Lords Sitting of 12 November 1970

Preamble
The House met at three of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Oxford.
Several Lords—Took the Oath.

IMMIGRATION CONTROL AND FOREIGN AIRLINES
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 pressure has been brought on foreign Governments and airlines not to accept British citizens holding British passports travelling to Britain from East Africa.]
THE MINISTER OF STATE, HOME OFFICE (LORD WINDLESHAM): My Lords, all possible steps are taken, in co-operation with airlines and foreign Governments, to prevent United Kingdom passport holders who are subject to immigration control from coming to this country for settlement without the proper documents.
LORD BROCKWAY: My Lords, is this not an extraordinary extension of Government authority over British citizens and British passport holders, in that not only are they not allowed into this country but pressures are now exerted on airlines and foreign countries not to receive them? Is that not an amazing development of British authority over British citizens and passport holders?
LORD WINDLESHAM: My Lords, admission for settlement to this country of the United Kingdom passport holders in East Africa who were brought under control in the Commonwealth Immigrants Act 1968 is regulated by a system of special vouchers, and only those with vouchers and their dependants are entitled to come for permanent settlement. Discussions have been held with airline representatives in London and in East
798
Africa, and letters have been sent by the Home Office to the airlines and to sea carriers pointing out the trouble and distress caused to passengers without documents entitling them to settlement who are brought to this country and then refused admission.
LORD BROCKWAY: My Lords, is the noble Lord aware that I have in my hand a copy of a letter from one of the leading airlines protesting against the action of the British Government in this sphere, reporting that they had been called to the Home Office and pressure exerted, and that they have protested, arguing that the company was not legally in a position to enforce these instructions and urging strongly that these measures concerned rather the relations between Governments? Is it not quite a new extension of British authority over airlines and other Governments in the case of British citizens?
LORD WINDLESHAM: My Lords, I would refer the noble Lord to the powers contained in paragraph 3 of Schedule 1 to the Commonwealth Immigrants Act 1962.
LORD GLADWYN: My Lords, would not the Government admit that in treating these unfortunate people as they do they are regarding them, in a way, as second-class subjects?
LORD WINDLESHAM: My Lords, I do not want to be drawn into a general debate on the subject of Commonwealth immigration, but this was the effect of the Commonwealth Immigrants Act 1968, to place United Kingdom passport holders in the special position in which they now are. We would not accept that they are second-class citizens, but the right of entry is limited by that Statute.
LORD GLADWYN: My Lords, it is not at all. There are no such people as British citizens; they are British subjects.
LORD WINDLESHAM: My Lords, they are British subjects and holders of United Kingdom passports.
LORD BYERS: My Lords, should not this matter be looked at again? I believe that this is embarking on a very slippery slope indeed, and that it requires much more consideration.
LORD SHEPHERD: My Lords, while recognising this to be a difficult subject, and one which confronted the previous Government, too, may I ask whether the noble Lord can give any indication of when the Government's Statement on Commonwealth immigration is likely to be made? Clearly the sooner the contents of that Statement are known, the better position we shall be in to consider the difficult situation in which the airlines and the authorities now find themselves.
LORD WINDLESHAM: Yes, my Lords; the general issues of immigration control are now under review by the Government. Legislation is promised in this Session, but it would not be right to try to forecast now what will be the content of that legislation.
VISCOUNT ST. DAVIDS: My Lords, can the noble Lord tell us why the passports of these particular gentlemen are stamped with the letter "D"? Does the letter "D" stand for anything? Does it possibly stand for "dud"?
LORD WINDLESHAM: My Lords, I cannot answer that point without notice.
LORD SHEPHERD: My Lords, I did not ask the noble Lord what would be the content of the Government's proposals. I asked when we can expect a Statement to be made.
LORD WINDLESHAM: My Lords, the answer is as I gave it. I cannot anticipate either the content or the timing of the Statement.
LORD BROCKWAY: My Lords, I am sorry to press this matter, but may I come back to my original Question and ask the noble Lord if it is not worth the consideration of those who are interested in constitutional issues whether Her Majesty's Government, while having the right to limit people coming to this country, should also have the right to press airlines and foreign Governments not to admit those British subjects? A big constitutional issue is at stake here.
LORD WINDLESHAM: My Lords, the powers are contained in the 1962 Commonwealth Immigrants Act. The general arguments which have been advanced by the noble Lord are well known to my right honourable friend. He has received
800
representations, as the noble Lord knows, and so have I, from a large number of representative organisations on this point. I think he can be quite sure that we are aware of these considerations and are taking them into account in framing a general policy towards the control of immigration from the Commonwealth.
LORD ALPORT: My Lords, is my noble friend aware that the administration of this Act, by the British representatives in East Africa, and particularly in Kenya, has been carried out with great good sense and with a great relevance to the exact conditions in which the British subjects holding British passports in East Africa are subjected to at the present moment? Is he also aware that the simplification which the noble Lord opposite tends to make of the problem is, in fact, not relevant to the exact position of these people in East Africa at the present time?
LORD WINDLESHAM: My Lords, I am glad to hear that from the noble Lord. His own first-hand recent experience is very relevant here. The members of the British High Commission's staff have an extremely difficult task, and I should like to say, from these Benches, that we regard the way in which it is being carried out as fair and admirable, as my noble friend has so described it.

OIL COMPANIES AND HARBOUR FACILITIES
3.14 p.m.
VISCOUNT ADDISON: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether they would consider introducing a requirement that frontages of harbours leased to foreign oil interests are employed fully by inter-company arrangement before granting authority for further frontages to be provided for different oil companies when existing ones are employed only to the extent of 10–15 per cent. usage.]
LORD MOWBRAY AND STOURTON: My Lords, Her Majesty's Government do not consider that a requirement of the

801
kind proposed is necessary. Intercompany arrangements for the sharing of port facilities should be left to the managements concerned where a commercial arrangement of this kind may be appropriate.
VISCOUNT ADDISON: My Lords, while thanking the noble Lord for his reply—and I know that he has given a lot of thought to this—may I ask him whether he is aware that it may not be quite so much a matter of planning, as a matter of the freezing-up of scarce wharfage areas, to the potential disadvantage of other users?
LORD MOWBRAY AND STOURTON: My Lords, I think we are aware of this. The commercial companies in most areas are fully occupying their space; in one or two cases there are more ample facilities, but they are not willing to share, and we must leave this to them.

AIRPORT SECURITY COMMITTEES
LORD BESWICK: 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 airport security committees have been established at international airports in Britain and, if so, what is their composition and terms of reference.]
LORD DENHAM: My Lords, security committees, including representatives of airport management, air lines, the police, Her Majesty's Customs and Immigration Control, have been established at all major international United Kingdom airports. There are no formal terms of reference, but advice on security committees has been given to all airport owners through their associations. Their general objective is to co-ordinate measures to combat acts of violence to civil aviation.
LORD BESWICK: My Lords, I thank the noble Lord for that Answer. However, am I not right in believing that the bodies or the people to whom he refers constitute a number of committees? There is not one overall committee, with overall responsibility for security in these
802
airports. Will the noble Lord look into this question to see whether this would not be a better way of going about it?
LORD DENHAM: My Lords, I am not quite sure that I understand the noble Lord. At each airport there is one committee; is that what he meant?
LORD BESWICK: My Lords, I was given to understand that there was not one committee at each airport but a number of committees. There is, for example, an Airline Operators' Committee, and there are other committees set up by the B.A.A. I am suggesting that one committee would be the right course to adopt. If I am assured that this is so, then I accept it, but I should be glad if the Minister would look into it again.
LORD DENHAM: My Lords the British Airports Authorities' four airports have one committee each. The same applies at Edinburgh and Belfast, which are run by the Department of Trade and Industry, and also at several of the airports run by local authorities. What may be confusing the noble Lord slightly is that two existing committees have been adapted at two of these last airports. At Glasgow the Airline Operators' Committee has been adapted to become the Safety Committee without a change of name, and the same has happened at Birmingham with the Safety Committee there; but there is one committee at each of these places which is responsible.
LORD JANNER: My Lords, can the noble Lord say whether there is any co-operation between these committees, or whether there is an overhead committee consisting of representatives of these committees, with similar committees in other countries? If not, why not?
LORD DENHAM: My Lords, I think probably not, but I will certainly look into this point and let the noble Lord know.
LORD BESWICK: My Lords, can the noble Lord tell me what opportunity there is for workers at airports and, for example, the pilots, to express a view as to the safety of the airports from which they work?
LORD DENHAM: My Lords, the opportunity for them to do that is to express their views to existing members

803
of the committee. It is thought that if workers' representatives were included it might make the committees too big. To be quickly effective the committees must be small; and also, from the point of view of security, it is important that only those who really need to know the security precautions should actually know them.

AERIAL PIRACY: UNITED NATIONS AND DRAFT CONVENTION
LORD BESWICK: My Lords, I beg leave to ask the second Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government what steps they have taken at the United Nations to secure the adoption of an international convention on aerial piracy.]
THE PARLIAMENTARY UNDERSECRETARY OF STATE, FOREIGN AND COMMONWEALTH OFFICE (THE MARQUESS OF LOTHIAN): My Lords, Her Majesty's Government are working for the adoption by the United Nations General Assembly of a resolution which would give strong support to the Draft Convention on Unlawful Seizure of Aircraft drawn up by the International Civil Aviation Organisation as the relevant specialised agency of the United Nations. The Convention is due to be concluded at a diplomatic conference in The Hague in December.
LORD BESWICK: My Lords, may I say how pleased I was to see that Her Majesty's Government were a sponsor of this resolution now before the Sixth Committee, I believe it is? May I ask the noble Marquess to give an undertaking that the very considerable influence and power which Her Majesty's Government have around there will be used to secure the adoption of this resolution?
THE MARQUESS OF LOTHIAN: Certainly, my Lords.
LORD JANNER: My Lords, will the noble Marquess say whether Her Majesty's Government have taken into consideration a matter which has been
804
raised on a number of occasions; that is, that those countries which harbour hi-jackers should not be granted facilities in respect of air services unless and until they deal with the persons who are kept by them within their boundaries? Also, are Her Majesty's Government considering steps in respect of deporting from those countries those who have hijacked aeroplanes?
THE MARQUESS OF LOTHIAN: My Lords, I can confirm that these matters are under consideration. I should not like to go further than that at the moment. As the noble Lord will appreciate, there are matters of great legal importance and complication and they are being carefully considered.

HYDROCARBON OIL (CUSTOMS AND EXCISE) BILL [H.L.]
THE LORD CHANCELLOR (LORD HAILSHAM OF ST. MARYLEBONE): My Lords, I beg leave to introduce a Bill to consolidate the enactments relating to the duties of customs and excise on hydrocarbon oil, petrol substitutes and power methylated spirits. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read 1a.—(The Lord Chancellor.)
On Question, Bill read 1a, and to be printed.

ARMED FORCES BILL [H.L.]
3.22 p.m.
THE SECRETARY OF STATE FOR DEFENCE (LORD CARRINGTON): My Lords, I beg to move that this Bill be now read a second time. Before turning to the contents of the Bill, I think I should deal with the point which was raised by the noble Lord, Lord Shinwell, on Tuesday; namely, whether it was proper to introduce this Bill in this House. Your Lordships may remember that the Army and Air Force Acts were for many years intimately connected with the grant of supplies for the Services of the Crown. This is no longer so. I will not trouble your Lordships with the full details, which are set out at length in pages 768 to 769 of the 17th edition of Erskine May. The present Bill deals solely with the discipline of the Armed Forces.

