.)
On Question, Motion agreed to.
Clause 2 [Liability for damage done by dangerous animals]:
LORD FOOT LORD FOOT moved Amendment No. 1:
Page 2, line 1, leave out ("of any kind").
The noble Lord said: My Lords, I should like to refer to a point which I raised on Clause 2(2) of the Bill at the Committee stage. At that time I suggested that there was a possible ambiguity or uncertainty in the wording of this subsection. The noble and learned Lord the Lord Chancellor, in replying, said that he thought the wording was right, but he suggested that we might refer to the point at this stage in order to see whether it was indeed correct. He invited me to look at what he had to say at that time, which I have faithfully done, but I am afraid that what he had to say has not altogether allayed the doubts which I have on this point.
I should like briefly to repeat the substance of the criticism that I made on that occasion. It relates to the wording of Clause 2(2) which reads:
"(2) Where damage of any kind is caused by an animal which does not belong to a dangerous species, and—
(a) the animal has such characteristics that it is likely, unless restrained, to cause damage of that kind or that any damage of that kind …"
Then it goes on to say if the keeper of the animal knows of those characteristics
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he will be liable for any damage. The words to which I wish to direct the attention of the House are the words "damage of that kind", because I ask myself what is this damage which is so described as "of that kind"? If one looks back to the beginning of the clause one sees the words "damage of any kind". It seems to me, on the face of it, that one interpretation of this clause is that the words "of that kind" are intended to relate "that" to the words "damage of any kind" at the beginning of the clause, with the result, if that interpretation is correct, that the section would read like this:
"Where damage of any kind is caused by an animal which does not belong to a dangerous species, and—
(a) the animal has such characteristics that it is likely, unless restrained, to cause damage of any kind "—
and then, if those characteristics are known to the keeper, he will be liable for damages.
It seemed to me that that is a possible construction to be put upon these words; and if it is a possible construction, certainly it is not what is intended to be covered by the clause, because it is clear that the purpose of this clause is to provide (if I may use informal language) that where damage of any kind is caused by an animal which does not belong to a dangerous species, and the animal has such characteristics that it is likely, unless restrained, to cause damage of the kind which has in fact occurred in this particular case—the case under consideration at the time—then, and then only, will the keeper, if the characteristics are known to him, be liable in damages.
I think that the reason why there are these two alternative possible constructions—the second one, obviously being the right one, but the one to which I have drawn attention nevertheless being a possible one—is because of the use of the word "kind" in the beginning of the clause, and then the repetition of the word "kind" lower down. One automatically thinks that one is being referred back to the words "of any kind" at the beginning of the clause. If I am right about that, may I suggest how I think my Amendment cures the difficulty? It would be possible, I suppose, in order to put the matter beyond any doubt, to insert in subsection (2(a), after the words

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"cause damage of that kind", the words "that actually occurred" or words to that effect. I would suggest, however, that the proposal I have made, to leave out the words "of any kind", clears up this difficulty altogether. May I read the clause as it would be worded with my Amendment:
"Where damage is caused by an animal which does not belong to a dangerous species, and—
(a)the animal has such characteristics that it is likely, unless restrained, to cause damage of that kind…".
Pausing there, I would point out that if these words are used it is perfectly clear that the words "damage of that kind" means damage of the kind that was actually caused by the particular animal on the particular occasion—the occasion with which one happens to be dealing.
I would respectfully suggest, further, that the omission of these words is good on its own account, because the words "of any kind" appear to me to be redundant and otiose. If we were to leave out the words I suggest should be deleted, and leave in simply the word "damage", would not the word "damage" comprise damage of all kinds and of any kind? Is it necessary at all to add the words "of any kind"? Therefore, by adopting this Amendment, in addition to clearing up the ambiguity which I foresee we should be getting rid of some words which are, in my submission, unnecessary. My Lords, I beg to move.
THE LORD CHANCELLOR: My Lords, drafting questions are of course important but not necessarily easy, and I apologise, as usual, for my position. The Amendment would delete the words "of any kind" after "damage", so that, as the noble Lord has said, the provision would read:
"Where damage is caused by an animal which does not belong to a dangerous species …".
This would hardly make any difference to the sense of the subsection, which would still refer to the damage caused by the animal—and prima facie, damage would be damage of any kind. On the other hand, we do not want the drafting to make the whole provision wider than was intended. I am not certain that the noble Lord has not got a point. I have, therefore, been re-examining the clause,
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in consultation with the experts in the Law Commission and others, to try to ascertain whether the noble Lord's concern is justified. It has not been possible so far to conclude these consultations in the time available.
The Government's intention is that Clause 2(2) should give effect to the Law Commission's recommendation on strict liability for animals of a normally harmless species which are known to have dangerous characteristics. The recommendation is summarised in paragraph 91(iv) of the Report as follows:
"Strict liability should also be imposed in respect of injury or damage of any kind done by an animal which does not belong to a dangerous species, if the particular animal had dangerous characteristics known to its keeper which made it likely that injury or damage of that kind would occur or that any injury or damage of that kind which might occur would be severe. Such characteristics should he capable of giving rise to strict liability even if they are shared by other animals within the species, whether at a particular age, at certain times of the year or in certain conditions."
The background is explained more fully in paragraphs 17 and 18.
As I have said, these consultations are still going on; and if the noble Lord would be good enough to withdraw his Amendment, if it is found that Clause 2(2) goes wider and imposes liability in circumstances not contemplated in the recommendation, I would undertake, in consultation with the Law Officers, to ensure that the necessary Amendments to narrow the scope will be introduced in another place.
BARONESS WOOTTON OF ABINGER: My Lords, I hope that when the noble and learned Lord on the Woolsack looks at this matter again he will make it perfectly clear whether this provision applies only to animals not of a normally dangerous species, individuals among which develop dangerous characteristics. I have in mind a particular case that happened to concern myself. I keep some animals which certainly could not be called dangerous in the ordinary sense, but on one occasion they managed to escape from the field in which they are generally lodged and took themselves to trespass into somebody else's garden, where they walked all over the lawn and made lacerations with their hooves. They are not dangerous animals. Fortunately, on this occasion (it was a summer day,

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but the whole family were indoors, with the french windows open) the people were glued to the television and therefore did not see what happened. But this raises the question whether the clause refers to ordinarily undangerous animals which can do damage, or merely to dangerous specimens of undangerous species who do damage. Will the noble and learned Lord look at this point in the reconsideration?
LORD KILBRACKEN: My Lords, may I, to a certain extent, support what my noble friend has said? I am thinking in particular of cattle of the bovine species. Either the species has to be dangerous or it has not to be dangerous. We all know that the noble Lord, Lord Balerno, thought that this provision automatically would apply to bulls. In my own experience, the bull is a much maligned animal. A cow, particularly with a young calf, is often more dangerous than a bull. But the bovine species as a whole has to be considered as one that is not dangerous. Therefore, a wicked bull—let us say a Jersey or Friesian bull—would not be considered an animal of a dangerous species, although he might be a very dangerous beast himself.
LORD FOOT: My Lords, my Amendment is concerned simply with the wording of this clause and is directed simply to trying to get it right in order to express the principle which the clause is intending to express, and to express it so that it will be beyond any doubt. I am most grateful to the noble and learned Lord for undertaking to look at this matter again. In those circumstances I am quite satisfied and have pleasure in asking leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
3.30 p.m.
LORD ROWALLAN LORD ROWALLAN moved Amendment No. 2:
After Clause 4, insert the following new clause:
Liability for loss or expense occasioned to owner or occupier of land by straying livestock.
".Where livestock belonging to any person strays on to land used by a herd, or any part of a herd, accredited pursuant to a scheme for accrediting brucellosis free herds, and as a consequence of the straying, and in order
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to retain the accredited status, the owner or occupier of the land—

(a) is restricted in the use of the land, or any part thereof, for a period; or

(b) is restricted in any farming or business activity;

the person to whom the straying livestock be-longs shall be liable for any loss or expense occasioned thereby to the owner or occupier of the land."
The noble Lord said: My Lords, I do not propose to take long in reviewing what happened at the Committee stage, but for the sake of your Lordships who were not then present I may say that I pointed out then that no provision was made for the recovery of damages for loss caused by the trespass of cattle from a non-accredited herd on land which was in the occupation of an accredited herd. In one case the damage was immediate, in that the Ministry of Agriculture, Fisheries and Food immediately put a closure order on that field, which disorganised the whole of the rotational grazing. I spoke also of the very serious damage—in fact the crippling loss—that might be incurred when a herd lost its accredited status and the owner was no longer allowed to take the animals to shows or to accredited markets. This was happening more and more frequently as time went on. I withdrew my Amendment at the last stage because I was not quite sure exactly what the noble and learned Lord on the Woolsack had said, and I wished to study it further.
The noble Lord, Lord Nugent of Guildford, asked the Lord Chancellor whether it was not the case that Clause 4(1)(a) covered damage of the kind which I anticipated. Clause 4(1) says:
"Where livestock belonging to any person strays on to land in the ownership or occupation of another and—
(a) damage is done by the livestock to the land or to any property on it which is in the ownership or possession of the other person …"
In reply the noble and learned Lord the Lord Chancellor said that it covered only damage done by the trespassing livestock to property. He said that if this Amendment were accepted it would be a dangerous thing to have a herd next door to somebody with a brucellosis-free herd. My Lords, it is infinitely more dangerous for a person with a brucellosis-free herd to be surrounded on all sides by farms where no efforts whatever have been taken to control brucellosis.
The noble Lord, Lord Nugent of Guildford, again asked whether, when cattle which are not accredited within the brucellosis scheme stray on to ground where there is a brucellosis-free herd, and the straying cattle have contact with the accredited herd, the accredited herd will lose their accreditation and thereby will depreciate in value quite significantly. The noble and learned Lord the Lord Chancellor replied that this was a loss incurred, but not damage.
Clause 4(1)(a) is intended to reproduce the existing law which deals with small amounts of damage that may be done by trespassing cattle. The whole importance of this matter has been slurred over. The importance is that a man who is doing his best in the interests of agriculture, and in the interests of the consumers of milk in particular, is being left in the hands of the man who has done nothing towards clearing his herd and has run no risks whatsoever in his farming practices.
It was suggested by several noble Lords that this point should me covered by insurance. Not more than an hour or so ago I was in touch by telephone with the Yorkshire Insurance Company, which probably does the largest business in livestock insurance in this country. They said that they had no experience of a claim of this nature. I pointed out to them that it would be rather complicated to draw up a rational scheme because the conditions would vary so greatly between the man who was surrounded by non-accredited cattle and the man who was entirely out on his own with no reasonable chance of infection from outside. I asked the accident assessor whether he would let me know what the mature consideration of the insurance companies would be on this question. I fear, however, that in the meantime the premium would be almost entirely prohibitive to the man who most needs insurance; namely, the man whose land forms an enclave between non-accredited herds.
I congratulate Her Majesty's Government on having at long last decided to call it a brucellosis-eradication scheme and not an accreditation scheme. They have expressed their intention of taking steps which for the past ten years, and more, all farmers have been pressing them with increasing urgency to take. But, my Lords, it will take some time for that step to become a reality, and during
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that time I must press my point that the man who has done his best, who has worked and risked his capital and his own future, deserves the protection which this Amendment would give him. I beg to move.
LORD INGLEWOOD: My Lords, I should like to support the noble Lord in this Amendment. As a country we are somewhat late in the day in trying to eradicate brucellosis. It is most important that we should do so, not just from the point of view of the health of the cattle but also from the point of view of the position and reputation which our cattle hold in the world and the export possibilities which are now being frustrated. Furthermore, this disease is a hazard to human health, even though it is not what I believe is called colloquially a "killer". If we now have this scheme under way it cannot be so long, one would hope, before brucellosis in this country is eradicated, and therefore this extra protection for which my noble friend asks in this Amendment is not something which will continue until the day of judgment. It is just something a little extra which these forward-looking farmers deserve during this short period while we are making this great effort to rid this country of a very serious cattle disease. I hope that this Amendment will meet with the support of your Lordships.
LORD COLLISON: My Lords, may also offer my support for the Amendment? I too am glad that the Government are now at last going to tackle the problem of brucellosis. I have felt it to be rather ridiculous that an accredited herd could be implicated in brucellosis simply through animals straying on to a neighbouring farm. I have also been concerned with the human aspect of brucellosis. More than half the veterinary surgeons in this country have contracted it because of their contact with cattle, as also have a considerable number of farm workers. It is not a pleasant disease; it is an undulant fever, and I believe that it is almost impossible to cure it. There is therefore a further virtue in this Amendment in that it will persuade farmers to make sure that their herds are properly enclosed, and thereby help to prevent the spread of the disease by contact.
BARONESS ELLIOT OF HARWOOD: My Lords, I also support this Amendment. I am sure the noble Baroness, Lady Summerskill, would feel strongly about it, if she were present, since she has on the Order Paper an Unstarred Question on this subject. It seems to me that, if we are now passing an Act of Parliament on this subject, to leave out the danger and, as it were to pay no attention to this great attempt by farmers all over the country to get their herds brucellosis-tested would be doing something very retrograde. I remember when attestation for milk was first started. A great many herds were not tuberculin-tested cattle. It took some time to get them all tuberculin-tested, but the work is now complete. I imagine that in a few years the situation will be the same with brucellosis, and every herd will be attested as brucellosis-free. It will take a long time, but it is something for which we should aim. In my view, it would be most unfortunate if this new Act were passed, in December, 1969, without provision being made for something that is obviously coming, and if those farmers who are spending a great deal of money trying to get the herds clear of this disease, not only from the point of view of cattle but also from the point of view of human beings, were handicapped. I support the Amendment.
LORD CLITHEROE: My Lords, I beg to support the Amendment for the reasons I gave on the previous occasion.
LORD WISE: My Lords, while appreciating the point of view of my noble friend Lord Rowallan, and sympathising to a certain extent, I am afraid that I cannot entirely support him. Cattle are peculiar creatures; they are always doing the unexpected, and the fact of being brucellosis-free will not make them any less likely to stray. After all, the grass is always greener on the other side. I believe it is a regulation with brucellosis-free herds that double fencing is essential, in which case the neighbours' cattle are also double fenced. The animals in the brucellosis-free herd will stray just as frequently as the non-accredited cattle. Therefore I think it would be prudent of the owner of the brucellosis-free herd to insure, if need be, against any consequential loss which may occur as a result of his own cows straying. Until such time as we eradicate brucellosis—and I
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hope we shall continue moving in that direction; indeed, I am sure we shall—the owners should insure against consequential loss.
LORD KILBRACKEN: My Lords, I should like to intervene for a moment because it so happens that I myself last month had a very serious outbreak of this disease in my herd, as a result of which one quarter of my breeding cattle, cows and heifers, have had to be destroyed. In the country where I farm, across the St. George's Channel, there has been a compulsory eradication programme for over three years, and I have been fortunate enough throughout the three-year period to be completely free of any reactions. Moreover, I have a completely self-contained herd. I never buy any cattle; I never use an outside bull, and outside cows never come to my bulls. So far as I know, there have been no strays, and the neighbouring farms have all been clear. Yet, quite suddenly, after being completely clear of the disease over the three-year period, when the annual test—which I faced with complete equanimity —took place, it was found that 14 out of 60 cows and heifers reacted, and under the rules in Ireland had to be destroyed.
Full and generous compensation is payable, which is not the case in this country. Here, if a cow is affected the farmer is faced at once with the difficult problem of what to do with it. The only honest thing he can do is to isolate it, try to get some condition on it, and then sell it to the factory for beef. But there is a very great temptation, until the compulsory eradication programme, to put it on the market as a springing cow. If he sells it for beef there is a loss. There are also important secondary losses, in that he cannot sell any females, or is restricted in the selling of both females and, what is important in my case, pure-bred bulls. I have three young pure-bred bulls which I should normally be selling now, but I cannot sell them until they have passed another 90-day test and then a 60-day test.
I mention my experience to show the great difficulties that will be found in eradicating this disease. I feel that it would be somewhat unfair to put a responsibility on a farmer next door to prevent his cattle from straying when it may be the obligation of the owner of the accredited herd to see that his own

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land is fenced and that his cattle are not allowed to go across to his neighbour's land. However, I am very glad that the noble Lord, Lord Rowallan, has moved this Amendment, and in general I have great sympathy with it.
LORD NUNBURNHOLME: My Lords, I rise to support the Amendment, but, as I have said previously, I feel that it is not going to he very effective. If the neighbour is a man of no worth, you will not get any compensation out of him. That brings me to the question of insurance. The noble Lord, Lord Rowallan, said he did not know what the insurance rate would be for accredited herds. As the Government are starting this brucellosis eradication scheme in this country, would they also start a scheme whereby the accredited or brucellosis-free herd can be insured with the Government until the rate is fixed by the insurance companies?

ENVIRONMENTAL POLLUTION
3.47 p.m.
THE LORD PRIVY SEAL (LORD SHACKLETON): My Lords, if this is a convenient moment, I should like to repeat a Statement which is being made by the Prime Minister in another place in reply to a Question. The Statement is as follows:
"With regard to the responsibilities of my right honourable friend the Secretary of State for Local Government and Regional Planning, I gave full information to the House on October 13. The House will also recall that I asked my right honourable friend to go urgently into the question of environmental pollution in all its forms and to make proposals to me on how the problem should be dealt with.
"He has now reported. He is setting up a permanent central unit, composed mainly of scientists, on his own staff, to assist him in his co-ordinating role on environmental pollution. Through his staff he will maintain close relationships with the Chief Scientific Adviser to the Government and with the Research Councils and other institutions concerned with the problem.
"Following on my right honourable friend's report I have recommended,
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and Her Majesty the Queen has been pleased to approve, that a Standing Royal Commission on Environmental Pollution should be set up with the following terms of reference:
'To advise on matters, both national and international, concerning the pollution of the environment; on the adequacy of research in this field; and the future possibilities of danger to the environment.'
"It is intended that this shall to a Standing Commission able to take up any problem relating to pollution so that the benefit of the best possible advice will be available to Government Departments responsible for executive action.
"One aspect of this matter which has caused particular concern is the problem of noise. My right honourable friend proposes to establish an Advisory Council to deal with this, on the lines of the Clean Air Council.
"Concern has also been expressed in the House and outside about the use of pesticides. I should therefore inform the House that the Agriculture Ministers are already engaged in consultations about the preparation of legislation to replace the existing voluntary system of control on the use of pesticides. Proposals will be brought before the House.
"On the general question of environmental pollution, the Government intend to present to the House a White Paper next year. This will show how much has so far been achieved under the existing arrangements, which our new proposals will greatly reinforce."
LORD BROOKE OF CUMNOR: My Lords, I should like to thank the noble Lord the Leader of the House for repeating to your Lordships' House this Statement. I have no doubt about the importance of work on environmental pollution, but is the noble Lord aware that many people are very doubtful about the value of Standing Royal Commissions? Is he aware that many people feel that the direct responsibility of Ministers to Parliament may achieve more effective action than if these matters are referred to standing non-Parliamentary bodies? May I express the hope that the Advisory Council on the subject of noise will prove to be as valuable as the Clean Air Council were certainly to me when I was Minister on

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clean air questions? May I finally ask about the strange timing of this action. How is it that the Government are proposing here and now to set up a Standing Royal Commission on environmental pollution, and next year to present to both Houses of Parliament, presumably, a White Paper on the subject? Will that express their views or the Royal Commission's views?
LORD BEAUMONT OF WHITLEY: My Lords, I, too, should like to thank the noble Lord the Leader of the House for repeating this Statement. It seems to us to be a very important Statement, one extremely welcome and indeed possibly well overdue. The whole problem of pollution is a very complex one, but there were two major strands to it. The first is the scientific—the diagnosis of pollution—and the second is the cure, which often involves serious economic problems, such as the allocation of costs. There is no mention of the economic side in the Statement, and I should like to ask whether it is suggested that economists should work on and with the Standing Royal Commission, because certainly we on these Benches think it would be a very good idea if they did.
LORD SHACKLETON: My Lords, I am a little surprised that the noble Lord, Lord Brooke of Cumnor, gave this Statement quite such a cool welcome. If I may say so, with respect to somebody of his great experience and judgment, I do not think he has quite grasped the implications. But that is always a difficulty with Statements. The fact is that responsibilities rest with Ministers; there is no doubt whatever that it is Ministers who will be responsible for executing policy. In the past a large number of Ministers have been involved and that is bound to continue, because you cannot just take a problem that affects the whole environment, take it away from twenty Departments and put it all within the responsibility of one, because it is still the responsibility of the others. Departmental Ministers deal with problems that arise in their own field. But the important decision which was taken previously was that one Minister should take on the main responsibility; that he should consider the problem as a whole, set up the necessary machinery to consider and keep it under review and
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recommend action, and co-ordinate the large number of bodies who are involved in this field, so that problems are looked at synoptically. This is what my right honourable friend is proposing to do, and the Statement makes clear that he will have the necessary advice to achieve this.
In addition, this is an area where external opinion, whether it be scientific, the general public, those interested in natural history, or whatever it may be, will be able to give advice and guidance and to publish this, so that Governments may take account of it—and I think that nationally we have been, and indeed all nations have been, slow to face this problem. I have debated this subject often in this House over many years, and I am particularly gratified to see that at last really firm action is being taken. The Standing Royal Commission will provide an important sounding board and focus for consideration of problems. They will tender their advice to the Government and will be able to publish that advice, and I feel that this is a very important step forward.
The noble Lord, Lord Beaumont of Whitley properly pointed to the great economic difficulties, and it is of course the economic consequence of either coping with pollution or failing to cope with pollution that needs proper assessment. He is absolutely right; and although I have no precise information it seems to me inconceivable that economic advice will not be available. Clearly, one will have to arrive at the right sort of cost estimates in dealing with this matter.
LORD ILFORD: My Lords, may I ask the noble Lord whether in appointing the members of the Advisory Commission, he will bear in mind the desirability of including representatives of the water undertakers, local authorities, and other classes of undertaker who have a very wide experience in questions of pollution?
LORD SHACICLETON: My Lords, I should stress that this Royal Commission is not a representative body in that sense, and if one were to put every interested group on it I think it would be very large indeed. It is intended to be a well informed, mainly scientific group; but of course it would be quite absurd if it was not to obtain the advice of the

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local authorities, water undertakers, and others who have such a vital interest in this field. So whereas I cannot suggest that there will be specifically representatives from these bodies, I am sure that their views will be very much taken into account. It is worth pointing out to the noble Lord that this responsibility has been placed in the hands of my right honourable friend the Secretary of State for Local Government and Regional Planning, which does bring local government right into the field. I should also tell noble Lords that my noble friend Lord Kennet, who is deeply interested and is heavily involved in local government also, is especially concerned with this matter.
BARONESS ELLIOT OF HARWOOD: My Lords, may I ask the noble Lord whether this will cover Scotland as well as England?
LORD SHACKLETON: My Lords, I understand that it does.
LORD MERRIVALE: My Lords, may I ask whether the Confederation of British Industry will be represented on the Royal Commission, as they feel strongly about this matter?
LORD SHACKLETON: My Lords, I think I have answered that question. Obviously the Commission will need to take account of advice from everywhere, and particularly industry, which plays a large part and has in the past been responsible for much of the pollution.
THE EARL OF LAUDERDALE: My Lords, could the noble Lord clarify one point? Since the Natural Environmental Research Council is concerned at points with the behaviour of pollutants, would he explain a little more clearly what is the relationship between the Standing Royal Commission and this Research Council?
LORD SHACKLETON: My Lords, the Natural Environmental Research Council plays a crucial part and, as the noble Earl, with his geographical land planning interests will know, they have been in the forefront. However, looking at it from the point of view of their own responsibility, the Natural Environmental Research Council—or, before it, the old Nature Conservancy—have not had the
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wide remit that this Royal Commission has. If I may stress it again, the responsibility will be on Ministers collectively and the Minister particularly responsible for co-ordination, and the Natural Environmental Research Council will, of course, be fully consulted and no doubt will contribute. For all I know. they may even have some Commission members on some of the Committees that they may set up.
LORD CONESFORD: My Lords, since on the last occasion when the question of the Minister's responsibility for questions of pollution was raised, I put forward the importance of the question of noise, may I say how glad I am that Her Majesty's Government have set up a body to deal with this extremely important matter?
LORD SHACKLETON: I am much obliged to the noble Lord. We always listen with great attention to what he has to say.
LORD AUCKLAND: My Lords, can the noble Lord say whether oil on beaches will be included within the ambit of this Royal Commission? Recent legislation has failed to cure this menace completely, and would not the noble Lord agree that much more stringent methods are needed to combat it?
LORD SHACKLETON: My Lords, the Royal Commission will be responsible over the whole field of pollution. But again I must stress that the agencies who deal with this matter may be spread over a number of Departments, and the noble Earl, Lord Jellicoe, and I, who have both been particularly involved in this—he succeeded me as chairman of the Oil Pollution Committee—are well aware that a number of people are involved. But clearly this is another example of pollution.
LORD BROOKE OF CUMNOR: My Lords, is the noble Lord aware that my noble friends and I are extremely anxious for executive action in this field, and we are faintly suspicious that this announcement may be a matter of "window-dressing"? The noble Lord did not answer my question about the White Paper. The Government are proposing to set up a Standing Royal Commission, presumably to advise the Government, and simultaneously promise a White

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Paper on the subject next year. Will that White Paper contain the Government's views or the Royal Commission's views?
LORD SHACKLETON: My Lords, I see that the noble Lord is doing his best to blur the issue. I repeat: the Government are responsible, but, because they think this is a matter of such importance, they want a body of power and of status and of influence, but also a non-executive body, to tender advice and to provide a focus for all the different interests that may be raised.
On the subject of the White Paper, it may surprise the noble Lord to learn that this Government believe in getting on with the job; there has been quite a lot of work going on already and quite extensive studies. The Government propose to publish the results of these studies, and no doubt they will from time to time, in the executive field, publish this sort of information independently of the Royal Commission, which is an independent body and will no doubt chase Governments. I suspect they might have to do more chasing if there were a Conservative Government.
LORD BROOKE OF CUMNOR: My Lords, is the noble Lord aware that no Ministers have taken a more active interest in clean air than Mr. Duncan Sandys and myself? Will the Royal Commission be consulted about the contents of this Government White Paper?
LORD SHACKLETON: My Lords, I think the noble Lord is pressing it much too far. He is really doing his best to play this down. I fully acknowledge that individual Ministers, and particularly Mr. Duncan Sandys in certain aspects of the environment—and I acknowledge the part played by the noble Lord—have been very active. We just think that we need much more pressure, much more co-ordination and much more action, and these proposals are designed for that purpose.

PEERS' EXPENSES AND ALLOWANCES
4.3 p.m.
LORD SHACKLETON: My Lords, perhaps with the leave of the House, I might now make another Statement,
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which I hope will be welcomed. It concerns the expenses allowance payable to Members of the House of Lords and the car allowances and official travel arangements.
Your Lordships will be aware that Members of the House of Lords have been entitled since 1964 to claim reimbursement of expenditure necessarily incurred in connection with attendance at sittings of the House up to a maximum of four and a half guineas for each day's attendance. Whilst a number of Peers do not find it necessary to claim the full amount, representations have been made that the present allowance is no longer realistic in relation to the kind of expenditure for which it is intended to provide; for example, hotel accommodation, meals, taxis in London and other incidentals. The Government have therefore reviewed the position and have concluded that the rise since 1964 in the cost of those items of expenditure which the allowance is intended to cover justifies an increase in the amount of the upper limit which may be claimed. They therefore propose that this maximum should be raised to £6 10s. 0d. for each day's attendance.
The Government also propose that the present rate of car allowance of 4½d. a mile should be increased to 6d. a mile. This follows the basis for calculating the car allowance adopted by the Lawrence Report, and is broadly related to the cost of first-class travel—very broadly related; first-class travel is slightly less. The allowance is not directly related to the cost of actual car expense. In addition, the Government propose a number of changes to improve and rationalise our present travel arrangements. For example, a Peer who has to travel by car to his local railway station and who at present is entitled to claim for this will now normally be eligible to claim the allowance for the car's return journey, also.
I would, however, remind the House that eligibility for travel expenses will continue to be based on the principle of assiduity of attendance—that is to say, an attendance of one-third of the possible attendances during the month or period of claim. The special relaxation for Peers who live in Scotland will continue.

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The Resolution required to give effect to the proposals which I have just announced will be laid before both Houses as soon as possible; and if this is approved, the new arrangements will then come into force at once.
EARL JELLICOE: My Lords, I am grateful to the noble Lord for his Statement, and I am particularly glad to learn of its contents. It is always a pleasure to listen to the noble Lord the Leader of the House, and a particular pleasure to listen to him speaking in his role of Father Christmas. I am glad to have this further evidence of Her Majesty's Government's appreciation of the services rendered by your Lordships. I would only add that these new arrangements for the reimbursement of our necessary expenses seem, to me at least, to be both sensible and realistic.
LORD AMULREE: My Lords, I, too, should like to thank the noble Lord for the Statement he has made, and for its contents. I think it must reflect a great deal of the hard work which the noble Lord has done on behalf of us all to obtain this excellent increase in our expense allowances. I am sure we are all very grateful to him for that work as well as for the Statement.
LORD BLYTON: My Lords, is my noble friend aware that I should like to congratulate him on his Statement, and also on the very important part he has played in getting these improvements for your Lordships? Perhaps I might observe that I still think there is racial discrimination here, because Peers who live 300 miles away and have rail and hotel expenses to meet are at a considerable disadvantage when compared with those who live in London.
LORD SHACKLETON: My Lords, I am much obliged to noble Lords. I always seek to serve your Lordships: I hope, equally, that your Lordships will continue to deserve my services! Perhaps I might also add one small point—a matter which has not hitherto been covered. Whereas I mentioned that local taxi fares are included in the £6 10s. Od., reimbursement of bus or coach fares for journeys of more than five miles may now be claimed, as are rail and air fares. But there are certain detailed matters involved, and on this I understand that
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the Committee of the Whips are able to advise and arbitrate, with the Officers of the House, with great skill. I am obliged for the comment of my noble friend Lord Blyton. I must say that any racial discrimination in favour of Lady Elliot as against my noble friend raises very acute difficulties for me.
THE EARL OF JELLICOE: My Lords, I wonder whether I might ask the noble Lord a further question. He said that the necessary Resolution to give full effect to these proposals will be laid before Parliament as soon as possible. Could he say how long is "as soon as possible"?
LORD SHACKLETON: My Lords, I think it will be possible for it to be laid within the next 24 hours. In the rather dynamic atmosphere in which we live now with regard to Parliamentary business I can only say that I hope it will come before both Houses for approval before the Christmas Recess.