805
A brief summary of the provisions of the Bill will make it plain to your Lordships that it has nothing to do with Supply. Part I continues the Army Act and the Air Force Act and reduces the Naval Discipline Act to the same renewable status: Part II goes through the offences and punishment provisions of each Act and secures uniformity; while Part III amends procedural provisions. Part IV gives to the Navy the general Army and Air Force code about deductions from pay, and then extends that code for all three Services so as to allow deductions to enforce judgment debts. Part V contains a number of miscellaneous amendments.
There is no money in this Bill, and I am told that the authorities in another place have no objection, on the ground of financial privilege, to its introduction into this House. I hope, therefore, that your Lordships will agree that there is no objection on general constitutional grounds to the introduction of this Bill into this House.
Since 1954 the quinquennial Bills have originated in the other place, and in that year a Select Committee of that House on the Army and Air Force Act—on which the noble Lord, Lord Wigg, sat—recommended that a Standing Order should be adopted, providing for the committal of the Bills which would have to be introduced on the final expiry of the Army and Air Force Acts 1955 to a Select Committee immediately after Second Reading. On March 17, 1955, during the passage of the Army and Air Force Bills, the then Leader of the House, Mr. Crookshank, made a statement that the Government agreed that the five-yearly Bills should be committed to a Select Committee, but that this should not be done by means of a Standing Order. The introduction of the present Bill into this House in no way prevents Members in another place from adopting their customary procedure, and it is the Government's intention that the Bill shall be referred to a Select Committee if that House so decides.
Since 1955 the Bill has been eligible for introduction in either House of Parliament, and I hope, therefore, that I have said enough to show your Lordships that the introduction of the Bill into this House in no way affects the control of the other House over the Forces and that
806
it has not been done with a sinister motive, but only in the interests of the sensible programming of the business of both Houses.
LORD SHACKLETON: My Lords, since I am not going to take part in the debate, perhaps this will be a convenient moment to ask the noble Lord one question. First of all, I should like to say that I entirely acquit him of any sinister motive. We all know the efforts that Government Chief Whips and others make in trying to get Bills before another place—and they do not always get the best buy. It is, of course, for another place to assert its rights but, equally, I am sure the noble Lord will agree that we in this House would not wish in any way, even inadvertently, to transcend or take away from the rights of another place. But if I understood the noble Lord correctly, he said that there is no constitutional objection. My noble friend Lord Shinwell will be speaking later and may wish to raise further points on this aspect. I would only suggest that it would have been wiser for the Government—and I hope there will be another Government before the next Bill—to arrange for this Bill to come to us after it had been through a Select Committee in another place. But I have such sympathy for the Government Chief Whip that I will not press him further on that at this moment.
LORD BYERS: My Lords, before the noble Lord, Lord Carrington, replies to that, may I commend him for the way in which the Government are introducing more Bills into this House at an early stage? This is something for which we have always asked, and it is much more sensible from a workload point of view.
LORD CARRINGTON: My Lords, I am much obliged to the noble Lord, the Leader of the Liberal Party. But I must honestly tell him that he must give credit to the Chief Whip and to the Leader of the House and not to me, because I am not at all sure that I would have pressed very hard for the introduction of this particular Bill into your Lordships' House. But I can confirm that the Government have gone into this very carefully, and there really is no suggestion that we are in any way seeking to take away or transcend any powers of another place. Certainly that is not the intention. I

807
agree with the noble Lord, Lord Shackle-ton, and I think it is open to query whether or not, as there is a Select Committee, it is better to introduce the Bill there. But there are also the considerations which the noble Lord, Lord Byers, has mentioned, and I think that they balance each other out fairly evenly. Now that we have disposed of that point in a most amicable fashion, may I turn to the provisions of the Bill?
In their Report in 1966, the Select Committee expressed their confidence that the next Armed Forces Bill would make further progress in simplifying and standardising Service law. They concluded that reform on these lines should be implemented as quickly as possible where-ever it could be clearly shown that diversity of practice was a barrier to general and administrative efficiency. They did, however, specifically recognise that regard would have to be paid to inherited traditions and differences which did not impair efficiency. The review which the 1966 Select Committee recommended should take place was set in train within the Ministry of Defence. Representatives of all three Services, the Judge Advocate of the Fleet and the Judge Advocate General of the Forces took part in it. I believe that it will be apparent that we have attached due weight to the views expressed by the Select Committee.
We have achieved a single common code of offences and their related maximum punishments, as I shall explain more fully later on, but we have not sought in this Bill, and we do not in any case think that it would be desirable, to seek to make fundamental changes in the framework of the existing systems for administering the disciplinary code in the Army and R.A.F.—systems which are virtually identical—and in the Naval system.
I think it will be accepted by everybody who knows this subject that the system of administering justice in the Royal Navy has stood the test of time, is well understood by all in the Navy, and, most important of all, meets seafaring operating requirements by being both swift and economical. I am glad to say that there have been very few criticisms of Naval justice, either from within the Service or from the Judges.
808
The Army and R.A.F. system is no less suited to the environment in which these Services live and operate, and it is equally well understood and accepted by their personnel. We must never lose sight of the fact that the disciplinary systems of the Services must be grounded in the operational and environmental needs of each particular Service.
So far as the Royal Navy is concerned, it is self-evident that forces afloat must have some means of dealing quickly with breaches of discipline. It is therefore, in our judgment, still right that there should continue to be two disciplinary systems: that of the Army and Royal Air Force, which gives the commanding officers a relatively modest power of punishment, and that of the Royal Navy, which gives commanding officers greater powers of punishment. Both systems contain elaborate provisions to protect the individual Serviceman, with arrangements for appeals, reviews, and complaints by any man who feels he has suffered any kind of grievance. We are satisfied that these arrangements, which have stood the test of time, are still effective and fair to all concerned. There will, I think, be a very wide measure of satisfaction in the Services that they will not have to cope with unsettling wholesale changes in their disciplinary systems at a time when so much else is changing in the Service way of life.
We have also considered whether the three Acts should be combined into a single Act. We found that the advantages of a single Act were much less than might at first sight be supposed, and that on balance its disadvantages were likely to be more numerous. First, a single Act would be a good deal longer than any of the present Acts. Secondly, and of great importance to the Forces on the ground, it would be not only longer but more complicated and more difficult to use in practice than the present single-Service Statutes. I am sure your Lordships will agree that we do not wish to enact legislation in a form which imposes an additional and unnecessary administrative burden on commanders in the field, possibly engaged in action or serving in an arduous peace-keeping role. For all those reasons we have decided not to seek to combine the three discipline Acts into one Act. We propose, instead, to leave the three Acts in being, making such adaptations of them as are necessary for

809
the enactment of a common code of offences and punishments; and this is the purpose of the present Bill. Perhaps I may mention at this stage that after this debate I shall seek your Lordships' approval of the Army and Air Force Act 1955 (Continuation) Orders extending those Acts until the end of 1971, which I hope your Lordships will in the circumstances be ready to approve without much debate.
My Lords, I turn now to the Bill itself. I do not propose to take the House through it, because there is already a very full Explanatory Memorandum, but I think it right to mention some of the more important elements of the Bill. Clause 1 is of constitutional and historical importance. Both the Army Act and the Air Force Act were annual Statutes until 1955. Only then did they become quinquennial Acts subject to annual renewal by Order in Council after Affirmative Resolution in both Houses up to a maximum of five years. The Bill of Rights in 1688 laid down that no standing Army should be maintained in peace time without the consent of Parliament, and the acceptance of this principle came after a century of turmoil at the end of which Parliament reasserted its claim to control the Army. However, the various Statutes governing the Royal Navy were never subjected to the same arrangement, and so the Naval Discipline Act of 1957 is a permanent Statute.
We have examined this position in the light of the 1966 Select Committee's recommendation that the aim should be to standardise the Statutes of the three Services, and there is certainly a case, I think, for taking the view that the original reasons for placing the Army and the Air Force Acts on this special footing are now quite spent. On the other hand, no one who reads the considerations which were in the minds of the 1954 Select Committee will doubt that it was thought then, and I have no doubt it will be thought now, that it is important to have a full Parliamentary scrutiny every five years of the exercise and extent of the special jurisdiction entrusted to the Services by Statute. We have therefore come to the view that the better course would be to make the Naval Discipline Act a quinquennial Act along with the other two Statutes. The change we are making is, of course, a
810
break from long Naval tradition, but I do not think it needs reassurance from me that it denotes no suspicion of what the Royal Navy is about.
I turn now to Part II—that is, Clauses 2 to 43—which is in a sense the most important part of the Bill. These clauses seek to enact a truly common and unifica scheme of offences and related maximum punishments which will apply to all members of the Armed Forces. Hitherto there have been two codes; that of the Royal Navy and that of the Army and Royal Air Force, while the Royal Marines who serve under the Army Act also serve under the Naval Discipline Act when afloat as members of a ship's company. In general, the common scheme of offences and punishments creates no new offences, and, indeed, some specific offences are abolished. Some offences which now exist in either the Naval Discipline Act or in the Army and Air Force Acts are extended to all three, but this is an inevitable consequence of an amalgamation of two separate codes which is, in a sense, a process of give and take. Thus, for example, prize offences are imported into the Army and Air Force Acts by Clause 3 of the Bill: hitherto they appeared only in the Naval Discipline Act and are unlikely ever to be used by the other two Services. Some actions which are now offences against particular provisions of an Act will become chargeable under other provisions.
Naturally, in arriving at this common scheme a good many changes have been made. For example, the common scheme of punishments provides for a single maximum penalty for all offences. This is the position now in the Naval Discipline Act, but at present certain offences under the Army and Air Force Acts carry a higher maximum penalty when committed on active service and a lower penalty at other times. In present-day conditions there are situations in which the existence or otherwise of active service, as defined in the Army and Air Force Acts, is quite inappropriate for determining whether or not the level of responsibility merits consideration of a higher or lower maximum punishment. Flying aircraft, sometimes with large numbers of crew and passengers aboard, is one obvious example. The patrols of the Polaris submarine force is another.

811
Moreover, there may well be good reasons for not deeming quite onerous operational duties to be on active service. We propose, for this reason, and because of the need for commonality, that these offences should now carry only the higher maximum, as in the Navy. Although the effect of this change is that Army and R.A.F. personnel will be liable to greater punishments for those offences which were previously more severely dealt with only on active service, the practical effects will not be significant. Only three offences are involved, and in peace time these would normally be handled either summarily or by district court-martial, both of which are subject to their own limitations on their maximum powers of punishment: for example, a district court-martial cannot give more than two years.
The higher civil courts, when passing sentence on an offender for more than one offence, have power to direct whether sentences of imprisonment imposed on the different counts shall run concurrently or consecutively. The power to order that the sentences shall run consecutively is commonly invoked when the offender has been convicted of a series of offences the maximum statutory punishment for any one of which is limited. Courts-martial at present lack the power to order that sentences of imprisonment shall run consecutively, and, in consequence, a man found guilty by, for example, a general court-martial of a number of offences, each carrying a maximum of two years' imprisonment, could not be sentenced effectively to more than two years' imprisonment in all. Clause 39 brings the powers of Naval courts-martial and Army and Air Force general or field general courts-martial into conformity with those of civil courts in this respect by enabling them, when dealing with a series of civil offences, to order in appropriate cases that the sentences shall run consecutively. The power does not, however, extend to a series of service offences.
Noble Lords will note that it is proposed to re-enact the death penalty for a range of military offences. I recognise that some noble Lords will query this provision. There are, however, two particular considerations that I would put before your Lordships. The first of these concerns offences relating to acts com-
812
mitted by Service men in the presence of the enemy or on the battlefield. We have not sought to re-enact the present provision in the Service discipline Acts which makes mutiny with violence or threat of violence a capital offence at any time. The military offences which we propose should continue to carry the death sentence as an optional, not mandatory, sentence are mutiny or incitement to mutiny on active service and the following offences when committed with intent to assist the enemy: misconduct in action; assisting the enemy; obstructing operations; and failure to suppress a mutiny. There is in addition an offence of spying for the enemy on board Her Majesty's ships and naval establishments abroad. All those Service offences for which I propose that the death penalty should be retained are thus those which will directly or indirectly assist the enemy. I am sure that the deterrent of the possibility of the death penalty must continue to apply when, in the most extreme of situations, a Serviceman faces the temptation to indulge in treacherous acts which are likely to endanger the lives of his comrades-in-arms, or lead to their defeat at the hands of the country's enemies.
The second consideration is this. Since 1939—that is, throughout the whole of the last war and since—four men have been executed under the provisions of the Service discipline Acts for convictions other than for murder which is of course a civil offence and one which no longer carries the death penalty even under the Service discipline Acts. Three men were executed after conviction for mutiny in 1942 and one convicted for the civil offence of treason committed in the course of the war was executed in 1946. No execution for any military offence has taken place since that date.
My Lords, I turn now to Part III of the Bill; that is, Clauses 44 to 57. I have already explained that it is not the purpose of this Bill to make important changes in the separate disciplinary systems which are at present in force in the Services. We have however used this Bill to make a number of minor adjustments which have been found necessary for operational reasons or which take account of various developments which affect the Service discipline Acts. None of the changes has the effect of widening the gaps between the two disciplinary

813
systems and we have in fact in a number of places taken the opportunity to move them somewhat closer together. Many of these clauses are very technical but I will pick out a few of the more interesting ones.
Clause 45 provides, with one exception, that the consent of the Attorney General or the Director of Public Prosecutions shall not be required in connection with proceedings under the Service discipline Acts when the charge is a civil offence. It has been decided to include this following a decision by your Lordships' House to quash the conviction of a naval rating by court-martial because the naval authorities had not sought the consent of the Director of Public Prosecutions. The House held that this was required under the Sexual Offences Act 1967, even though it was not I think Parliament's intention that that Act should lay this obligation upon the military authorities. It will, I believe, be generally accepted that a civil authority, even an eminent one, should not have to be involved at this point in the military disciplinary system. There must of course be checks by the courts upon the operation of Service law, but I think the proper check lies in what Parliament has provided in the Courts-Martial Appeal Court.
Clause 55 relates to the position when a deserter is brought before a magistrates' court, when apprehended by the civil or military police. Noble Lords may recall that some years go there was an unfortunate case involving a private soldier who was brought before a magistrates' court as a suspected deserter. He convinced the justices that he should be released, but he was subsequently arrested again by the military police under the normal power of arrest given in the Army Act and charged by the military authorities. At the time there was criticism that, following the second arrest, the soldier in question was not brought again before a civil court. Administrative instructions were issued to ensure that a similar situation should not arise. We now propose to embody this in this legislation.
My Lords, whereas most of the provisions of Part IV of the Bill do not involve our taking new powers, Clauses 58 and 60 redeem a promise made in another place during the committee stage of the Administration of Justice Bill that
814
this Bill would enable judgment debts to be enforced by recovery from Servicemen's pay.
Clause 71 (in Part V) seeks to close a lacuna in jurisdiction which we have discovered. At present, some civilian passengers on board an aircraft of the Army or Royal Air Force come under no court jurisdiction when outside British airspace. Because the aircraft is not a civil registered aircraft, the appropriate civil legislation does not cover them and neither are they subject to the provisions of the Army or Air Force Acts. Noble Lords will readily appreciate, particularly at the present time, that it is necessary to remedy that. This we have attended to.
My Lords, I have run through the provisions fairly briefly; but we shall have another opportunity on the Committee stage to discuss them in detail and more fully. I hope that from what I have said your Lordships will agree that this Bill is a useful step forward in unifying the scheme of offences. The Bill also contains other important amendments to the Acts, some of which themselves make significant steps towards rationalisation. I can confidently recommend your Lordships to support the Second Reading of this Bill. I beg to move.
Moved, That the Bill be now read 2a.—(Lord Cairington.)
3.47 p.m.
LORD WENTERBOTTOM: My Lords, I can only concur with my noble Leader when he expressed the opinion that the introduction of this Bill to your Lordships' House raises no constitutional problems. In fact, I personally welcome it. Although complex, it is an extremely interesting measure and one which is worthy of your Lordships' attention.
Before I go on to make my own contribution to the debate I should like to make one point to the noble Lord, the Secretary of State, about the Committee stage of the; Bill. He has told us that it will go before a Select Committee where it will receive very detailed scrutiny. In the case of the 1966 Bill there were, I think, eight sessions of the Select Committee. This much larger piece of legislation may spend an even longer time before the Select Committee of the Commons, but I hope that that will not diminish the importance of the

815
Committee stage in this House. This House has great expertise in this matter, and direct experience of the problems of courts-martial is something of great value when considering this Bill. I hope, therefore, that your Lordships will not feel inhibited from giving this Bill a thorough scrutiny during the Committee stage. I think you will be able to illuminate certain pathways which another place may be able to explore during the proceedings in the Select Committee. I should also like, before coming to the Bill itself, to thank the Secretary of State and his Department for the guidance they have given me in preparing myself for this debate.
My Lords, the Bill, of course, is not something dreamt up out of empty space but is the result of undertakings given to the Select Committee in 1966, and it has been worked on for, I think, at least two years by a cell within the Ministry of Defence. It is carrying on a process of harmonisation of the disciplinary systems of the three Armed Services, and in addition it is carrying into law certain undertakings given on various other occasions—such as those given to the Latey Committee or subsequently when that Committee's Report was discussed here and in the other place. This process is, I think, the result of the evolution of the Armed Forces as they are to-day. It is a recognition of the fact that the Forces are no longer sailors, soldiers and airmen, but that each Arm has its own air force, its own navy and its own infantry. We are very triphibious these days. War-like operations take place without a declaration of war. To-day the Service man is less and less a member of a military class set apart from society as a whole; he is a specialist within society doing a job for which he is trained.
Another problem we have to face—perhaps not a problem but a fact—is that in peace time, members of our Armed Forces are stationed on foreign territory instead of being stationed at home or within the Commonwealth; and therefore the Bill recognises the need to harmonise discipline and the administration of the three Services; the need to link military law more closely with civilian law and the need to mitigate where possible the impact of military activities on civilian life. For this reason, I welcome particu-
816
larly Clause 21, which stiffens the penalties which may be imposed for low flying over the civilian community. During my period at the Ministry of Defence as Under-Secretary of State for the Air Force, this was one of my preoccupations, and I am glad that the disciplinary powers which have been given to the Heads of the three Armed Forces to control low flying and careless flying have been stiffened and increased. I think this is the main cause of irritation between the Armed Forces and the civil population, and therefore Clause 21 is of value.
As I have said, each of the Armed Forces has its own navy and air force, and I find Clause 19 interesting in so far as it extends to the 1955 Acts the offence of losing or hazarding one of Her Majesty's ships. This offence exists at present only in the 1957 Navy Act. One noticed with wry amusement the case of the unfortunate major who was recently court-martialled for hazarding his ship. He got into trouble with an L.C.T. in the Channel. This was, I believe, the first example of a soldier being charged with hazarding a ship, and a certain amount of professional advice had to be given by the Navy. That is the sort of thing that is happening as the Services become more and more integrated. Until now, my Lords, it has not been possible to charge a sailor with cowardice. Sailors were never cowards. Now, unfortunately, under this Bill they can be charged with cowardice.
Clause 3 refers to prize money. There are a whole series of measures which lay down punishment for someone who defrauds Her Majesty when collecting prize money. I assume that one can turn the argument the other way round, and that if you can be punished for defrauding Her Majesty when taking a prize, presumably you can take a prize and enjoy the benefits thereof. Now the Army has been brought into the ambit of prize money through the provisions in Clause 3. This may seem a little remote, but one of the benefits which the Royal Air Force enjoyed was a substantial prize fund which was won in the last war and paid in respect of submarines forced to the surface and captured intact. I hope that the Army will now be able to benefit from activities of this type and will not suffer the penalties of fraudulent conversion in respect of the prizes they win.

817
I must say, my Lords, that I feel a certain personal concern about the implications of Clause 6, which refers to looting. Many noble Lords might have run foul of the provisions in this clause had they existed at the time of the 1939–45 war. I seem to remember that in our passage through the Low Countries a certain volume of champagne was captured in Brussels by the Welsh Guards and was, of course, distributed as welfare—as a support to morale—to other members of the Division concerned. My own regiment had a very agreeable collection of German welfare stores. Perhaps the capture of enemy welfare stores is not included in the provisions of Clause 6.
As I mentioned earlier, the civilian law is brought closer in harmony with military law. I think that is right, as the soldier is becoming a specialised civilian serving the community as a whole. The Secretary of State has mentioned the modification of the law relating to the death penalty as stated in Clause 7, and one can only agree completely with this step. It is a wise provision. There are a whole number of clauses in which the two systems of law are brought closer together. For instance, speaking of Clause 17, the Explanatory Memorandum refers to
"offences of stealing, receiving, and fraudulently misapplying"
property. These are to be dealt with as civil offences and omitted from military law. Clause 18 refers to offences in billets. Clause 34 provides that no one may be punished more severely by a military court than by a civil court for the same offence. Clause 39 is a very important clause. The Explanatory Memorandum says that it enables
"any court-martial other than a district court-martial to award a sentence in respect of two or more civil offences which comprises terms of imprisonment equal to those which would be awarded by a civil court. This brings the powers of courts-martial in such circumstances into conformity with those of civil courts dealing with a like series of offences."
That is an important amendment.
Part IV of the Bill deals with the forfeiture of pay and deductions from pay and is extremely important because it brings the military law into harmony with the Administration of Justice Act. I think that these are all very sensible measures for bringing the two systems of law into harmony. Like the Secretary of
818
State, I commend the wisdom of Clause 55. All of us who were at the Ministry of Defence at the time will remember the unfortunate Parkes affair and we hope that we shall avoid that sort of thing by inserting this clause in the Bill. Clause 62 contains provisions which one can welcome relating to recommendations of the Latey Committee. Clause 71 refers to the very peculiar situation, which was mentioned by the Secretary of State, in which if a civil servant, shall we say, is travelling on a VC.10 over the North Atlantic he may commit almost any offence without any charge being brought against him, although his wife could be charged. It is a peculiar situation. This is part of the whole range of the Bill which covers a very wide field.
I feel that although able men have worked on it for two years, the expertise to be found in your Lordships' House and in the Select Committee in another place should be brought to bear upon the Bill because it is experience of actually administering military law which is important. Those who have served on a court-martial must realise the very difficult situation in which quite junior officers may find themselves when called upon to discharge their responsibilities. It would be of enormous value, and the Bill would be improved, if particular attention is paid to it during the Committee stage in this House and elsewhere. As the Secretary of State has said, this is a complicated Bill and a specialist Bill, but not an unimportant Bill. It is of great importance to some hundreds of thousands of our fellow citizens serving in the Armed Forces. While I completely support the Bill's intention, and also the Secretary of State in commending it to your Lordships, I feel that careful study of the Bill by your Lordships and by another place would be of value to everyone who has to administer it when it becomes law.
4.0 p.m.
LORD BEAUMONT OF WHITLEY: My Lords, I agree with the noble Lord, Lord Winterbottom, that this is an important Bill. It is the first Bill for some time to deal with the whole question of the consolidation and review of Service law, and as such it touches on the whole problem of the Forces and civil liberties. I understand, from the slightly bellicose noises that have been proceeding behind me, that the noble Lord, Lord Shinwell,

819
is not entirely satisfied about the constitutional position, and I look forward to listening with interest to what he has to say. The only thing I would say on the matter is that we should be careful, if we are not in any way trespassing on the privileges of another place, that we do not by disuse or over-courtesy in some way derogate from our privileges and rights. I should like to see a much bigger and more important debate than we look like having to-day. Though from time to time we discuss certain matters in this field (and I know that the noble Lord, Lord Gifford, is raising the question of the Visiting Services Act later on in this Session) I do not think that for some time we have considered the subject as a whole, and it is a subject that concerns the civil rights of a large number of people.
There are basically two questions to be held in mind: one is the special needs of the Services, because of the special place they have in the State; the second is the necessity for insuring so far as posible that no person is in any way robbed of the civil rights he has as an ordinary citizen of this country. Some interesting experiments have been made over the last few years, not least in the German Army, which I should very much like to see discussed once more, though I would make it clear that in saying that I do not make any criticism against the present system. What I should like is to have this Bill looked at more carefully in Committee stage, in the kind of way your Lordships' House does so extremely well. I hope that we shall be given some time to look at the Bill in detail before we get to the Committee stage. The period between the publication of the Bill to the Second Reading has been remarkably short, and I hope that we shall be given a little longer before the Committee stage. One of the people I have consulted on this matter reckons that it would take about a fortnight for a couple of researchers to get down to all the problems which are raised.
I will only mention three points which I shall probably wish to raise at Committee stage. The first is the question of an Ombudsman for the Forces. The second is on Clauses 29 to 31 of the Bill, which would do away with that delightful old formulation,
820
"scandalous conduct unbecoming to the character of an officer and a gentleman."
It would also do away with cashiering. I am not at all clear what exactly is the difference between cashiering and discharging. Cashiering does not seem to be too serious. Colonel Gold was cashiered and he seems to have thriven on it considerably. Then there is the provision in Clause 31 under which someone can be charged with
"disgraceful conduct of a cruel, indecent or unnatural kind."
I should like some information about how that is going to be used in practice. How often have people been charged in the last few years and what was the actual nature of their offences? Because this brings into question the whole problem of whether we are entitled in any way to discipline people in the Armed Forces for things not strictly of a military nature and not against the civil law. I hope that we shall get more detailed information on this point, not now, but before Committee stage.
Thirdly, there is this matter of Clause 45 and permission from the Director of Public Prosecutions. Obviously, this has come about by mistake, but it seems to me to be rather a happy mistake and we should look at it carefully before we do away with it. I have mentioned just three of the points that I hope we shall discuss when we look at the Bill carefully in detail, as the noble Lord, Lord Winterbottom, suggests. But I want to make it clear that I think the Bill is an extremely good piece of work. It progresses in a forward manner in a large number of places. I very much welcome it and certainly commend it to your Lordships.
4.8 p.m.
LORD SHINWELL: My Lords, the noble Lord, Lord Beaumont of Whitley, suspected that, seated behind him, I was expressing my dissatisfaction with this Bill. I assure him that he is quite mistaken. He must not blame me; it must have been the microphones, because I was only indulging in a few words with my noble friend Lord Williamson behind me. I hope that that relieves the noble Lord's mind.
Let me say this without further ado. The noble Lord, Lord Carrington, can not be accused of being actuated by