UPPER CLYDE SHIPBUILDERS
4.10 p.m.
THE MINISTER OF STATE, MINISTRY OF TECHNOLOGY (Loan DELACOURT-SMITH): My Lords, with the leave of the House I should like to repeat a Statement on Upper Clyde Shipbuilders Limited, which is being made in another place by my right honourable friend the Minister of Technology. The Statement is as follows:
"I informed the House on June 19 of the arrangements the Shipbuilding Industry Board were making to provide assistance under the Shipbuilding Industry Act to Upper Clyde Ship-builders Limited.
"This action has not yet restored the confidence of suppliers and customers to the extent necessary to enable the Company to carry on its business on a satisfactory long-term basis. The Shipbuilding Industry Board do not consider that they would be justified in present circumstances in providing further help to the Company out of the funds available to them under the Shipbuilding Industry Act.
"However, the Company have been seeking ways of improving their position in recent months, and in order to

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allow them a further period in which to show results the Government have decided to introduce fresh legislation to provide assistance to this Company by way of loans not exceeding —7 million and, if necessary, guarantees of completion in the case of new orders of particular and immediate value to the Company because they are for early completion.
"Any funds required immediately for such loans will be provided in the first instance from the Civil Contingencies Fund; a supplementary estimate will be submitted to the House at the appropriate stage.
"While we are seeking to provide financial help to the Company outside the Shipbuilding Industry Act, this will be related to the continuing process of reorganising and strengthening the shipbuilding industry, particularly on the Clyde, with a view to improving its productivity and future prospects. I am in close touch with the Ship-building Industry Board who are actively considering what further measures may prove desirable to that end."
LORD DRUMALBYN: My Lords, I thank the noble Lord for repeating that Statement which I am sure will come as a great relief to Upper Clydeside, which is well aware of the present difficulties of Upper Clyde Shipbuilders. But is the noble Lord aware that that relief is bound to be tempered with anxiety in view of the time that is being taken for this merged industry to get on its feet? Could the noble Lord tell us how much Exchequer money has already been put into Upper Clyde Shipbuilders (including Fairfield, before Upper Clyde Shipbuilders were formed) by way of grant and loans respectively? Could he also say what is the significance of the Shipbuilding Industry Board not being prepared to give any further financial assistance to Upper Clyde Shipbuilders? Can he further say when this legislation will be brought before Parliament and on what Parliamentary authority in the meantime the advances that he referred to will be made?
LORD BEAUMONT OF WHITLEY: My Lords, I should like to thank the noble Lord for repeating that Statement
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As the noble Lord, Lord Drumalbyn, said, it will be a matter of considerable relief in Clydeside. But I think we should look at the principles involved, since possibly these "one-off" contributions to industry from Government outside the normal machinery are a disturbing factor. I should like to echo Lord Drumalbyn's question about the significance of the fact that the Shipbuilding Industry Board does not appear to be able to help while the Government are able to do so. At first sight this seems to be evidence either that this loan is not a very good risk or that the machinery in use for the Board is not adequate. If so, are the Government considering any change in the machinery of money supplied through the Board?
LORD DELACOURT-SMITH: My Lords, in answer to the first question put by the noble Lord, Lord Drumalbyn, I am in a position to give him the figures for Upper Clyde Shipbuilders. The amount received from the Shipbuilding Industry Board has been £5½ million in grants and £7·7 million in loans or subscription to share capital. The noble Lord, Lord Drumalbyn, and the noble Lord, Lord Beaumont of Whitley, both asked about the position of the Shipbuilding Industry Board in this connection. The Act under which the Shipbuilding Industry Board operate requires the Board to exercise their powers to promote the abilities of the United Kingdom Shipbuilding Industry. The S.I.B. considered that in the present case they could not provide more on the basis of their commercial judgment and having regard to the statutory purposes for which they were established, their responsibilities as a whole, and the funds available to them.
This is not a question of disagreement between the Government and the S.I.B. The Government accept the S.I.B.s views of their own responsibilities; but the S.I.B. recognise that the Government have wider social and economic responsibilities. I cannot at present state when the legislation will be put forward, nor can I add to what I have already said in respect of the immediate advances. On the broader question of the future, the S.I.B. are currently considering what industrial measures might be helpful to the industry following the action which the Government now propose to take.

ANIMALS BILL [H.L.]
4.18 p.m.
Report stage continued.
THE LORD CHANCELLOR: My Lords, I do not know why good financial news was followed by such a marked exodus from your Lordships' Chamber —whether it was to convey the news elsewhere or to get away from the discussion of brucellosis. Brucellosis, as some of your Lordships have made plain, is a most important subject; and on this Amendment there are two entirely different points which we must keep distinct. The first is whether the noble Lord, Lord Burton, was right on Committee stage in taking the view that this animal welfare problem is one which ought to be dealt with in a Ministry of Agriculture Bill, since it relates to one problem of disease only; or whether it is suitable that it should be dealt with in this Bill. Plainly, many of your Lordships know a great deal more about brucellosis than I do; but I am told that the relevant facts include the following.
The great problem with brucellosis is that of effectively diagnosing it. That is the main reason why it does not rate as a notifiable disease, since the genuine symptoms cannot readily be detected by owners or stockmen. There are tests to establish the presence of the disease, but these are bedevilled by the widespread vaccination of adult cattle with Strain 19. By way of result, cattle so vaccinated cannot be distinguished in practice from animals which are genuinely infected. This makes the difficult task of diagnosing brucellosis even more difficult. Adult vaccination with Strain 19 stopped in 1967; but it will be 1973 before the great majority of these vaccinal reactors will have been culled from the national herd. Here is one of the main keys to the Ministry's policy towards eradication; that is to say, a compulsory slaughter programme at this stage would involve the wasteful slaughtering at appreciable expense of large numbers of healthy animals simply because they react to adult vaccination.
In 1967 the Ministry introduced the present Brucellosis Accredited Herd Scheme, a voluntary scheme, and the herds of those participating in it were
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required to undergo a series of qualifying tests. In the event of a failure in one of these tests the owner must test the herd at his own expense and cull the resulting reactors. After successfully completing qualifying tests an official blood test is carried out. The reactors discovered at this stage are slaughtered, with full compensation, and the owner is then qualified for an accredited herd register.
Despite criticisms to the contrary, progress with this scheme has been encouraged, especially when allowance is made for the long standstill period of the foot and mouth epidemic of 1967–68. Up to the end of November some 6,250 herds in Great Britain have been registered as accredited, and a further 7,150 were undergoing qualifying tests. In practice, the timetable of the economic approach to eradication rests on the interplay of two main factors. First, we do not want unnecessarily to slaughter large numbers of vaccinal reactors, and secondly, we need a reservoir of brucellafree stock from which to replace infected animals that have to be slaughtered. To eradicate now would be premature, and in fact we gain doubly by deferring compulsory eradication. As each month passes, so the number of surviving vaccinal reactors diminishes and so also the reservoirs of disease-free replacements expands. In fact, to go for compulsory eradication now would call for far more replacements than in, say, three years' time, when the vaccinal reactors will virtually have disappeared from the national herd.
My Lords, I ought perhaps briefly to refer to an answer by my right honourable friend, the Minister of Agriculture, Fisheries and Food, which he gave yesterday in another place. He said:
"The main obstacle to an early start with area eradication is the existence of large numbers of vaccinal reactors. To start too early would mean the unnecessary slaughter of those animals and would cause an unduly large number of replacements. These factors will be progressively culled from herds over the next three years. In two year's time, for example, some 15,000 to 20,000 accredited herds should, on certain assumptions, provide sufficient replacements for a start to be made with area eradication on a worthwhile scale. My aim is to start limited eradication projects in specially selected areas in 1971, and I am already looking at the practical requirements. The annual cost will depend on the scale, timing and terms of the compulsory scheme."

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Then my right honourable friend was congratulated on making what was called a "tentative decision", and he replied:
"What I said was not tentative. I said that I was considering practical schemes for area eradication in certain areas in 1971. That is positive. This is a satisfactory proposal, bearing in mind the increasing progress which we are making. Since I made my statement on 5th November, the level of applications has been rising. Currently it is exceding 150 a week. Therefore, very good progress is being made "—[0FFICIAL REPORT, Commons, 10/12/69, col. 414.]
I do not think that I ought to go further than that, because next week, as your Lordships will know from the Order Paper, my noble friend Lady Summerskill has down an Unstarred Question under which the whole question of brucellosis can be considered. But I would have submitted, in agreement with the noble Lord. Lord Burton, that the problem of this particular disease is one which really ought not to concern us on this Bill, though I would certainly pass on to my right honourable friend, the Minister of Agriculture, Fisheries and Food the suggestion which has been made about insurance when the Scheme is in force.
The second question, which is an entirely different one, is this. There is no doubt at all that the effect of this Amendment would be that where, because of trespassing cattle, an accredited scheme herd becomes de-accredited, the farmer whose cattle has wandered will be absolutely liable, whether it is his fault or not. This Amendment is proposed to a clause dealing with strict liability. This is very unusual in our law. All our law of negligence is based on this: if A owes a duty to B to take reasonable care, he may be liable for any damage sustained if he has failed to do that which a reasonably careful man would have done, or has done that which a reasonably careful man would not have done. But if it is not his fault he is under no liability. The principle of strict liability in Clause 4 is this historical strict liability for trespassing cattle, which usually of course do very little damage indeed, and it saves actions and trouble. It is a hard line, but every farmer knows what it is.
What I have not heard yet is what justification there can be for a man who has chosen to have an accredited herd
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and then suffers what it is admitted may be a crippling liability to put this crippling liability on a neighbour who has done nothing wrong at all and who has taken every care himself. This point, as your Lordships may remember, was raised during the Committee stage by the noble Lord, Lord Clitheroe. He said:
"I take it that the noble Lord, Lord Rowallan, in his Amendment means that the straying livestock is straying owning to the negligence of the owner."
Then he asked what might happen where it was a third party who was at fault. The noble Lord, Lord Rowallan, said:
"The authorities are very strict about having double fencing where there is the differential between the two".
Lord Clitheroe replied:
"I know that that is so. But it is an important point that the damage should be due to the negligence of the owner of the straying animal."—[OFFICIAL REPORT, 27/11/69; col. 1410.]
Under this Amendment that is not so. The unfortunate neighbour's liability is not based on negligence at all; it is strict liability. That means that the unfortunate neighbour, who has taken every care that his cattle should not stray, will be liable for what is described as a crippling liability which the man who has the brucellosis-free herd is going to impose on him, although the damage is not at all his fault. After all, our ordinary law of negligence, in saying that, if you do not take proper care and damage your neighbour you are liable, but if you take proper care you are not, has a moral principle behind it and makes sense.
I should think that in relation to brucellosis herds in particular we ought to bear in mind that under the Scheme Rule 1 says—
"The owner shall ensure that his cattle do not come into contact with other cattle."
That rule, I think, operates from the date of application for registration. Rule 6, which becomes operative from the date of passing the first qualification tests, reads as follows:
"The owner shall provide and maintain boundary fences/walls which will prevent contact between his herd and other cattle."
It would seem to me extraordinary to extend the Common Law so as to enable a man who is not carrying out his own contractual duty to recover damages from his neighbour who has not been at fault at all. I am afraid that, for those

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reasons, I must ask your Lordships to reject the Amendment, if, as I hope will not happen, it is pressed to a Division by the noble Lord.
4.30 p.m.
LORD NUGENT OF GUILDFORD: My Lords, we have all listened with attention to the noble and learned Lord's exposition on this difficult and complicated problem. There are, of course, two aspects of it: the legal one, which the noble and learned Lord dealt with second, and the agricultural one, which he dealt with first. I would say to the noble Lord, Lord Rowallan, that he has my sympathies 100 per cent. for the substance of his complaint, but I am bound to say that I do not think this is the right way to cure it. This is not the right Bill in which to put such an. Amendment. As the noble and learned Lord, the Lord Chancellor, has just explained, if this new clause were to be put in the Bill as it is drafted, it would have terribly severe consequences for the owner of any straying cattle from a non-accredited herd which happened to contact the cattle of an accredited herd, and would go far beyond the general spirit of the Bill.
The real difficulty of this case, and the reason, I suspect, why many noble Lords on all sides of the House came in to support the noble Lord, Lord Rowallan, is because the brucellosis eradication scheme is at present in a very unsatisfactory state. I thought that the noble and learned Lord the Lord Chancellor had certainly equipped himself with all the best possible agricultural arguments to show that good progress was being made. I am glad to hear it and that the Minister of Agriculture sees a prospect of setting up eradication areas, with slaughtering and compensation, within the next two or three years. Most of us have felt that this ought to have been done long ago.
There is no doubt at all that an accredited herd now is at a very severe disadvantage. As a dairy farmer becomes accredited, he culls out reactors and off they go into the market, and other dairy herds buy them. This is a very unsatisfactory position. So I very much sympathise with the noble Lord in his plea for some relief to this situation. I also understand what I am sure
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he is going to say: that the condition which is in the brucellosis scheme. that a farmer should fence in his animals so that they cannot contact other cattle, is perfectly sensible but that in practice it is impossible to do it 100 per cent. and there may be cases where such contacts are made. These are very good reasons for saying that the Minister of Agriculture ought to try to think of some way in the interim two or three years of improving the position under the brucellosis scheme and, if he can, of accelerating the setting up of accredited areas. But I do not think that making this Amendment would be the right way of trying to cure the scheme. It is certainly the wrong Bill to put it in. If the noble Lord reads the Long Title of the Bill, he will see that it simply does not fit here at all.
If the noble Lord wishes to proceed with an Amendment of this kind, I think, as I have told him privately, that the right place is to the Agriculture Bill which is now proceeding in another place. That is a wide, miscellaneous Bill, covering veterinary matters, and on which I suppose that he could put down a new clause which would perhaps improve the basis of the brucellosis scheme. That would seem to me to be the right procedure, rather than trying to insert a new clause into this complicated, tight little legal Bill we have before us now. Much as I sympathise with the noble Lord, if he pressed this Amendment to a Division I should feel absolutely torn, because my personal sympathies are entirely with him, although I feel that his method of trying to cure his problem is the wrong one. So I hope that he will not press it now. Perhaps his ingenuity may find another new clause to put down on the Agriculture Bill, when we may ventilate this matter further.
4.34 p.m.
LORD ROWALLAN: My Lords, may I ask whether the insertion of the following words:
"Where livestock belonging to any person owing to his negligence strayed on to land used by a herd",
would meet with the approval of the noble and learned Lord the Lord Chancellor and of the Front Bench of the Opposition? I am willing to do that. I am concerned that we should not wait

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all this time. Long waiting makes the heart sick. Owners of accredited herds have been heartsick for many months, and I hope that it will not be necessary to keep them heartsick any longer.
LORD DONALDSON OF KINGS-BRIDGE: My Lords, may I, for clarification, ask the noble Lord what difference these words could possibly make? A farmer has a duty to fence in; so if his cattle get out he is automatically negligent. There cannot be any way round this.
LORD ROWALLAN: It is not the case, as may have been suggested, that when cattle stray from an accredited herd on to unaccredited land the damage is done. It is only when non-accredited cattle stray on to the holy ground of an accredited farm that damage occurs. I believe that in general practice, though perhaps not in law, it is a question of fencing in and not of fencing out. May I also ask—I hope your Lordships will forgive me for straying a little—what steps have been taken by Her Majesty's Government to warn the general public of the dangers which they are putting in the way of the farmer? For instance, the police, without any malice or carelessness on their part and merely following hundreds of years of practice, finding cattle straying on the road, open the nearest gate and push them in. I myself have warned the Chief Constable of Ayrshire of the danger of this and he has told me that he has informed all his police that they must not do any such thing unless they are absolutely certain that the farm into which they are putting the cantle is not accredited.
The Electricity Board also have issued instructions to all their linesmen, who are crossing land constantly, that not only must they close every gate they come to, but also secure the gate. I have received most courteous replies to both those suggestions and assurances that instructions have been issued and would be complied with. I hope that the Government will do something to bring the attention of the public and in particular of the local authorities to the danger of these practices. I am still recalcitrant about the withdrawal of this Amendment.
LORD WISE: My Lords, the noble Lord said that no damage is done if
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accredited cattle stray on to non-accredited land and thereby come into contact with non-accredited cattle. I should have thought that damage must be done because, surely, they could become non-accredited?
LORD ROWALLAN: My Lords, no damage whatever would be done to the non-accredited herd. It is the accredited herd which is getting into trouble.
THE LORD CHANCELLOR: My Lords, this is the Report stage of the Bill and, therefore, apart from the Mover of an Amendment and the noble Lord who replies, no other noble Lord is entitled to speak twice. Therefore, I must ask leave of the House in order to reply to the question that has been raised. To insert a reference to negligence in Clause 4, which relates to cattle trespass generally and imposes strict liability, would be completely to re-cast the whole of the clause. I say this while realising that it is always difficult to advise on an Amendment 1 have not seen. I will certainly convey to my right honourable friend the Minister of Agriculture everything which the noble Lord, Lord Rowallan, has said. Meanwhile, I venture to hope that he will think it right to accept the advice of the noble Lord, Lord Nugent of Guildford, and reserve further action for the Agriculture Bill.
LORD ROWALLAN: My Lords, with regret, on the assurance that this matter will be brought to the attention of the right honourable gentleman the Minister of Agriculture, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 5 [Exceptions from liability under sections 2 to 4]:
4.40 p.m.
THE LORD CHANCELLOR THE LORD CHANCELLOR moved Amendment No. 3:
Page 2, line 36, leave out from ("proved") to end of line 3 on page 3, and insert ("either—

(a) that the animal was not kept there fox the protection of persons or property; or

(b) (if the animal was kept there for the protection of persons or property) that keeping it there for that purpose was not unreasonable ").

The noble and learned Lord said: My Lords, several noble Lords were not

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happy about the terminology of this subsection dealing with the position of trespassers. The Amendment substitutes fresh criteria for those used in the Bill to impose liability for damage done by animals to trespassers. As a result, the keeper of an animal will be strictly liable under Clause 2 for any injury he may cause to a trespasser only where, first, the animal is kept for the purpose of guarding persons or property, and, second, the use of the animal for that purpose is not reasonable.
The test of reasonableness in the use of the animal for guard purposes will, in practice, never be satisfied for animals of a dangerous species. It is unthinkable that a court could find circumstances where the use of a lion or snake to guard property was justified. There is therefore no need to distinguish between dangerous species and others. On the other hand, where normally harmless animals are trained for guard duties so that they will act against intruders, their use for the protection of persons or property will be justifiable or not, depending on the circumstances. The courts can be expected to have regard in this connection to any warnings given to potential trespassers, to the obstacles which a trespasser would have to overcome before coming into contact with the animal and to the likelihood of innocent trespassers unwittingly straying on to the premises. The use of a fierce guard dog could be expected to be held unreasonable to protect an open field on which hikers or children are likely to wander, while it might not be unreasonable to use such a dog to protect a factory against intruders who had managed to scale walls or railings.
The Amendment covers the protection of persons as well as property. It is not unreasonable, for instance, that elderly persons living alone should keep a dog as a safeguard against intrusion. The Amendment is intended to accord with the general trend of the law on liability of occupiers for the safety of their premises. The authorities are not consistent, but they show a tendency to permit the creation of reasonable, unconcealed dangers which will deter trespassers from intrusion into private property, but not to permit the creation of a hidden danger or the doing of any
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acts deliberately intended to do serious harm to trespassers known to be there.
I hope the House will support this Amendment. In substance, what we have done is to give up trying to find some phrase that will cover any one of a very large number of varying circumstances. We have laid down the test of reasonableness and, recognising that the circumstances will vary very considerably, we have left it to the judge hearing a case to decide what is reasonable in all the circumstances of the case. I beg to move.
LORD NUGENT OF GUILDFORD: My Lords, may I thank the noble and learned Lord the Lord Chancellor for his Amendment, which certainly goes a long way to meet the point that a number of noble Lords made on the Committee stage. I do not wish to sound unappreciative, and I entirely follow the noble Lord's argument. But, I still have three points of qualification that I should like to make, before I agree that this is the right Amendment to put in here. The first point I would query is whether it is right to put on the keeper of the dog—and of course we think first of the ordinary householder who has a house dog which is kept at a watch dog—the onus of proof. I wonder whether the subsection should not be constructed the other way round, thus throwing on the trespasser the onus of proving that it was unreasonable. I am speaking now with regard to paragraph (b) of the noble and learned Lord's Amendment.
The second point concerns the method which the noble and learned Lord has now chosen for dealing with this difficult and complex matter of dangerous and tame animals. I quite see the advantage of getting rid of differentiation in this matter, but it seems to me that dealing with it in this particular way could lead to difficulties. Not least, I should have thought is the difficulty that paragraph (a) says exactly what we do not want to do. It is going to say that the animal" was not kept there for the protection of persons or property", when nine times out of ten, the animal will in fact be kept there for the protection of persons or property; and we all wish that it should be there for that purpose.
We have a Bill with the most praise-worthy intentions, notably inspired by

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the noble and learned Lord the Lord Chancellor, and it seems unfortunate that it should contain a paragraph saying exactly what we do not mean. I quite understand what the noble and learned Lord is saying with regard to the way this provision will be construed in the courts; nevertheless, it is going to say what I suggest we do not mean. Looking at it as a layman. I have should have thought the Bill would have been clearer if it had continued with paragraph (a) of subsection (3) drafted as it now stands. It deals separately with the dangerous species, as against the non-dangerous species, and this makes the intention of the Bill absolutely clear. The noble and learned Lord the Lord Chancellor may feel that this form would create other difficulties, but it seems to me that there would be great advantage if this Bill, which in all other respects is so admirably clear, could continue to be clear on this particular point.
I should be grateful if the noble Lord would deal with these two points: first, the question of onus of proof, and whether it would be possible to redraft this subsection so that the onus of proof is thrown on to the trespasser to prove that it was not reasonable; and, secondly, the question of making the Bill say what we intend it to mean.
VISCOUNT MASSEREENE AND FERRARD: My Lords. I should like to thank the noble and learned Lord for putting down his Amendment, which has to a great extent met my Amendment. I was chiefly concerned with guard dogs, as I stated at the time. I had hoped that in paragraph (b), about which I am talking, the noble and learned Lord the Lord Chancellor might have had, instead of the word "keeping", the word "finding". As I pointed out at the Committee stage, a man may have a dog guarding his property that is not kept on that property. It may come to the property every night with its keeper. Therefore, I should have thought the word "finding" would have covered the position better than the word "keeping". I have nothing more to say on this point.
Regarding paragraph (a), I agree that a man cannot keep tigers, lions or cheetahs to deter people from entering his premises or to deter them from entering a
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field. I cannot agree with my noble friend on the Front Bench regarding paragraph (a). I agree with him regarding the onus of proof, but I cannot agree with him the whole way. I thank the noble and learned Lord for the new paragraph (b)—apart from the word "keeping" which I should have liked to see changed to "finding"—because he has gone a long way towards meeting my point.
LORD CONESFORD: My Lords, the Amendment which the noble and learned Lord the Lord Chancellor has put down exactly meets the point which I ventured to include in the Amendment that I put on the Order Paper at the Committee stage. In fact it goes very slightly further in that I did not challenge paragraph (a). I must say that I was rather gratified, on reading the Amendment which the noble and learned Lord the Lord Chancellor had put on the Order Paper, after consulting the Law Commission, to find how near I had come to getting it right—a rather rare experience. In my Amendment, I had not challenged the onus of proof, and as the present Amendment completely meets my point I can only thank the noble and learned Lord for it.
I agree with my noble friend Lord Nugent that part of the new paragraph (a) looks a little curious to the layman at first sight. But the layman must not stop there; he must go on to read paragraph (b), because otherwise the wording would be nonsense. But if he goes on to read paragraph (b), I think that the precise point which we all have in mind, apart from the question of onus of proof, has been met by the noble and learned Lord, and I thank him for it.
LORD LEATHERLAND: My Lords, I felt some sympathy with the noble Lord, Lord Nugent, when he drew attention to what appeared to be the some-what incongruous wording of paragraph (a):
"that the animal was not kept there for the protection of persons or property".
But on reading paragraph (a) in connection with paragraph (b) I thought I saw the common sense of it. Under paragraph (a) it may well be that I keep a pet dog—not the dog that I keep as a fierce watchdog. But it may well be that if a burglar enters my drawing-room my little pet dog will bite him, or the

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ferret which I keep for the amusement of my children may bite him also; and that covers paragraph (a).
Then we come to paragraph ((b), which I think is perhaps the paragraph to which the noble Lord, Lord Nugent, has not paid sufficient attention. It says:
"if the animal was kept there for the protection of persons "—
that is to say, if it is a watchdog, if it is an Airedale, or if it is an Alsatian—then the owner of the dog is exempted from any liability if he was keeping it there for a purpose which is not unreasonable. If you are trying to protect your house against burglars, then perhaps it is not unreasonable to keep an Airedale or an Alsatian, whereas it would clearly be quite unreasonable to keep a cheetah, a leopard, a lion or a tiger. Therefore, although at first sight it may well be that the noble Lord, Lord Nugent, was right in the interpretation he put upon this paragraph, I think that the Amendment moved by my noble and learned friend the Lord Chancellor is quite correct and will cover every possibility.
LORD AIREDALE: Airedales are very fierce dogs indeed.
THE LORD CHANCELLOR: My Lords, may I reply to two points raised by the noble Lord, Lord Nugent? As to the first point, onus of proof, it is submitted that this is right because it is to be a defence that the animal was not kept for the purpose stated, and the only person who has any knowledge of this will not be the trespasser but will be the keeper of the animal. In relation to the second point, Clause 5(3) is concerned only with strict liability. There will be no such liability where the animal is kept for any purposes other than protection of persons or property; for example, as my noble friend Lord Leatherland said, as a pet or, for that matter, for zoological study, or to put on show.
But it does not follow that a trespasser injured by such an animal would never have a remedy. If the animal constitutes a hidden danger he would often have a remedy against the occupier of the premises in negligence if in the circumstances the presence of the animal might be expected to draw trespassers into the area; for example, inquisitive children attracted by an interesting animal would readily be treated as im-
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plied licensees and have a remedy as such. If the keeper of the animal is not the occupier he might be liable to a trespasser under the ordinary law of negligence—anyone, for example, inciting an animal to attack someone.
The answer to the noble Viscount, Lord Massereene and Ferrard, is in substance the same: that it is a defence. Clause 5 is simply dealing with defences of people who would otherwise be liable, and it is to be a defence that the animal was not kept for that purpose. In answer to the noble Lord, Lord Conesford, I am gratified to find that in substance in adopting his suggestion we have, I hope, this time got it right.
VISCOUNT COLVILLE OF CULROSS: My Lords, before the noble and learned Lord sits down, on the point of my noble friend Lord Massereene I think the difficulty is that the defence will not be available because, under the definition of "keeping" in the Bill, if the dog has been brought in by some organisation who produce guard dogs on a hire basis the person on whose property it is will not, I think, either own it or have it in his possession; I think it is in the possession of the person who brings it and looks after it while it is there. There is therefore a certain difficulty about this which is not covered at the moment.
THE LORD CHANCELLOR: My Lords, if I may speak again, I will certainly take that point into account and make inquiries about guard-dog hiring businesses.
On Question, Amendment agreed to.
Clause 6 [Interpretation of certain expressions used in sections 2 to 5]:
4.56 p.m.
THE LORD CHANCELLOR: My Lords, Amendment No. 4 is consequential on the Amendment made to Clause 6(3)(b) in the Committee stage which inserted a reference to the head of the household, at the suggestion of the noble Lord, Lord Airedale. A corresponding reference to the head of the household in relation to animals kept by members of the household is needed in subsection (5), paragraph (a). There is no change in substance. My Lords, I beg to move.
Amendment moved—
Page 4, line 3, leave out from beginning to ("who") and insert ("he is the head

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of a household and the characteristics are known to another keeper of the animal").— (The Lord Chancellor.)
On Question, Amendment agreed to.
LORD AIREDALE LORD AIREDALE moved Amendment No. 5:
Page 4, line 7, leave out from ("servant") to end of line 9.
The noble Lord said: My Lords, this is an Amendment to paragraph (b) of subsection (5) which lays down, first, that an animal's characteristics, if they are known to the servant, are deemed to be known to the master. The second part of paragraph (b) goes beyond that; it goes into the past, because it says that if an animal's characteristics "were at any time known" to a servant, still they are deemed to be known to the master. I should not have thought that this was a very useful provision. As I ventured to suggest in Committee, it would be useful only if one supposed that an animal was born with certain characteristics, retained them throughout its life and died with those characteristics. But this is not so. Experience shows that both human and other domestic animals tend normally to be boisterous when young and become considerably more docile as they grow older. But, of course, there are exceptions to this, and some human and other animals undoubtedly become cantankerous, fractious and troublesome in their old age. The point is, however, that an animal's characteristics usually do not remain the same over the years.
My quarrel with the second part of paragraph (b) is that it seems to interfere with the court's discretion to operate the rule of relevancy which courts have to administer every day on questions of whether or not to admit evidence. Presumably a court would admit as relevant evidence of an animal's characteristics in, say, recent months, before an incident occurred. But if the incident occurred a matter of two or three years before, the court would tend to say, "Well that evidence will not be useful to us; we rule that it is irrelevant and we do not want to hear that evidence."
This second part of paragraph (b) would seem to interfere with that discretion of the courts, encouraging litigants to adduce evidence of an animal's characteristics as they were known to a
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servant "at any time"—that is what it says, at any time—in the past. I feel that these words which I seek to leave out will do more mischief than they seek to cure, and the Bill would be better without them, leaving the courts unfettered in this regard, as they ought to be, to decide what evidence is relevant, and to admit that, and to exclude what is irrelevant because it relates to a situation too far in the past. My Lords, I beg to move.
THE LORD CHANCELLOR: My Lords, at the Committee stage the noble Lord, Lord Airedale, criticised the paragraph on the ground that it seemed to assume that an animal's dangerous characteristics would never change, and that it might impose liability for the acts of an animal which had long ceased to have those vicious traits—that is, almost denying the power of redemption to an animal. If the Amendment is intended to meet that criticism it is respectfully submitted that it is misconceived. Even without the words which the noble Lord seeks to delete, the paragraph would still impose liability in respect of characteristics known to the owner from past experience. The only difference would be that he might not have imputed to him the knowledge of a servant who had left his employment.
My noble friend Lord Lloyd of Hampstead pointed out on the Committee stage of the Bill that the subsection is concerned with questions of knowledge of existing characteristics. If the past conduct of the animal is still relevant to the continuing existence of those characteristics, then knowledge acquired in the past should found liability. If the past conduct has become irrelevant, knowledge of it will not found liability now and the clause will not make it do so. However, paragraph (b) is sound in principle and accords with the existing law in imputing to the master the knowledge acquired by a servant who has charge of the animal and in fixing the employer with that knowledge, even though by the time when the animal's conduct causes injury the servant may no longer have charge of the animal or, indeed, may no longer be in the master's employment. In so providing we are really only applying the existing Common Law. If the animal no longer has those characteristics then knowledge of them becomes irrelevant. I hope that