821
either sinister designs or criminal intent in bringing this Bill before your Lordships' House—not at all. I certainly do not express any dissatisfaction at its being introduced into this Assembly. Nevertheless, I venture to ask a question which has not yet been answered. The noble Lord, Lord Carrington, spoke about our constitutional rights and I offer no objection to that, but I would still ask this question, which is very important: why is this Bill introduced in your Lordships' House? This is the question the noble Lord did not answer. There is no precedent for introducing a Bill of this character in your Lordships' House. Would the noble Lord challenge that statement?
My only justification for intervening is that I became familiar with the subject as far back as 1929, when I was Financial Secretary to the War Office—quite a long time ago—and I have been made familiar with it over and over again as Secretary of State for War and Minister of Defence. I recall the colourful debates we had on the subject and the criticisms which were made. I refer your Lordships to Volume 538, col. 1460, of Hansard of the House of Commons. What is it all about, anyway? It is a principle embodied in the Bill, which cannot possibly be ignored in a matter concerning our Armed Forces, and that is the principle of discipline. I suspect from what I have just heard that the noble Lord, Lord Beaumont of Whitley, does not care much for the harsh discipline which concerns our Armed Forces. Well, you cannot have a free-for-all in the Armed Forces. This principle of discipline in the Armed Forces has been debated over and over again in the other place, in the Press of the country and on the public platform, but nobody has ever suggested that we can administer the Armed Forces of cur country without a measure of discipline. As I say, you cannot have a free-for-all.
Of course, it may be argued that some items of discipline are too harsh. When the noble Lord, Lord Carrington, referred to the reason for telescoping that section of the Bill which relates to Naval discipline with the discipline in the Army and the Air Force, he reminded me of the discussions that we had in the other place on this very point. It was always maintained—and I think with justification—that Naval discipline was much harsher
822
than Army and Air Force discipline. That matter has been argued out frequently. But eventually in the other place we came to the conclusion that it depended largely on the final decision of the head of the Armed Forces—because every sentence can come before the Minister of Defence now, as previously before the political heads of the three Forces, for confirmation. That is the right of appeal. Therefore on many occasions discipline imposed by way of sentence on those who were alleged to be guilty of indiscipline has been revoked or modified.
I am concerned only about the question of discipline, and say at once, irrespective of some minor amendments which concern sentences regarded as unduly harsh, that I would not oppose the general principle embodied in the Bill. But I return to my original question. I asked for clarification the other day and, if I may indulge in a little egotism, it was wise on my part to do so, because the researches which the noble Lord, Lord Carrington, and his noble friend Lord Jellicoe have carried out have illumined their minds on the subject. It was obvious the other day that the noble Earl, Lord Jellicoe, knew very little about it; and I have a suspicion that even the Secretary of State for Defence, the noble Lord, Lord Carrington, knew little about it before he received the brief which has been delivered this afternoon. I see that the noble Lord dissents from that. But I know all about this sort of thing, It happens that I know what goes on inside.
LORD CARRINGTON: If the noble Lord knows all about it, then it seems strange that when he intervened on Tuesday he was wrong.
LORD SHINWELL: Then I cannot understand where the noble Lord acquired the information. Almost everything he said in that speech was familiar to me. I have heard it over and over again, apart from some additions and modifications which, as a result of research, it was decided to inject into this Bill. The language is familiar. It is precisely the kind of talk that we heard in the other place. I suspect that the noble Lord, Lord Carrington, became acquainted with the subject only when he became Secretary of State for Defence. I ask the question again: why was the Bill introduced here? It may have been because

823
the Secretary of State for Defence is in this Assembly. We are very glad to have him here: of course, he could renounce his title and go to the other place, subject to an Election.
Let me make it plain that I have no objection to the introduction of Bills into this House. But I am well aware that when this Bill goes to the other place they will, as a result of the deliberations of the Select Committee, come to certain conclusions, possibly with Amendments to the Bill. It will be difficult if we have a Committee stage in this Assembly to revise anything done by the other place. Indeed, my noble friend Lord Winter-bottom asked whether there was going to be a Committee stage in your Lordships' House. I am surprised that the noble Lord, Lord Carrington, agreed that there is to be a Committee stage in your Lordships' House. If the Select Committee, which is established by the legislation of 1955, is to consider Amendments—and its decision is conclusive, subject of course to the decision of the other place—I cannot for the life of me see how we can revise that decision. However, I stand to be corrected in this matter, and we may have the right in this House to modify some of the decisions reached by the Select Committee.
I do not want to make heavy weather of this and to go into all the details of discipline, Naval discipline, sentences and all the rest of it. I know exactly what is going to happen: it is precisely what I have ventured to say to your Lordships. It is this: that when sentences are imposed, however harsh they may seem to be, and however objectionable from the point of view of the victims who are adjudged guilty, they can always be modified by a decision of the Secretary of State for Defence. There is a tremendous responsibility resting on the noble Lord, Lord Carrington, as Secretary of State for Defence, because he has to deal with all the Armed Forces in relation to any act of discipline that occurs and is brought to his knowledge.
There is not much more that requires to be said. My only reason for raising the matter the other day was that I though there was some confusion and I asked for clarification. The noble Lord has clarified the situation, except that he has not answered the important question
824
of why the Bill was introduced in this House. It is all very well to postulate the constitutional position of the Government's right to introduce Bills in this Assembly, but the question is: why was the Bill brought here when there is no precedent for it? The only previous Secretary of State for Defence who was in this House was the late Lord Alexander of Tunis—a fine, outstanding person whose acquaintance I was delighted to have. Not since he was Minister of Defence in this House, or indeed at any time, has a Bill on this subject been brought before this Assembly. So I ask: why was this Bill not introduced in the other place? I do not want to provoke any trouble—that is the last thing that I should think of doing—but it may be that in the other place they will ask questions about this. They will want to know why they had not the privilege of dealing with this matter before it came to your Lordships' House, and the Secretary of State may find himself in a heap of trouble. I do not want to see him in that situation, but if he finds himself in any awkward predicament or embarrassment, I will do my best to extricate him.
4.19 p.m.
LORD CARRINGTON: My Lords, I am almost overwhelmed by the last two sentences that have fallen from the noble Lord, Lord Shinwell. I should like first of all to thank all three noble Lords who have spoken for their welcome to the provisions of this Bill. I am happy to think that at any rate some of my opening remarks defused the noble Lord, Lord Shinwell, and that the bubbling noise which we on this side of the House heard was only an exchange of civilities between him and the noble Lord, Lord Williamson. The noble Lord was good enough to say that he was glad that I was here. May I say that I am very glad that he is here, because I think he livens us all up very much indeed. I think the noble Lord misunderstood me when I was talking about constitutional rights. I was talking about the constitutional rights of another place, and I was making it clear that I did not think that by introducing this Bill in this House we were in any way infringing the constitutional rights of another place. I do not think there is any doubt whatever that there is a constitutional right for us to have this Bill in this House first. I do

825
not believe there can be any question about it.
The noble Lord asked me why it was that the Government decided to introduce the Bill in this House. The reason is simple: at the begining of a Session of Parliament there are very few Bills which come up to your Lordships' House because most Bills are introduced in another place, and most Bills have to be introduced in another place for reasons which the noble Lord, Lord Shinwell, knows very well. All Governments, this one, the previous Government and the one before that, have always had the difficulty that the business of your Lordships' House has been very thin at the beginning of a Session, but in June and July, when all the Bills come up from the Commons, we are overloaded with work.
It has been the wish of both sides of the House, ever since I can remember—and I have been a Member of the House for 25 years—that we should try to do something about it and start as many Bills as we possibly could in this House in order to relieve the congestion in June and July, which imposes an enormous burden on your Lordships. It was felt that this Bill was one that could perfectly well be introduced in this House, and there did not seem to be any objection to that procedure. It is perfectly true that it never has been done before; it is perfectly true that it was not introduced in this House when the late Lord Alexander was Minister of Defence, because at that time it was a Supply Bill. It was not until 1955 that these Acts ceased to be Supply Bills, because they were then involved with money. It was only since then that it would have been possible to introduce them in this House.
Although it is perfectly true that it has never been done before, I am rather sad to think that the noble Lord, Lord Shinwell, after his great career in the House of Commons and as a great Socialist, should set such store by never doing anything that has not been done before. We, at any rate, as a Government, are not frightened of a little innovation. I hope very much—
LORD SHINWELL: My Lords, I do not object to inconsistency by the noble Lord as a member of Her Majesty's Government. After all, their whole philosophy is utterly inconsistent.
LORD CARRINGTON: My Lords, the noble Lord is now changing his ground with great celerity but with not much conviction. I hope—as do the noble Lord, Lord Beaumont, and the noble Lord, Lord Winterbottom—that we shall have a good Committee stage in this House. We have something to contribute which would be valuable, and it might well be useful for the other place, and for the Select Committee in the other place, to take account of the deliberations we have in this House on various clauses and aspects of this Bill. I notice that the noble Lord, Lord Shinwell, wrote a letter the other day to The Times about the reform of the House of Lords which also was not noted for its forward-looking attitude, but at the end of his letter he said that he thought that on occasion the House of Lords might even do some good. I think we might even do some good to this Bill on Committee stage, and I hope that the noble Lord will join in and see what he can do to help us.
I am very grateful for the other points which were raised by the noble Lord, Lord Winterbottom, and the noble Lord, Lord Beaumont. This is a difficult Bill on which to have a Second Reading because there is no constant theme running through it; it consists of a number of varied and isolated topics, and as such it is really impossible to have a Second Reading debate. I am glad if the officials at the Ministry of Defence helped the noble Lord, Lord Winterbottom, as much as they have helped me, because if it can be said that we have made lucid speeches I do not believe that we should have made them had we not had that help, for this is an extremely difficult Bill. I congratulate the noble Lord, Lord Beaumont, because I do not know that he had that help; but, in spite of that, I thought he was extremely good. I certainly look forward to hearing from him on the three subjects which he suggested he might raise. I do not agree with him in his remarks with regard to the Attorney General, or the Director of Public Prosecutions, but we can certainly argue that matter on the Committee stage.
I also agree with the noble Lord, Lord Winterbottom, in what he said about looting. It was not called "looting", if he remembers; it was called "liberating". I remember that I once "liberated" a Mercedes motor car, just before the end

827
of the war. My divisional commander found me in it and said that it was the most disgraceful thing that he had ever seen, and removed it from me. The next week I found him riding about in it, and I suspect that if the provisions of this Bill had been in force then, he, as a major-general, would have received greater punishment than I, as a temporary major—at least I hope so. I trust that your Lordships will give the Bill your support and that on Committee stage we shall have a useful, far-ranging debate and do something to help the other place in their deliberations on this measure.
On Question, Bill read 2a, and committed to a Committee of the Whole House.

ARMY ACT 1955 (CONTINUATION) ORDER 1970
4.25 p.m.
LORD CARRINGTON: My Lords, I beg to move the first Motion standing in my name on the Order Paper.
Moved, That the Draft Army Act 1955 (Continuation) Order 1970, laid before the House on October 27 last, be approved.
On Question, Motion agreed to.

AIR FORCE ACT 1955 (CONTINUATION) ORDER 1970
LORD CARRINGTON: My Lords, I beg to move the second Motion standing in my name on the Order Paper.
Moved, That the Draft Air Force Act 1955 (Continuation) Order 1970, laid before the House on October 27 last, be approved.
On Question, Motion agreed to.