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with that explanation the noble Lord will be prepared to withdraw the Amendment.
LORD AIREDALE: My Lords, I put down the Amendment because when I mentioned the matter in Committee on the Question whether the clause should stand part of the Bill, I did not get any answer at all and I thought the point was sufficiently important for me to be given an answer. I now have an answer which I shall be pleased to study; and in the meantime I am happy to ask leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 8 [Duty to take care to prevent damage from animals straying on to the highway]:
5.3 p.m.
LORD NUGENT OF GUILDFORD LORD NUGENT OF GUILDFORD moved Amendment No. 6:
Page 5, line 18, at end insert—
("Provided that this section shall not apply to livestock straying on to public footpaths, bridleways or driftways.")
The noble Lord said: My Lords, I beg to move Amendment No. 6 which stands in my name and in the name of the noble Lord, Lord Henley. I should say that the noble Lord, Lord Henley, very much regrets that he cannot be with us as he is laid low with influenza. But although he cannot be here in person on this occasion he tells me that he is here with me in the spirit.
This Amendment substantially repeats the Amendment which we moved at the Committee stage, with the addition of "driftways" to footpaths and bridleways, in order to make it more comprehensive. Briefly, the case for excluding these rights of ways across fields from the effect of Clause 8(1) is as follows. Subsection (1) of Clause 8 is a very important subsection which changes the law of the land and makes it a statutory duty on all farmers to take reasonable care to see that their livestock do not stray on to the highway where they may cause accident and injury.
We accept, and I believe all noble Lords accept, that this is a reasonable change from the existing Common Law position to the statutory law position, in so far as it applies to the public highway, that is to say, the carriageway. I would
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suggest that bridleways and footpaths fall into a completely different category. They run across the middle of fields and across farms, and therefore they are not normally fenced. If cattle are grazing in a field which is crossed by a public right of way, they will naturally from time to time cross the footpath or bridleway in the course of their grazing. They are unlikely to be dangerous to users of these rights of way—in fact they usually move
away when somebody approaches. The dangers to the users are more likely to be under foot when they are going along footpaths or bridleways. I suppose an animal might barge into a cyclist (who is now allowed to ride on the bridleway under the 1968 Countryside Act) and might knock him over, but this would be most unlikely. Certainly the danger is a small one. The point was made by the noble and learned Lord the Lord Chancellor on the Committee stage that the danger was small, so therefore why not let it fall on the farmer? Whatever the danger, my contention is that this is a risk which the user of the right of way takes in crossing the field. Obviously, the farmer cannot be expected to fence both sides of the path in order to keep the cattle off the path, but it seems to me to be wrong, in a Bill which is making a big change in the law, to place a new obligation on the farmer to keep livestock from straying on to the rights of way where they might cause damage to those who use them. In my view, the users of rights of way should continue to take them as they find them.
Noble Lords may remember that on Committee stage the Opposition was united on this Amendment, but the noble and learned Lord the Lord Chancellor cunningly sowed a doubt in the mind of the noble Lord, Lord Henley, by suggesting that the leading case of Searle v. Wallbank did not apply to rights of way —or there was some doubt whether it did—thereby implying that as the main effect of subsection (1) of Clause 8 is to wash out the effect of this leading case of Searle v. Wallbank, the farmer would be no worse off if the Clause were left as it is. If I may say so, this was an ingenious argument, but in the interval since the Committee stage the noble Lord, Lord Henley, and I have been able to confer further with our advisers. From the advice that we have been given in

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regard to the point made by the noble and learned Lord the Lord Chancellor, it seems to us that there was a doubt as to whether Searle v. Wallbank applied to footpaths and bridleways, and that his statement in this particular context was rather straining the nature of the doubt. Surely such doubt as there was as to whether Searle v. Wallbank did apply arose because it was obvious that in the nature of things a farmer could not prevent his cattle straying upon rights of way in the fields and therefore it was doubtful whether there would ever be any need for Searle v. Wallbank to be applied as a defence.
In this context, my Lords, I am relying particularly on another leading case with which I am sure the noble and learned Lord the Lord Chancellor will be familiar, the case of Fitzgerald v. Cook Bourne (Farms) Limited, which is quite a recent case, of 1963, and which clearly implies that. Therefore, I hope that the noble and learned Lord will accept that this brings us back to the straight issue that we have to decide, as a House, on the Report stage; that is, whether the farmer should have the duty placed on him by this Bill to take care to see that his cattle do not stray on public rights of way where they may cause injury to those who are using them. This is really the simple, practical point that everybody can understand. I suggest that it is really unreasonable to put such a duty on the farmer, because he cannot possibly prevent his animals walking across the rights of way from time to time. It is in the very nature of things. That being so, it seems to me that although it is a small danger, it is unfair to put such an additional obligation on the farmer which he certainly has not had before. I hope that the noble and learned Lord the Lord Chancellor will accept this Amendment, in whatever form he prefers to have it, as being a real improvement to the Bill. I beg to move.
LORD BELSTEAD: My Lords, the noble Lord, Lord Nugent, has reminded us of the Lord Chancellor's opinion on Searle v. Wallbank which led to this Amendment being withdrawn at the Committee stage. In Committee the Lord Chancellor then added:
"It can hardly be said that an animal grazing in a field which is crossed by a footpath strays
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on to the footpath; nor does its mere presence there create a danger ".—[OFFICIAL REPORT, 27/11/69, col. 1453.]
But, of course, in certain circumstances an animal can cause danger on a bridle-way, footpath or driftway. A cow could presumably crush a watch left beside the path by somebody picking blackberries. Or a pedestrian might be kicked by a horse. It is true that insurance can cover this possibility from the point of view of the farmer. As my noble friend has pointed out, it can also cover it from the point of view of someone who takes a chance in crossing a field by a right of way. I suggest that it would be illogical to hold that the farmer should be responsible for fencing tame animals from public paths. In some cases it might be pertinent to ask: which came first, the field or the path? Moreover, from an amenity point of view, it is very doubtful, as we all know, whether the public would wish such rights of way to be fenced.
There is one other point. If a right of way runs through a field where there are valuable or high-spirited animals, the owner will presumably fence for everybody's good, as so often happens to-day. Indeed, one finds this time and again where horses are kept. But to make fencing a statutory liability seems both harsh and illogical, and it would be appreciated by the rural fraternity if this Amendment could be accepted.
5.13 p.m.
THE LORD CHANCELLOR: My Lords, I am sorry if there is still a difference of opinion, as appears to be the case, on this point, particularly as it is such a narrow one. On the one hand, it is said, "We should not be liable for this", and on the other hand, it is said, "All this clause does is to remove a rule which never applied to us at all." While I will certainly look at the cases to which the noble Lord, Lord Nugent, referred, I still do not see how the rule of Searle v. Wallbank could have reasonably applied to footpaths and bridleways.
That case concerned a cyclist on a road who was knocked down by a horse which had strayed from an adjoining field, and the judgments of Lord Maugham and the other Lords refer again and again to animals straying or escaping from land adjoining the highway on to the highway. Clause 8 abolishes an exception from the normal duty of

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care which any keeper of an animal must exercise to prevent his animals from doing damage. Searle v. Wallbank established that this duty does not cover the taking of any special steps to prevent animals straying on to the highway. There is no authority to found any similar exemption in respect of animals found on footpaths or bridleways, and the reason, no doubt, is that there can be no straying or escaping on to a footpath or bridleway which forms an integral part of the field. An animal grazing in a field which is crossed by a footpath or bridleway is perfectly entitled to graze on the land which is used as a footpath or bridleway, just as it may graze anywhere else. It is a normal use of the land and there could be no duty on the keeper to keep the animal from doing so. In Searle v. Wallbank Lord Maugham said:
"The above considerations seem to me to be conclusive to show that no such duty to road users as the appellant relies on could possibly have existed before the advent of fast traffic on made-up roads"
My Lords, if there can be no such duty, equally there can be no exception from the duty which the clause would remove.
However, even if there were doubt about the scope of the rule, there can be no doubt about the scope of the clause. It abolishes the rule excluding or restricting the duty to see that damage is not caused by animals straying on to the highway. Since animals cannot stray on to a footpath or bridleway crossing the land on which they are kept, the clause does not affect them; and if there were a rule excluding the duty of care in the case of animals which are on a footpath or bridleway crossing the land (but not straying there), such a rule would be unaffected by the clause; nor would the Amendment, which relates to animals "straying" on to public footpaths or bridleways, make any difference.
While I will certainly consider the matters to which the noble Lord, Lord Nugent, has referred, I cannot, I am afraid, advise the House to accept the Amendment.
LORD NUGENT OF GUILDFORD: My Lords, I have listened closely to the answer given by the noble and learned Lord, the Lord Chancellor, for which I thank him. As I understand it, he is saying that in fact it is impossible for
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cattle to stray, within the meaning of Clause 8(1), on a footpath or bridleway, and therefore the implication is that the duty which is set out in Clause 8(1) does not fall on the farmer in this respect. It is a great comfort to me to hear this. But if that is so, would not the Bill be improved if we say so? This matter is certainly construed with great authority by the noble and learned Lord, the Lord Chancellor, but the Bill has to be read by everybody, and clearly everybody is supposed to know the law. Would this clause really be weakened by putting in such words as I have moved in this Amendment, which would then make it quite plain that no such duty as is set out in Clause 8(1) fell on the farmer and that in fact those who use footpaths and bridleways have to take them as they find them. We are now on a very fine point. The noble and learned Lord, the Lord Chancellor, has conceded the point of our Amendment in substance and says it is implied in the Bill, but all I am asking is that it should say so.
LORD CONESFORD: My Lords, may I put one point to my noble friend? I do not think it is really quite as simple as he has said. I can see the force of what he has said if the footpath were going through a field. But public footpaths do not always go through a field; they sometimes go between two private properties, both fenced. I have such a public footpath through my own property.
LORD NUGENT OF GUILDFORD: My Lords, I am obliged to my noble friend Lord Conesford. I do not think that alters the substance of the point I am making. The greater number of footpaths are not fenced and there is no duty on the farmer to fence them, and it would in fact be impossible to do so. Of course there are some footpaths that are fenced, and my noble friend Lord Belstead referred to instances where landowners fence them for a specific reason. But I am thinking about the generality with which we are all familiar. The point has been conceded by the noble and learned Lord, the Lord Chancellor, that it is not intended that the liability of subsection (1) should fall on the farmer in such circumstances, and I just want to make it clear in the clause that it does not.

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We have one further stage of the Bill; we have the Third Reading to come, I believe rather quickly, on Monday. I can put down this Amendment or a similar Amendment for that occasion, or an Amendment in any other form in which the noble and learned Lord, the Lord Chancellor, would wish to see it. I do not want to upset the balance of the clause or the drafting, but I feel that it is desirable for clarity that a clause, which matters greatly to the whole farming and land-owning world, should be clear on this particular point. In the light of what the noble and learned Lord has said, the few slightly encouraging words he has given me—I am most anxious to get agreement rather than disagreement—I beg leave to withdraw my Amendment now and put it down again, in some form acceptable, if possible, to the noble and learned Lord, on Third Reading.
Amendment, by leave, withdrawn.
5.20 p.m.
LORD NUGENT OF GUILDFORD LORD NUGENT OF GUILDFORD moved Amendment No. 7:
Page 5, line 18, at end insert—
"Provided that this section shall not apply to straying from adjoining land on to any special road being a motorway for which the Minister of Transport is the Highway Authority."
The noble Lord said: My Lords, I beg to move Amendment No. 7. This again repeats an Amendment which we moved on the Committee stage. It deals with a very simple point, and there are no legal complications. The effect of this Amendment would be to exclude from the effect of Clause 8(1) the duty to take care to keep cattle off the motorways.
Briefly, the argument is that a motorway is a special road for high speed long-distance traffic. Its use is confined to certain classes of traffic only, for safety reasons; it is built by the Minister of Transport under special powers, and it is driven straight through the countryside, bisecting farms and fields. In order to maintain safety, the Minister of Transport povides high-class stock-proof fences on both sides, with bridges and under-passes in order to connect the severed parts of farms and fields, so that the farmer can move his cattle and his farm machinery across the motorway without
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running the very great danger which would obviously be involved if they crossed on the surface. The major implication here is that the Minister of Transport has clearly accepted a special responsibility for keeping the cattle off these roads, and it is in these special circumstances that we think the farmers should be relieved of the duty laid upon them by subsection (1) of this clause of keeping their cattle off the highway, and that this duty should be placed on the Minister of Transport for this purpose.
The noble and learned Lord the Lord Chancellor kindly undertook to consider this point with his right honourable friend the Minister of Transport in the interval between the Committee and Report stage, and in the interval we have slightly improved the Amendment to take care of the point which was made by the noble Lord, Lord Airedale. I hope that the consultation has been productive and that the Amendment, in its new form, is acceptable. I beg to move.
LORD SORENSEN: My Lords, may I ask the noble Lord why his Amendment discriminates between what is technically a motorway and an ordinary highway? I have in mind the district near where I live, Epping Forest, where there is a very busy roadway running right through the forest on to which cattle are constantly straying, to the danger of themselves and indeed of pedestrians and motorists. I cannot see for the life of me why there should be this discrimination between motorways, which evidently the noble Lord wishes to protect, and highways which, technically speaking, are almost as busy as motorways. I should be grateful to the noble Lord if he would explain to me why he wishes this discrimination.
LORD AIREDALE: My Lords, perhaps I could attempt to answer that question. In the case of motorways, the Minister of Transport assumes the responsibility of putting up high-class fencing to fence animals off his motorway, but in the case of ordinary highways there is no such duty laid upon the Minister of Transport. It is thought that where the Minister of Transport has this duty, then it is up to him to carry it out, and if the animals nevertheless stray beyond and over the Minister's high-class

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fence on to his motorway, then it is the Minister who also takes the responsibility.
THE LORD CHANCELLOR: My Lords, as I said, I have had full consultation with my right honourable friend the Minister of Transport, and while I am not in a position to advise the House to accept the Amendment I am in a position to deal with a number of points which, I am not unhopeful, may satisfy the noble Lord, Lord Nugent of Guildford.
It is true that motorways are new roads which are imposed on the countryside through which they pass. Although care is taken to minimise the damage caused to agriculture, it is inevitable that farms are severed and farmers with land fronting a motorway may well find themselves facing certain risks or liabilities which did not exist before. As a result of the Bill, there may be some extra liability if their animals should escape on to the motorway. Where new roads are built this is looked after by the compensation code. When land is acquired for a motorway, full compensation at market value is paid not only in respect of the land which is actually acquired but also in respect of the damage caused by severance and injurious affecttion to the remainder of the land which was held with the land taken. In so far as this Bill imposes an extra liability upon farmers with land fronting a new road, this liability is insurable, and if the extra cost is significant in financial terms it will in future feature in the amount of compensation paid. This is the proper way to deal with the matter, rather than to exempt one kind of highway from the provisions of this clause, and to allow the loss to fall on the injured motorist.
In practice, as I explained in Committee, the Minister of Transport always erects stock-proof fences along motorways for which he is the highway authority, and where he acquires land from adjoining land-owners he covenants to erect and maintain such fences. Highway authorities have rights under Section 85 of the Highways Act 1959 to erect fences along certain major roads, and this is done extensively where the circumstances require it. The Minister of Transport accepts that where he is the highway authority and has provided a fence under
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Section 85 (whether on a motorway or on another special road) he also has a moral obligation to maintain it.
The Minister of Transport's practice in regard to the fencing of motorways is different from that in regard to other roads for which he is responsible. On trunk motorways the Minister provides the fence, under highway powers and on highway land, as an official barrier marking the boundary, and he maintains it thereafter. On other roads the fence is normally provided on the frontager's behalf as an accommodation work, on the frontager's land, and it is up to the frontager to maintain it thereafter. This difference in practice is due to the different legal implications of a motorway, and the compensation paid to the frontager reflects this difference in practice. But the question which noble Lords will ask is: since the Minister is responsible for the maintenance of the motorway fence should not the liability for an accident caused by a straying animal fall on him rather than on the owner of the animal? In practice it often will; if it is clear that the accident was due to the Minister's failure to maintain the fence, then he would accept liability.
But other cases can be envisaged. Leaving aside the possibility of malicious damage, the farmer may be keeping a different kind of stock from that which was on the land or readily foreseeable at the time that the fence was put up; the fence may be proof against cattle, but not against piglets or poultry. The Minister's liability should not be extended on account of any future change in farming practice on the frontage land, because he has no control over it. But the idea seems to be current in some quarters that in putting up fencing along a motorway the Ministry takes account only of the practice which is prevailing at the precise time that the land is acquired. This is not correct. In general, he tries to pursue a reasonable and flexible policy. But what he cannot undertake to do is to keep changing the fences in the years after the motorway is built as the farm changes hands and stock-breeding practices on the frontage land change. Nor can he undertake to provide at the outset against purely longterm or speculative changes in practice, if only because to do so would be a waste of national resources.

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My Lords, I apologise for having taken up a little of the time of the House, but I thought the noble Lord, Lord Nugent of Guildford, might be interested in that position as the Minister sees it. I hope that in view of that very full statement he might think it right not to press this Amendment to a Division.
LORD NUGENT OF GUILDFORD: My Lords, may I thank the noble and learned Lord for his very full statement, which I should certainly like to study. I think in one way or another it meets every point. I feel quite happy about the position where new motorways are built; clearly when compensation is being settled for severance this will be an additional liability which will be taken care of. I was a little anxious about the position of existing motorways where, as I think the noble and learned Lord acknowledged, a new liability is being created by this Bill. There is no question about that. It seemed to me that the noble and learned Lord's statement, about the obligations the Minister will accept in such circumstances, went a long way in the direction that I wanted. I certainly was not considering a situation in which a farmer kept tigers or elephants and still expected the Minister to confine them within his fence. This, of course, would be completely unreasonable. But perhaps your Lordships will allow me the opportunity to study this to-morrow, and if I feel that there is any aspect which is not satisfactorily covered I still have my opportunity on Third Reading. But in the light of what the noble and learned Lord has said, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
5.31 p.m.
LORD NUGENT OF GUILDFORD LORD NUGENT OF GUILDFORD moved Amendment No. 8:
Page 5, line 39, after ("green") insert ("or on land which was proved by him not to have been fenced during the previous twenty years as between the land and the highway and to have been available for the keeping or grazing of livestock thereon throughout that period")
The noble Lord said: My Lords, I beg to move the next Amendment, which stands on the Marshalled List in the name of the noble Lord, Lord Henley, and myself. Once again, Amendment No. 8 substantially repeats the Amend-
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ment which we put down on this point at the Committee stage, but again I think we have achieved some slight improvement in the drafting. We have given closer definition to what this land—that is, unfenced land which is not common land—should be. We have given it further definition, first, by reference to the period for which it should have been unfenced—that is, twenty years—and, secondly, by reference to the use to which it has been put; that is to say,
"the keeping or grazing of livestock thereon throughout that period".
If, very briefly, I may recapitulate the purpose of the Amendment, it is to relieve farmers from the duty laid down in Clause 8(1) with regard to their cattle straying on the highway in those areas of the country where the land is traditionally unfenced. These arc the upland areas, in private ownership, of course, which are used for cattle and sheep rearing, which never have been fenced and which it would be completely uneconomic to fence now. Clause 8 as drafted, by its last paragraph, excludes common land from the effect of subsection (1) of that clause, and our Amendments seek to put these upland areas of unfenced, livestock-rearing land on the same basis as common land. I think it would be true to say that, in practice, this land looks exactly the same to the motorist as common land. When any of us motor through it we probably think we are motoring through common land. It is all open and we can picnic on the side of the road; and very nice it is to see it open!
The noble and learned Lord the Lord Chancellor undertook to consult with his right honourable friend the Minister of Agriculture during the interval between the Committee stage and Report stage to-day, and I hope that he may have been as successful with his right honourable friend the Minister of Agriculture as he was with the Minister of Transport. I beg to move.
LORD SORENSEN: My Lords, I hesitate somewhat to intervene again, but I want to revert to my previous illustration of real local difficulties. Does not the Amendment which the noble Lord has now moved strengthen the end of Clause 8, in so far as, in the case of Epping Forest and somewhat similar areas in other parts of the country, the

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land has not been fenced for, indeed, many centuries? To use Epping Forest merely as an illustration, may I say; that there have been commoner rights there going back for many centuries, and at no time in the history of Epping Forest—saved for us by the wisdom and foresight of the City of London—has there ever been a fence. In these days, when the conurbation of London presses heavily upon Epping Forest, circumstances are quite different from what they were even fifty years ago, let alone a hundred years ago.
I had hoped that the Bill as it stood, including this particular clause, might come to the aid of literally thousands of people who live adjacent to Epping Forest. Apart from the possibility that the last paragraph in the existing clause might itself exempt such owners of cattle, it seems to me that the Amendment moved by the noble Lord will cause that exemption to operate still further. In other words, does it not mean, for instance, that if this particular Amendment is carried all those owners of cattle in Epping Forest or a similar area in any other part of the country will be entirely exempt from the operation of the Act, and that therefore their cattle may constantly wander to and fro across the highway—in the case of Epping Forest, an extremely busy highway nowadays—causing danger to themselves and sometimes injury, and occasionally death, to pedestrians and motorists? If that be so, surely it would be unwise for this Amendment to be carried, in so far as it would then cease to bring relief to a very large number of residents in the district in which I live.
LORD BELSTEAD: My Lords, of course, what the noble Lord, Lord Sorensen, has said is absolutely right. because so far as I can see it is covered in lines 37 to 40 on page 5 of the Bill. The noble Lord, Lord Nugent, has described how he has tried to improve the Amendment, and it appears in a revised form. At the last stage of the Bill, in Committee, the noble and learned Lord the Lord Chancellor queried the twenty-year proposal which remains in this Amendment because of the difficulty of proving the facts about whether fencing had or had not existed. But do not rights of way rely on proof of remaining unenclosed for a period of years? I should
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have thought that the problem here, the twenty-year problem, which the noble and learned Lord the Lord Chancellor brought up, was a minimal one, and certainly it would not occur as a point of argument in the large, unfenced tracts of land which are really affected by this Amendment.
The point was well made in Committee by the noble Earl, Lord Swinton, that such areas usually receive a Government subsidy. How illogical now to threaten those who are subsidised for their activities with the possible consequences of their activities! In Committee, the noble and learned Lord the Lord Chancellor argued that that is precisely what is not going to occur, and that the farmers ought to trust the judges to act reasonably. In column 1466 the noble and learned Lord said:
"What they"—
the judges—
"have to do is to take into account all the circumstances—the kind of road it is, whether farmers in the locality fence or not, the amount of traffic there is about, what it would cost to take whatever precautions it may be said should have been taken …"—[OFFICIAL REPORT, 27/11/69; col. 1466.]
and so forth. Of course, the noble and learned Lord was basing that passage on Clause 8(2), which he has been at such pains to put into the Bill. But there are so many provisos there that it is easy to see why fears continue to exist.
Those who support this Amendment would certainly concede that insurance must play its part in farming, as in other activities. But if Clause 8 means anything, insurance premiums for this particular risk are going to rise. On the other hand, if Clause 8(2) is really supposed to protect the keepers of animals on these wide, open lands, then this Amendment would, I submit, certainly codify the law here—fair, practical and understandable to all.
5.39 p.m.
THE LORD CHANCELLOR: My Lords, I have considered this matter again with my right honourable friend the Minister of Agriculture. The reversion to a twenty-year period immediately preceding the accident once more lays the Amendment open to the objection that it will discourage fencing in areas where it would be desirable to encourage it. If the land has been unenclosed for some time, it will normally not be in

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the farmer's interest to enclose it, lest he should terminate the twenty-year period or stop an inchoate period running. The fundamental objections to the exemption of particular land by a reference, not to any criterion determined by the extent of the risk but solely by the arbitrary criterion of the existence of a fence, remain. The Bill, in requiring the courts to have regard to the fencing practice in the neighbourhood, goes as far as one can reasonably go in ensuring that, in areas where the risk is not particularly great, the person who places an animal on unenclosed land is not likely to incur liability.
The Law Commission examined the possibility of categorising highways according to those carrying special risks and others, but found it impossible to do so by a reference to any existing statutory classification. Since the Report was received, a number of other methods of classification have been examined, but none of them was practicable or provides a satisfactory line of demarcation. As I intimated on the Committee stage I would have preferred the opening words of Clause 8, abolishing the ruling in the Searle v. Wallbank case and saying:
"So much of the rules of the Common Law relating to liability for negligence as excludes or restricts the duty which a person might owe to others to take such care as is reasonable to see that damage is not caused by animals straying on to the highway is hereby abolished."
So there would be a duty to take such care as is reasonable. That must mean "as is reasonable in all circumstances". The circumstances vary indefinitely.
I should have preferred to leave it to the court, with no more ado, but it was said in some quarters that the Act ought to mention the sort of things which a judge will take into account; so included in the Bill now are the things which the judge is to take into account, namely:

"(a) the nature of the land and its situation in relation to the highway;

(b) the use likely to be made of the highway at the time the damage was caused;

(c) the obstacles, if any, to be overcome by animals in straying from the land on to the highway;

(d) the extent to which users of the highway might be expected to be aware of and guard against the risks involved in the presence of animals on the highway;

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(e) the seriousness of any such risk and the steps that would have been necessary to avoid or reduce it."

That was as it eventually left the Law Commission.
Then the National Farmers' Union still said that it does not say anything about fencing. They were told that probably one of the things that a judge will take into account is the question of fencing, how far it is usual, what it would cost and all that. They said that they wanted to see it expressly mentioned in the Bill. Then I agreed to add this:
"and, where it could have been avoided or reduced by fencing, the extent, if any, to which fencing is the normal practice in the area in which the land is situate;"
No judge in a place like, for example, Cumberland, where highways run over unfenced moorland is going to say that land ought to be fenced. He is going to apply common sense to the circumstances of the case.
But there is this wholly artificial provision about twenty years. Why twenty years? This is a risk that can easily be insured against. No noble Lord has suggested that there will necessarily be any increase in the standard farmers' insurance policy. What it comes to in practice is this. A family goes off in a coach along a motorway to the seaside for their annual holidays. Because of the negligence of a farmer—he will be under no liability unless it is his fault—an animal comes on to the road, perhaps the coach overturns and the man and his wife and children are all gravely injured. Under the present law they have no claim against anybody at all. They may be unable to work for the rest of their lives. There is nobody against whom they can recover. The person to insure is the farmer. After all, he is only insuring in respect of his own negligence. If this Amendment is accepted this family have to find out—how can they find out?—and to prove that for twenty years these particular fields had not been fenced (and your Lordships will remember that "fencing" in the definitions includes ditching). They have to prove the practice about this particular field for the last twenty years. How can they do it? This Amendment would largely defeat the object of the Bill. I hope that the noble Lord, Lord Nugent, will accordingly not press it to a Division.
THE EARL OF SELKIRK: My Lords, I wonder whether I could ask the noble and learned Lord to let the hill farmers know what they are supposed to do. He says the Amendment is not sufficiently precise, that it leaves a certain vagueness; but, frankly, the clause as drafted leaves a great deal of vagueness, too. He said that a farmer who uses the highway might be expected to be aware of and to guard against the risk. Does that mean that he puts up a notice, "You are coming to an unfenced highway"? Is that a total and adequate protection for the farmer? Secondly, the noble and learned Lord says that fencing is the normal practice. If my neighbour puts up a fence, am I under an obligation to put up a fence?
This is a real problem for hill farmers. It leaves them no precise picture of their duties. They are now having an added duty placed on them by this Bill and their obligations are made greater by this Bill; there is no doubt about that. The noble and learned Lord said that he does not want this Amendment because it might restrain farmers from putting up fences. Are we trying to compel farmers in vast hill areas to put up fences? Is that not the deduction to be drawn from this Bill? I would only ask that the hill farmers should be given a fair picture of in what way their obligations are increased and how they might meet these obligations. I do not think that to say, "Insure!" is the whole answer. I do not know whether they can insure. This practice has been going on for some time.
LORD NUGENT OF GUILDFORD: My Lords, I must thank the noble and learned Lord for his answer, which I am bound to say was not as good as the last one. On the other hand, I must thank my noble friend, Lord Selkirk, for his support. This is a major problem for the farmers in the upland areas where tens of thousands of acres of land are unfenced and always will be unfenced. The example given by the noble and learned Lord—the coach full of people going for their holidays which hits an animal crossing the road, the coach turns over, the people suffer damage and ought to have a right to proceed against somebody; and therefore farmers ought to be insured —breaks down on this point. The noble and learned Lord said that all that the farmer is being asked to do is to insure
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in respect of his own negligence. But it is not negligence on the part of a farmer in an upland area where he has livestock grazing on the land if his animals stray on to the road. The land has never been fenced and it never will be fenced. It would be quite uneconomic to fence it. That is the difficulty.
I simply cannot accept that view. I agree with my noble friend, Lord Selkirk, that it is not enough to say to the farmer: "You must take out an insurance policy to cover this risk." We are making a very big change in the law in Clause 8, and when we place a new burden, as we are now doing, on the farming community, we should see that the burden is fairly placed. It is perfectly fair to place on farmers in the lowland areas this burden to keep their cattle fenced. If unfortunately they break out, then the farmer can plead the various defences available here. But it is a totally different matter in the upland areas. They are absolutely comparable with common lands, like Epping Forest, to which Lord Sorensen referred, where the cattle have always strayed across the roads. It is a nuisance, and the noble Lord has my sympathy; but that is what has always been done. Because you want that land to be an open space in which the public can walk and have picnics, it is likely to continue to be so. Even though this Amendment may not be perfect, I feel that it at least expresses the sense that those of us familiar with the problem feel is right. Therefore, if the noble and learned Lord feels unable to accept it in some sense, I shall ask your Lordships to join with me in pressing it to a Division.
THE LORD CHANCELLOR: My Lords, if I may have leave to speak again, dealing first with what was said by the noble Earl, Lord Selkirk, this is the trouble when you start writing things down. In every walk of life the duty to take reasonable care must depend on all the circumstances of the case. If you go to the dentist, he is under a duty to take reasonable care; to act as a reasonably competent dentist would do. One cannot write down a long screed of exactly how it is going to work out in practice. These cases will be tried by judges, many of whom are farmers, and it may be that we should receive the benefit of the advice on this point of the

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noble and learned Lords whom I see present in the Chamber.
Judges are used to deciding cases according to the circumstances before them. The idea that any judge, when referring to an area where highways go over moors which are completely unfenced, would say that the farmer was liable because he ought to have fenced, is, with the greatest respect, absurd. The judge has to take all the circumstances into account and a farmer will not be liable unless the judge finds that he has done something which no reasonable farmer would have done, having regard to his circumstances, or has omitted to do that which any reasonable farmer would have done.
In the courts people are always judged according to their own standards, whether the person be a solicitor, or whoever he may be. A garage proprietor would be in trouble if a repair was not carried out with the use of reasonable care and skill. Nobody is ever expected to do the impossible or to be any better than the next man. People are judged by their own standards. It is common ground that you cannot possibly win an action on medical negligence unless you are supported by medical evidence. The question always is, "Did this doctor do something which no reasonably careful doctor would have done, or did he omit to do something which any reasonably careful doctor would have done?" I am afraid, therefore, that I must respectfully maintain my opposition.
This reference to twenty years is an absolutely artificial conception. None of the farmers will be affected so far as fencing is concerned when they are in areas where there is no fencing. It was entirely to please the National Farmers' Union that any specific reference to fencing were added, and the words:
"… and, where it could have been avoided or reduced by fencing, the extent (if any) to which fencing is the normal practice in the area in which the land is situate …"
do not sound like a reference to any land to which the noble Earl, Lord Selkirk, was referring. It is, I would submit, a quite unreasonable burden to put on the injured family that they should have to prove, as they would have to do, if this Amendment were accepted, that all the area of the field in question had been without a fence or without a ditch for the last twenty years.
VISCOUNT COLVILLE OF CULROSS: My Lords, with great respect, the noble and learned Lord is wrong. Under this Amendment the burden of proof is placed upon the person who says that the land has not been fenced. It is not for the person claiming damages to satisfy that burden; it is for the person who is the defendant in the action.
5.54 p.m.
On Question, Whether the said Amendment (No. 8) shall be agreed to?
Their Lordships divided: Contents, 44; Not-Contents, 46.

CONTENTS

Aberdare, L.

Emmet of Amberley, Bs.

Mowbray and Stourton, L.

Ailwyn, L.

Falkland, V.

Moyne, L.

Auckland, L.

Ferrier, L.

Nugent of Guildford, L.

Belhaven and Stenton, L.

Goschen, V. [Teller.]

Nunburnholme, L.

Belstead, L.

Gray, L.

Rathcavan, L.

Berkeley, Bs.

Greenway, L.

Rockley, L.

Brooke of Ystradfellte, Bs.

Grenfell, L.

St. Oswald, L.

Brougham and Vaux, L.

Hawke, L.

Sandford, L.

Carnock, L.

Headfort, M.

Selkirk, E.

Congleton, L.

Howard of Glossop, L.

Sempill, Ly.

Crathorne, L.

Ilford, L.

Strange of Knokin, Bs.

Denham, L. [Teller.]

Kinnoull, E.

Strathclyde, L.

Derwent, L.

Lansdowne, M.

Vivian, L.

Ebbisham, L.

Lauderdale, E.

Wise, L.

Elliot of Harwood, Bs.

Monk Bretton, L.

NOT-CONTENTS

Beswick, L.

Bowles, L.

Collison, L.

Birdwood, L.

Brockway, L.

Delacourt-Smith, L.

Blyton, L.

Burden, L.

Donaldson of Kingsbridge, L.

Boothby, L.

Chorley, L.

Douglas of Barloch, L.

Gaitskell, Bs.

Mitchison, L.

Snow, L.

Gardiner, L. (L. Chancellor.)

Morris of Borth-y-Gest, L.

Sorensen, L.

Garnsworthy, L.

Moyle, L.

Stow Hill, L.

Gifford, L.

Phillips, Bs. [Teller.]

Strange, L.

Hilton of Upton, L. [Teller.]

Raglan, L.

Walston, L.

Hughes, L.

Ritchie-Calder, L.

Wells-Pestell, L.

Kennet, L.

Sainsbury, L.

Wigg, L.

Kilbracken, L.

St. Davids, V.

Wilberforce, L.

Lindgren, L.

Segal, L.

Willis, L.

Llewelyn-Davies of Hastoe, Bs

Serota, Bs.

Winterbottom, L.

McLeavy, L.

Shackleton, L. (L. Privy Seal.)

Milner of Leeds, L.

Shepherd, L.

On Question, Amendments agreed to.

Clause 9 [Killing of or injury to dogs worrying livestock]:
6.3 p.m.
THE LORD CHANCELLOR THE LORD CHANCELLOR moved Amendments Nos. 9 and 10:
Page 6, line 26, after ("livestock") insert ("has not left the vicinity")
Page 6, leave out lines 29 to 31.
The noble and learned Lord said: My Lords, if no noble Lord objects, may I take Amendments Nos. 9 and 10 together, since they deal with the same point? This is a change in emphasis and degree, made in response to arguments advanced by the noble Earl, Lord Selkirk, and the noble Lord, Lord Nugent of Guildford, at the Committee stage of the Bill. I hope that the Amendments meet with their approval. I venture to think that I need not take up the time of the House further, if I may reserve my position in reply in case of further points arising. I beg to move.
THE EARL OF SELKIRK: My Lords, may I thank the noble and learned Lord for these Amendments, which seem to me a great improvement in definition, in regard to both time and location.
LORD NUGENT OF GUILDFORD: My Lords, may I also thank the noble and learned Lord. I think that the Amendments meet the point very effectively.
Clause 11 [General interpretation]:
6.5 p.m.
LORD AIREDALE LORD AIREDALE moved Amendment No. 11:
Page 7, line 17, leave out ("animal") and insert ("animals")
THE LORD CHANCELLOR: My Lords, Amendment No. 11 makes a grammatical change in the definition of
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livestock. The noble Lord, Lord Airedale, moved an Amendment to this definition in Committee stage, when he sought to change the list of animals from the plural to the singular. I suggested that there might he a better way and the noble Lord was good enough to accept that. I beg the noble Lord's pardon: it is his Amendment. But I was accepting it.
LORD AIREDALE: My Lords, I kept quiet because I knew that the Amendment would be explained so much better by the noble and learned Lord. All I need add is that the noble Lord, Lord Conesford, said in Committee that he would prefer the singular to the plural. Normally I bow to the noble Lord in these matters, but it is more important still to bow to the noble and learned Lord the Lord Chancellor, if you want your Amendment to be accepted. I beg to move.
THE LORD CHANCELLOR: My Lords, Lord Airedale and I so far agree that I never can remember whether I am supporting his Amendment or he is supporting mine.
THE LORD CHANCELLOR THE LORD CHANCELLOR moved Amendments Nos. 12, 13 and 14:
Page 7, line 18, leave out ("and poultry")
Page 7, line 19, at end insert ("and, in sections 3 and 9, includes poultry")
Page 7, leave out lines 20 and 21 and insert ("'poultry' means the domestic varities of any of the following, that is to say, fowls, turkeys, geese, ducks, guinea-fowls, pigeons, peacocks and quails and also, while in captivity, pheasants, partridges and grouse; and")
The noble and learned Lord said: My Lords, if no noble Lord objects, may I take Amendments Nos. 12, 13 and 14 together, since they relate to the same matters? These Amendments widen the definition of poultry, which forms part of the "livestock" for the purposes of the Bill, by including peacocks and

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quails and, while they are in captivity, pheasants, partridges and grouse. They also exempt poultry from the definition of livestock for the purposes of those clauses of the Bill to which poultry are irrelevant. There were exciting proposals about this matter in Committee and I said that I would discuss them with my right honourable friend the Minister of Agriculture. Peacocks and quails are always domesticated in this country. Quails might escape from a farm but, we understand, would not be able to survive out-side it. Pheasants and partridges are basically wild birds and could be a subject of ownership only while in captivity. For the purposes of breeding, female birds and their young are frequently kept in pens or enclosures. We have little evidence that the same practice is followed regarding grouse, at any rate in England, but it could be, and there is no reason why, if they are kept for breeding purposes, they should not enjoy the same protection.
As a result of the Amendments, pheasants, partridges and grouse will enjoy protection while they are in pens, so that the owner of a dog which attacks them will incur strict liability and the owner of the birds will have a good defence if he shoots a dog which worries or attacks them. The addition of these birds accentuates the absurdity of including various classes of poultry in the definition of livestock for the purposes of Clauses 4 and 7. They had previously been included because, although it made little sense, it was thought to be convenient and would do no practical harm to have one definition for the entire Bill. However, the existing law regarding cattle trespass and distress damage feasant, which is replaced by these clauses, did not apply to poultry and there is no real case for extending it. In relation to pheasants, partridges and grouse, it would be absurd to do so since they could only trespass on another person's land when no longer in captivity and, correspondingly, no longer belonging to the owner of the land from which they had come. The Amendments therefore take the opportunity to rationalise the Bill in this respect. I beg to move.
LORD NUGENT OF GUILDFORD: My Lords, may I thank the noble and learned Lord for moving these three Amendments and for meeting the points
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which we raised in Committee stage. His Amendments have done so fully—indeed, even more fully than we suggested, and I am very happy to accept them.
EARL JELLICOE: My Lords, may I ask one small question? I, too, welcome this Amendment. I am glad that it would appear to embrace my pheasants. I am not talking about the common or garden pheasant, which some of my more bloodthirsty friends massacre at the weekends: I am talking about the distinguished and beautiful pheasant, the Reeves Pheasant. Am I right in assuming that this special variety would be included under the genetic title of pheasant?
THE LORD CHANCELLOR: My Lords, the answer to that is that a definition of species includes sub-species, and if the pheasant to which the noble Earl refers is a species of pheasant it is included.
THE EARL OF SELKIRK: My Lords, I do not want to be difficult, but there are other birds. I have never heard of capercailzies being kept in captivity, but there are doves, and many other types of birds, which may be kept. Do they fall into this definition or are they deliberately excluded?
THE LORD CHANCELLOR: A dove is an ordinary domesticated bird. A pheasant is ordinarily not in captivity at all. I must confess that I did not know that dogs attack peacocks. If they do, it is right that peacocks should be protected. I should have thought that a dog would not stand very much chance with a dove and that a dove was capable of looking after itself.
LORD VIVIAN: My Lords, I should like to thank the noble and learned Lord the Lord Chancellor for including quail in Amendment No. 14. May I point out to him that the Amendment refers to "quails" whereas when talking of the plural of the bird one refers to a bevy of quail. It is an unimportant point, I know, and I will leave it to the noble and learned Lord the Lord Chancellor to decide.
THE LORD CHANCELLOR: My Lords, if I may have leave to speak again, I will certainly consider this important point before the next stage of the Bill. Curiously enough, in connection with the Consolidation Bill, the

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Second Reading of which I moved to-day, I was being equally concerned (and if I had known that the noble Lord, Lord Boothby, was about I could have asked him) as to whether the plural of herring was "herring" or "herrings".
LORD BOOTHBY: My Lords, the answer is, "herring".
LORD VIVIAN: My Lords, am I allowed to speak again?
SEVERAL NOBLE LORDS: No.
LORD VIVIAN: On another point?
SEVERAL NOBLE LORDS: No.
6.13 p.m.
LORD WILBERFORCE LORD WILBERFORCE moved Amendment No. 15:
Page 7, line 22 at end insert—
("( ) In ascertaining the meaning of any provisions of this Act, regard may be had to the Report of the Law Commission on Civil Liability for Animals (Law Commission No. 13).")
The noble and learned Lord said: My Lords, I put this Amendment down as an Amendment to Clause 13, but it has been represented to me that it would more appropriately come into Clause 11, the interpretation clause; and if that is so I am quite willing to fall in with that suggestion. Wherever it is, I will explain it quite shortly in this way. I must refer to two dates. The Bill now before the House is based on the Report of the Law Commission, No. 13, which appeared in 1967. Subsequent to that, in 1969, the Law Commission produced a Report on the interpretation of Statutes in which they considered, in response to a request from the noble and learned Lord on the Woolsack, the general question whether the courts should be entitled, in interpreting Statutes, to take into account outside matters, such as Reports of Committees, Hansard, and so forth.
A very interesting and constructive Report was produced by the Law Commission in which they made various suggestions, which included the suggestion that the courts might, in interpreting a Statute, take into account the provisions of any Report of a Committee, including a Report of the Law Commission itself on which the Statute was based.
That was only one of many suggestions which was made. It was taken up by the Government in a Bill recently before the House, the Matrimonial Proceedings and Property Bill, which contained a clause—Clause 35(2)—identical, except for reference, to the clause which I am now proposing. It was accepted by the Government and by this House when the Bill came before it.
It seemed to me, therefore, that it might be not inappropriate for the House to consider the inclusion of a similar clause in this Bill. I simply place it before the House for its consideration. If there is any controversy about it, I certainly shall not press it. It seemed to me that as we had before us what is really a liberal and progressive proposal from the Law Commission, we ought to give it a chance to see whether the Government are willing to incorporate the principle of it in this Bill. I do not propose the Amendment simply for consistency or logic; I propose it also because I think it would be helpful in the construction of this particular Bill.
The Law Commission's Report No. 13 on the subject of Civil Liability for Animals is a very carefully worked out document, which reviews in a scientific way the pre-existing law and states in detail the reasons for each of the Commission's proposals. I suggest that it would be helpful to the courts if they were able to look at this Report. They would not be obliged to do so, but it would be helpful if they could have the right to look at this Report in certain cases where they are called on to interpret it.
I will give two simple examples of where it would, or might, be useful for the courts to have a look at the Law Commission's Report. In Clause 1 of this Bill, your Lordships will see that there is a reference, in subsection 1(a), to the fact that the provisions replace
"the rules of the common law imposing a strict liability in tort for damage …"
In order to know what are the rules of the common law that are replaced it is very convenient to be able to look at this Report. The rules of the common law are obscure, difficult to find out and sometimes difficult to understand; and they are very lucidly explained in the Report in an accessible way.
Another point raised by the noble Lord, Lord Foot, at an earlier stage in this debate today, related to the reference in Clause 2(2) to "damage of any kind". If one simply looks at the Bill, as the noble Lord pointed out, it is somewhat obscure. If you turn to the Report, you find that in paragraph 18 it is explained what is meant by "damage of any kind", and the reader is told how cases of infection may in some cases be covered. Cases where a bitch with a litter has a characteristic to bite people at a particular time would come within this expression, which is one that did not exist previously in the law. There are many other examples, many in relation to this rule of Searle v. Wallbank that we have just been discussing.
I venture to think that most judges would find it helpful to be able to have access to this Report. I should like to move the acceptance of this Amendment, though if the noble and learned Lord finds that there are objections to it, I will not press it. One final point: it would be an objection. I think, to a clause of this kind if the Bill had been extensively amended as compared with the proposals of the Law Commission, and it is for that reason, among others, that I am moving the Amendment at this stage rather than at the previous stage. We are now able to see that the Bill as it leaves this House has been only very slightly changed from the draft Bill put forward by the Law Commission. So I think it is true to say that the Law Commission's Report is still extremely relevant to the interpretation of the Bill, and the Amendments which this House has so far made do not make it less so. I hope that I have adequately explained the purpose of what is, I think, an innocuous Amendment. I beg to move.
THE LORD CHANCELLOR: Before I put the Amendment proposed, or call for the next Amendment, which is an Amendment to this Amendment, may I remind your Lordships that the Marshalled List has been corrected? The Amendment that has been introduced by the noble and learned Lord, Lord Wilberforce, instead of applying to Clause 13, should apply to Clause 11; and the reference should be to page 7, line 22, instead of page 7, line 29. Then
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the Amendment to the Amendment (No. 16) which is described as "an Amendment to Amendment No. 14", should be shown as an Amendment to No. 15.
6.20 p.m.
LORD DOUGLAS OF BARLOCH LORD DOUGLAS OF BARLOCH moved Amendment No. 16, as an Amendment to Amendment No. 15:
At end insert ("and a copy of that Report shall be bound up and supplied with every official copy of this Act".)
The noble Lord said: I beg to move Amendment No. 16 standing in my name on the Marshalled List. In the beginning, let me make it quite clear that I am opposed to the Amendment which has been moved by the noble and learned Lord, Lord Wilberforce, for reasons which I will explain in a moment. My Amendment is only in case your Lordships should decide to accept that Amendment.
What of the consequences of the Amendment which has been moved by the noble and learned Lord? It is not only the case that if it is carried judges will refer to the Report of the Law Commission when they are considering any case which this Bill bears upon; it is inevitable that everybody who has to deal with this legislation will be compelled to refer to the Report of the Law Commission, because the Amendment says:
"In ascertaining the meaning of any provisions of this Act, regard may be had to the Report of the Law Commission …".
When it says, "regard may be had to the Report of the Law Commission", it means that regard will be had to it and regard must be had to it. Therefore, not only the judges will have to be provided with copies of the Report of the Law Commission, but other people also.
Suppose one morning a lawyer is sitting in his office in Holborn and one of his clients comes to him, not on the business he usually deals with relating to contracts or some such matter. The client happens to commute from some still rural district and comes to London and has a problem about straying animals, or perhaps about a dog biting his child. The solicitor whom he consults then gets a copy of this Bill and reads through it and says to himself, "Yes I think I understand what this is all about," and then when he gets almost to the

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end of it he finds this provision that reference may be made to the Report of the Law Commission. So he has to send for a copy of the Report of the Law Commission; and presently his messenger comes back and says, "I am sorry to tell you that I can't get one from the Stationery Office; it is out of print". Being careful and resourceful, the solicitor then has to go down to the Law Society, which in its excellent library no doubt has a copy of the Report of the Law Commission. So he is able to consult this and to form a judgment as to whether or not his original impression of what this Statute means was correct.
Well, so far, so good. But suppose the solicitor is in some country town in Northumberland. He instructs his agent in London to obtain a Report of the Law Commission, and then discovers that it is out of print. He then has to get his agent to go to the Law Society and order a photostat copy of it. So your Lordships will see that if this Amendment is carried it is absolutely essential that my Amendment to it shall be carried also.
It may be said that this is not quite what usually happens; that lawyers depend upon annotated copies of the Statutes, which are unofficial and which are produced by well-known firms of publishers on subscription. That is perfectly true. It is conceivable, I suppose, that an annotator producing one of these editions of this Statute would say, when he came to this particular provision, "I don't think it makes the slightest difference to the interpretation of this Statute." But, on the other hand, he might have formed a different opinion and he might produce some annotations saying that the meaning of such-and-such a clause seems to vary from what the Law Commission have been saying in their Report; and, in any event, whatever is the case about that, the publishers of this unofficial edition upon which most lawyers will rely will have to print in it a copy of the Report of the Law Commission, because a body may refer to it and at any moment it may be raised in correspondence, in pleading or in the court itself if a case comes up for trial.
I submit, with all respect, that this is going to make the law still more expen-
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sive, still more complicated, and instead of producing greater certainty, is going to produce uncertainty. A Statute ought to be straightforward and easily intelligible in itself, and it ought not to require any extraneous aids in order to interpret it. But the noble and learned Lord's Amendment is inviting exactly that process of looking at a body of material which in many cases will be longer and more extensive than the Statute itself. This is bound to produce an area of uncertainty which probably would never have existed before, and it is certainly going to add to the cost of litigation because all the overheads of this process must be covered somehow or other. It is, with all respect, a retrograde step, but if it is taken then I insist that every Queen's Printer's copy of the Statute ought to have a copy of the Report of the Law Commission annexed to it.
Now let me point out a further consequence of this. I do not know whether this particular piece of legislation when it becomes law will be consolidated or not, but a few days ago this House inserted into the Matrimonial Proceedings and Property Bill a reference, not to one but to two Reports of the Law Commission. That is a piece of legislation which doubtless is going to be consolidated in the not very distant future. because it is very desirable that the law relating to matrimonial causes should be consolidated. When that happens, what will the Statute look like? In Consolidation Bills clauses which appear in one solid mass in one of the Acts consolidated will be distributed all over the Bill into various classifications. When one comes to the reference clause at the end of it, one will find that it reads something like this:
"In ascertaining the meaning of the provisions of sections 13 to 17, 23, 25(2)"—
and so on—
"reference may be made to the Report of the Law Commission No. so-and-so and in ascertaining the provisions of sections 7 and 8, 19 to 20 and 31(3) reference may be made to another Report of the Law Commission."
Both of those Reports ought to be annexed to the consolidating Statute. Where are we going to get to if this process is going to be part of our Statute law? My Lords, I beg to move.
6.29 p.m.
LORD NUGENT OF GUILDFORD: My Lords, may I add a very brief word of support to the tremendous broadside that Lord Douglas of Barloch has just let loose on the Amendment of the noble and learned Lord, Lord Wilberforce. I must say that I found Lord Wilberforce's speech in moving his Amendment very persuasive and I thoroughly understand its intention. But, apart from the objections which Lord Douglas put before us so cogently, there is of course this additonal one. It is that if we were intending to bind all future courts in ascertaining the meaning of this Bill, it would be necessary for both Houses of Parliament to study in detail all the material in this Report. This really would be quite impossible. I see the noble Lord, Lord Wigg, nodding his head. I can imagine the sort of hey-day he would have had in another place if this had gone there in this form. Clearly it is not possible, and however helpful this document is—it is a quite excellent Report and indeed the Bill is founded on it—I am sure that it would not be right to legislate in this way. At the end of the day the Bill is the best we can make of it. It is what we want it to say—or at least it is what some of us want it to say—and if we are in a minority we must put up with those parts we do not want. I am sure that the Report should have no official status in connection with this Bill, and therefore I hope the noble and learned Lord, Lord Wilberforce, will not wish to press his Amendment.
LORD AIREDALE: My Lords, I agree with what has been said. I think we ought to hold back from the top of what looks to be a very slippery slope. I feel that the Statutes ought to stand on their own feet and not seem to be holstered up by something else.
THE LORD CHANCELLOR: My Lords, we have first to consider and determine the Amendment to the Amendment, which has to be put first. This would require a copy of the Law Commission's Report to be published in the same document with copies of the Bill after enactment. I respectfully suggest that this is wrong, and I appreciate that in a sense the noble Lord, Lord Douglas of Barloch, has moved his Amendment not to improve Amendment No. 15 but because he does not like Amendment No. 15.
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To bind both the Report and the Statute together in the first place would be starting something which has never happened before; and, secondly, I am told that it would quadruple the cost of the Act and would have a most serious effect on the Statute Book. If the same practice were adopted as regards any Bill recommended by the Law Commission or other bodies, the annual volume of Statutes, already over 2,500 pages, would be very much bigger still. In my submission, it would be quite wrong to require anyone who only wants one document, the Bill, to buy both. If anybody wants both he can buy both. Therefore, I would urge the Committee to reject the Amendment to the Amendment. When that has been decided upon, I imagine that would be the right moment to address the House on the Amendment moved by the noble and learned Lord, Lord Wilberforce.
On Question, Amendment to the Amendment negatived.
THE LORD CHANCELLOR: My Lords, on Amendment No. 15, I would only say that it has the support of the Law Commission and I should have thought that it was right. There is a much more extensive Report of both Law Commissions together, which is unanimous in that it is signed by all the members of both Law Commissions, recommending that it should be provided by Statute that the court should be entitled to look at quite a wide range of documents—not only Reports of Committees, but White Papers, and so forth. This full Report has not yet been considered by the Government and I should not like it to be thought that any decision made on this Amendment to-day in any way prejudged what that decision might be. But this Amendment is in a very small compass. It is not making the judges look at anything that they do not think it would be helpful for them to look at.
The judges tend sometimes to be criticised for construing Statutes in a way different from that which Parliament intended, while at the same time they are not supposed to look at documents which any sensible person construing an Act would look at, and which in fact they do of course look at. It is not infrequently that one has to refer to a Statute, although many judges and

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lawyers are familiar with the Statutes with which they are used to dealing; but however you look at Statutes it is a rare event to have a question of construction, and the idea that if we pass an Act allowing a judge to look at this Report, every lawyer will have to spend his time studying it, is quite unreal. All it will do is to regularise what the noble and learned Lord, Lord Denning, told us judges do; namely, to look at a Report of this kind.
It would be ludicrous to have a Committee carefully considering some amendment to the law, as with the Theft Act, carefully explaining why they had chosen these three words to express something in the Act and not those two words, and if a question of doubt arises as to how the Act ought to be construed, for the judge (who is a grown-up person) not to be allowed to look at their Report. There is not a word in this Amendment which would compel a judge to do anything at all. For those reasons, so long as it is understood that this Amendment is not intended in any way to prejudice the consideration which will have to be given the Special Report of the Law Commission on Interpretation of Statutes, I would advise the House to accept the Amendment.
LORD RAGLAN: My Lords, may I ask my noble and learned friend what he thinks of the point raised by the noble Lord, Lord Douglas of Barloch, that "may" will become "must" in people's minds?
THE LORD CHANCELLOR: My Lords, all I can say is that a barrister who is trying to get a judge to look at something that the judge does not want to look at, and cannot be made to look at, is in a very weak position
LORD WILBERFORCE: My Lords, I do not think I need add much in view
of what the noble and learned Lord on the Woolsack has said. This is not a matter of wide import because, as noble Lords will appreciate, this Bill is dealing with a simple subject matter and most of it is put in plain language in relation to plain facts of everyday life. I entirely agree with what the noble and learned Lord on the Woolsack has said, that in most cases where some question of damage by a dog or trespassing cattle arises the position is perfectly clear to an ordinary layman, and still more to a lawyer, and nothing will then cause him to feel that he has to look at the Law Commission's Report.
The value, if any—and I think it has some value—of the subsection which is suggested lies here. There are in the Bill necessarily certain technical expressions, certain legal expressions—how often they will come before the court is anyone's guess—and it is only in relation to those, when they arise, that it seems to me it would be useful, instead of a judge having to plough through a lot of reported cases, for him to be able to look at it all set out in this document, which costs 5s. 6d., in order to see either what the pre-existing law was or what the Law Commission had in mind. I do not feel that this will put lawyers, and still less laymen, in the position of having to search through the Report every time. I feel it gives them minor but useful assistance in some of the difficult questions which may arise. So, having regard to the support which the noble and learned Lord has been willing to give to this as an isolated case in this Bill. I feel justified in maintaining the Amendment before the House.
6.40 p.m.
On Question, Whether the said Amendment (No. 15) shall be agreed to?
Their Lordships divided: Contents 44; Not-Contents, 26.

CONTENTS

Beswick, L.

Dilhorne, V.

Lindgren, L.

Blyton, L.

Donaldson of Kingsbridge, L.

Llewelyn-Davies of Hastoe, Bs.

Boothby, L.

Gaitskell, Bs.

Longford, E.

Bowles, L.

Gardiner, L. (L. Chancellor.)

McLeavy, L.

Brockway, L.

Garnsworthy, L.

Merthyr, L.

Burden, L.

Headfort, M.

Milner of Leeds, L.

Chalfont, L.

Hilton of Upton, L.

Mitchison, L.

Collison, L.

Hughes, L.

Morris of Borth-y-Gest, L.[Teller.]

Colville of Culross, V.

Kennet, L.

Conesford, L.

Kilbracken, L.

Moyne, L.

Delacourt-Smith, L.

Killearn, L.

Phillips. Bs.

Raglan, L.

Serota, Bs.

Stocks, Bs.

Ritchie-Calder, L.

Shackleton, L. (L. Privy Seal)

Wells-Pestell, L.

Sainsbury, L.

Shepherd, L.

Wilberforce, L. [Teller.]

St. Davids, V.

Sorensen, L.

Winterbottom, L.

NOT-CONTENTS

Airedale, L.

Douglas of Barloch, L.

Negent of Guildford, L.

Beaumont of Whitley, L.

Falkland, V.

Nunburnholme, L.

Belhaven and Stenton, L.

Ferrier, L.

St. Aldwyn, E.

Belstead, L. [Teller.]

Goschen, V. [Teller.]

Strang, L.

Brooke of Cumnor, L.

Greenway, L.

Strange of Knokin, Bs.

Brooke of Ystradfellte, Bs.

Howard of Glossop, L.

Teviot, L.

Carnock, L.

Kinnoull, E.

Vivian, L.

Clwyd, L.

Massereene and Ferrard, V.

Wigg, L.

Denham, L.

Mountevans, L.

On Question, Motion agreed to.

Resolved in the affirmative, and Amendment agreed to accordingly.

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

Transport (London) Amendment Act,

Expiring Laws Act,

Rent (Control of Increases) Act,

Police Act,

Customs (Import Deposits) Act,

Glasgow Corporation Order Confirmation Act,

Edinburgh Corporation Order Confirmation Act.