LEGAL AID (FINANCIAL CONDITIONS) REGULATIONS 1970
4.27 p.m.
THE LORD CHANCELLOR THE LORD CHANCELLOR rose to move, That the Legal Aid (Financial Conditions) Regulations 1970 be approved. The noble and learned Lord said: My Lords, I fear that in rising to move these Regulations I have a somewhat technical story to tell. In case noble Lords are subject to what I now must
828
learn to call "narcolepsy" as a result of my noble friend's answers yesterday, I can reassure them by giving them two facts in advance. The first is that this set of Regulations has been passed by the Special Orders Committee as containing nothing which ought to arouse the special animadversions of the House. The second fact is that although, technically, this set of Regulations is different from the set of Regulations which the noble and learned Lord who preceded me on the Woolsack laid a little earlier in the year, the effect will be almost exactly the same, with some administrative advantage; some people marginally better off and nobody any worse off.
These Regulations are made under the provisions of subsections (1) and (2) of Section 1 of the Legal Aid Act 1960. Those subsections, in turn, amended Sections 2(1) and 3(1) of the Legal Aid and Advice Act 1949. Having increased the limit for free and contributory legal aid laid down in 1949, the amending sections of 1960, to which I have referred, provided that further increases might be prescribed by Regulations subject to an Affirmative Resolution of both Houses of Parliament. This is the first occasion on which that power has been exercised. However, I should warn the House that the present proposals, which I am about to describe, should be read together with the Legal Aid (Assessment of Resources) Regulations 1970, which also were laid by me but which are subject to the Negative Resolution procedure. So read, the present proposals will benefit a considerable number of people.
In the first place: Regulation 4 of the Financial Conditions Regulations make transitional provisions for re-assessing contributions in current cases. All those whose "period of computation" (which in the jargon of the art means the twelve months period covered by the assessment of an applicant's resources) has more than two months to run will be reassessed under the transitional provisions, so that there will be an immediate improvement for current cases, except where that immediate improvement so calculated would be minimal. The effect will be immediately, and as a result of the transitional provisions, to reduce contributions in approximately 50,000 current cases.
As regards future cases, the effect of the new Regulations will be to bring about 16,000 more people every year within the limit within which they will have to pay nothing at all for legal aid. In addition to these 16,000 people, about 40,000 people a year will pay less contribution in future when they make their applications than they would have had to pay had the present Regulations remained unaltered. Moreover, about 7,000 people a year who would now be outside the financial limits for legal aid altogether will in future qualify for legal aid.
I come to the actual provisions. First, the Regulations increase the financial limits within which people are eligible for legal aid, both the financial limits within which they are eligible for legal aid without payment or without charge, and those financial limits for people who are eligible for legal aid with a contribution. I should however say that they only increase the income limits; the capital limit is not altered. The figures are as follows: First of all, for free legal aid the present limit is £250 a year; the new limit, up 20 per cent., by £50, will be £300 a year. Next, contributory legal aid. The present limit is £700 a year, as a result of the new Regulations I am proposing, the limit will be raised by 35·7 per cent., to £950 a year. In each case the figures per annum which I have just given are figures relating to what is technically called "disposable income"—that is, income which the applicant can be expected to receive over the twelve months following the date of the application after making certain specified deductions. These deductions are maintenance of dependants, repayment on loans, income tax, expenses of employment, rates, rent, and other matters for which provision can reasonably be made. These deductions are provided for in the Regulations of 1960, as amended, and the Supplementary Benefits Commission are responsible for calculating the disposable income on these lines.
As I have said, the present Regulations, which are subject to Affirmative Resolution, cannot be read alone. They have to be read in conjunction with the second set of Regulations subject to the Negative Resolution procedure, but will, subject to that, come into force at the same time as these Regulations. These second Regulations require the Supplementary
830
Benefits Commission to disregard £104 of the disposable income of every applicant for legal aid. On an average this will have the practical effect of raising the financial limits that I have been mentioning by a further £50. The result of this happens in this way. The provision in the second group of Regulations replaces what in the former Regulations was a general mopping-up provision requiring the Commission to allow.
"such amount as is just and equitable in respect of any other matter for which the person concerned must or reasonably may provide."
The curious can find the phrase which I have just quoted in Rule 12 of the First Schedule. The most frequent allowance under this provision is for hire-purchase payments and insurance premiums. The average overall amount allowed has been £54, so that the average applicant will now be allowed £50 more than previously. A person with no special commitments will of course get the benefit of the full £104 and will be better off still. The person with special commitments of exactly £104 will get the rise in the basic rates covered by the Regulations I am now discussing, but will not get the benefit of the further £50, although if his commitments exceed £104 a further allowance can be made.
This method of increasing the financial limits was suggested by the Legal Aid Advisory Committee in their Nineteenth Report which was laid before Parliament on May 28, 1970, just before the General Election. They advocated it because it would save administrative costs involved in confirming the exact amount to be allowed in every case. It will benefit a number of applicants fortuitously, but advantageously to them, and I think no one will be worse off. It will now be necessary only to confirm the comparatively small miscellaneous expenditures in the small minority of cases where the special commitments are likely to exceed £104. The Government accepted this recommendation and therefore withdrew the Legal Aid (Financial Conditions) Regulations laid before Parliament by my predecessor, which proposed increases in the financial limits to £350 for free and £1,000 for contributory aid respectively, replacing them by the present two sets of Regulations, which, as I say, in the average case have

831
exactly the same effect but reduce administrative expense.
The effect of the two Regulations combined is as follows. Taking the worst case—that is, where the special commitments amount to £104 or more, the contribution paid being one-third of the difference between the free limit and the disposable income, the effect will be to reduce contributions by one-third of £50, or £16 13s. 4d. Take the average case with disposable income of £600: the contribution is again one-third of the difference between the £600 and £250, £116 13s. 4d., if the Regulations are unaltered. In future the contribution will be one-third of the difference between £600 and £300; that is, £100.
The applicant with average special commitments is rather better off—he will gain a further £50 as a result of the new allowance. The new free legal aid limit will be effectively £350 instead of the £300 (that is a 40 per cent. increase) and the new contributory limit will be £1,000 (42·9 per cent. increase)—the figures which the previous Government proposed. Contributions will be reduced by up to £33 6s. 8d. Again, taking the £600 as the datum, the contribution will in future be £83 6s. 8d. instead of £116 13s. 2d. In the best case, where there are no special commitments, contributions would be reduced by up to £51 6s. 8d., which will be £65 6s. 8d. compared with £116 13s. 4d.
My Lords, the cost of the proposals will be divisible into short term—the immediate cost—and the long term. In the short term there will be to the Fund an immediate loss of contribution, in some cases through refunding amounts already paid and in others by collecting less. This loss is estimated to amount to £960,000 in the next twelve months. This loss, however, will be offset by the acquisition of contributions from the 7,000 new users of legal aid who are expected to contribute about £800,000. The immediate net cost in the ensuing year, to November 17, 1971, is thus £160,000. The effect in a full year on the actual cost to the Legal Aid Fund will not, of course, be felt until the Law Society begins to make payments to solicitors and counsel in respect of work done on behalf of the new users. This will come gradually as their cases are completed and the costs
832
are taxed. Eventually it is estimated to reach about £483,000 net a year. To this must be added the loss of contribution in the other cases referred to. But some of the £960,000 lost to the Fund will in any event have been repaid to the assisted persons, on receipt of costs from the other side, and the net reduction is estimated to be £643,000 making a total cost of £1,126,000 in a year altogether.
My Lords, there is a second set of Regulations, relating to Scotland, which I will move should the House think fit to approve these Regulations. I do not propose to make a separate speech in relation to the Scottish Regulations since they only translate the same thing into the decent obscurity of a learned language. My Lords, I beg to move that the first set of Regulations be agreed to.
Moved, That the Legal Aid (Financial Conditions) Regulations 1970 be approved.—(The Lord Chancellor.)
4.43 p.m.
LORD GARDINER: My Lords, the whole House will be grateful to the noble and learned Lord the Lord Chancellor for his lucid explanation of these Regulations. I and my noble friends strongly support them and hope that they will be passed by your Lordships. I confess that when at Question Time I saw no less than nine right reverend Prelates present I hardly thought that they had come to support the Army Act. I thought that possibly their interest was in poor people getting proper legal aid and advice, or perhaps in the Animals Bill. As eight of them have now left the Chamber, I can only conclude that I must have been wrong.
My Lords, I welcome these and the associated Regulations because they mean that our position in regard to legal aid is in effect what it was about nine years ago, the principal object of them being to restore the figures so as to allow for the intervening fall in the value of money. I should like, I hope not improperly, to take this opportunity to ask the noble and learned Lord the Lord Chancellor what the proposals of the Government are in a field which, as he knows, is giving great concern to everybody who is familiar with it. I refer to the wholly inadequate provision that we make for legal advice—advice which, if given at an early stage, might well save

833
a great deal of the money which is paid out in respect of legal aid.
Your Lordships may remember, because I referred to it in a debate in this House in May of this year, that the Conservative Lawyers' Association had deplored the gross inadequacy of our provision for legal advice in a publication called Rough Justice, and the Society of Labour Lawyers said the same, but making rather different proposals, in their publication, Justice for All. The Law Society, while equally deploring the situation, made their own proposals. It was in those circumstances that I asked the Advisory Committee on Legal Aid and Advice for their assistance as to which of these schemes they thought the best. They gave the matter thorough consideration, and on May 28 their Report was published, advocating what has come to be known as the £25 scheme, and I need not detain your Lordships with the details of that, Of course, their Report was actually made before it was printed and published. Therefore, about a fortnight before the Report was published I was able to say in this House that the Government welcomed the Report as to the £25 scheme, but that it would be impossible to put through the necessary legislation in that Session of the last Parliament—and indeed the General Election followed within two or three weeks.
My Lords, if that Government had been returned, they would, I hope, have carried through the necessary legislation in this Session. It is for those reasons, and because of the very general concern, which, as the noble and learned Lord the Lord Chancellor knows, is shared by the entire legal profession and quite regardless of political views, that I venture to hope that when he replies he will be able to tell us what the Government proposals are in this regard.
This morning I opened the current issue of the Law Guardian, and I saw a letter from a solicitor which said:
"So far as can be judged, the Law Society's £25 legal aid scheme is everywhere applauded, but still we find yet another Lord Chancellor being forced to say to us in effect: 'Sorry boys. A jolly good idea, but it would cost £1·5 million per annum. We must think about it'."
I cannot think that they can have read what I said in this House in May, when I fully accepted the scheme in principle
834
and made no such excuse. I merely pointed out that the necessary legislation could not be passed in the last Session. The letter goes on:
"This in the face of the astronomic sums, by comparison, which are spent annually on all other forms of social services. How much longer must we endure the role of a Cinderella service? Fine words do no good—only deeds will cure the worsening situation, to which more and more: solicitors daily allude."
My Lords, I hope very much that the noble and learned Lord the Lord Chancellor will tell us what prospects there are of dealing with this worsening situation.
4.47 p.m.
BARONESS EMMET OF AMBERLEY: My Lords, it requires temerity to speak on this matter after both the noble and learned Lord the Lord Chancellor and the previous Lord Chancellor, but as Chairman of the Legal Aid Committee I should like to make one or two comments. In the first place, my Committee will be pleased that these Regulations are to be made, which are in accordance with the recommendations that we made last year. I know that in quoting the figures that this will cost, your Lordships may think that a great deal more money is being spent on legal aid. I should like to point out, if I may, that the amount of legal aid money that the civil authorities spend is infinitesimal compared with what is spent on the criminal side, and I think perhaps one might get a little better proportion between the two if the criminal side was closely investigated.
With regard to the £25 scheme, my Committee has this very much at heart. We had hopes of getting it through last year and we realise that at the present time the economic situation will make it extremely difficult. But I hope that the noble and learned Lord the Lord Chancellor will lend his weight—and his weight is considerable—to help us get further with this scheme which we believe will in the long run not only help a great many distressed people who find it difficult at the present time to make use of the system, but will ultimately end in some saving in money and a great deal of saving of time. My Lords, I will convey to my Committee what has been said, and I know that they will be delighted to hear that these Regulations are coming into force.
LORD JANNER: My Lords, I should like to intervene for just a few moments, because as a practising solicitor one meets these problems in relation to legal aid very frequently. I should like to thank the noble and learned Lord the Lord Chancellor for having introduced these Regulations, but I would point out, and perhaps underline, what has been said by my noble and learned friend Lord Gardiner in respect of legal advice.
A considerable difficulty arises when a person of slender means is not able to take advice, or has to spend a considerable amount of money in relation to his own income in order to obtain advice. Very frequently, men and women are deterred from going to lawyers because they cannot afford to seek the advice that is necessary. I hope I am not entirely out of order—in fact I am sure that following my noble and learned friend Lord Gardiner I must be in order. I believe that the important thing is that a person should feel that access to the law is available to him. In many cases people are disturbed for years by grievances, or imagined grievances that could be dealt with if they took advice, and it seems to me that not only would it be of benefit to individuals to seek that advice, sometimes before entering into litigation which is costly for them, but also that it would and could relieve the courts of very many cases which are now taken before them. In these circumstances I hope that the noble and learned Lord the Lord Chancellor will take note of what has been said in this regard and do what he can to help this necessary assistance to be available.
4.52 p.m.
THE LORD CHANCELLOR: My Lords, I am extremely grateful to those noble Lords on both sides of the House who have contributed to this short discussion, and I am also grateful to them for the general welcome they give to these particular Regulations. If I may come straight to the question which was posed from the Opposition Front Bench by the noble and learned Lord, Lord Gardiner, I of course recognise that there is a gap in the Legal Aid Scheme at present in the field of legal advice. I told him, I think on the occasion of the Queen's Speech or at any rate about that time, that of the various schemes which are put forward
836
to fill that gap the one which attracts me most is the one which was recommended by the Legal Aid Advisory Committee, namely, the so-called £25 scheme. On the other hand, I cannot myself offer any hope for this Session of Parliament, or at any rate for this financial year—it may be that the Session will last rather longer than some Sessions have done.
The noble and learned Lord, Lord Gardiner, said that he hoped that had a different complexioned Government been returned it would have passed the scheme this Session. Well, one could always hope. My own judgment of the matter is that the noble and learned Lord's hopes would probably have proved false. It has turned out to be the case—whatever may be the cause, and I suppose we shall be debating that next week, and therefore I do not want to say anything particularly controversial now—that for one reason or another public expenditure has been going up very fast. There have been a number of inflationary wage settlements, one last week which would affect Government expenditure in the local and public field by more than the total possible cost of this new proposal. I rather doubt whether a Labour Government would have been bold enough to give this scheme the priority in this Session which the noble and learned Lord hoped it would have been given in the conditions which we are now facing in the economic and financial field.
I can assure the noble and learned Lord that I say this with some regret, and I say it not without sympathy for the scheme, because I accept that there is a gap and that any Lord Chancellor would be pleased to sponsor a scheme of this kind. On the other hand, a Lord Chancellor is a member of an Administration and must share financial responsibility for the total claims which the Administration makes on the public purse. I would have said, quite frankly, that in the present financial year it would be a difficult thing to give this scheme priority. We are going to discuss next week the needs of school children, the needs of the old and the needs of the Health Service. It is a question of priority.
The one thing which, with great respect to the noble and learned Lord, I would not accept is the housemaid's baby argument: it is only a little one. If