ULSTER DEFENCE REGIMENT BILL
6.50 p.m.
LORD SHACKLETON: 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 Shackleton.)
LORD WIGG: My Lords, before that Question is put, would the Leader of the House be kind enough to tell us what his proposals are about business? I am extremely anxious that there should be an interval between the Committee stage and the Report stage, and I am sure it would facilitate business and it will certainly make me much easier in mind if I know that that interval is to exist.
LORD SHACKLETON: My Lords, the noble Lord's ease of mind is of im-
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portance to me on a matter of such importance as this particular Bill, and it is the intention of the Government, if that be the wish of the House, that we take only the Committee stage. I was going to say this, but the noble Lord anticipated me. We should hope to finish it on Monday. I think it is right that the further stages should be separate, and we hope the House will then co-operate in ensuring that we get Report and Third Reading.
House in Committee accordingly.
[The LORD MERTHYR in the Chair.]
Clause 1 [Establishment and status of Ulster Defence Regiment]:
LORD BROCKWAY LORD BROCKWAY moved Amendment No. 1:
Page 1, line 6, leave out ("Ulster Defence Regiment") and insert ("Northern Ireland Territorial Force")
The noble Lord said: May I again express my regret that we are entering the Committee stage of this very important Bill at so late an hour? I want to make it quite clear that I am not complaining of the arrangements for to-day, because I appreciate the long discussion which has taken place on the Animals Bill. Nevertheless, it is a little regrettable that we are at this late hour engaged on a discussion of this very important Bill.
There are four Amendments regarding the title of the Regiment. I want to make it clear in moving this Amendment on behalf of the noble Earl, Lord Longford, and myself, that we are in no way tied to the terms of the title we are suggesting. All these four Amendments have one thing in common: they

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seek to delete the name "Ulster" from the Regiment which is to be authorised. I hope it will be for the convenience of the House if all four Amendments are discussed together. As I understand it, at the end of that discussion there is likely to be a Division on the Amendment which the noble Earl and I are moving, but I want to make it very clear indeed that if there is a Division on that Amendment our concern will be the principle of the inclusion of the word "Ulster" in the name. We would be ready to accept any of the suggestions made in the other Amendments for a different name; indeed, we would be prepared to accept another suggestion to which I will refer before I conclude, which has very authoritative support in this House. Therefore, when a Division does take place on the Amendment which I am now moving, it will be on the broad principle of deleting the word "Ulster", and, after the discussion, when we have heard other suggestions, we should be able, on the Report stage of the Bill on Monday, to propose an Amendment which would be most appropriate and most acceptable to this House.
I always think it far the best to be honest and frank with this House, and therefore I want to say, even though other Members may differ with me, that I am opposed to this Bill altogether. I am opposed to it on the grounds which I expressed on Second Reading. I do not think there is a threat from Southern Ireland; I think the threat from the I.R.A. is very much exaggerated, and I consider the Bill itself is a provocation which will prejudice the desire for harmony. Having said that, and recognising that the Bill is likely to become law in one form or another, I want to emphasise very strongly that those who are associated with this Amendment wish to contribute, in the critical, perhaps even dangerous, situation in Northern Ireland, proposals which will make for the harmony of the races there.
I first want to say that we have deeply considered the appeal which was made by my noble friend Lord Shackleton, and also from the noble Lord, Lord Byers, whose absence I regret, that we should refrain from pressing this issue because it might encourage in Northern Ireland Catholic abstention from this new force. None of us who is concerned about
730
harmony in Northern Ireland can have rejected that appeal without careful thought, but we have come to the conclusion that the danger of the title in its present form, including "Ulster", as a deterrent to the minority response in Northern Ireland, is greater than the deterrence which may occur because we have debated this matter. After all, this debate follows controversy in Northern Ireland itself; it follows a night long debate in another place, and I think it is pressing things a little far to suggest that because we have a debate here on this matter it is likely to be a contributory factor in dissuading the Catholic minority from joining this force. On the other hand, we take very strongly the view that the inclusion of the term "Ulster" would deter them from joining the force.
I listened with great attention to the speech of the noble Lord, Lord Byers, who has recently been to Northern Ireland and investigated these issues. He did not say it, but another noble Lord said that he had taken a different view before he went to Northern Ireland; and I am impressed by that fact. The noble Lord will excuse me if I pay more attention, even than to the noble Lord, Lord Byers, to the noble Lord, Lord Hunt, who was the head of the Committee which investigated this problem and prepared the very remarkable Report that has been the basis for so much which has contributed to conciliation.
I would draw attention to the words which Lord Hunt used in this House on the Second Reading; they appear in column 332 of the OFFICIAL REPORT of last Monday:
"Ulster, as we know, is a fact, a historic fact, but a fact which has strong Party political and partisan connotations, whereas Northern Ireland is simply a geographical fact of life. I am sorry that that name has not been attached to the force. I realise, of course, the difficulties with which the Government have to deal in this matter, and I am not going to press it. But I cannot help wishing that my Committee, who felt that this subject was outside their terms of reference, had not strayed outside those terms to suggest a name for this force."—[OFFICIAL REPORT, 8/12/69, col. 332.]
In view of the authority of the contribution which the noble Lord, Lord Hunt, has made, none of us can be indifferent to that expression of opinion. I would

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add that I had the opportunity this morning to speak to Lord Hunt, and he has authorised me to make a statement which I shall do before I conclude my speech, and I hope that it may have a considerable influence on this House in relation to the decision which it reaches.
I felt that the weakest possible argument made from the Front Bench during the Second Reading by my noble friend, Lord Winterbottom, was that the term "Ulster" should still be included in the title of this force because of precedent; because, in the past, it had been attached to certain regiments in Northern Ireland. Surely the one thing that we have learnt in recent months on the issue of Northern Ireland is that we must not be tied to precedent and that we must not be tied to the past. If there is one happy or hopeful feature in the situation —and I have paid my tribute to the Home Secretary; I have paid my tribute to the attitude of the British troops there —it is that the past is ended, the past is forgotten, and we are building something new. To argue in favour of the retention of the term "Ulster" on the ground that it has been included in the name of certain incidental regiments in Northern Ireland in the past seems the most ineffective argument that could be made to persuade your Lordships.
There is no doubt at all that the name "Ulster" evokes emotive resistance from a large section of the population whom we wish to bring into harmony. In Northern Ireland the term "Ulster" has for many years been associated with the Orange organisations. It is included in the name of organisations which now represent the great danger from the majority side, as there are dangers from the minority side, that community relations will not get better. It is in the name of the Ulster Defence Committee; it is in the name of the Ulster Constitutional Defence Committee; it is in the name of the Ulster Protestant Volunteer Force; it is in the name of the Ulster Special Constabulary. The first three of those organisations, in which the name "Ulster" is emphasised, exclude any Catholic from being a member. In those circumstances, can it be surprising that the minority Catholic community in Northern Ireland have this emotive response to the term "Ulster"?
I want to put another argument very seriously to my Front Bench. This is the first occasion in all history that the term "Ulster" has been used in a constitutional instrument adopted by the Houses of Parliament. Always before, the term "Northern Ireland" has been used. It is quite true, as I have previously said, that the names of certain regiments which are not determined by the decisions of the Houses of Parliament have had the term "Ulster" associated with them; but it is this moment, when the desire of all of us must be to create a condition of harmony between the communities in Northern Ireland, that for the first time in the whole of history the term "Ulster" is included in an Act of Parliament. The effect must be prejudicial to the harmony of its people.
The next point I want to put is this. The term is inaccurate—hopelessly inaccurate. Ulster is composed of nine counties. Only six of those counties are within Northern Ireland under the control of the Stormont Government. Three of them—Monaghan, Cavan and Donegal—are in the Irish Republic. Yet it is suggested that, for this legislation, we should use the term "Ulster" rather than the term "Northern Ireland". To suggest that we should use that term in a constitutional instrument for the first time is an affront to the Republic of Ireland and, still more, to the population of the three counties which are not within Northern Ireland. In fact, it is ironic that we are now asked to accept the term "Ulster" in the name of this Regiment when the majority of the population of Ulster, including those three counties, are Catholics. In Northern Ireland the Catholics represent what we recognise is a minority, but in Ulster itself they are actually a majority.
I do not want to be provocative on this occasion. I regard this issue as so important that I want to make a persuasive appeal to the Government Front Bench. They have said that the title of this force is unimportant. That has been said by Ministers in another place and in this place. I say to them, if it is unimportant, why retain it at the cost of the danger of losing the co-operation of the Catholic minority? Our stated object is to build a multi-community force. Very quietly but sincerely, I ask this question: is this not the crucial decision which we have

733
to make tonight? Will more or fewer Catholics join this Regiment if the name is changed? If more will join by a change of name and so help to secure harmony in Northern Ireland, surely we should make the change.
My Lords, I want finally to say this. I have repeated what the noble Lord, Lord Hunt, said in this House, and he has asked me to express his regrets that he is not able to be here tonight to take part in this debate. But he has authorised me to say that he supports a change in the name of this Regiment. The proposal which he endorses is that it should become the Northern Ireland Defence Regiment. I say on behalf of my noble friend Lord Longford, who is associated with me in this Amendment—and, I think, probably on behalf of those others who are proposing a change in the name —that we should accept that proposal.
The vote will be on the Amendment which I am proposing. It will be a vote on the principle of some change and the deletion of the term "Ulster". We will listen carefully to the other proposals. It may be that all of us will accept the suggestion which the noble Lord, Lord Hunt, has authorised me to make to the Committee tonight. If our Amendment is accepted to-day then, when we reach the Report stage, we shall be very well prepared either to accept whatever change is most supported in your Lordships' House or the change which the noble Lord, Lord Hunt, has suggested. I beg to move.
7.13 p.m.
VISCOUNT MASSEREENE AND FERRARD: I think that the noble Lord rather over-played this question of a name. It was Shakespeare who said, "Call a rose by any other name …". The noble Lord appeared to think that any title containing "Ulster" would be complete anathema to Catholics; but I put the example of the Ulster Unionist Party; there are many Catholic members of the Ulster Unionist Party. I should also like to point out to the noble Lord that names do not have to apply strictly to geographical boundaries. For instance, in the Highland Brigade in Scotland, you have a regiment (I think it has been amalgamated now; but I am talking of a few years ago) like the H.L.I., which is recruited entirely from Glasgow and has nothing to do with the Highlands.
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Take the Black Watch, recruited chiefly from Dundee. You cannot call that the Highlands. I think that the noble Lord has rather exaggerated the importance of the name. I cannot imagine that Catholics would be prevented from joining a regiment just because its title included the word "Ulster".
LORD BOOTHBY: I rise to make a few remarks because, in the light of what the noble Lord, Lord Brockway, has just said, I do not propose to move the next Amendment, which stands in my name. I am well content with the suggestion of the noble Lord, Lord Hunt, that the force should be called the Northern Ireland Defence Regiment, which I think is admirable. I put mine merely as an alternative suggestion which might be more acceptable to your Lordships; but I think on the whole that Northern Ireland Defence Regiment is the best that can be devised. My main concern, as it is the concern of Lord Brockway and of others of us who feel very uneasy about this situation, is to delete the word "Ulster". That is the point. I want to say, in a few words, what has already been said much better by Lord Brockway and to express my deep apprehension—and it really is deep apprehension—that the name "Ulster" will frighten the Catholics away. It is as simple as that.
As Lord Brockway has said, the Province of Ulster is not the same thing as Northern Ireland. The name gives rise to frightening memories of a past which, as I have already said, is best forgotten and which it is part of the objective of this Bill—I should have thought the main part—to achieve—forgetfulness of a tragic past which has lasted nearly 300 years. If the new Defence Regiment is simply to be a reactivation of the B Specials it will be, as the noble Lord, Lord Hunt, has said, a farce. That is what I am genuinely frightened of.
I do not think that your Lordships can ignore the very statesmanlike speech made by the noble Lord, Lord Rathcavan, on the Second Reading of this Bill. After all, his associations with Ulster are much closer than those of most of us. He went a long way; he went so far as to say that if the Title of the Bill was a stumbling block to Catholics joining the new Regiment, then the Title should be swept away and a new one put in its

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place. I thought that a remarkable statement coming from that source. Equally, I think that the noble Lord, Lord Hunt, could not possibly be ignored. The noble Lord, Lord Brockway, has quoted him; and his Report has given rise to this Bill.
I feel so apprehensive about the possible consequences of the Bill, so apprehensive that the name "Ulster" will drive away Catholics and that they will not join the new force—which is perhaps the primary objective of this Bill—that it will lead to the re-creation of the B Specials under a slightly different name, that I feel inclined to press the Government very hard on this matter. I would make an appeal to the noble Lord the Leader of the House to reconsider the question (I should regret it if we had to go to a Division to-night) over the weekend and perhaps come forward with a new proposal on Monday.
I do not think that he can go against speeches of the kind that we have heard from the noble Lords, Lord Rathcavan and Lord Hunt, and from Lord Brock-way to-night. I think the feeling is strong, I think it is very sincere, and I beg the noble Lord to give serious consideration to it.
LORD RITCHIE-CALDER: May I add my voice to that appeal by the noble Lord, Lord Boothby? I wish that I had made the speech that Lord Brockway made to-night. I also want to put to the noble Viscount, Lord Massereene and Ferrard—and I apply this to the Front Bench as well—the question whether the new Regiment will include recruits from the three counties that do not belong to Northern Ireland but which are in fact included in the term "Ulster".
LORD WIGG: I should like to add my voice to that of Lord Boothby and to ask the noble Lord the Leader of the House to consider very carefully whether it would not be wise to use the time between now and the Report stage to consider the feeling in the House and not to force this issue to a Division. If it is forced to a Divison, then, whatever the result, the fact that there is a cleavage will be reported in the Northern Irish Press to-morrow morning; and though there the gap may be closing this may force it apart.
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I should not have intervened in this debate after the speeches of the noble Lords, Lord Brockway and Lord Boothby, except for this reason. My position is quite different from that of Lord Brockway. I am impressed with the Hunt Report. I am convinced, as I said during the Second Reading debate, that Lord Hunt's basic principle that a military solution has to be found is absolutely right. If a military solution has to be found, surely you must try, above all, to make that solution work. My occasional visits to Ireland have generally been to The Curragh and not to Northern Ireland, though I once served there for a brief period. I listened with some interest to the speech of the noble Lord, Lord Byers, during the Second Reading debate and I found it impressive, until I recollected that a Liberal going to Northern Ireland over the week-end in search of the facts is, perhaps, not always the least gullible of persons. So I took the precaution of checking with people of established reputation.
The truth is, for better or for worse, that there is a belief in Northern Ireland— perhaps it is this that people want to believe—that the Title is the result of a deal; that there has been a deal with the Stormont Government that they accept the implications of the Hunt Report provided that this Title is used.
LORD BOOTHBY: That is right.
LORD WIGG: If that is so, it is about the most shortsighted deal that ever could be; because that horse will never get out of the stable. I believe entirely in the Government's intention to try to make this work—that is my difference with the noble Lord, Lord Brockway. I think, with the noble Lord, Lord Hunt, that a military solution is necessary and that you must have something like this Bill. But those who wish it well need, as it were, to check the Government from some of the shortsightedness which is inevitable when a complicated measure of this kind, complicated not only politically but organisationally, has to be put through both Houses of Parliament against some misunderstanding and—if the Government wish— some mis-representation. In the circumstances the Government would be wise to listen to

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their friends. I want to see this Bill work. So does the noble Lord, Lord Boothby; so does the noble Earl, Lord Cork and Orrery, and so does the noble Lord, Lord Hunt.
The noble Lord, Lord Brockway, is against it root and branch. We want it to work, and if it is to work we have to obtain good will. if I may say so, the noble Lord, Lord Brockway, is a bit of a romantic if he thinks that at any time you can wipe out the memories of hundreds of years with mere words. The memories are there, and what you have to do is as Lord Brockway himself said, to look at the problem frankly and honestly. You have to see the other chap's point of view and do your honest best to meet him. I do not, of course, agree with the arguments of the noble Viscount, Lord Massereene and Ferrard, which I thought were a little flimsy and advanced on the spur of the moment.
Of course, there is nothing in a title. Of course, a rose smells as sweet, whatever you may call it. But take, for instance, the Celtic versus Rangers football match and see what happens! Not only is the fire brigade needed to keep order; you need the Brigade of Guards. At that football match all the fundamental differences which have surged through the centuries come to the surface. As rational men, as men of good will, as men who claim to influence the affairs of the nation, we have to meet the irrational; we have to drag it out into the open and do what we can to make the best of a bad job. But that does not mean we should necessarily accept any particular title. It is for the Leader of the House to go back to the Government, to go back to the Cabinet, to go back to the Prime Minister, and to say that the feeling of this Committee is that there ought to be second thoughts.
THE EARL OF CORK AND ORRERY: I wish most heartily to associate myself with the objective described by the noble Lord, Lord Brockway, which I accept as being an aim to get rid of the Title of the Bill. My arguments are not precisely the same as his; they are nearer to those of the noble Lord, Lord Wigg. Whatever Amendment is ultimately accepted, what I am most anxious to secure is that the words, "Ulster
738
defence" shall be left out of the name of the Regiment. More time has been spent discussing the word "Ulster" than anything else including the word "defence", and some curious things have emerged as a result. One of them is that the Government do not care about it. During the Committee stage in another place the Under-Secretary of State for the Army, referring to an Amendment of this kind, said
"… the Government considered that the use of the word 'Ulster' is, frankly, unimportant "—[OFFICIAL REPORT, Commons 1/12/69, cot. 1041.]
In your Lordships' House, the noble Lord, Lord Winterbottom, said something slightly different. He said:
"… Army Units have used and continue to use the word 'Ulster' in their titles.… It has been the practice, when forming new units, to incorporate names which have been used before and, in using the word 'Ulster' on this occasion, we are simply following this practice."—[OFFICIAL REPORT, 8/12/69; col. 311.]
The noble Lord, Lord Brockway, spoke to some effect on the argument about precedent.
Another point is involved which almost everyone has missed so far. Hardly anyone in another place noticed it, or axed on it, and, so far, there has been only one Member in your Lordships' House; that was the noble Lord, Lord Ritchie-Calder. This is not a precedent at all. We are not simply following a practice, because never before has there been a Regiment, or unit, or any formation of any kind, which has confined its recruiting solely to the Six Counties of Northern Ireland. I was for some years an officer of the Royal Ulster Rifles. Nobody objected to that title. The Regiment recruited all over Ulster and far outside the Six Counties; far outside even the North. There was no restriction, any more than there is, or was, on the Royal Ulster Constabulary, or, for that matter, the Royal Irish Fusiliers. This Regiment is the first in history in which any resident in the three Republican, Northern Ireland, counties of Ulster—that is Cavan, Monaghan and Donegal, is forbidden to serve at all. For that reason the word "Ulster" must be wrong, because some of the men in Ulster —three-ninths of them—are actually excluded by law from joining the Regiment; and they have every right to object to the

739
word "Ulster" being used in the title of a Regiment which they are forbidden to join. That must be accepted as a point.
I wish to refer briefly to something which was said by the noble Lord, Lord Byers. He said that when he was in Northern Ireland—it was not for very long—he discussed the question of including the word "Ulster" in the title with a number of Catholics and
" … the answer I got was that this should not be a major issue; that there was enough trouble without raising the name of this regiment into a large political issue."—[OFFICIAL REPORT, 8/12/69; col. 329.]
My Lords, I could not be more totally in agreement with that. So why in the name of sanity should we fix on a name that can be raised into a big political issue? It is almost incredible. It is interesting to note—now I come to what is really worrying me—the line taken by the Government against changing the proposed name of the Regiment. No defence has been put up at all.
I have already stated that the Government have said that they do not care about the word "Ulster". The Minister, at the end of the Third Reading debate in another place, said:
"I am bound to say … that when one puts these advantages"—
he had meant to reel off twelve advantages but he was shouted down before he got to the end—
"and these achievements on the one side of the balance sheet, and on the other side one puts the criticisms one has heard in debate on the Bill—namely, that the name is wrong and that the force is too high—the overwhelming advantages for Northern Ireland come down very much in favour of the Bill." —[OFFICIAL REPORT, Commons, 1/12/69; col. 1255.]
Of course they do. But what an astonishing piece of balancing! You do not put the title of the Regiment on one side of the balance and everything else in the Bill on the other, and say, therefore, that, on the whole, it is a good Bill because there is nothing wrong with the title. If we put the title of the Regiment on one side of the balance, we must put an alternative title on the other and say which is the better. That was a totally irrelevant answer.
When we come to your Lordships' House, we had one of the most interest-
740
ing speeches on this Bill. I refer to the winding-up speech of the noble Lord, Lord Shackleton. Bearing in mind the fact that the Government regard the Title of the Bill as unimportant, it is interesting and illuminating to see what the noble Lord said about it. I have a suspicion that he was, not for the first time, trapped by his own honesty. He said:
"This brings me to the highly contentious question of title of the Ulster Defence Regiment.—[OFFICIAL REPORT, 8/12/69; col. 378.]
It is a "highly contentious question", but no other spokesman for the Government had bothered to pay any attention to it at all. The noble Lord went on:
"Powerful arguments have been put forward by nearly every noble Lord who has spoken… I must say that this is important to both sides in the argument …"
It is not important to the Government. So why do we find the Government coming down heavily on one side which is important? Indeed, what are the two sides? One we know, the one represented by the national minority, who bitterly resent the title. What is the other? It is on that other side that the Government come down.
If we go on seeking for illumination, we find a strange thing. We find that the noble Lord does not extoll the merits of the Bill but the merits of the Northern Ireland Government, and does it for something like three-quarters of a column. He says:
"… the Northern Ireland Government have shown, I believe, a great deal of courage —although one may have criticised them in the past—in accepting a number of measures which will provide a large-scale programme of fundamental reforms in Northern Ireland." [Col. 378.]
And so on—I will not read it all out; I do not think it is necessary. Perhaps your Lordships can take my word for it that it is a eulogy—a well-deserved eulogy, if I may say so without impertinence—to the Stormont Government, which ends up like this:
"Your Lordships know the range of advance in difficult circumstances that the Northern Ireland Government have made, under very heavy pressure and, if I may say so, in an inflammable situation—and the Government, having considered all the aspects and having considered the very arguments that noble Lords have put forward, of which I myself am only too well aware, have come

741
to the view that in the circumstances it was right to agree that this should be called the Ulster Defence Regiment." [Col. 378.]
All the circumstances that the noble Lord listed in that column are circumstances of merit on behalf of the Stormont Government, which in the noble Lord's view makes it right to agree that this force should be called the Ulster Defence Regiment.
So far as I can see—and I stand willingly to be corrected—there is only one possible inference to be drawn from that. It is that the Government of Northern Ireland do so well that the least we can do is to let them have this title. Naturally agreements are made and even deals are made. A "deal" is not necessarily disreputable, and I do not choose to use it in that sense. But in this case, what was the deal? We know, and nobody in the world knows better than the noble Lord, Lord Shackleton, that this is an absolutely deadly title. He knows exactly what I mean when I say that it has echoes of the voice of Carson, as the noble Lord, Lord Boothby, has also said. Yet this is something which the Government of Northern Ireland apparently wants so much that we ought to let them have it. Why do they want it so badly? Who have they done a deal with? Is that a fair question? If not, I would ask another one. Do they really want this provocative title attached to a Regiment raised in their defence. Do they want it, the Government as a whole, or are they themselves under pressure from their extreme Right-Wing? There is no question but that this title is extreme Right-Wing. This title is militant, Protestant, Unionist—if you like, Orange, but I do not particularly want to bring that in.
Perhaps at this moment it might be appropriate for me to explain where I stand. I do not want to be looked at too askance by too many noble Lords. I have no home in Ireland. I have what might be called a foot on either side of the Border, perhaps not so heavily planted in the South now as once it was in the North. So far as sectarianism is concerned, if that is the word, I am a Protestant.
In the debate on Second Reading I was concerned to explain why I believe that suspicious persons (that is, persons of the Nationalist or Roman Catholic
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minority) had grounds for suspecting the motives of the Northern Ireland Government or even of the British Government in Westminster in putting forward this title. I am bound to say that I now no longer take that stand. I am not speaking as an advocate of those who are suspicious. I am myself one of them. I cannot believe that it is possible for any Government simply to let this title go through, without offering any defence of it whatever—and none has been offered either in this House or the other place. Knowing what damage it would do, they cannot possibly do that, unless they have some reason that we do not know. I find it impossible not to think that something very strange is going on behind the scenes, and I do not like it. That is why I am not deterred from putting down an Amendment.
The noble Lord, Lord Shackleton, appealed to the noble Lord, Lord Brockway—he admitted that this was a dangerous argument to use, and he was right—to consider whether the Amendment he was moving was making a contribution to peace in Northern Ireland. He did not mention my own idea, but naturally I take the question as addressed to me also. I see the force of it, and I am worried as to whether the idea in my Amendment may conceivably represent a danger to peace. Who is going to re-act against such an Amendment to such an extent that it will be a risk to peace? I also ask myself the corresponding question: if I remain silent and say nothing in the face of what I believe is wrong and dangerous, am I then not also and even more so endangering the prospects of peace in Northern Ireland? If I took the noble Lord's advice and was silent, the danger would be far greater than any danger that could be brought about by moving this Amendment.
May I make one more short quotation from the noble Lord, Lord Shackleton, to emphasise what I have already said. He said:
"I think the noble Earl put his finger on a crucial point"—
It is crucial, yet the Government are saying that they do not care—
"and this is the only one that gave me doubts. It is the association of the word 'defence'. I want to urge that, although this is an important point, we can make too much of it …"

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The Government have made nothing at all of it yet. Yet the noble Lord himself says that it is crucial. It is time, surely, for the Government to come out into the open and either accept an Amendment, whatever it might ultimately be, to delete the present name "Ulster Defence Regiment" with a good grace or else say why not.
7.40 p.m.
LORD KILBRACKEN: My Lords, I should like to take further what the noble Earl has said about the speech made by my noble friend the Leader of the House, when he cited the passage:
"… and the Government … have come to the view that in the circumstances it was right to agree that this should be called the Ulster Defence Regiment …".—[Col. 378.]
I want to press a little harder with this point and ask what agreement was reached by whom and with whom, and whether my noble Leader meant to say that some quite definite assurance had been given to the Stormont Government that the title of the Regiment would be the Ulster Defence Force.
The Minister in another place was questioned very forcibly, both by Miss Devlin and by Mr. Michael Foot, as to whether the Government—even if they thought it were desirable—would be in a position to accept such an Amendment, or whether an assurance had in fact already been given to Stormont that the name would not be changed. Although the Minister was pressed over and over again very hard indeed, he did not admit that any such agreement existed.
On Second Reading in this House it seemed to me that the noble Lord the Leader of the House, said that the Stormont Government had made certain concessions; that agreements had been reached, and that we in turn felt it right to agree that the new force should be called by the proposed title. I feel—and my honourable friends in another place said that if this were the case they would feel—that it would be a profoundly unsatisfactory state of affairs if the Government's hands were in effect tied and that in coming to this House, and to the other place, they were unable to accept such an Amendment because of assurances that had been given beforehand to Stormont.
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I began by putting my name to this Amendment, and I decided to put down an Amendment of my own, which is the same as that of the noble Earl, Lord Cork and Orrery, and the noble Lord, Lord Wigg. I did so solely because I thought there might be some objections on technical grounds to the inclusion of the word "Territorial" in the title. If there is none, then I will not press my Amendment. I think the most important matter is that we should agree upon which is the best title, and we should all, if it comes to a Division, vote for whichever we think is most appropriate. I felt a certain apprehension about what my noble friend Lord Brockway said about perhaps waiting until Monday and moving it again, because we might possibly get agreement to-day whereas on Monday, if it was put to the vote again, we might not be successful.
LORD BROCKWAY: May I just interrupt the noble Lord? The suggestion I made was that we should vote to-night. The vote will have to be on the Amendment which I proposed. I made it clear that if the vote was on that Amendment it should be on the principle of deleting "Ulster" from the title, and that we should consider on the Report stage moving a title which would be most acceptable to the House.
LORD KILBRACKEN: My only fear would be that that motion might be lost if there was a fuller House, with more people voting. In any case, I have no objection to the proposal that my noble friend has made. I am not so happy about the proposal which the noble Lord, Lord Hunt, has made, because it includes the word "Defence". I would personally prefer simply to vote on this Amendment and hope all those who want to get rid of "Ulster Defence" from the title will vote for it and leave it at that.
7.45 p.m.
VISCOUNT BARRINGTON: Last time spoke I promised to take five minutes and I am afraid that I took seven. I will try to take three minutes to-day, and if I take five I hope your Lordships will forgive me, if only on the principle that I think it would be a pity if nobody spoke from the Liberal Benches to express solidarity. I made my position quite clear last time that I spoke as a

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Back-Bencher, and gave my own views. I find it very unusual to get up and find almost nothing that has been said with which I can disagree. I will save your Lordships' time if I concentrate on the only two propositions which I found difficult to accept and which have been put up to-night. I will do this as shortly as I can.
One was the proposition of the noble Viscount, Lord Massereene and Ferrard —and it was a sort of a proposition, because he recalled Shakespeare's words, "A rose by any other name would smell as sweet", implying that the title is not important. He knows more about Ireland than I do, but I wonder whether, if you called an orange a greengage in Northern Ireland, the answer would not be a lemon. All I want to emphasise is that I would certainly vote for any Amendment which has been put up to-night. And I think I would go further, just to ram home the point, if I may, with regard to names and logical defences of names. I have only this minute thought of two names for which I would not vote. One would be if the Regiment were to be called "Carson's Own", and the other if it were to be called "Casement's Own". I would not be convinced that Southern Irish people would be pacified, if it were to be called "Carson's Own", by the fact that Carson was a South Irishman, or that Northern Irish Protestants would be pacified, if it were called "Casement's Own", simply because Sir Roger Casement was in fact a Northern Irish Protestant. There are emotional associations here and one wants to get away from that.
The second point is that I entirely agree with the noble Lord, Lord Wigg, and the only thing on which I disagree with the noble Lord, Lord Brockway, is that history has to be considered. History is a very important factor here and we have to realise—as anyone who has read Miss Devlin's interesting book knows—that Irish history is taught in two quite different ways. In Catholic schools you hear one view; in Protestant schools you hear another. People have a great many prejudices to get out of the way.
To emhpasise that, may I read a very short extract from a Liberal who was writing a long time ago—in 1821—about a siege that was almost the contemporary of the siege of Londonderry, the siege
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of Limerick, which most people in English history do not know about. I think it is a pity that we do not know about this, but I will quote a few lines from an article in the Edinburgh Review, which was published a very long time ago, but is, I think, relevant to-day. The writer mentions the William of Orange War and says that this was terminated by the surrender of Limerick:
"upon conditions by which the Catholics hoped, and very rationally hoped, to secure to themselves the free enjoyment of their religion in future, and an exemption from all those civil penalties and incapacities which the ruling creed is so fond of heaping upon its subjugated rivals"—
He goes on to enumerate the various articles. I will not read them, but they were giving complete liberty. This is how he concludes:
"These, and other articles, King William ratifies for himself, his heirs and successors, as far as in him lies; and confirms the same, and every other clause and matter therein contained.
"These articles were signed by the English general … and diffused comfort, confidence and tranquility among … the Catholics. On 22nd October, the English Parliament excluded Catholics from the Irish Houses of Lords and Commons by compelling them to take the oaths of supremacy before admission.
"In 1695, the Catholics were deprived of all means of educating their children. at home or abroad, and of the privilege of being guardians to their own or to other persons' children. Then all tae Catholics were disarmed,—and then all priests banished. After this (probably by way of joke). an Act was passed to confirm the Treaty of Limerick."
If that is an account given by an English clergyman who was anti-Catholic, one can imagine how that would be taught in Irish schools. I am not for a moment supposing that that is necessarily correct history, although I think it is an objective account. We have these prejudices and the more we can forget them, the better. The one way to rub them in is to insist on names which quite lately, in our lifetime, not in William of Orange's time, are associated with fire, slaughter and injustice.
THE EARL OF LONGFORD: It is certainly not for me in these latter days to give even the mildest hint as to how long this debate should suitably continue, but I feel that we have now drawn near a point where we shall be anxious to hear from the noble Lord the Leader of the House. The arguments have been