837
we are going to take seriously the threat posed by inflation we cannot afford to make little additions to what we take from the public purse. Every Department must bear its own share of the hair shirt we have got to wear, if I may use a mixed metaphor. We have to take seriously this battle against inflation, and that means the Lord Chancellor with his family of small children just as much as the Secretary of State for Social Services with his family of very rapidly growing children. I am afraid I could not put the claims of this particular individual social provision as high as some of the others which excite human sympathy more.
I am not prepared to say, simply because the legal aid system makes one of the smallest claims on the public purse, that it is necessarily a Cinderella. That has not been so in the past. However long legal aid goes on, if it goes on a hundred years, it will never be comparable to the old age pension or the public education system. It does not follow that because the pounds spent on it are less it is a Cinderella at all. On the contrary, it was one of the first social provisions proposed after the war by a Committee of which, unless my memory has misguided me, my noble and learned friend Lord Dilhorne was a member. Therefore I do not think it can be called a Cinderella simply because one cannot add to it relatively small sums when other social services are being reviewed as stringently as is now necessary.
I was very glad that the noble Baroness, Lady Emmet, took part in the debate, because it gives me an opportunity of saying how grateful we are to her for the work the Committee does and how very much we value its advice. She made the very good point that the cost of legal aid is far more severe in the criminal field than in the civil. As she knows, and as the noble and learned Lord knows, the Lord Chancellor has to watch his step when he talks about criminal legal aid, because under the division of responsibility in, I think, both Labour and Conservative Governments, at the moment criminal legal aid is the responsibility of the Home Office, and the Lord Chancellor meets a barbed wire fence if he seeks to encroach upon it. But I will say, with some delicacy, because I think it needs to be said, that I agree with a good deal of what my noble friend said about it.
838
When I was at the Bar, which is not very long ago, I felt it my duty to take a certain number of legal aid cases in the criminal field. Although the courts, and I think the profession, on the whole would give legal aid in an even wider range of cases than those in which it is being given now, I am quite sure that some money in the criminal field is not now being very wisely spent. That is nobody's fault. I should like to be perfectly candid with the House. When counsel accepts instructions to defend a person who is charged with a criminal offence, he has to treat that client just as well and just as honourably as he does a paying client; that is to say, his duty is owed to that client and not in any form to the Chancellor of the Exchequer. He has therefore to apply exactly the same criteria of professional ethics to that client as to a paying client. It so happens that as a result of this undoubted fact, from which there is no escape, one sometimes finds oneself defending a case in which the wiser counsel would have been, had one been entitled to pursue it, to make a plea in mitigation on a plea of guilty, rather than to take up a fortnight of the court's time in emphasising the gravity of the client's offence on a plea of not guilty. I want to be perfectly candid about that, and I sympathise with my noble friend in what she says about it. But it is not an easy dilemma from which to escape, because I do not think that the profession would accept obligations different in aided cases from those in non-aided cases. Although I have some idea as to how it might be done, so far as I am concerned it is not going to be done in terms of any diminution in the standards of honour pursued by the Bar and the solicitors' profession. I do not think it is at all an easy way out.
The noble Lord, Lord Janner, whose speech I also appreciated, made the point which was made by my noble friend; namely, that there would be some claw-back if the £25 scheme were adopted. Of course I accept that; but it is difficult to quantify and I doubt whether you could make out a case that it would actually claw back more than it cost. A great deal of the legal advice given in the £25 scheme, if that scheme were adopted, would, I suppose, be, "For Heaven's sake! do not go to law, because you will not win." That would be a quite valuable piece of advice if people

839
were willing to take it; indeed, it is the advice one has been constantly giving all one's professional life.
But the test of whether it would be a saving, on balance, to the Legal Aid Scheme would depend not upon the number of cases where that advice was given, but on the number of cases where that advice was given under the £25 scheme and otherwise the person would have become legally aided under the existing scheme. This will be a relatively small number of cases, because before a person can get legal aid under the existing scheme that person has to persuade some kind of committee that he has some kind of case. Therefore, you have to cancel out the frivolous cases at both ends. I do not know what the end of the equation would be, but I think that if you are going to go in for the £25 scheme—I hope I have not spoken unsympathetically about it at all; certainly, I did not intend to—you will have to reckon that it will cost a few million pounds odd net to the Exchequer in order to implement it.
Having said that, I do not want to indicate for a moment that when the time comes, and if I can persuade my colleagues that it has sufficient priority in relation to other demands, it is not something which I would gladly see carried out. But I cannot give the noble and learned Lord the comfort for which he asked. I hope I have also been extremely candid with the House.
On Question, Motion agreed to.

LEGAL AID (SCOTLAND) (FINANCIAL CONDITIONS) REGULATIONS 1970
THE LORD CHANCELLOR: My Lords, I beg to move the second Motion standing in my name on the Order Paper.
Moved, That the Legal Aid (Scotland) (Financial Conditions) Regulations 1970, be approved.—(The Lord Chancellor.)
On Question, Motion agreed to.

ANIMALS BILL [H.L.]
5.5 p.m.
THE LORD CHANCELLOR: 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.—(The Lord Chancellor.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD ROYLE in the Chair.]
Clause 1 agreed to.
Clause 2 [Liability for damage done by dangerous animals]:
LORD KILBRACKEN LORD KILBRACKEN moved Amendment No. 1:
Page 2, line 3, leave out from ("Act") to ("was") in line 7 and insert ("if the damage is of a kind which, if caused by the animal, was likely to be severe; or which the animal, unless restrained, was likely to cause and—

(a) the likelihood of the damage ")

The noble Lord said: Clause 2 sets out the liability for damage done by animals. I should like first to point out that the marginal note to the clause refers to:
"Liability for damage done by dangerous animals",
whereas only subsection (1) in fact refers to dangerous animals. I would therefore suggest that the word "dangerous" should be deleted.
Clause 2(2) relates to animals that are not dangerous, and for a keeper of such animals to be liable for damage three conditions have to be fulfilled. The first of these is that:
"the damage is of a kind which the animal, unless restrained, is likely to cause or which, if caused by the animal, is likely to be severe."
About that there can be no quarrel. But the purpose of my Amendment is to point out that an important class of animal appears to be excluded from the Bill altogether—I refer to animals that do not belong to the dangerous species but cause damage of a kind which is likely to be severe owing to characteristics which are normally found in animals of the same species, bearing in mind that under this Bill "species" includes "subspecies" or "variety". I am here thinking of large and fierce breeds of dog,

841
such as the Dobermann Pinscher and the Alsatian, which invariably possess characteristics of a kind that are likely to make any damage they may cause severe; namely, that they are very large, they have aggressive tendencies and they possess extremely sharp teeth.
It appears to me certain that if a man or child is attacked by a breed of dog such as a Dobermann Pinscher, and this particular dog has previously been well behaved so that there was no likelihood of damage being caused by that animal, there will be no redress whatever because the likelihood of the damage being severe was due to the usual characteristics of the animal. I do not think that should be the case, and my Amendment would provide a remedy.
In any case, a certain difficulty arises here, because the word "species" may include "sub-species" or "variety". The question is, when is it taken as meaning "sub-species", and when is it taken as meaning "variety"? It occurs to me that if I were savaged by a Dobermann Pinscher dog I could claim in court that I was taking the word "species" as meaning "species", that the Dobermann is a member of the canine species, and dogs do not normally possess these characteristics which make the damage likely to be severe. But my opponent could say, "I am taking the word 'species' to mean 'variety'. This animal was a member of the Dobermann Pinscher variety, and these characteristics are normally possessed by animals of this breed. Therefore the owner is not liable." My Amendment, which may be faulty, is an attempt to get around this impasse. I beg to move.
5.11 p.m.
LORD JANNER: I was very interested to see whether the Amendment was framed in such a way as to cover the point that was made by the noble Lord. Now I understand what he was driving at, I am bound to say that if what he wants can be achieved, it should certainly be achieved. I have had the experience of a dog of this nature attacking my wife. She was at a riding school, and a dog jumped out of a car and attacked her while she was standing in the courtyard. In spite of the fact that she incurred certain injuries and would normally have been entitled to compensation, or at least
842
to have the doctor's bill paid, in law she was not entitled to any compensation at all. The dog itself did not come within the category of a dangerous animal, and consequently there was no redress.
There must be very many cases of that nature, and it is very serious for an individual who is attacked, and who might have very serious injuries, if he is not in a position to be compensated for the damage that has been done. If that is covered by the wording of this Amendment, then I would certainly support it.
THE LORD CHANCELLOR: Naturally enough one wants to deal with an Amendment of this kind in the most sympathetic way possible. However, I would ask the Committee to reflect rather carefully on the implications of what is now being said. The little code to which I referred on Second Reading, which is contained in the first few clauses of the Bill, is really designed to clarify, with relatively small amendments, the existing law on the subject; it is not designed as a radical departure.
May I mildly dissent from the first remarks of the noble Lord, Lord Kilbracken; the whole of Clause 2 does deal with dangerous animals. It is quite wrong to say that only the first part deals with dangerous animals; it all deals with dangerous animals. But dangerous animals are divided, both in the law as it exists now and in the law which is proposed, into two types. There are those of a dangerous species, and those of what I call rather compendiously, and not quite accurately, animals not of a dangerous species. Under the law as it exists they were called animals ferae naturae, and animals mansuetae naturae. That refers to the specific character of the type of animal, and not to the particular animal. The law was (and with certain modifications we are seeking to retain it), that the owner of an animal of a dangerous species, let us say a lion or a puma, keeps it at his risk; if it does damage you have to pay whether, in the ordinary sense, the animal is known to be dangerous or not. You run the risk, if you keep a lion, of it savaging a human being or a horse, and you have to pay whether you are negligent or not in keeping it. Where you are keeping, for instance, a horse, which is an animal mansuetae naturae, or a dog,

843
which is an animal mansuetae naturae, you are not responsible unless you know its particular proclivity; that is to say, that it is a savage dog, or a kicking or biting horse. If you know it, then you become liable. You become liable absolutely from that moment onward, and you keep it at your own risk. You are entitled to go on keeping it, and you do not get prosecuted for keeping a kicking horse, but if it does kick somebody you pay. That is the law as it is, and broadly speaking that is what we intend to continue.
There were defects in the law which we were trying to remove, but we have not tried to depart radically from that kind of justice between man and man. What the noble Lord, Lord Kilbracken, wants to do, is to depart radically from the law. He says that there are some kinds of animal normally domesticated in this country which, if they are not liable to do damage—I am trying to put his case fairly—or are not particularly vicious, if they do become vicious or do damage at all, they do damage of such a severe character that somebody ought to keep it at his own risk. I would not advise the Committee to accept this. It is too radical a departure from the law as it is either to command the support of this Committee or to have any chance of getting through the other House. I think one has only to see what the noble Lord, Lord Kilbracken, quite explicitly said, and to assess its repercussions in society, to see that it really is not a runner. His complaint is that any keeper of an Alsatian dog, or a Doberman Pinscher dog, is bound to pay, however mild the dog may be, if at any time it does damage. Of course, once it belongs to the kind of breed that the noble Lord condemns in this way, it would not matter whether the damage was severe or serious, you would be liable just the same, provided only that the breed was liable to do severe damage if it did damage at all. I will give way to the noble Lord in a moment.
What the noble Lord is really saying to the Committee is that we ought to pass a law to say that every owner of an Alsatian should be liable to pay, however little negligent he was, and even if he was wholly innocent of any knowledge of the Alsatian's vicious propensity; but
844
the owner of a Jack Russell terrier would not. I do not believe this would commend itself to the Committee, and I am quite sure that if it got abroad that this was the meaning of the Animals Bill, this useful little piece of law reform would never see the Statute Book. Therefore, I must advise the Committee not to accept this Amendment. I promised to give way to the noble Lord and I will do so, but I am not really sitting down.
LORD KILBRACKEN: I only wanted to point out that the noble and learned Lord said that I thought the owner to be responsible for damage, however slight, that was caused by one of these animals. However, my Amendment says that he is liable only if the damage is of a kind which, if caused by the animal, was likely to be severe.
THE LORD CHANCELLOR: I think the noble Lord is wrong about the effect of his Amendment. Once you get a breed like an Alsatian—and I mention the Alsatian not because I accept the noble Lord's condemnation of the breed, because as a matter of fact I do not; I am simply taking the noble Lord's case at its face value—which he claims to be vicious, and claims to be liable to create serious damage if it attacks anybody, then the owner is absolutely liable under his Amendment. That is the effect of it, even if the damage which it in fact does is not severe. If his contention was the opposite, I think the Amendment would be more objectionable and not less objectionable, because then the absolute liability would depend on whether the court, as a judge of fact—whether it was a judge or jury as a judge of fact—decided that in fact damage was severe. Then you get a complete question of degree being the condition of an absolute liability. I think that would be even more objectionable, if that were the construction to be put on his Amendment. However, I am quite satisfied that it is not.
LORD CHORLEY: I should like to say a word or two about this. The noble and learned Lord has advised the House most accurately about the law, and I agree that this is not a Bill in which such an important change in the law in relation to dangerous dogs should be introduced. But what worries me is that he said we should continue on these lines.

845
When I was practising at the Bar, I was involved in quite a number of cases in which dogs of this kind had inflicted serious injuries on people who had absolutely no redress. I quite appreciate that this rule of the common law arose at a time before Alsatians and pinscher dogs, and other dogs of this kind, were introduced into England, and, on the whole it was a very sensible rule in an agricultural community. But pace what the noble and learned Lord has said, there are too many cases where Alsatians and others of these very large dogs suddenly become vicious, and they can do very serious harm to individual citizens. Practically nobody is insured against injuries of that kind and lifelong injuries can be inflicted.
I should have thought that there was a very good case for having a list of two or three of these breeds of dogs which are often involved in these cases, where people try to bring evidence to show that a particular dog had snapped, or did this, that or the other. As the noble and learned Lord probably knows, they are extraordinarily difficult cases. I have been in county courts when a case of this kind has lasted a couple of days, and they are extremely difficult. It would be very much better to have a list of these large dogs which may become vicious at times, and make people keep them at their responsibility. After all, the person who is injured ought to have first consideration and the person who chooses to keep a dog of this kind ought to be prepared to pay. He can insure himself, but the ordinary person cannot.
LORD KILBRACKEN: Naturally, in view of what the noble and learned Lord has said, I have no intention of pressing this Amendment. But I should like to say that I was quite aware that I was proposing a radical change; namely, that for the first time an owner should be liable simply because he possessed an animal which, if it caused damage, was likely to cause severe damage. I still think that that point of view has a good deal to recommend it, and I am grateful for the measure of support which two of my noble friends have given me.
I do not want the Committee, or the noble and learned Lord, to think that I am condemning the Alsatian breed out of hand. I know that most Alsatians are
846
extremely well-behaved and absolutely harmless. But I am saying that it is one of those breeds of which it can be said that, if it causes damage, that damage is likely to be severe and I do not think that that can really be disputed. With those words, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
5.23 p.m.
LORD KILBRACKEN LORD KILBRACKEN moved Amendment No. 2:
Page 2, line 13, leave out ("that time") and insert ("the time the damage was caused").
The noble Lord said: We have been talking about paragraph (b) of subsection (2), and I pointed out that a keeper would be liable if the likelihood of the damage being severe was due to unusual characteristics. In paragraph (c) it is stated that there is liability if:
"those characteristics were known to that keeper or were at any time known to a person who at that time had charge of the animal as that keeper's servant... ".
I put down this Amendment because I felt there was an ambiguity about what was meant by the words "at that time". I did not know whether they referred to the time at which the damage was caused or to the time at which the characteristics were known by the person in question. My Amendment would substitute, "the time the damage was caused" for the words, "that time".
I have been given to understand that it is the Government's intention that the keeper should be held responsible if at any previous time those characteristics should have been known to a person who at the time in question was the keeper's servant. If that is the case, I want to draw the attention of the Committee to the kind of circumstance which must be extremely unfair to the keeper.
I am thinking of a landowner, who is the owner of what we in Ireland call a "kickety cow"—that is, a cow which is likely to kick when she is being milked. That would be a characteristic which would be well known to the man—let us call him Pat—who normally milks her, and he then takes the necessary precautions. But he does not mention this characteristic to me. We go on for a few

847
years and then, unfortunately, Pat dies. It happens that the cow in question is dry and she does not come to be milked for another two or three months; and by then I have a new employee called Joe. The first time that he tries to milk that cow—he knows nothing of its vicious characteristics, and I do not know about them so I cannot tell him—he is severely kicked in the face and, unfortunately, one of his eyes has to be removed.
As the Bill stands at present, I should be respnosible for Joe's losing his eye. The vicious characteristics of this cow could well be known to other people, so that Joe would discover that three or four months earlier the characteristics were known to Pat, because on many occasions when he was in the pub with his cronies he would say, "She is a real old kickety cow, that 'Bluebell' "—or whatever her name was. They would say to Joe, "Well, Pat used to know that she was a bad one and that you had to look out for her." Therefore, as the Bill stands, I should be liable simply because my employee had known about the cow's vicious characteristics, though he had never told me, and I do not think that is right. I beg to move.
LORD AIREDALE: I support this Amendment, because the words "at that time" in this subsection appear to create an ambiguity. I could go on to explain why, but it would be difficult to do so. I trust that the noble Lord, Lord Kilbracken, has explained to your Lordships why there is an ambiguity here, and I hope that this Amendment will be seriously considered. If it is not acceptable, I hope that at least it will be appreciated that there is an ambiguity which needs to be cleared up in some way.
THE LORD CHANCELLOR: The warm, human sympathies of the noble Lord, Lord Kilbracken, lead him in two divergent directions. On the first Amendment, I found myself opposed to him, most reluctantly in view of the persuasive and polite way in which he put his views, on the ground that he was being too harsh on the keepers of breeds of dogs. I now charge him—I hope equally politely—with being too kind to the
848
keepers of "kickety" cows. The law as it stands at the moment, and as I think it ought to continue, is that the knowledge of the servant is the knowledge of the master. If a cow or a dog has dangerous characteristics, which are known to anybody you choose to put in charge of it, or to yourself, then you must pay for any damage it does; and there can be no question about it.
The servant's duty is to tell his master. If you choose to employ a servant to milk your cows instead of milking them yourself, as you are well entitled to do, you have to pay for your servant's negligence. That is the Common Law over a wide range of topics. If this servant is so neglectful of his duty that he does not complain of the "kickety" habits of his cow, and if the master is so inobservant and does not go to the village pub, which I suppose the noble Lord also omits to do, to find out the gossip about his cows, then I think somebody who gets seriously damaged by one of his cows ought to be able to look to the noble Lord for compensation. The servant, Pat or Joe, ought to tell his employer that the cow is a "kickety" cow, and the employer ought to see to it that he knows the characteristics of his cows. That is the law now, and it is the law as I hope it will continue to be under this Bill.
To the noble Lord, Lord Airedale, I would say frankly that I do not think there is any ambiguity about that at all. If I thought there was an ambiguity, it would not be in this way that I should resolve it; it would be in the opposite direction.
LORD KILBRACKEN: Again, in view of what the noble and learned Lord has said, I certainly do not wish to press the Amendment. I must say that in my own case I think I know the characteristics of all my cows; and if I do not I know all the cronies of my stockman and meet them very frequently at the "local". But I think that this is probably not so in the case of a number of Members of your Lordships' House and other landowners who are having perhaps 200 or 300 cows milked for them. They really cannot be expected to know the characteristics of each one of them. I still feel there is a certain ambiguity about the word "time" occurring twice in that line, and I do

849
not know if the noble and learned Lord would care to give it some consideration before the next stage of the Bill. But in view of what the noble and learned Lord has said I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
5.32 p.m.
On Question, Whether Clause 2 shall stand part of the Bill?
LORD KILBRACKEN: I apologise for taking up a certain amount of your Lordships' time on this Bill, which is of particular interest to me, but I think that before leaving this clause it is important that we should be absolutely clear about the position of bulls under this Bill, particularly, perhaps, in view of the words which fell from the noble and learned Lord, Lord Denning—whom I am very glad to see in his place—on Second Reading. The noble and learned Lord said that even if the animal in question, the animal that causes the damage, is a bull—and here I quote the words of the noble and learned Lord—
"and most people should know that it is likely to be dangerous—the owner is under an absolute duty to see that it is safe".—[OFFICIAL REPORT, 29/10/70; col. 227.]
With great respect I wonder whether that is the case, and I wonder also whether it should be the case.
I have always felt, and have said before in your Lordships' House, that the bull is a much maligned animal. It is quite extraordinary, always, to see the reaction of a townsman to a bull. If you are walking in a field showing him your cattle and you point out one as being your prize bull, he is likely to exclaim, "Good heavens!, is that a bull?", and run at top speed for the gate: whereas anyone who has had anything to do with bulls knows that in point of fact the great majority of them are absolutely safe. Indeed, I would approach a bull with far greater equanimity than I would approach many a freshly-calved cow. Of my own bulls and my neighbours' bulls—let us say 10 or 12 that I know personally—I would approach all but one with complete equanimity. It is only exceptional bulls, particularly those of certain breeds, that have a bad reputation; and it is only when they reach a certain age—and I am not talking about
850
the times and circumstances which are not particularised but which are mentioned in the Bill—that in one out of perhaps 10, 12 or 20 bulls there is any danger at all. Therefore, I think it should be understood, and should go forth from this Committee, that a keeper, as I understand it, is liable only if the injury or damage is caused by a bull which has previously caused injury or damage and has therefore given an indication of its vicious qualities; and that if it is caused by a bull which has previously been placid and well-behaved, then the farmer is not responsible.
LORD INGLEWOOD: I think that is a very strange view about bulls, because among the farming community, where bulls are handled regularly by thousands of people every day, it is surely accepted as a commonplace that all bulls ought to be treated as dangerous and that the quietest bull is the most dangerous of all. The unfortunate thing is that there is hardly a parish in this country which within the memory of man has not seen a serious accident as a result of somebody not taking reasonable precautions with a bull as like as not which everybody knew to be quiet; and very often that accident has been a fatal one. So I feel that the noble Lord is misleading the Committee. There must be many others among us who have been familiar with a dozen or a score of bulls—the numbers which the noble Lord mentioned. This view really ought to be rejected. By and large, however kind we are to our bull or to our neighbour's bull, we ought to bear in mind that it is a very strong animal, and that even if it does not mean any harm it can push a man against a wall and crush him in a matter of seconds. Then, even if it is sorry after the event, that is really too late.
LORD DENNING: I am sorry if I was in error in any way in what I said on Second Reading, but I would still adhere to the view, if this Bill remains as it is, that the bull has characteristics which are likely to be dangerous, and that if it escapes and does damage the person who is the owner of the bull, and its keeper, ought to be liable. I am not prejudging what may happen in my court when such a case comes up, but that is my present view.
THE LORD CHANCELLOR: I hesitate to instruct the Master of the Rolls about law, or the noble Lord, Lord Kilbracken, about bulls—and I do not know which I am least qualified to do—but I myself knew only one bull intimately. His name, perhaps not inappropriately—I owned him—was "The Nobleman". "The Nobleman" was like the majority of the bulls mentioned by the noble Lord, Lord Kilbracken; that is to say, he had an extremely pleasant temperament. The trouble was that he had a malicious sense of humour and did not realise his own strength. He also did not like vets, and he was not always able to tell vets from the rest of humanity. He formed a fixed idea that all persons wearing raincoats were vets. I am afraid that, had he savaged anybody or broken their arm as a practical joke, which he was quite capable of doing, I should have been liable. I think I should probably remain liable in such a case, but I doubt whether I should be absolutely liable under the Bill. I doubt whether the Master of the Rolls would be right in saying that I should be liable for the mildest of the bulls mentioned by the noble Lord, Lord Kilbracken, because it is an animal usually domesticated in this country; and if it be the case, as the Master of the Rolls says, that one of its normal characteristics involves its doing severe damage, I think that when the case came before him he might find it difficult to sustain the view which he has expressed to your Lordships in a purely legislative capacity.
LORD KILBRACKEN: May I just point out that we still do not know where we stand with regard to bulls. It can sometimes be very important. The subsection in question says:
"The likelihood of the damage …"
must be due to
"characteristics of the animal which are not normally found in animals of the same species …"
The noble and learned Lord, Lord Denning, said that the bull does have such characteristics. But a bull is not a species, nor is it a sub-species, nor is it a variety. A variety must be something very particular when you are using the term in its biological sense. A bull is an adult male of the bovine species. The "likelihood of the damage" caused by the bull "being severe" is due to
852
"characteristics" of the animal which I normally find in animals of the bovine species. It seems to me that the position of the bull is still very uncertain.
THE LORD CHANCELLOR: I think we must now leave the matter to some potential litigant. I have tried to give what guidance I can to the Committee on the subject of bulls. They are, I would apprehend, normally domesticated in the British Isles. That is the first proposition. Any damage which the ordinary bull is liable for is damage which would be of the kind normally to be expected of the bovine species. If, however, a bull is known to have vicious characteristics, or if it be that there are particular times and conditions in which abnormally vicious characteristics appear in all bulls, the keeper of the bull would be liable.
Clause 2 agreed to.
Clauses 3 and 4 agreed to.
Clause 5 [Exceptions from liability under sections 2 to 4]:
5.43 p.m.
LORD KILBRACKEN LORD KILBRACKEN moved Amendment No. 3:
Page 2, line 41, after ("2") insert ("(2)").
The noble Lord said: Clause 5(3) is concerned with the damage caused by animals to trespassers. As this subsection stands, subject to the conditions of its paragraphs (a) and (b), the keeper of an animal is not liable under either of the subsections of Clause 2 for damage caused by an animal
"kept on any premises or structure to a person trespassing there".
The purpose of my Amendment is to make subsection (3) apply only to animals that come under Clause 2(2). In other words, a person who is a keeper of animals is not absolved from liability if he keeps a dangerous animal on any premises or structure if it is proved that the animal was not kept there for the protection of persons or property or, if it was kept there for the protection of persons or property, that keeping it for that purpose was unreasonable. I can well understand that an owner or a keeper should not be liable to damage if our friend the Alsatian comes on the scene again and this time is employed as a watchdog in a case where somebody trespasses on the premises where the