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deployed with extraordinary effect by the noble Lord, Lord Brockway, in the first place, and other speakers. There cannot be anybody here who by now has not made up his mind. I do not imply that we are not likely to hear new arguments. The noble Lord, Lord Shackleton, is extremely ingenious in argument, and a very good set of arguments it is that he has already put forward. He has made what must at any rate have been the main part of his case in the earlier debate.
I am not going to speak for more than a minute or two now. We all agree that we want this to be a balanced force; we all attach tremendous importance to that. We all agree that it is going to be extraordinarily difficult, whatever name this body is given. I do not remember in my time—I do not know whether the noble Lord the Leader has a clearer recollection—such an overwhelming mobilisation of well-informed opinion against a particular proposal as we have to-day. There is this overwhelming conviction that this difficult task of getting a balanced force is going to be made virtually impossible if we go ahead with the name "Ulster". So I hope that fairly soon, after the Leader has spoken, it will be possible to divide and test opinion.
7.53 p.m.
LORD SHACKLETON: I am grateful to my noble friend, who has not forgotten his part as a former Leader of the House in trying to help the House to come to a decision. The reason why I did not rise earlier was that there were a number of names down to Amendments and I felt it was only fair that every noble Lord should speak first. They will, of course—but I hope they will not take advantage of it—have the right to speak after I have spoken.
I should first like to say to the noble Lord, Lord Brockway, that I am sorry it is late, but really it is not as late as all that; and I should have thought he was one of the last people to complain of the lateness of the hour, since he is quite good on occasions at keeping us here. Of course it is difficult ever to foretell just how long debates are going to take; but I think this debate might have taken place two or three hours earlier and there still would not have been as many Members in your Lordships' House as there are now.
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I have listened with great care to everything that has been said. I am bound (to say that some of the noble Lords who spoke struck me as being not very familiar with Northern Ireland or Ulster. Even the terms and the pronunciations suggested a certain unfamiliarity. I really cannot accept the argument in general terms that the world "Ulster" is not appropriate and in general use in Northern Ireland. Noble Lords are not entirely correct. I know that my noble friend Lord Rathcavan lives on what he chooses to call the right side of the Border—
LORD KILBRACKEN: My name is Kilbracken.
LORD SHACKLETON: There was a strange alliance across the Border on this occasion, but—
LORD KILBRACKEN: We can all get our facts wrong.
LORD SHACKLETON: The noble Lord says, as he made clear last time, "on the wrong side of the Border".
LORD KILBRACKEN: The right side.
LORD SHACKLETON: Well, I do not know which the noble Lord wants. He tries to correct it each time. I tried to find out what he meant. He was not able to explain it.
LORD KILBRACKEN: I immediately said, "on the Republican side".
LORD SHACKLETON: At any rate —does the noble Lord wish to go on interrupting me?
LORD KILBRACKEN: No. I have finished.
LORD SHACKLETON: I am only trying to say that while I fully acknowledge that the noble Lord certainly knows both sides of the Border, I simply do not accept, as somebody who also knows both North and South Ireland, that the word "Ulster" is not in general use in relation to Northern Ireland. This is not, I may say in making this point, to dispose of some of the other very valid arguments that have been made, with which I will try to deal. I must address myself now to some of those arguments. First of all, my noble friend Lord Brockway said that the I.R.A. are no threat. It may well be that in recent months

749
there has not been the type of I.R.A. activity which has occurred at intervals over a number of years; but I do not believe that anyone responsible for security in Northern Ireland, or if I may say so, in the Republic, can ignore the possibility of a threat from the I.R.A.
The noble Lord, Lord Brockway, said that one of the weakest arguments my noble friend Lord Winterbottom used was the argument of precedent. The case for calling this unit, this body, the Ulster Defence Regiment, does not rest simply on precedent. What my noble friend sought to prove was that there were plenty of precedents to suggest that it would be appropriate to name this new force as in fact the Government propose that it should be named. I cannot understand why it should be proper to use the term "Ulster Rifles", or "Ulster" for any of the other units which I mentioned on the last occasion, but not apply "Ulster" to this particular unit, on what seems to me the peculiarly illogical argument that everybody who belongs to it happens to live in Northern Ireland. I cannot see that that is an effective argument.
LORD BOOTHBY: Will the noble Lord forgive me interrupting for one moment? It is because we want the Catholics to join it, and we are afraid that they will be put off by the word "Ulster"—as they will.
LORD SHACKLETON: If noble Lords will allow me, I will try to deal with this matter point by point.
LORD WIGG: I want to follow the noble Lord as closely as I can. He says he cannot see the logic; that if one accepts the title "Royal Ulster Rifles" one should now accept the title "Ulster Defence Regiment". For heaven's sake!, you are not recruiting for the Royal Ulster Rifles. They were established a long time ago. At that time the Royal Ulster Rifles had a pull. But the point is this: if the noble Lord were now establishing a new infantry regiment of the same kind, and recruiting in Northern Ireland, unless he was mad he would not call them the Royal Ulster Rifles.
LORD SHACKLETON: What I have been addressing myself to is the fact that some new units have been formed in
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which the word "Ulster" has appeared. and no objection has been raised. The particular point I was on in terms of logic is the argument that it is logical to use the word "Ulster" provided they recruit from everywhere—not only in Northern Ireland and Ulster but in other areas—but that it is illogical to do so if they are all in fact inhabitants of Northern Ireland. I am dealing only with arguments; I am not dealing with the central point at this moment. But those arguments have been advanced, and I think it right I should deal with them.
Both the noble Earl, Lord Cork and Orrery, and my noble friend Lord Kilbracken—I apologise for getting muddled on the last occasion—chose, I think, to read a great deal more into what I said on the Second Reading. Let me repeat again that it is really showing signs of paranoic suspicion to believe that there is some kind of mysterious deal. I should like to make very clear that the British Government discuss the problems of Northern Ireland with the Government in Stormont. Obviously there are consultations on the name of the force and other points which relate to it. We took account of their views in the same way that we took account of other views, but it was Her Majesty's Government in Westminster who made up their minds on this matter, and the decision in regard to this title is in fact the decision of the Government in London.
I am naturally concerned at the argument that this title will have a divisive effect. I am concerned that it should be suggested that as a result of it very few Roman Catholics will join. It is worth pointing out that the Royal Ulster Constabulary has 10 per cent. of Catholics, and I believe the fact that there are not more Catholics in the Royal Ulster Constabulary is not because of its name. Therefore, while I believe this to be of importance, I think its importance can be exaggerated out of all proportion. I have listened with great care to everything that has been said. I have not sought to answer every single argument, and I am grateful for the fact that your Lordships have chosen to focus the different Amendments on the one subject of Northern Ireland or Ulster—apart from the use of the word "defence".

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On the latter subject, although the word "defence" is sometimes used in a rather euphemistic sense, it was deliberately chosen to distinguish this from other units which might well go outside their particular country, and it was for that reason that "defence" was considered so particularly appropriate. But on the subject as to whether we should now adopt a name such as that suggested by the noble Lord, Lord Hunt, and which the noble Lord, Lord Brockway, has said he would be content with, I can only say that I am certainly prepared to consider, with my right honourable friend, the very strong opinions expressed in this House. But it would not be fair for me to offer any sort of undertaking, and I think it would be quite wrong if I did not allow the noble Lord, Lord Brockway, to test the opinions of your Lordships in this matter.
I am bound to say that I am still unconvinced that it will serve a valuable purpose to change the name. Indeed, I am nervous of the consequences in other areas. There are the most delicate judgments to be made in Northern Ireland. I think it was either the noble Earl or some other noble Lord who pointed to the fact that there are two sets of opinions, and it has been pointed out that there is a majority in Northern Ireland who prefer the word "Ulster". Therefore, whatever we do, we shall be in some difficulty, and it is a question of measuring what is in the best interests of the people of Northern Ireland. So, while I cannot give any undertaking, and I think it is right that we should now settle this matter by dividing, I am grateful to noble Lords for the way in which they have deployed their case.
LORD BROCKWAY: Before the noble Lord sits down, may I just say how much I appreciate the spirit in which he has spoken. But in view of his inability to
give an undertaking we must press this Amendment to a Division tonight.
LORD BROOKE OF CUMNOR: May I express my personal regret that the noble Lord, Lord Brockway, is determined to divide on this, because I had hoped that he would accept the assurance given by the noble Lord the Leader of the House that he and the Government would consider this matter further. This is obviously a difficult matter, and I think it would be wrong if nothing were to be said from this Bench. If there were a generally agreed alternative title for this Regiment I should be happy to support it. At the same time, in a case where there is apparent agreement between the United Kingdom Government and the Government of Northern Ireland which, to put it mildly, do not spring exactly from the same political philosophies, I doubt whether it is wise to intervene and seek to upset that agreement.
I have some experience of Northern Ireland, and I hope noble Lords will accept that I appreciate all that has been said by the supporters of these Amendments. I cannot go so far as to agree with those who say that the term "Ulster" is one which all Catholics avoid using, and I think it would be fair to say—to quote one of the bodies instanced in another place —that such a body as the Ulster Federation of Homing Pigeon Societies probably includes Catholics as well as Protestants among its members. So do not let any of us press our arguments too far. As I have said, if there were an alternative agreed title I should be happy to support it, but at this stage there is not and, therefore, if it comes to a Division I shall feel it my duty to support the Government.
p.m.
Question, Whether the said Amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 29; Not-Contents, 30.

CONTENTES

Barrington, V.

Ferrier, L.

Lindgren, L.

Beaumont of Whitley, L.

Gowrie, E.

Longford, E.

Boothby, L.

Greenway, L.

Merthyr, L.

Borckway, L. [Teller.]

Hawke, L.

Moyne, L.

Brougham and Vaux, L.

Headfort, M.

Nunburnholme, L.

Clwyd, L.

Kilbracken, L.

O'Hagan, L.

Cork and Orrery, E. [Teller.]

Killearn, L.

Raglan, L.

Ritchie-Calder, L.

Strang, L.

Wigg, L.

St. Davids, V.

Strange of Knokin, Bs.

Winchester, L. Bp.

Stocks, Bs.

Swansea, L.

NOT-CONTENTS

Belstead, L.

Cooper of Stockton Heath, L.

McLeavy, L.

Bessborough, E.

Delacourt-Smith, L.

Massereene and Ferrard, V.

Beswick, L.

Denham, L.

Milner of Leeds, L.

Bowles, L.

Falkland, V.

Monson, L.

Brooke of Cumnor, L.

Gaitskell, Bs.

Phillips, Bs. [Teller.]

Burden, L.

Gardiner, L. (L. Chancellor.)

Serota, Bs.

Chalfont, L.

Garnsworthy, L.

Shackleton, L. (L. Privy Seal.)

Collison, L.

Hilton of Upton, L. [Teller.]

Shepherd, L.

Colville of Culross, V.

Hughes, L.

Strabolgi, L.

Conesford, L.

Llewelyn-Davies of Hastoe, Bs.

Winterbottom, L.

On Question, Motion agreed to.

8.15 p.m.
VISCOUNT MASSEREENE AND FERRARD VISCOUNT MASSEREENE AND FERRARD moved Amendment No. 5:
Page 1, line 10, at end insert—
("Provided that, in the establishment and maintenance of the Regiment efforts shall be made, under conditions to be prescribed, to ensure that not less than one quarter of the men accepted for service are of the Roman Catholic faith.")
The noble Viscount said: In putting down this Amendment I have done so entirely as a private individual. As I have strong connections with the Unionist Party in the North of Ireland, may I repeat that: this Amendment is entirely a private effort. We have heard, in this House and in another place, great doubts expressed whether this Regiment will serve any useful purpose, because the Catholic minority fear, so we are told, that this force will be Protestant-dominated and that it will therefore oppress them. The noble Lord, Lord Kilbracken, who has chosen to pitch this Republican flag rather close, I should have thought, to the Protestant Bishops, appears to look upon this regiment, the Ulster Defence Regiment, as a form of Orangemen's plot, as he said in his Second Reading speech, "to harry and terrorise" the Catholic minority. I must say that I think that is very extravagant language.
My family have had a very long political connection with Ireland, extending over hundreds of years. We have held all sorts of political offices in that country for the British Crown, for the Protestant Crown, ever since the days of Queen Elizabeth. I am the proud possessor or, rather, my father was (now the Bank of Ireland has it) of the Mace of Ireland and the Speaker's Chair (which got burnt
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in the Rebellion) but I still have all the Parliamentary Linen. This is because on the Ferrard side of my family John Foster was the last Speaker of the Irish House of Commons, and was well enough thought of when he had to give up his post, owing to the Act of Union in 1800, to be allowed to take the Mace and the Chair and the Parliamentary Linen. The Mace, as I have said, is now in the Bank of Ireland, and the Chair got burnt in the Rebellion.
I am really tired of hearing, and a great number of my Unionist friends are tired of hearing, what I can only call wild statements as to the oppression of the Catholics in the North of Ireland. Some of these statements are greatly exaggerated. This Amendment, coming as it does from me, may surprise some Unionists in the North of Ireland; but it will not surprise what I call the educated Unionists. These are the Unionists who really love the North of Ireland, and who have the interests of that country at heart.
As I said when talking about the North of Ireland in the Second Reading debate, any oppression that may exist does not come because the people in the Province in the North object to Catholics: they are quite at home with the Catholics as in England or Scotland. As I pointed out at the time, it comes from a perfectly legitimate fear—though I do not agree with it—of their more populous and powerful neighbour in the South. Their fear is a territorial fear; it is intrinsically a fear that, if the North of Ireland went into the South, gradually, over a period of time, they would lose their jobs and be driven out of the North of Ireland. This fear is held by a great number of less well educated people in the North of Ireland, and we

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have to accept that fact. But we can only hope that time will cure it.
I cannot say that in the last two or three months the Nationalist Movement and the Civil Rights Association have helped to pour oil on troubled water, nor do I think the noble Lord, Lord Kilbracken, really has attempted to pour oil on troubled water. When he spoke of being happy to be on the "right side of the Border" I was wondering whether he was approaching the Border from the West or from the East. Of course I now realise what he really meant. I do not want to hit the noble Lord below the belt, but perhaps the reason the noble Lord is happy on what he calls "the right side of the Border"—in other words, the Republic of Ireland— is because it is cheaper to live there; wages are lower; you can get drink cheaper, and there are various other advantages.
THE EARL OF LONGFORD: Should I be in order in asking the noble Viscount whether this relates to the Amendment in any way at all?
VISCOUNT MASSEREENE AND FERRARD: It leads up to it. There are a great many people who live in the North of Ireland because they get higher wages and various other social benefits. Where I think a great many people go wrong is in thinking that every Catholic in the North of Ireland wants to go to the South. But there are plenty of Catholics in the North of Ireland—I know several —who are extremely loyal to the British connection, and are perfectly happy to remain as part of the United Kingdom. Personally, I should he very sad to see the North of Ireland lose the British connection. We have been assured, of course, that that can never happen so long as a majority in the North of Ireland desire to keep the British connection. Provided we have that assurance, we cannot ask for more.
I have put this Amendment down because, in my opinion, if this Regiment is to be accepted, it must include quite a high proportion of Catholics. I am slightly frightended that if Catholics do not have great encouragement to join the Regiment they may not join in sufficient numbers to make it quite impartial. I am not saying that the Ulster Defence Regiment, if it was composed of Prot
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estants, would not be impartial, but I think it would certainly be fair to say that some of the fears of the Catholics in the North of Ireland would be calmed if a certain percentage of this Regiment were Catholic. I have chosen the figure of 25 per cent. of the population. I think the actual percentage of Catholics in the North of Ireland is 30 per cent.
A NOBLE LORD: More.
VISCOUNT MASSEREENE AND FERRARD: I understand that if you do not count the children, the proportion in the adult population is round about 25 per cent. Whether it is 25 per cent. or 30 per cent. is a small point.
I am in rather an awkward position this evening as I have to go downstairs to be host to the Irish Peers. Your Lordships are probably quite pleased to hear that, because I shall have to stop speaking very shortly. However, there is no doubt that my Amendment may not be entirely practical. But I should like to see whether something like this can he done to encourage Catholics to join this force. I am a full-blooded Protestant, and my family have been for hundreds of years, but I feel, and there are many other Protestants who feel like me in the North of Ireland, that we are prepared to do anything reasonable that we can to try to solve this problem and make it a happy Province. I beg to move.
8.29 p.m.
LORD BROCKWAY: When I saw this Amendment on the Order Paper I assumed that its purpose was to get a balanced force. I did not quite get that impression from the speech of the noble Viscount, Lord Massereene and Ferrard, and I would put just two objections to the Amendment. The first is that the suggestion that not less than one-quarter of the men should be accepted from the Catholic faith is rather an under-representation of the Catholic population in Northern Ireland. Much more deeply there is the objection that I think it is very dangerous indeed if, in the laws of this land, we make a reference either to a particular race, or a particular religion. Those of us who are opposed to racial discrimination, and also to discrimination on religious grounds, take the view that it would be a bad precedent in our law to have a reference to a religious faith as there is here.

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But I particularly wanted to rise to put a question to Her Majesty's Government. There was a debate in another place on this question of a balanced force, and at the end of that debate Mr. Hattersley, the Minister speaking on behalf of the Government, agreed that he would write to the members of the B-Special force outlining clearly the methods and the terms of recruitment. That promise was given because there had been some evidence that the B-Specials were not joining as individuals but were joining as groups, and, most extraordinarily, that it was as a result of a meeting of an unofficial committee within the Regiment. Because of that, there was the very great danger that there might be over-pressure to get B-Specials to join; and Mr. Hattersley promised that he would communicate with the members of the B-Special Regiment. I just want to ask my Front Bench: What has been done in this respect? Has such a letter been sent? And, if so, what are the contents of that letter? I ask this in order that we may feel that everything is being done to create a multi-community force.
LORD KILBRACKEN: I should like to intervene for a moment. The noble Viscount asked me various questions about myself and why I said I was happy to live in the Republic of Ireland. I really do not think it is necessary for me to explain again. I live in the Republic of Ireland because I prefer the Republic of Ireland to Northern Ireland. I prefer the life there, and that is why I am happy when I wake up. I say this and I am not ashamed of it; indeed I am pleased and proud of it. However, I felt that his remarks were considerably irrelevant to the Amendment he was proposing. I myself think—I certainly hope—that this Amendment is completely unnecessary. That is because the Government have indicated over and over again that they are going to do everything in their power —and I completely respect their sincerity —to get as many members as possible of the Catholic faith and followers of the Nationalist belief to join this force. I know that they will try, and I know that attempts are being made in that direction. I am afraid they are not going to be successful; and I think that if one other noble Lord or noble Baroness had voted the other way just now the chances would be much greater that there would be
758
Catholics who would come forward. I feel certain that every attempt will be made, but I am afraid that even as things are the figure that the noble Viscount wants to see of 25 per cent. will not be reached, and that therefore absolutely nothing will be gained by putting it in.
On the other hand, I cannot help having a sneaking wish that it could be in the Bill, for the reason suggested to me by the noble Earl, Lord Cork and Orrery, who is not in the Chamber at present. That is, because if it were in the Bill it might very well restrict the size of the force to three Protestants. If no Catholic chose to come forward, which I think will be extremely probable, then, if this were a part of the measure, the force would be restricted to three; and that is about the size I should like it to be.
THE EARL OF LONGFORD: My Lords, I sympathise with the idea in the mind of the noble Viscount, and as he is a member of the Unionist Grand Council, or words to that effect—a very high Unionist body in Northern Ireland—I think it comes very well and handsomely from him. I am sorry he marred that noble aspiration by some of the observations that fell from him; but let us et those aside. There is no doubt at all that we all want to see a proportion as high as this if we can, and, if possible, higher; but I think it is going to be incredibly difficult to achieve this proportion. The only question is whether one gains anything by putting it in. I should not have thought so myself, except that Lord Hunt, who recommended against continuing a fixed proportion in the police, in his speech on Monday actually recommended introducing a fixed proportion, or words to that effect, here. That was rather striking, coming from him. Therefore, I should like the noble Viscount to feel that when he throws out a liberal idea of this sort he does meet with some response. But, having said that, I can only tell him that if he presses the Amendment to a Division he will not find me there.
THE PARLIAMENTARY UNDERSECRETARY OF STATE FOR DEFENCE, R.A.F. (LORD WINTER-BOTTOM): The noble Viscount has proposed an Amendment which, in the spirit if not in the letter, will, I know, command a good deal

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of sympathy from your Lordships' Committee. If I may express a personal opinion, I should have thought the ideal make-up of this force would be 100 per cent. agnostics; but that is something which I think we are unlikely to achieve.
THE EARL OF LONGFORD: May I ask my noble friend whether he is speaking for the Government?
LORD WINTERBOTTOM: I thought I made it quite clear that this was a purely personal view; that, to me, that would be the ideal composition of the force; but I said it was not likely to be achieved. I think the noble Viscount was right to draw attention to the question of achieving a proper balance within the new force, because that might well be an important factor in the success of the Ulster Defence Regiment. It is for this reason that Her Majesty's Government are paying so much attention to this aspect of the new arrangements in Northern Ireland. Your Lordships will appreciate, however, that there would be serious difficulties in seeking to find a proper balance by legislation in the manner of the Amendment, not only because of the practical difficulties in enforcing a fixed percentage of members of a particular religious denomination or faith but also because it has not been our custom, and rightly so, to regard religion as a relevant consideration for entry into the Army. That is not to say that Her Majesty's Government will not take positive steps to see that a proper balance is achieved. On the contrary, as stated in the clearest possible terms by my honourable friend the Minister of Defence for Administration in the Second Reading debate on November 19 in another place, the recruitment of a well-balanced force will be a primary objective.
The detailed arrangements that are being made are directed towards that end. Applicants for membership of the Ulster Defence Regiment will be asked to state their religion on their application form—and I want to stress this point—for the sole purpose of enabling a watch to be kept on this aspect of the balance. There will be no automatic transfer of members of the Ulster Special Constabulary to the Ulster Defence Regiment. Application forms will be widely available for all
760
potential recruits, and the recruitment campaign will be directed towards all sections of the community in Northern Ireland. As I said in the debate in your Lordships' House on December 8, General Sir John Anderson, the Colonel Commandant-designate of the Ulster Defence Regiment, will be taking special steps to see that as many as possible of the members of the minority community in Northern Ireland apply to join the new force. Again, the G.O.C., Northern Ireland, will have the benefit of the help of an advisory council—I mentioned that in the debate—one of whose tasks will be to advise on the composition of the force and on matters of improving recruitment in minority communities.
Her Majesty's Government believe that they have already taken such practical steps as are open to them to see that the Ulster Defence Regiment becomes a well-balanced force which is fully representative of all the responsible communities in Northern Ireland, and that the arrangements that they have made are far preferable to seeking to incorporate in legislation a provision which would be out of keeping with our custom, not necessarily workable in practice and, indeed, virtually impossible to enforce. I hope the noble Viscount will accept the fact that we are in complete agreement with the spirit behind his Amendment, but I hope he will not force it to a Division.
LORD BROCKWAY: Before my noble friend sits down, may I ask him whether he heard the question which I put to him, which I think is important in this connection? Mr. Hattersley, his colleague, made a definite promise in another place. I am asking whether the letter which he promised would go to the members of the B-Specials has been sent, and I am asking him what are the contents of that letter. My noble friend has ignored that question altogether.
LORD WINTERBOTTOM: I am grateful to my noble friend for reminding me. The position is that the matter is still being looked into. I am therefore not able to tell him what will be the contents of such a letter, if it is in fact sent.
LORD BROCKWAY: But it was promised.
LORD WINTERBOTTOM: That promise has not yet been broken. It is being looked into.
VISCOUNT MASSEREENE AND FERRARD: I thank the noble Lord, Lord Winterbottom, for his explanation. I am glad to hear that every effort is to be made to achieve a proper balance in the force, and I can only hope that that will be successful. I quite appreciate —in fact, I knew—that it has never been the custom in the British Army to choose recruits on their religious faith, or to have a certain percentage of one faith and a certain percentage of another. Of course, Northern Ireland is a rather unusual place, perhaps— certainly at the moment. It was the best solution that I could think of, but I quite agree that it is probably not practicable. As I said before, I am very pressed for time. I should have liked to answer the arguments of the noble Lord, Lord Kilbracken, and others. I do not agree with him when he says that it could happen that there would be only three in the Regiment. I think he was exaggerating. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
8.42 p.m.
LORD KILBRACKEN LORD KILBRACKEN moved Amendment No. 6:
Page 1, line 24, leave out ("when he is in possession, or ")
The noble Lord said: This Amendment is completely non-contentious and non-controversial. Clause 1(2) lays down the occasions when members of the force will be subject to military discipline, and subsection (2)(b)(ii) states that a member of the force will be under military discipline
"… when he is in possession, or when, in pursuance of any order given … by a superior officer of his, he is required or authorised to be in possession, of any arms or ammunition … ".
I am proposing to delete the words, "when he is in possession, or". My point is simply that these words are unnecessary. A member of the force remains under military discipline, if these words are deleted, if
"he is required or authorised to be in possession, of any arms,"
and so on. Those are the only circumstances under which he should possess them. If these words are left in, there
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would be the implication that a member may be in possession of arms when he is not "required or authorised to be in possession". I propose for the sake of clarity that these words should be deleted. I beg to move.
LORD WINTERBOTTOM: The noble Lord has the point right, but he has not spotted the danger. He has argued that these words are unnecessary in that a member of the force should be in possession of arms only if he is required or authorised to be so. That must certainly be the hope of all of us. But your Lordships will appreciate that no one can guarantee that some occasion will not arise when a member of the force is in unauthorised possession of arms either because he mistook his orders or because he was negligent or perhaps even because he was disobedient. This is a possible and genuinely dangerous situation. It seemed only prudent to provide against such a contingency. To do so is not to make a judgment on the likelihood of such a contingency arising.
My right honourable friend the Secretary of State for Defence has emphasised that this is to be a well disciplined and well trained Regiment. No one assumes anything else. But if there were to be only a single breach of the rule it would be intolerable to find that for lack of this provision a member of the force in irregular possession of arms was not subject to military law. May I repeat that: for lack of this provision a member of the force in irregular possession of arms—which is a situation which could arise—was not subject to military law. I hope, therefore, that my noble friend will not press this Amendment.
LORD KILBRACKEN: I have no intention of pressing this Amendment. It seems to me that if a member of the force were in possession of arms at a time when he was not required or authorised to be in possession, he would be guilty of an offence and could be taken to court for acting in a way in which he should not act, and would be liable to the penalties of the court, whether under military discipline or not. However, in the light of the assurance that my noble friend has given, I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
8.46 p.m.
THE EARL OF CORK AND ORRERY THE EARL OF CORK AND ORRERY moved Amendment No. 7:
Page 2, line 2, leave out from ("any") to end of line 4 and insert ("equipment belonging, to Her Majesty of such description as may be prescribed for the purposes of this section".)
The noble Earl said: I must apologise to the Committee and to the noble Lord, Lord Winterbottom. I must disclose the personal fact that yesterday I was in bed with 'flu. If I had been in a better state of health I would have noticed the errors in the drafting of this Amendment. I wonder whether it is worth while explaining the point that I meant to make. We have in the Bill the words, "prescribed description of equipment", possession of which can bring a man under the operation of military law. "Prescribed description of equipment" is a vague term. "Prescribed" means, according to the definition, "rescribed by order or regulation" and it might cover anything from a bicycle to water bottles. Presumably it is not intended to refer to possession of that kind of equipment which is normal for every man in the force. The purpose of my Amendment, if it had been correctly drafted, was to make it read in such a way that "equipment" would refer to such equipment
"of such description as may be prescribed for the purposes of this section."
In other words, "prescribed" in this clause refers only to equipment "prescribed for the purpose of this section." In other words, if he is ordered to take a bicycle or a wireless set he comes under military law; but if he has only web equipment or a water bottle, obviously he does not.
LORD WINTERBOTTOM: The noble Earl has explained that his concern is with the wording more than with the merits of this provision—I believe he accepts that the possession of some kinds of equipment, like arms or ammunition, should make members of the force subject to military law. His difficulty, as I understand it, circulates round the word "prescribed". I can assure the noble Earl that "prescribed" in line 2 of page 2 does indeed mean "prescribed for the purposes of this section"; and prescription will be by regulation made by my right honourable friend under the provisions of Clause 4(1) of the Bill. When
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he raised this topic on Second Reading, the noble Earl said that he though it of "somewhat dubious propriety" to bring a man under military law by a minor regulation made under Clause 4(1). I hope it will help the noble Earl if I say, first, that these regulations are in no sense "minor": they will be made under the authority of this Act, and will not only have all the force of, for example, Regulations of the T. & A.V.R., but, like them, will be drawn up with care, and will be published and laid before your Lordships' House. The purport of the noble Earl's Amendment being thus the same as the words of the Bill, I hope that with this assurance from me he will not press it further. The regulations in question follow a known pattern relating to defence forces. They will be laid but will not be subject to Parliamentary control by either Affirmative or Negative Resolution; but since they are laid before the House they could be debated if the noble Earl or any other noble Lord wished to do so. Control will be kept so that the important elements will be included and the nonsenses excluded.
THE EARL OF CORK AND ORRERY: I am grateful to the noble Lord for that more than adequate explanation and beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
THE DEPUTY-CHAIRMAN OF COMMITTEES: In calling Amendment No. 8 may I point out to the Committee that, if it were agreed to, I should not be able to call Amendments Nos. 9, 10 and 11.
8.50 p.m.
LORD KILBRACKEN LORD KILBRACKEN moved Amendment No. 8:
Page 2, line 34, leave out from beginning to ("shall") in line 38.
The noble Lord said: I beg to move Amendment No. 8. I am doing so because I believe the words which I am proposing to delete are unnecessary. So far as I am aware, a member of this Regiment would not be liable to any service of any kind unless the force or some part of it has been called out under one or other of the subsections of Clause 2 which are mentioned. It therefore seems to me all the more clear that he cannot be liable to whole-time service

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unless he has been called out. An alternative would be to include the words, "or part-time" as is suggested by the noble Earl, Lord Cork and Orrery, in Amendment No. 10. So far as training is concerned, the obligation of a member for full-time service is already clearly stated in Clause 2(5), because a member cannot be liable for any kind of service unless the force has been called out.
LORD WINTERBOTTOM: My noble friend is quite right in drawing attention to the fact that the only liabilities for service or training imposed on members of the force are those under Clause 2 of the Bill. But my noble friend will have appreciated that none of these is framed in exclusive terms—indeed, they could not have been so drafted, because the liabilities for service are alternative. The subsection to which my noble friend's Amendment relates gives my right honourable friend power to make orders and regulations for the duties of the force. That is obviously necessary, and it is usual in Royal Forces legislation to give the Secretary of State this kind of discretion. But as legislation expressly concerns itself with prescribing liabilities for service it is desirable that there should, in this subsection, be a corresponding limitation. My noble friend will have observed that the same argument applies to the provision about service in Northern Ireland.
I think it is fair to say that these words only add emphasis: they are a positive expression of a limit which, as my noble friend has acutely observed, is implicit elsewhere in the Bill. But they do follow the precedent of an earlier Statute, the Home Guard Act 1951, and I hope my noble friend will agree that they do no harm in making clear this crucial protection of the rights of members of the force.
LORD KILBRACKEN: I should like to study my noble friend's reply. I feel that he has given a very detailed and satisfactory answer and I do not propose to press the Amendment.
Amendment, by leave, withdrawn.
LORD KILBRACKEN LORD KILBRACKEN moved Amendment No. 9:
Page 2, line 34, leave out ("require") and insert ("call upon")
The noble Lord said: I beg to move Amendment No. 9, which is to substitute the words "call upon" for "require" in the passage which in the last Amendment I have just proposed we should delete. It seems to me that the word "require" is not strong enough. All this subsection says at present is that members of the force may not be required to give whole-time service, except when the force or part of it has been called out. But surely that does not mean that members of the force, if they were willing to be called out, might not be able to take part in operations. I feel that there is very little meaning or force in the sentence so long as the word "require" is used and that something stronger, such as "call upon", should be substituted.
LORD WINTERBOTTOM: I think that my noble friend is tripping over something that arises from the art of the Parliamentary draftsmen. We believe that the word "require" in line 34 is better than the phrase "call upon". The subsection describes what is and is not to go into the regulations. The regulations are mandatory and I am advised that "require" is not only the traditional but the proper term. There has been previous legislation in which the term "require" has always been used and I hope that for this reason my noble friend will accept it.
LORD KILBRACKEN: I feel a certain amount of doubt about it because the Bill says that orders or regulations "shall not require members of the Force" to do so and so. It does not say that these orders or regulations shall not request them. The regulations made could still request members of the force to do whole-time service although they might not require it. Therefore I feel that they go a little further than is perhaps intended. But in view of the fact that my noble friend assures me that this is the word normally used, and cannot have the effect that I feared, I accept what he says and ask leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
THE EARL OF CORK AND ORRERY THE EARL OF CORK AND ORRERY moved Amendment No. 10:
Page 2, line 34, after ("whole-time") insert ("or part-time").
The noble Earl said: I feel that I may fairly claim that this Amendment is drafted with the most unfailing accuracy. As I understand it, the second half of subsection (5) is designed to protect the soldier from being imposed on and required to perform any kind of military duty when not out training, on the one hand, or called out, on the other. It says that members of the force shall not be required to give whole-time service, which does not exclude the possibility that they might be required to give part-time service. It seems to me that this difficulty could be overcome by leaving out the words "whole-time", but that would leave the words "give service", which would seem rather curious in a military context. It would be easier, neater and self-explanatory to add the words I suggest, so that the subsection would read:
"shall not require members of the force to give whole-time or part-time service except during any period"—
and so on. Only then, I submit, would the man be completely covered in the way the subsection intends he should be. I beg to move.
LORD KILBRACKEN: I should like to add a word of support to what has been said by the noble Earl, Lord Cork and Orrery. I see this as a possible solution to the problem which was worrying me. It seemed to me that no service of any kind should be given unless the force had been called out. I do not see why only whole-time service is specified in the subsection. If the noble Earl's Amendment were accepted, and whole-time and part-time service specified, the force would not be called out before it could be required.
LORD WINTERBOTTOM: The noble Earl's Amendment is designed to ensure that all the circumstances in which members of the force attend for training are covered by this provision. I recognise the force of his argument, but I believe there are special reasons for emphasising whole-time service in this way. It is not the practice with reserve forces generally, and in particular with this force, to prescribe by Statute the total amount of part-time training. The demands of training vary from time to time, and on the whole it is best to be as flexible as possible and to prescribe by regulations
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rather than in the Act. But service 24 hours a day is a serious matter for a part-time force, and for this reason we have particularly emphasised the utmost extent of the demands that may be made on a man for whole-time service. We have laid down what is the most he can be asked to do, but if he is asked to do less than that, we feel that it would be better to leave the question undefined.
THE EARL OF CORK AND ORRERY: I am slightly puzzled, if the noble Lord will allow me to say so. If I understood him aright, a question might arise of additional periods of training being prescribed under regulation. So we do not know, simply by reading the Bill, how much work a man would be required to do. But if that happened, surely it is covered by the words or they are undergoing training" in line 36. So that no matter what happens, whether statutory periods of training are increased or decreased, a man is still covered, in the sense that he must do what he is told when he is training. It does not affect the fact that while he is undergoing training or called up, he can still, as the subsection is now drafted, be called up to do half a day's work when he should not be. Is that not possible?
LORD WINTERBOTTOM: I should have thought not. The regulations I mentioned will be available to the House, and if this is a matter of concern to the noble Earl I am certain that he will watch them. Since this is a voluntary force, I am perfectly certain that we will take the trouble to see that no-one is driven out of the Regiment by overwork or by an oppressive use of the words, "whole-time". I am pretty certain that common sense will be applied, and that it is not necessary, as the noble Earl wishes, to define it in this exact phrase.
THE EARL OF CORK AND ORRERY: I do not wish to press this Amendment, but simply wish to register the point. I am not at all convinced by the noble Lord's argument, but I am happy to leave it at that. I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
LORD KILBRACKEN LORD KILBRACKEN moved Amendment No. 11:
Page 2, line 36, leave out ("(2)")
The noble Lord said: Subsection (5) states that regulations
"… shall not require members of the force to give whole-time service except during any period during which the force or the part of it to which they belong is called out under subsection (2), (3) or (4),…"
Clause 2(3), states:
"The force shall be liable to be called out for permanent service in Northern Ireland in defence of the United Kingdom against actual or apprehended attack;…"
Under subsection (2) the force may be called out
"… for emergency service in Northern Ireland if, and for so long as, it appears … to be necessary or expedient for the defence of life or property in Northern Ireland against armed attack or sabotage, whether actual or apprehended."
I am of the opinion that if the only threat to security in Northern Ireland is one which requires the defence of life and property against armed attack or sabotage, there would never justifiably be a case to call out the entire Regiment for whole-time service, though I appreciate that it could be called out to defend the United Kingdom, which in this case means to defend Northern Ireland, because it may not serve outside Northern Ireland, against actual or apprehended attack. But the whole force should not be called upon for full-time service subject to the condition foreseen in Clause 2(2). I beg to move.
LORD WINTERBOTTOM: With respect to my noble friend, I think that this is essentially a question of semantics. He must make a distinction between whole-time service and permanent service. Whole-time service means service 24 hours a day: it is likely that members of this force will often do less than this—for instance when they are undertaking guard duties or when they are doing evening training. But it is also possible that even on emergency service they may be called out for more than 24 hours at a time and in those circumstances they would be treated, and of course paid, as on whole-time service. For example, a man could do a 36-hour period when doing training at weekends. Permanent service extends this concept. It is whole-time service of indefinite duration as is to be expected in the context of general war. That is the difference.
LORD KILBRACKEN: I thank my noble friend for his explanation. I had not appreciated the difference between whole-time and permanent service. In view of what he has told me, I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
9.8 p.m.
On Question, Whether Clause 1 shall stand part of the Bill.
LORD WIGG: During the Second Reading I raised with the noble Lord the spokesman for the Government, the matter of the reference in subsection (3) to Parts II to V of the Army Act. He has since Written to me (I received the letter only to-day) and argues that the reference is sufficient to override the doubts that I have, or that arise from the fact that the Army Act would remain unamended; and for a man to become liable for military law, as it seemed to me, reading the Army Act, he had to be one of those designated in Section 205.
I should be prepared to leave it there because I sensed the difficulty that the Ministry of Defence must have had in drafting this Bill. There was no suitable opportunity of amending the Army Act, and so they have got round it in this way. The Minister argued that there is a precedent, in that the same thing was done when the Home Guard Act was introduced in 1951. My worry is that subsection (2) refers only to Parts II to V; there is no reference to Part I. Yet during our deliberations this evening the noble Lord said that the Government attach special importance to the answer that a man would give on attestation. The point where a man can be charged with a false answer on attestation does not arise on Parts II to V; it arises out of Section 19 of the Army Act 1955, which states that a person appearing before a recruiting officer and makes a false answer under attestation should be liable on summary conviction to imprisonment for a term not exceeding three months or a fine not exceeding £20. So it seems that procedures would arise here under Section 19. I have not had the time to go into this because, as I say, the Minister's letter telling me that he is satisfied about the drafting of the Bill before us reached me in the House only to-day.

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I suggested to the Minister that perhaps he could ask his advisers to look at this point again. Frankly, I do not like it. It is legislation by reference. And in dealing with a disciplined force this is particularly unfortunate.
I speak from the experience I had on the Select Committee which considered the Army Act, and which produced the revised version. We were most anxious to get it all in one place. That is the reason why every five years the Act comes up and, instead of being continued year by year, is referred in the fifth year to a Select Committee in order to keep it up to date. It is something of very great importance to the Armed Forces, and I do not like a reference of this kind. If the Minister's legal advisers are satisfied that in the future, if a man is charged under the provisions of Parts II to V there will be no legal difficulties, I shall be satisfied, except that I think that, in the interests of the job he is doing, it would be as well if he considered whether a reference to Part I is necessary. It may be that it is not. However, I repeat that I do no more than raise the point because I have had no opportunity of studying it in any depth.
LORD WINTERBOTTOM: The whole House takes very seriously any views that the noble Lord, Lord Wigg expresses on the matter of military law. I am afraid that I cannot convince him. I have done my best. However, to make assurance doubly sure, I will ask my advisers to look at it again, and I will write to the noble Lord when they have considered what he has had to say.
LORD WIGG: There is no need to write to me; I will not trouble the noble Lord to do that. If his advisers are satisfied that the point I have raised is adequately covered, then there is no need to do anything about it. On the other hand, if he finds differently—and he himself said that he attached importance to the answers on attestation—and if he finds the enlistment provision here is necessary, then in his own interest he ought to do something about it. Whether he does or not is a matter for him, because the future will show whether or not there was a need to do something.
Clause 1 agreed to.
Clause 2 [Liabilities for Service and Training]:
9.14 p.m.
LORD KILBRACKEN LORD KILBRACKEN moved Amendment No. 12:
Page 2, line 45, leave out ("of a rank not lower than major").
The noble Lord said: I beg leave to move Amendment No. 12, and I hope it will be for the convenience of the House if we consider at the same time Amendment No. 14. I consider these two to be dependent upon each other, and I should not wish one of them to be operative without the other being operative also. This is a question of the officers to whom the right may be designated to call out a force. It was stated on three separate occasions on a Committee stage in another place by the Minister, Mr. Ivor Richard, that it was the intention of the Government that this power should be exercised only by officers whom the Secretary of State had personally authorised. I will not quote directly what the Minister said, because I think I should be out of order in doing so, but in column 1237, for instance, on the Committee stage of the Bill, he quite definitely stated that it is the Government's intention that the power of call-out should be reserved for those persons whom the Secretary of State had specifically authorised.
Will your Lordships look at line 3 on page 3? It seems to me that here are two words that are extremely ambiguous, and they confused me as they stand at present. Those words are "him" and "such". We have the situation that the Secretary of State may certainly grant authority in writing to a designated officer of the regular forces, and we go on:
"with or without authority for that officer in turn to authorise any other officer designated by shim".
My point here is that we do not know whether this means designated by the Secretary of State, or designated by the officer to whom authority has been designated by the Secretary of State.
When I read this Bill for about the fourteenth time I decided that it meant that the officer to whom the right had been designated by the Secretary of State himself was being given power to designate that authority to another officer.

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But then, when I read what had been said in the Committee stage in the House of Commons, it seemed to me that the word "him" must refer to the Secretary of State. In any case, whether it refers to one or the other, it certainly is not clear; it is ambiguous. I think that it should refer to the Secretary of State, and that only the Secretary of State should be entitled to decide which officer should have this very important power, in which case "Secretary of State" should be substituted for "him". But it I am wrong in that, then again it should be clear whether this power to delegate the authority further resides in the person who has been designated by the Secretary of State.
Then we have to consider what is meant by:
"being such an officer of the regular forces as aforesaid".
At present we read that this authority may be granted:
"to any designated officer of the regular forces within the meaning of the Army Act 1955 of a rank not lower than major".
It simply is not clear whether "such an officer" means an
"officer of the regular forces within the meaning of the Army Act 1955"
or an
"officer of the regular forces within the meaning of the Army Act 1955 of a rank not lower than major".
I now understand what I had not understood before, that it is meant to have the latter meaning, and that the officer to whom the right can be designated must be of the rank of major or senior to that rank. But I suggest that it is not clear at present precisely what is meant by the expression "such an officer". Believing, as I do, that no officer should have this right unless he has been granted authority by the Secretary of State, I am proposing to bring that about by deleting these two passages, as proposed in my Amendments Nos. 12 and 14. I beg to move.
LORD WINTERBOTTOM: I am sorry that the intention of this subsection is not clear to the noble Lord, and if it is not clear to him it is probably not clear to other people. For that reason, I should like to say, here and now, that the words which he mentioned, "him" and "such an officer", refer to, not the Secretary of
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State, but the officer authorised by him; they refer to the authorised officer. That is quite clearly for practical purposes. The object of the provision is to ensure that the power to call out the force for emergency service is devolved in a practical way without sacrificing essential control. Too much centralisation would be a mistake in the conditons in which this force is to work. From time to time requirements will change and the organisation of the force must be reasonably flexible. The main thing is to ensure that at all times some responsible officer is available to call out a given unit of the force. This, obviously, cannot be achieved without delegation. You do not expect the Secretary of State to call out a section of a platoon to guard a pumping station. That is a job for an officer not below the rank of major to whom responsibility has been delegated by the Army chain of command.
LORD KILBRACKEN: May I interrupt the noble Lord? I am not suggesting that the Secretary of State should call out some small platoon, but that it should be only the Secretary of State who has the right to designate an officer as having the right to call out that platoon.
LORD WINTERBOTTOM: No, the Secretary of State authorises the General Officer Commanding in Northern Ireland, and then he can delegate authority to other officers who are authorised by him to use the delegated authority given to them. It is a simple and straightforward chain of command, and the delegated authority stops with the man with the rank of major. But one simply cannot so organise things that the Secretary of State is constantly concerned with authorising individuals of a comparatively junior military rank. He has to leave it to the judgment of the General Officer Commanding in Northern Ireland, to whom he delegates authority, and for that reason I must repeat that the words "him" and "such an officer" do refer to an officer authorised by the military chain of command, the chain starting with the Secretary of State but being delegated to the General Officer Commanding Northern Ireland and other officers.
LORD KILBRACKEN: I completely accept the assurance given by my noble friend, but I feel that it is not immediately

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or necessarily obvious that the "him" referred to in line 3 is the designated officer, or that "such an officer" means an officer of a rank not lower than major. I had certainly assumed that officers below that rank would be entitled to have this power delegated to them. However, if, having drawn the attention of my noble friend to the difficulty I had in interpreting these passages, he feels it is perfectly clear and does not need any change I am willing to withdraw the Amendment.
Amendment, by leave, withdrawn.
9.23 p.m.
LORD KILBRACKEN LORD KILBRACKEN moved Amendment No. 13:
Page 2, line 45, afer ("major") insert ("who is not such an officer merely by virtue of his membership of the force").
The noble Lord said: This refers back to the question of the major to whom authority may be granted in writing by the Secretary of State to call out the force, and we are told, clearly and simply, that he must be an officer of the regular forces. As I understand it, almost any officer who is serving with this Regiment is in fact a member of the regular forces. At the time of the Committee stage in another place the Minister, Mr. Richard —and again I must not quote him, but I will paraphrase what he said—
LORD SHACKLETON: It is in order for the noble Lord to quote it.
LORD KILBRACKEN: That makes it much easier. I sought advice, but I was led astray. The Minister said that:
"They would be regular officers and not persons who would come within that category merely by virtue of their membership of the Ulster Defence Regiment."
For that reason, because I think it important that this very important power should be exercised only by regular army officers and in the words of the Minister, not by those who come within that category merely by virtue of their membership of that Regiment, I am proposing to add here the words that were used by the Minister on that occasion. I beg to move.
LORD WINTERBOTTOM: I am grateful to my noble friend for moving this Amendment. I can assure him, as my right honourable and honourable friends have said in another place, that it is our
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intention that power to call out the force on emergency service will be vested in officers of the Regular Army. Having examined this subsection again in the light of my noble friend's Amendment, we agree with him that this point needs more accurate definition. My noble friend's Amendment does not fully meet the point, but if he is willing to withdraw it I will undertake to move a Government Amendment to achieve the same effect at the Report stage of the Bill.
LORD KILBRACKEN: I am extremely grateful to my noble friend for giving this undertaking. I thought it was a point of substance. I was not sure that I had worded it correctly. I am glad to know the Government will take it up, and in view of the undertaking given I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
9.26 p.m.
LORD KILBRACKEN LORD KILBRACKEN moved Amendment No. 17:
Page 3, line 6, at end insert—
("Provided that all arms under the authority of such officers shall be stored in armouries and not in the private houses of members of the force, unless it has been called out; and then only in rural districts, with the written permission of a designated officer ".)
The noble Lord said: I beg to move Amendment No. 17. This question was debated at very considerable length in another place. It is, of course, the question whether members of this force should be allowed to keep their arms in their own homes. My honourable friends in another place put down an Amendment which was identical with mine except that it ended at the word "force"; their proposal was that all arms must be stored in armouries and not in the private houses of the members of the force, and that was all there was to it.
I am not making as big a demand on the Government as that. I am saying that this may be permitted, but only if the force has been called out and then only in remote rural districts and with the written permission of a designated officer. I feel most apprehensive about the whole idea of members of a force being allowed to keep rifles and offensive equipment in their own homes. Of course, I know that so long as they have their rifles with them they will be subject to military discipline, but as things

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stand at present they could have their rifles in their own home when the force has not been called out.
What is the point of this? I imagine a member of the force in an outlandish farmhouse in Fermanagh or in the wilds of Tyrone, and he has his gun there in the corner of the room, which makes him very much more a target and very much more unpopular than he would otherwise be. He hears a fusillade of shots outside the window, which might turn out to be a car backfiring, but he is a bit jumpy and nervous, and he realises that he has not been called out. Therefore, although he has his gun in the room, he is not, as I understand it, allowed to use it. What does he do? How does he get called out? He may have a telephone. Can he ring up the designated officer and say, "For Heaven's sake, there is a fusillade of shots outside the window; will you please call me out?", and the designated officer says, "Yes, you are called out". And will he go out with his rifle and search for this probably mythical enemy in the mountains of Tyrone?
I am surprised that the form that has to be gone through before a member of the force is called out is not laid out anywhere in the Bill. It has been stated in another place, and I think here, that it is the intention that rifles should only be permitted in those remote rural districts where members of the force are under what was admitted, in the Commons, to be an irrational fear of attack by members of the I.R.A. from over the Border. If there is this irrational fear, I suppose that for a certain length of time it is possibly right that some members of the force should be allowed a rifle at home, if they are in these remote rural districts and if they are men who have been given written permission as being responsible people by a designated officer; but I do not see that it is any advantage to them to have a rifle in their house unless they have been called out. As I say, they cannot use it and an emergency may arise, but I think the call-out procedure should involve going to a barracks, or some central depot, and being formally told, "You are now called out; you are under military discipline;here is your rifle;you must now take it home and look after it and keep it under lock and key, and you may use it if neces-
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sary". But unless the force have been called out, they should not have a rifle; and they should have a rifle in their hands only in the most exceptional circumstances. It is because I believe these things that I beg leave to move.
LORD BROCKWAY: I should like to say a few words in support of this Amendment. It is recognised, and indeed it has been said by members of the Government, that one of the great difficulties in Northern Ireland to-day is that so many people have guns in their own homes, and I think the call-in of those guns has been rather disappointing to the authorities in Northern Ireland. Under this Bill it will still be possible for those in isolated rural areas to retain guns, and the reason is that they might be specially subject to attacks. In the debate in another place it was described how they were being threatened in letters and over the telephone and in other ways. May I just say, incidentally, that that does not happen only in Northern Ireland. I was interested, in reading that debate, to find that when Mr. Fitt, a Republican Member of Parliament, said that he was subject to exactly the same threats, the answer of the Government was: "Yes, but you are living in a town and not in a rural area".
This afternoon I have been speaking to Miss Bernadette Devlin. I want to say, and I say it because so much is said in denigration of her, that I have the greatest possible admiration for Bernadette Devlin. I do not endorse all that she has said, but she has brought to politicians, of the younger generation at least, a credibility and a belief in her honesty and forthrightness, a belief that in all circumstances she will say what she believes and what is the truth, which is what politicians to-day want more than any characteristic which I can conceive. This extraordinary tribunal in Belfast, where she says "Yes, I did throw bombs"—
LORD WIGG: Pardon me, but I wonder whether the noble Lord would be kind enough, as I am puzzled, to explain what this eulogy of Miss Bernadette Devlin has to do with the clause we are discussing at the moment.
LORD BROCKWAY: I accept that interruption. I admit at once that I was

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expanding too far my references to Miss Devlin. What I was going to say was this: that, unlike Mr. Fitt, she lives in a country village, and she is subject to all the threats which were put forward in another place as the justification for members of this force having arms. I express my regret to your Lordships' Committee if my appreciation of Miss Devlin went further than it ought to have done.
What I want to say to the Minister is this. If there are individuals in the Regiment who are in danger of these attacks, it will be because they are known partisans in the Irish conflict. Miss Devlin was threatened because she is a partisan. If members of the new force are threatened it will be because they are known to be partisans; and I suggest that those who are known to be partisans in that way are the last members who should be accepted in a force which is going to be independent, impartial and multi-community.
There is one other possibility. There may be individuals who are particularly nervous and who, because they are particularly nervous, want arms. I want to suggest again in their case that it is very dangerous to permit them to have arms in their homes, because a person with that kind of temperament might easily let loose an arm too readily even when there is no danger to his own life. Therefore, I hope this Amendment will be accepted, particularly as it adds the suggestion that there might be exceptions to the prohibition of arms in private homes in the event of a call-up. I hope that members of the Committee will give their support to this Amendment.
LORD WINTERBOTTOM: As we move towards the end of the Committee stage, I am certain that your Lordships are grateful to the two noble Lords who have spoken at this late hour on the splendid scenarios they have put to us. The picture painted by my noble friend Lord Brockway, of a neurotic bigot cowering in his hole and discharging his arm at random, really does not fit in with what we have been trying to explain to noble Lords during the progress of this Bill through your Lordships' House. These men, who will be very carefully chosen because of their impartiality, their
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character and their suitability, will not be the type of men described by my noble friend. They will be sound, disciplined men who will be given arms only on the judgment of their superior military commander. He will be able to assess the characters of the men, and I am pretty certain that he will not give arms to a man of the type depicted by my noble friend.
LORD KILBRACKEN: If I may interrupt my noble friend, perhaps I may ask him: is it not virtually certain that at least part of the force, and probably two-thirds, will be former members of the Ulster Special Constabulary?
LORD WINTERBOTTOM: That, surely, is somewhat scandalously said of that particular body of men. Is my noble friend saying that the whole of that force is made up of bigots? I do not think the Committee would accept that. The noble Lord thinks so, but I do not think the Committee takes that view.
LORD KILBRACKEN: I think that the great majority are.
LORD WINTERBOTTOM: If they are known bigots, I am certain that they will not be recruited into the Ulster Defence Regiment.
If I may turn to the first scenario, I am afraid that I cannot picture it because I have not had the pleasure of travelling in the part of Ireland described by my noble friend. But it really would be a ludicrous situation, if the countryside is as empty and as remote as he described it, for a man, having heard the explosion, having looked outside, having found that it was not a car which had back-fired, then to have to rush across country by some means to report to his commanding officer, to receive authorisation to be given firearms; and then to have to rush back to the scene of the explosion. This really introduces an element of farce into the situation. As we have constantly said, it is desirable that arms issued to the force be stored, wherever possible, in armouries. We hope that this will be practicable, but there will of course be some occasions (from what I know of the country there are remote areas) where the arms must be kept at home. They will be kept under the safeguard of a responsible military commander and a

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trained disciplined man. But the man who is in this particularly responsible position must have his arms at home so that he has not to travel substantial distances in order to carry out the duties he has to perform.
LORD KILBRACKEN: Can my noble friend tell me what is the position if the force has not been called out? Let us suppose that it has not been called out; that the man is sitting at home with his rifle, and that he has no telephone. He cannot communicate with the designated officer. Is it not the case that when the force is not called out he is not allowed to use the weapon and that therefore his having the rifle is of no use? Unless he is called out he is merely a civilian. Is that not the case?
LORD WINTERBOTTOM: I will write to my noble friend on this point. I can say that a man at that lime would be under military law if he has the weapon at home. He is then under military law, and presumably, he is in possession of orders from his superior officer. But I will confirm this so that my noble friend is in no doubt.
LORD KILBRACKEN: I look forward to hearing from my noble friend. This is a matter of some importance. What is the position of a man on his own with a gun who has not been called out? Can he use that gun—and if he can, in what way?—without communicating in any way with his superior officer? I know that the Government intend to proceed with a programme of building armouries, so that it will become less and less necessary for members of the force to keep arms at home, and I would express the hope that this programme will continue as rapidly as possible. I do not intend to press this Amendment. I beg leave to withdraw it.
Amendment, by leave, withdrawn.
LORD WIGG LORD WIGG moved Amendment No. 18:
Page 3, line 13. at end insert:
(2A) The Secretary of State shall, on the relevant date for the purposes of this subsection, report to Parliament the occasion of any calling out of the force or any part of it in exercise of the powers conferred by subsection (2) of this section.
(2B) The relevant date for the purposes of the foregoing subsection is the first day of March, June, September or December imme-
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diately following the exercise of the powers conferred by subsection (2) of this section, or, if Parliament is not then sitting, the first sitting day thereafter.
The noble Lord said: I do not think that I need to say much about this Amendment; it speaks for itself. I raised this point on Second Reading. It has been constitutional practice down the centuries that Parliament should have control over the Armed Forces. It is clearly laid down in the Reserve Acts that when the Reserve Forces as a whole are called out. Parliament must be informed and, if necessary, recalled for that purpose. The circumstances in which executive action can be taken by one of Her Majesty's Ministers to call out the Army Reservists are governed by Statute and are very closely defined. The situation with which this Bill is drafted to deal is quite unlike the circumstances in the Reserve Acts.
I made it clear—I am not absolutely sure that the Minister who replied thoroughly understood my point—that I do not suggest that when a member of this force has been called out, that should be reported by teleprinter to the Minister of Defence and that forthwith he should go to the House of Commons, or that a Minister in this House should then come along to inform your Lordships, that that has happened. That would be absurd. But what I do say is that it is constitutional practice, and of great constitutional importance, that the Houses of Parliament should have control over the Armed Forces and that it should not be left to the will of a Minister, however eminent, to decide when he will inform Parliament.
In my judgment, this must be governed by Statute, and so in this Amendment I propose that the Secretary of State shall report on relevant dates the purposes for which the men have been called out; and for that purpose the relevant dates shall be March 1, June 1, September 1 and December 1. If the Minister wishes he can alter these dates; but enshrined in the Amendment is the principle that Parliament shall be informed and that the Minister shall be under statutory obligation to inform the House. In order to meet his convenience this could be done at intervals.
To depart from something such as is contained in the Amendment would be to run right away from what has been

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the practice for centuries and something from which the House of Commons was reluctant to depart when the procedure on the Army Act was altered. Although I do not think that any of Her Majesty's Ministers are likely to indulge in any arbitrary action as a result of the provisions in this measure, as the guardians of freedom we should be very careful before we depart in the slightest degree from the principle of very tight Parliamentary control over the use of the Armed Forces, particularly when the Bill has been drafted in such a way as to deal with a situation where the forces which are being organised under its provisions are likely to engage in warlike acts. I beg to move.
LORD WINTERBOTTOM: The noble Lord, Lord Wigg, has drawn on his formidable experience of Army matters. He emphasises the constitutional principle that Parliament must keep control of the activities of the Army, at least by being informed of them. It is true that the call-out of the Reserve Forces, and indeed of this force, in circumstances of imminent national danger must be reported to Parliament. So too, of course, must be the call-out of the T. & A.V.R. when warlike operations are in preparation or progress. There is no similar provision for call-out in circumstances of actual or apprehended attack under Section 6 of the Army Reserve Act 1950. My noble friend the Lord Privy Seal has asked me to express his regret that in his remarks when winding up the debate on Monday he stated that this was the case. The absence of such a provision must no doubt be attributed partly to the view that there would not be an opportunity to do this in circumstances of war. These liabilities are all designed to be invoked in circumstances of grave national crisis, and in each case they bear particularly heavily on the part-time soldier because they call him out for permanent service.
It is noteworthy that under Section 10 of the Army Reserve Act 1950 there still exists another liability for men of the Army Reserve to be called out
"to aid the civil power in the preservation of the public peace"
which does not have to be reported to Parliament. Though there are important differences between this liability and that for emergency service under Clause 2 (2)
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of the Bill, I think it fair to say that both are directed to local rather than to nation-wide crises and to short-term rather than permanent service. At all events, it is not unprecedented to be able to call out a part-time military force without automatically reporting to Parliament.
Having said so much, may I say that I recognise the entirely proper concern shown by the noble Lord, Lord Wigg, regarding this matter. I can certainly repeat my noble Leader's undertaking given on Second Reading that if a general call-out is necessitated by a general emergency, the Government would expect to come to Parliament. I do not think, however, that it would be appropriate to undertake a binding commitment in this Bill to report at stated intervals for all time the exercise of the power to call out under Clause 2(2). I believe that that would be going too far. We must all hope that in due course tensions will leave Northern Ireland and that the need to call out the force on emergency service, even on routine guard duties, will die away.
Therefore I would suggest to the noble Lord that a permanent provision of this nature might prove superfluous, and certainly would be most onerous to administer. But during the early days of the force's existence I am certain, as the noble Lord is, that Members of both Houses will be anxious to receive reports from time to time. If the noble Lord will accept my assurance, I hope that at a later stage of the Bill in this House we can suggest some machinery which, without going so far as a statutory requirement, will meet the substance of his proposals. I hope that on the basis of that assurance he will withdraw his Amendment.
LORD WIGG: I am sorry but I cannot accept that. It is quite wrong for a matter of this kind to be left to the will of the Minister. It does not matter who the Minister happens to be. A special force is being organised. It may find itself engaged in war-like operations. I am not going to press the matter too hard, but I should like the Minister to give an assurance that he will give the matter further consideration, or ask his right honourable friend to consider it, and then see whether it is possible to find some words—not to satisfy me

785
because I am merely a voice calling attention to what I regard as an important problem—which could be moved on Report stage to meet this problem.
9.52 p.m.
LORD SHACKLETON: As the noble Lord knows, we pay great attention to his views in such matters. I understand that what he is proposing would in its own way be rather unprecedented. There are cases when forces are called out and this is not reported to Parliament—indeed, in more exceptional circumstances than are likely to be foreseen for this force. None the less, while I think it would be wrong to give an undertaking to put down an Amendment (the noble Lord may wish to preserve his own position with regard to that), I will certainly undertake to ensure that we look at this further. Anybody who knew the noble Lord in another place knows that, like other Members of Parliament, he is not content just to trust the Executive in such matters, unless there is something rather more binding. I do not know whether it will be possible but I fully take the point of what he is saying and will see whether there is a little more we can do to help him.
LORD WIGG: I am much obliged. I want to make this point because it seems to me that it would narrow the gap. The noble Lord the Leader of the House says that he is alive to the fact that there are no precedents for legislation of this kind. He is completely wrong about this. Up to the outbreak of the First World War it would have been regarded as a constitutional outrage to attempt to do anything like this. At least that opinion has changed. Up to the Second World War it was still required that Parliament should be recalled if the Reserve Forces were called out. My noble friend will recollect that under Vote A of the Army Act there was strict control by Parliament.
It was only with the emergence of the cold war that a change came. It was realised that it might be undesirable to let the enemy know what was being done. There was also a great danger of worsening the situation by informing the world at large that you were going to call out the reserves. So came the first break with tradition which was carried through in the lifetime of the first Labour Government,
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when it was then legislated that Section A of the Army Reserve could, if necessary, be called out by notice. Section A were the people required to bring establishments up to something like strength.
There have been a number of other breaks for administrative reasons. Therefore, I refute the argument that I am asking for something which is quite extraordinary. What is extraordinary is the way that, on a rather salami basis, the control of the Houses of Parliament has been whittled away, if you like in the desire to meet for administrative reasons the national need. When you get a Bill of this kind, which envisages a possibility of war-like action on the soil of the United Kingdom, it seems to me that it is the time to call a halt—not to switch back to what was the pre-Second War position, and not to go back to anything like the First World War position. But to say to the Executive. "Yes, you take this" is certainly an encroachment on liberty. Evil men could use this. Therefore, the only safeguard you have—and the only safeguard the public have—is to know what is going on.
If you also make the concession, as I have tried to do, of not asking the Executive to inform the House of Commons at once, then there ought to be a willingness on the part of the Government—particularly a Labour Government—to say, "Yes, we accept the principle that Parliament must have supreme control in a matter of this kind. But it might be a matter of life and death"—and that might be so in the future—" therefore, we say that we shall not do it when it happens, but we will accept the statutory obligation to come at convenient intervals"—and they can choose the intervals. But they must accept a statutory obligation to keep the Houses of Parliament informed. On that basis I will be glad to accept—and I will not stretch it—not the Leader of the House's assurances, but the kindly way in which he has tried to meet the points of view that I am putting to him. I will withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 2 agreed to.
Remaining clauses agreed to.
House resumed: Bill reported, without amendment.

DEFENCE POWERS (CONTINUANCE) ORDER 1969
10 p.m.
LORD WINTERBOTTOM LORD WINTERBOTTOM rose to move, That the Draft Defence Powers (Continuance) Order 1969, laid before the House on November 13 last, be approved. The noble Lord said: My Lords, I beg to move that the Draft Defence Powers (Continuance) Order 1969, laid before this House on November 13 last, be approved. I should like to draw your Lordships' attention to the fact that the Special Orders Committee, when considering this particular Order, recommended that your Lordships should pay special attention to it because it was creating a precedent.
The Emergency Laws (Re-enactments and Repeals) Act 1964 repealed certain Defence Regulations, re-enacted a number of them with modifications, and continued the Ships and Aircraft (Transfer Restriction) Act 1939 until the end of 1969. The purpose of the Defence Powers (Continuance) Order 1969 is to continue in force the powers granted by Sections 3 and 16 of the 1964 Act, which will expire at the end of 1969, for a period of five years. The purpose of this operation is that, as noble Lords are well aware, arrangements to control the export to Communist countries of goods of strategic importance are agreed by an international Committee, COCOM, representing the NATO countries (less Iceland) and Japan. A review of the list of goods involved was completed earlier this year and the Draft Order now before your Lordships is designed to renew the powers necessary to enable us to continue to comply with these arrangements, which are to deny to our potential enemies strategic materials and equipment.
The Order contains no new power. It merely continues powers which have been available for many years and which give us some essential flexibility in operating the controls. It is a precedent, of course, only in so far as this is the first time that the Regulations have been reactivated after they have run out at the end of the first five-year period starting in 1964. My Lords, I beg to move.
Moved, That the Draft Defence Powers (Continuance) Order 1969, laid before the House on 13th November last, be approved.—(Lord Winterbottom.)
LORD DENHAM: My Lords, when my right honourable friend introduced the parent Bill in another place he expressed the hope that the powers given by the relevant clauses would not be needed in perpetuity. Her Majesty's Government have, unfortunately, found it necessary to renew them for another five years. But five years is a long time, and I hope that Her Majesty's Government will see that the powers will not be used any longer than is absolutely necessary.

NEW FOREST BILL [H.L.]
10.3 p.m.
THE EARL OF MALMESBURY: My Lords, I beg to move that this Bill be now read a second time. Before I go any further, I must declare my interest in the subject matter of this Bill. This arises because I hold office as the Official Verderer of the New Forest, nominated by Her Majesty the Queen, and as such I am Chairman of the Court of Verderers. It was during the proceedings on the Bill for the Countryside Act 1968 that I had occasion to address some remarks to your Lordships on various problems concerning the New Forest. I do not propose to repeat what I then said about the origin of the Court of Verderers, their constitution, and their powers under the New Forest Acts from 1877 to 1964. Broadly speaking, the function of the verderers embraces the administration of common rights, animal health and welfare, and preservation of the amenities of the Forest.
We work very closely with the Forestry Commissioners on matters concerning the general administration of the Forest and in carrying out our functions under the New Forest Acts. We seek to maintain a fair balance between the interests of the commoners, the Forestry Commissioners and the public. It is important to realise that all these interests are in fact interdependent. The powers which are contained in the main clauses of this Bill deal with entirely separate matters, yet they are all linked together in that they have a common underlying purpose; because the need for these powers springs in each case from the fact, as I shall explain later on, of pressure on the part of the public to enjoy the many facilities that

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the New Forest has to offer. This pressure is increasing and it will continue to increase.
This pressure is not, of course resented by the verderers. We are glad that the New Forest is so widely enjoyed by members of the public for motoring, camping, picnicking and so on. However, it produces a number of practical problems for us. I think we can call ourselves a reasonably forward-looking body, and the verderers have been aware of these problems and have been active in assisting and encouraging the Forestry Commissioners in the provision and improvement of suitable facilities for the public. They are participating jointly with the Hampshire County Council and the Forestry Commissioners in a study of the problem, which I hope will result in a long term plan to conserve the amenities of the Forest. Also, a party of verderers recently visited Holland, at their own expense, to see at first hand the measures that are taken there to deal with a similar state of affairs involving the public recreation. However, the time has now come when further statutory powers are needed if the verderers are to carry out their functions properly and if the new Forest, as we know it, is to survive.
Turning to Clause 1 of the Bill, it may be recalled that when what is now Section 23 of the Countryside Act was being considered in this House I had something to say about its effect upon the New Forest. Section 23 of the Act enables the Forestry Commissioners on land placed at their disposal by the Minister of Agriculture to provide various tourist, recreation and sporting facilities, including camping and caravan sites, parking places for cars and so on. These powers apply inter alia to the open wastelands of the Forest, that is to say, the unenclosed lands of the Forest which are subject to Common rights. Similar, although not so extensive, facilities can already be provided under the New Forest Act, subject to the agreement of the verderers, and there is a principle which is enshrined in all these New Forest Acts: that in matters of this kind nothing shall be done on the open wastelands of the Forest without the agreement of the verderers. They were therefore extremely worried at that time that the powers of Section 23 might be
790
exercised over the open wastelands of the Forest without their agreement.
During the proceedings of the Countryside Bill, I moved certain Amendments with the object of preventing that happening. Unfortunately, my Amendments were not acceptable, because they would have had the effect of turning the Bill into a hybrid Bill. However, the noble Lord, Lord Kennet, was good enough on that occasion to give a firm assurance that the Forestry Commissioners would not in fact exercise the powers of Section 23 over the New Forest without the agreement of the verderers. Indeed, at our request the noble Lord went further, saying that the Government would raise no objection if the verderers wished to give statutory force to this undertaking at some future time. In saying this, I have summarised what is to be found in the report of the proceedings on the Committee stage of that Bill on May 9, 1968, at columns 1643 to 1645.
That is precisely what Clause 1 of this Bill sets out to do. The clause will prevent the Forestry Commissioners from exercising the powers of Section 23 over the open wastelands of the Forest without the agreement of the verderers. The clause also applies to land which has been enclosed for recreational and other purposes under Section 18 of the New Forest Act 1949. The clause gives the Forestry Commissioners further powers of enclosure and makes provision for payment of compensation to the Commoners; and I understand that the Forestry Commissioners have no objection to this clause.
Moving on to Clause 2 of the Bill, I would preface my remarks by saying that the three most important roads crossing the New Forest are the trunk road A.31, which runs from Cadnam to Ringwood; the main road A.35, which runs from Southampton to Christchurch; and the main road A.337 which runs from North to South, from Cadnam to Lymington. It is not so many years ago that none of these roads was fenced so as to prevent direct access to them by the forest animals. Moreover, at that time there were virtually no physical barriers to confine the animals within the New Forest. The animals would wander at large both within the Forest and outside it, and with the increasing use of

791
motor cars this led to the most appalling consequences in terms of animals killed and injured, and of course at night worse accidents happened. And, of course, there were unfortunate and severe accidents to human beings as well as to the animals. It became quite obvious that something had to be done.
Under the New Forest Act 1949, the fencing of the A.31 was authorised, and for various reasons this was not completed until the middle of 1964. In the meantime, the verderers evolved a scheme for altering the perambulation of the New Forest so as to bring it right up to date. I should perhaps mention that the perambulation is the name given to the boundary or perimeter of the New Forest. This scheme also involved fencing the whole of the altered perambulation and erecting cattle grids so as to contain the animals within the New Forest. In addition, it was envisaged that the portion of the A.35 traversing the New Forest should also be fenced. The powers necessary to implement this scheme were conferred by the New Forest Act 1964.
Fencing and gridding of the New Forest has now been completed. The fencing of the A.35 was completed in July, 1967. I do not want to go too deeply into past history, but there were those who doubted at the time whether the verderers' fencing and gridding policy was the right way to solve the problem, and I am quite certain that those views were held most sincerely. However, there can be no question that the verderers' policy was entirely justified by subsequent events.
I have here the relevant accident figures, and it is clear that after the respective dates on which the A31 and the A35 were fenced, the number of accidents involving animals fell dramatically on both those roads. For example, in 1963 there were 89 such accidents on the A.31, both inside and outside the Forest. In 1964, during which year the road was fenced, this figure fell from 89 to 28, and the year after there were none. In 1966 there were 85 such accidents on the A.35, both inside and outside the Forest; in 1967, the year of fencing, the figure fell to 18; the year after that to 1; and I believe that this year there have in fact been no accidents on either road within the Forest. Those, I think,
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are very striking figures. They are even more remarkable when one considers that the traffic census gives figures showing that in August of this year the number of vehicles using the A.31 was just under 14,000 per 16-hour day, and at Whitsun this year the number of vehicles using the A.35 was just under 16,000 for a 16-hour day. The way now lies ahead to the next step, and that is the fencing of the A.337.
According to the traffic census, the number of vehicles using the A.337 in August was 7,321 for the same 16-hour day. This is approximately half the figure that I have mentioned for the A.31 and the A.35. In 1966 there were 42 accidents on this road involving animals. This figure rose to 52 in 1967. and to 54 last year, which is more than half the rate at which accidents were running on the other two roads before they were finished. I do not pretend that the fencing of the A.337 will prevent further accidents involving animals within the Forest. There are other roads; but I do not think it is practical to fence these other roads. However, the fencing of the A.337 would indeed reduce the accidents.
At this point I should like to mention the helpful guidance that I have received from the noble Lord the Leader of the House, Lord Shackleton. He has, as I think your Lordships all know, a deep knowledge of the Forest and a very great love for it, and he played an important part in the proceedings of the New Forest Act 1964, and in his wisdom at that time during the proceedings he advocated that the A.337 should also be fenced. Clause 1 of this Bill follows very closely Section 4 of the New Forest Act, and it will enable the highway authority, the Hampshire County Council, to fence the A.337. That includes a number of safeguards relating to public access, amenity, the rights of the commoners, and so on, and I believe that the County Council are quite willing to exercise these powers.
I now go on to Clause 3. This clause enables the verderers, on a presentment, and with the agreement of the Forestry Commissioners, to take such steps as they consider necessary for the improvement of grazing on the open wastelands of the Forest. It would probably seem at first sight that this proposal is of no great

793
significance. In my view, however, it is a very important one, and, indeed, one which is vital for the preservation of the Forest in its present form. Our present difficulty regarding grazing arises in the following way—I have the detailed figures, but I will give your Lordships only the totals. In 1878, there were just over 6,000 animals grazing in the Forest; in 1884 there were just under 6,000. Two years ago, in 1967, the number was just under 5,000. So this rather indicates that the number of animals the Forest can support has not altered very much during this period. But I am sure your Lordships will realise that in those days of 1878, and indeed earlier, there was little grassland within the Forest, apart from what we call the natural lawns. Nevertheless, these animals had access to many thousands of acres of grass from the verges and from the banks of the lanes outside the Forest, and this lane-grazing outside the Forest was of enormous value in the early spring, after a hard winter. Moreover, of course, the pressure from the public hardly existed at that time.
During the last war large areas of the Forest were ploughed up and used for the growing of crops. After the war those areas were reseeded, and the animals were attracted to them in preference to the rough areas where, in the past, they had browsed on heather and bracken shoots and natural grasses; and to some extent their feeding habits changed. The very existence of these large reseeded grass areas has also attracted the public to the New Forest in ever-increasing numbers, and much damage by weight of numbers has been done to the pastures on which these animals have come to rely. The loss of the lane-side grazing has very much worsened the situation, and the unusually poor condition of the animals at the end of the last two winters illustrates the lack of adequate grazing. So your Lordships can see that, because of the damage done by mounting public pressure, or alternatively the steps which have had to be taken to minimise it, the commoners have lost the grazing they used to enjoy outside the Forest and they are now losing the benefit of a great deal of the grazing within the Forest.
We are, of course, concerned to see that the animals are maintained in good condition, and we are already taking steps
794
—last year and again this year—to remove large numbers of ponies which we consider cannot survive the winter without undue suffering. As a result, many commoners will have to provide winter keep elsewhere, and this may result in a proportion of them deciding that it is uneconomic to turn out animals in the Forest in the future. If a serious reduction in the number of animals depastured were to occur—and the verderers are very frightened that it may happen if nothing is done about it—there is no doubt that much of the Forest would, if not grazed, deteriorate to scrubland, and this would in turn result in a complete change in the character and ecology of the Forest.
So steps must be taken to improve the grazing available within the Forest. As 1 see it—and in this matter we have had tremendous help from the National Agricultural Advisory Service—this will take the form mainly of encouraging the growth of natural grasses by swiping coarse herbage and eradicating bracken, and by the application of fertiliser. There is absolutely no intention (and I want to emphasise this) of creating further large reseeded areas—in other words, of making the forest look like a large farm—because is is obvious that the commoners would eventually lose such areas to the public; but we intend rather to improve the rough areas and thus encourage forest animals to revert to their pre-war grazing habits and at the same time compensate them for what has been lost. It is for these reasons that I claim that this is one of the most important clauses in the Bill.
Clause 4, I think, is hardly less important. This clause amends Section 5 of the Countryside Act in such a way as to permit the Countryside Commission to give financial assistance to the verderers by way of grant or loan in respect of projects which have been approved by the Minister of Housing and Local Government. A project which we hope will find favour with the Countryside Commission and with the Minister is the improvement of grazing, about which I have already spoken. and also a scheme to meet various other expenses which verderers have to incur in order to deal with the problems caused by the public.
The verderers' income comes almost entirely from capitation fees in respect of animals turned out in the Forest. These fees are paid by the commoners. The

795
verderers, needless to say, are not alone in finding that their overhead expenses have increased very steeply in recent years. The verderers have had to incur continuing expenditure which is largely attributable to the rapidly-increasing public pressure. We have had to get shortwave radio equipment to facilitate the work of the agisters by placing them in direct contact with each other and with the police; and more recently the verderers, have appointed a full-time steward whose duties are, broadly speaking, the same as those of a warden in a national park.
I say frankly that without the services of the steward we could no longer carry out with any degree of efficiency our duties which involve the public. The greater part of his time is spent in dealing with matters that arise directly or indirectly from the various pressures on the Forest caused by the public. There is the educational side of his work. We have to teach motorists not to feed the ponies. Besides being damaging to their health, this practice also attracts the animals to the roadside where they are in danger from traffic. Feeding and petting animals can, moreover, be dangerous. We have had a number of accidents where bones have been broken as a result of a kick. We had one rather serious case where a child suffered a fractured skull because the ponies get spoiled and annoyed if they do not get the titbits they expect. The public have to be continually taught that it is wrong to draw the ponies on to the roadside by feeding from the cars.
Another aspect of the steward's work is to prevent, so far as possible, damage to the grass areas in the Forest by motorists driving their cars over the lawns. Again, the steward is responsible for the radio communication system that I mentioned. He also has to study the causes of accident "black spots", and is concerned with the taking of practical steps to reduce the number of accidents, such as cutting back bushes which grow close to the roadside and which may conceal animals. His duties are endless. As I have said, the verderers' income is mainly from the commoners, and it is obviously unfair to the commoners, who represent just one of several interests in the Forest, that they should carry the whole financial burden, particularly as I have explained that so much of the
796
verderers' expenditure is caused by public pressure, a matter over which the commoners have no control. One cannot go on increasing the marking fees progressively, because that would discourage people from depasturing their animals; and the gradual disappearance of the animals from the Forest would inevitably result in changes in the character and ecology of the Forest.
My Lords, it is possible that this clause may not provide a long-term solution to the problems of the verderers' finances, because these provisions were made in different circumstances in a Statute passed very nearly 100 years ago. However I hope that it will find favour. The remaining clauses of the Bill are important but ancillary to its main purposes. I do not think they call for any detailed explanation.
It would be a poor effort on my part if I did not express, before I sit down, the gratitude due for the tremendous assistance given by so many and so willingly in the production of this Bill. I should like to mention Mr. Arthur Skeffington, Parliamentary Secretary to the Ministry of Housing and Local Government, who, at a rather cold and snowy time, spent a whole day in the Forest studying our problems and seeing for himself exactly what happens or does not happen. The noble Baroness, Lady Wootton of Abinger, Chairman of the Countryside Commission, has taken endless trouble to understand the difficult and virtually impossible position of the verderers, and her great experience in these matters has been of enormous help. She has given her valuable time quite unstintingly. In mid-summer Mr. John Mackie, Parliamentary Secretary to the Ministry of Agriculture, Fisheries and Food, spent a whole day in the Forest with the verderers. He, too, showed a complete understanding of our position.
My Lords, I am afraid that I have taken up too much time, and I must apologise for my voice. I thought it necessary to try to explain the Bill and the need for it. The New Forest is unique, and this legislation relating to it is also unique and, necessarily, perhaps, somewhat intricate. I commend the Bill to the House and trust that your Lordships will see fit to accord it an unopposed Second Reading. I beg to move.
Moved, That the Bill be now read 2a. —(The Earl of Malmesbury.)
10.33 p.m.
THE LORD BISHOP OF WINCHESTER: My Lords, at this late hour I am not going to speak at any length, but I should like to give my warm support to the noble Earl, Lord Malmesbury. We are all intensely grateful to him for introducing this Bill, all of us who love the New Forest. I must refrain from saying what I had intended to say, but I should like to pay a warm tribute to the Court of Verderers, newly constituted by the New Forest Act 1877, and again by the Act of 1949. It now consists of five elected verderers in addition to the five appointed verderers. I am well aware of the devotion and care with which they so conscientiously seek to fulfil their responsibilities in caring for the rights of the commoners, in promoting the welfare of animals and in preserving the amenities of the Forest.
I hope that your Lordships will encourage the verderers in their task by supporting this Bill. In many parts of the country to-day, not excluding South Hampshire, we are witnessing the spectacle of much lovely countryside being absorbed by urban and industrial development. How important it is that we should do all in our power to preserve for posterity a Forest which has been aptly described as a miraculous survival of pre-Norman England, this priceless heritage of our nation, including the ponies and cattle which are an essential part of its glory.
10.35 p.m.
THE EARL OF KINNOULL: My Lords, I should like to add my congratulations to the noble Earl, Lord Malmesbury, for the clear and persuasive way in which he moved the Second Reading of this Bill, despite the condition of his voice, and for giving us the interesting background of the New Forest. I am almost inclined to describe this Bill as the latest New Forest Bill, as it is the third Bill we have had in ten years, and I judge from the list of speakers that it is perhaps the least controversial. I believe that the very fact that this is the third Bill is a tribute to the uniqueness of the Forest, which of course dates back to King Canute and spreads over 90,000 acres of Hampshire.
I would also pay tribute to the watchful concern and responsible attitude of the verderers as guardians of this remark-
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able Forest. I am sorry that the noble Lord, Lord Crathorne, is not with us to-night, though perhaps he is not quite so sorry, for he piloted the 1964 Bill through this House with such skill. I am sure that he would approve of the main provisions of the Bill, which are a logical extension of the 1964 Act.
I suppose that in any Private Member's Bill of this nature, involving and affecting private rights—and in this case commoners' rights—the first consideration for this House must be to examine closely these rights to see whether or not any loss is being sustained. Under Clause 2 of this Bill, dealing with the proposed fencing of the A.337, there must be marginally an effect on the commoners' rights, as land, in this case road verges, is lost to grazing. But, as the noble Earl has said, no precedent is being caused by this, as both the 1949 and 1964 Acts cover the fencing of the other two major roads, and the advantage of Clause 2 to commoners was dramatically described by the noble Earl by the results achieved in the startling reduction of accidents to animals since the A.31 and A.35 have been fenced.
The balance as to the extent of any damage to commoners' rights under this Clause seems to be whether they value the roadside verge grazing of the A.337 higher than the risk of losing ponies straying on to the road. I presume from the Bill that the commoners accept the need for this fencing, which I am sure is welcome. My only concern with fencing, after listening to the noble Earl's description of the rate of progress of fencing the A.31, is that I hope that the fencing of the A.337 will not take 15 years to complete.
Turning to the provisions under Clause 3 of the Bill I am sure that all interested parties in the Forest would agree that the purpose of the clause is splendid—the improvement of grazing. In fact, it is so reasonable that one wonders why it had not been incorporated in previous Acts. I was very interested to learn from the noble Earl about the present stocking of the Forest and that it is virtually the same as in 1887. This is a tribute to the balanced policy of the verderers over the years, a policy that has remarkably preserved the character and ecology of the Forest over the generations.

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I was also interested to learn that the verderers are actively engaged with the problem of seeing that cattle and ponies are maintained in proper condition, especially during the winter months. This goes a long way to answering certain adverse newspaper criticism of the conditions of ponies over the last two winters. In introducing this Bill, the noble Earl said that a large number of ponies will be removed this winter as they are considered unfit to survive the winter. Again, I think that this fact will be generally welcome.
At this late moment, perhaps I could briefly digress to a matter of which I have given notice to the noble Lord, Lord Kennet. though I see that the noble Lord, Lord Shackleton, will be replying. It is about the sister forest, the Forest of Dean.
The Forest of Dean has been less fortunate than the New Forest in the matter of Private Members' Bills. One could almost say that it has been neglected by the Government since the day they set up a Committee to report on it in 1956. That Committee reported in 1958 with some firm and important recommendations, particularly in regard to the rights of commoners. Since the Committee reported, the Report seems to have been firmly pigeon-holed, and by now even the recommendations could be out of date. Despite requests from the verderers of the Forest of Dean, the Government have allowed no time for a Bill. I should like to ask the noble Lord, Lord Shackleton—particularly in view of the fact that this Forest does not come under Cromwell's registration Act—what action the Government intend to take on that Report, and why they indeed have taken no action all this time.
Returning to the New Forest Bill, I should like again to express my welcome to it and say that it is a Bill clearly designed for the future good of the New Forest, a concept I fully support, and I wish it a speedy and safe journey through Parliament.
10.42 p.m.
LORD SHACKLETON: My Lords, I should first of all like to apologise on behalf of my noble friend, Lord Kennet. He had a very important engagement this
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evening, and I confess I did not hesitate to persuade him to keep it, so that I might have the pleasure on behalf of the Government of speaking to the Bill of the noble Earl, Lord Malmesbury. I should like to congratulate him on his determination in speaking under such disabilities. I remember once losing my voice reading the lesson in chapel after leading some "rugger" forwards. I had just reached Shadrach, Meshach and Abed-Nego in the fiery furnace, and at that point my voice went entirely. The noble Earl was of sterner stuff, and he kept going. I mention this because I know the noble Earl, having heard him speak on occasions in the New Forest, and he is a very eloquent and witty speaker.
He gave us the benefit (and it was right that he should) of a very full account of the purpose behind the Bill. I have participated myself in a Back-Bench capacity on some of the previous Bills, particularly the 1949 Act, and again on a Bill with the former Member for Parliament Colonel Crosthwaite-Eyre, who is an old ally and sometimes an adversary in these matters. We have to recognise that there are liable to be contentious issues, and I think it is a credit to all those who have been involved—whether they are the verderers or the former Member of Parliament or others—that this Bill (and I keep my fingers crossed!) looks like being the least controversial of them all. But in any relationship as sensitive as the relationship between the commoners, the Forestry Commission, the general public and the local authorities, there are bound to be difficulties.
It is very worth while to strive to solve any problems that assist in the preservation—and essentially the preservation in a living and active condition—of an area of such unique character as the New Forest. Of course, this uniqueness has led to all sorts of problems. I was interested, listening to the noble Earl, to hear echoes of earlier difficulties which were even then beginning to be apparent and which have grown into major problems, such as fencing the roads (I am speaking personally here); and I am interested to see the further extension of fencing to the A.337. Here again, I hope, no doubt like other noble Lords, that there will still remain many areas in the New Forest that remain unfenced. And it is

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perhaps appropriate that we are discussing this Bill on a day when my noble and learned friend who sits on the Woolsack has been steering an Animals Bill in respect of which some of the more controversial aspects do not apply to the New Forest.
The unique popularity of the New Forest is, of course, a challenge to everyone, and it is right that the Countryside Commission recently set up should be in a position to provide the kind of cooperation that the noble Earl, as the Official Verderer, is seeking. The amount and the quality of the grazing have greatly deteriorated, and of course the existence of the ponies themselves can he threatened. I remember sometimes the controversies that went on concerning whether there should he more ploughing up and re-grassing of areas in the open Forest; that it might reduce the number of animals who would keep the scrubland at bay. But a firm case has been made by the noble Earl for the provisions in this Bill; for the steps that they hope to take.
I believe that the relationships between the verderers of the New Forest and the Forestry Commission are vital, and I think it is necessary for there to be a very good understanding. for we ought not to minimise the contribution that the Forestry Commission has made in the New Forest. and indeed to the welfare of the commoners—sometimes I think not always recognised. None the less, they have to live together there as much a part of the ecology of the New Forest as any other animal or person. Both bodies are alive to, and must face, the growing problems and pressures for public recreation which are at the root of the problem we are discussing to-day.
The Forestry Commission has given a good deal of thought to ways of coping with these pressures, and has already provided facilities for this purpose. The Commission's powers in this respect are set out in Section 23 of the Countryside Act. And Clause 1 of the Bill gives legislative effect to the assurance (to which the noble Earl referred) which my noble friend Lord Kennet gave, with the agreement of the Minister of Agriculture, in Committee during the passage of the Countryside Act.
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As the noble Earl made clear, the verderers, and therefore the commoners themselves, are not merely playing an indirect part by helping to preserve and create the modern New Forest—the ancient and modern New Forest—but have also had to cope with problems imposed on them by the campers. The task now of improving the grazing is largely a problem of finance; and since questions of animal husbandry and welfare are not within the province of the Forestry Commission, it cannot help with them. The noble Earl has explained why the verderers are seeking help from national funds, and the solution under the Bill is to amend the Countryside Act 1968 so that Exchequer grant may be paid to the verderers towards projects approved by the Countryside Commission and by my right honourable friend.
During the passage of the Countryside Act there was some discussion about whether bodies such as the verderers should be included among those entitled to apply for grant. The view was then taken that the normal channel for grant should be local authorities. Despite this, the assistance which the verderers are now seeking does not seem to be obtainable through this means, and, on the basis that this is a special case and not a precedent, the Government support the Bill.
I listened very closely to what the noble Earl, Lord Kinnoull, said. I dislike to have to say this to him, because I have said it before. But I really cannot, within our Rules of Order, deal with the Forest of Dean. I appreciate what he had to say. I do not doubt there will be further opportunities for discussing it, but unless he is advancing what he said as a reason for not giving support to this Bill, which I am sure is not his intention, I think it would be unwise for me to embark upon dealing with it. None the less, the point has been noted and no doubt there will be further opportunities to deal with it.
My Lords, the noble Earl who introduced the Bill has described the type of projects that the verderers have in mind. If the Bill becomes law, the Government will consider on its merits any application that is made for grant, and with that blessing, which I am able to give officially on behalf of Her

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Majesty's Government, and personally from my own long association with the New Forest, I wish the Bill well and congratulate the noble Earl.
10.51 p.m.
THE EARL OF MALMESBURY: My Lords, at this late hour I am sure that none of you wishes me to make another speech. I should, however, like to thank those who have taken part in this debate and who have helped me and listened to my painful voice. I can assure the noble Earl, Lord Kinnoull, that this time the Commoners Defence Association are very much in favour of this fencing. I thank most sincerely the noble Lord the Leader of the House for what he has said, because I appreciate that he knows intimately most of what goes on in the Forest, and he understands the balance of it all. So far as the Forestry Commissioners are concerned, ever since I have been Official Verderer my intention has been that we should work as closely as possible together. A very good opportunity arrived earlier this year when the verderers, at their own expense, went to Holland to have a look at the problems of public pressure there, and I am delighted to tell your Lordships that the Deputy Surveyor, who had only recently been appointed, asked if he might accompany us. This was a wonderful opportunity for the Deputy Surveyor, the senior officer of the Forest, to get to know us
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and for us to get to know him. I thought that was a very good beginning. I hope that your Lordships will now give the Bill a Second Reading.
On Question, Bill read 2a.