853
watchdog is being employed. But it seems to me that a trespasser should be able to claim damages, even though he is a trespasser, if he is injured by a dangerous animal that is left on those premises—and, of course, the word "premises" includes grounds.
What is the situation as the Bill now stands? If I take it into my head to have two or three leopards in my grounds because I like the look of leopards and my land is well fenced so that the leopards cannot escape; and if I do not want to keep them there for the purpose of protecting persons or property but just because I like leopards; and if I do not take any precautions to warn the local inhabitants that I have leopards or pumas on my grounds, then if a child trespasses on my land and is attacked by one of these dangerous animals I am not liable. I think that that is not how it should be. I do not think that Clause 5(3) should be extended to dangerous animals. This would be the effect of my Amendment. I beg to move.
LORD JANNER: I am glad that this point has been raised. In this Bill we are dealing with damage that is caused by dangerous and other animals. As I pointed out before, in these matters perhaps the question of prevention is very much more important than that of compensation. I hope that at some time or another we shall have the opportunity of discussing the question of preventing dangerous animals from attacking people. In this case, apparently, as the noble Lord has already stated, the owner of a puma or other dangerous animal which attacks a person who is trespassing would not be liable for damages. I think it very important that this matter be raised, because this kind of incident is happening so frequently—although it is being denied in authoritative circles. In my view it has happened so frequently that we must discourage people from keeping the kind of pets they are keeping. I can give many instances of attacks which have been made by pythons, bears and goodness knows what. Noble Lords may doubt this; but it is true.
I have a statement from the Royal Society for the Prevention of Cruelty to Animals about a man in one area who owned a puma. He was a licensee of an hotel. He had previously owned a honey bear but had disposed of that as
854
the result of a court action for keeping a noisy animal—not a dangerous animal, but a noisy animal. In another area a man kept a bear in his private property. In another case, three people in one area owned pythons. If a trespasser came into the lard where those dangerous animals are being kept it would be a very serious matter. For those of us who have avoided attack it may not be quite so serious and we may smile; but for the person who is attacked it is a serious matter. I hope that every precaution will be taken to see that at least within the law as it stands at present, those people who keep dangerous animals will be restrained from keeping that kind of animal by there being no provision to free them from any action for damages if the animal attacks a trespasser.
5.50 p.m.
LORD CHORLEY: My noble friend Lord Kilbracken seems to have been discovering a lot of points which have not been brought out in previous discussions on this Bill. I should like to put to the noble and learned Lord a point which occurred to me during his speech and upon which I should like his opinion. So far as I can make out, a person who keeps a thoroughly vicious dog on his land to guard it is not to be responsible if the animal attacks a trespasser; the trespasser surely is at fault from the mere fact that he trespasses. In the old days it used to be quite common for landowners to put down steel traps, and I do not see that there is all that much difference between the injuries likely to follow from an attack by a vicious dog and those caused by a steel trap. Yet I think it was 150 years ago that Parliament decided that it was quite wrong and criminal to put down these; steel traps on one's land for the purpose of protecting it against trespassers. I hope that, in effect, we are not going to put the vicious dog in the position which we decided steel traps should not be. I may be quite wrong about this; I am asking the noble and learned Lord to explain it to me.
LORD SOMERS: There is one other thing to be said, apropos of that. Burglaries are to-day quite commonplace and there are a great many people who live in rather isolated positions and who keep dogs of a fairly aggressive nature to keep off burglars. If a dog injured a burglar

855
would the owner of the dog be responsible?
THE LORD CHANCELLOR: A number of different points have been raised, and again I feel rather diffident about the legal answers, and indeed the biological answers, regarding these animals. But at any rate I can claim that this particular Amendment was fully thought out, because it was introduced by the then Lord Chancellor on the Report stage of the previous Bill, during its passage through this House, in response to invitations and criticisms from noble Lords. So it has devolved on me to defend the noble and learned Lord who is sitting opposite, fixing me with a basilisk stare but not otherwise rising to my assistance. This affects the question of trespass. I would respectfully say to the noble Lord, Lord Janner, that when it comes to things like pythons and bears and other exotics, if he wants to stop their being kept altogether he gave the answer to his own argument, by making clear that this is a province of the criminal law. At the moment people can keep a private zoo in some form or other. Even noble Lords have been known to exhibit, in a semi-feral state, lions and other animals ferae naturae to admiring crowds of tourists, or so I believe. There is a noble Marquess who is well known for this activity and I think he gives a good deal of innocent pleasure to the public.
The fact of the matter is that if you want to stop that sort of thing, you must make it an offence. I do not think that this little Bill, which has to do with the liabilities of keepers of dangerous animals, is a proper vehicle for that. Secondly, taking this train of thought a little further, I think the fallacy underlying what the noble Lord, Lord Janner, said is that he did not fully appreciate that the fact that you do not impose an absolute liability on the keeper of an animal does not exclude a possible additional liability for negligence. It may very well be that if a man allows a flock of pythons to roam at liberty in his fields, it will be said that it was a negligent thing for him to do. I am advised that if an animal is kept in conditions where the possibility of its doing harm to children, particularly children unwittingly straying on to the land, is readily foreseeable, the noble and learned Lord the Master of the Rolls would have
856
no difficulty in finding that the owner was negligent in such circumstances and therefore liable, independently of the absolute liability in the Bill.
LORD KILBRACKEN: Would that apply to trespassers?
THE LORD CHANCELLOR: Yes, in the circumstances which I have just rather specifically stated it would certainly apply to trespassers. The answer to the Amendment as proposed was put by my noble friend Lord Somers. This is the "Albert and the Lion" case in excelsis. If a burglar comes into your house where you keep an Alsation dog which is known to have dangerous propensities, but you keep him in your house because he is your pet; and you are very careful not to let him out where he could do damage, and if the Alsation dog, saying, "Now at last my chance has come", bites the burglar, then under the Amendment put by the noble Lord, Lord Kilbracken, the poor owner of the dog would be liable. That is not really justice; and there comes a point, I think, subject to subsection (2) not being applicable, where even Albert, with his horse's-head handled stick, ought not to be able to claim compensation from the owner of the zoo if the owner of the zoo had taken reasonable precautions and not been negligent. I think, therefore, that this Amendment is not an improvement on the Bill as it was left to me by my predecessor as a legacy. I come down on the same side as my predecessor did on Report stage and I advise the Committee not to accept it.
LORD KILBRACKEN: I could not possibly go against that advice and I should like to say how grateful I am to the noble and learned Lord for the way he is dealing with my Amendments and the time he is taking. I think that he, certainly unintentionally, misrepresented me when he spoke of a householder who keeps an Alsatian which bites a burglar. By inserting the figure "2" in parenthesis after the existing "2", all I am doing is removing dangerous animals from the category in the subsection, and the Alsatian is not a dangerous animal as defined.
THE LORD CHANCELLOR: The noble Lord is not doing me justice. I was assuming that this Alsatian was a dangerous animal as defined by the Act

857
because he had already bitten two postmen.
LORD KILBRACKEN: That surely would not make him, as defined, a member of a dangerous species; and Clause 2(1) refers to members of a dangerous species.
THE LORD CHANCELLOR: The noble Lord is now reverting to his original error. All this clause relates to dangerous animals. Alsatians who bite postmen and lions who do not—they are all dangerous animals.
LORD KILBRACKEN: I appreciate the point which the noble and learned Lord is making, but under Clause 2 we have two kinds of animal: animals which belong to a dangerous species and animals which do not belong to a dangerous species. In my Amendment I am removing from the subsection in question the animals that belong to a dangerous species, and the Alsatian does not belong to a dangerous species.
THE LORD CHANCELLOR: That is not what the noble Lord's Amendment does. But I still must insist that Clause 2, throughout its length, deals with dangerous animals. Animals which are dangerous within the meaning of Clause 2 are of two sorts: animals belonging to a dangerous species and animals who, though not belonging to a dangerous species, are dangerous because they are dangerous in themselves.
LORD KILBRACKEN: I thank the noble and learned Lord, and beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
6.0 p.m.
VISCOUNT INGLEBY VISCOUNT INGLEBY moved Amendment No. 4:
Page 3, line 17, leave out from ("breach") to end of line 34 and insert ("by any other person, being a person having an interest in his land, of a duty to fence.")
The noble Viscount said: In moving this Amendment, I apologise for the fact that it was put down only last night. I was very anxious to hear the whole of the debate on the Second Reading of the Bill and so lost my train back to Yorkshire. I also lost my briefcase, and retrieved it only two days ago. I should also like to draw your Lordships' attention
858
to a misprint in the Marshalled List. Where it says "his land" the words should be "the land". I should like to move it in that form. The wording of this Amendment follows the wording recommended by the Law Commission. It is much shorter and, I suggest, much easier to understand. Like the noble and learned Lord the Lord Chancellor, but in a much smaller way, I try to act as a bridge between the farmer and the lawyer. I think that a farmer would find the clause with this Amendment much easier to understand than as it stands at the moment.
My Amendment covers the point to which the noble and learned Lord, Lord Denning, drew attention on Second Reading, when he referred to the case of Crow v. Wood in the Court of Appeal, about which I know something, because it arose on the Yorkshire Moors not far away from my home. There is a large area of unenclosed moor, about 10,000 acres, on which adjoining farmers have the right to run sheep. But it is not common land—at least, no one except my friends in the Ramblers' Association think it is. Mrs. Crow was a bank manager's wife, new to the district, who bought a farm adjoining the moor. She did not keep up her moorland wall. She maintained that it was the duty of the farmers who ran sheep on the moor to keep their sheep out of her farm, so she did not keep the wall up, and sheep got in and did damage.
She brought an action for damages for cattle trespass and was successful in two actions in the county courts. The matter then came before the Court of Appeal, and I am glad to say that that Court held that Mrs. Crow was under a duty to keep up her moorland wall. I understand—and I stand to be corrected by my noble and learned friend, who will speak shortly—that subsection (7) as drafted would reverse the decision in Crow v. Wood, in that the answer to an action for cattle trespass, in that someone has failed in the duty to fence, exists only under paragraph (a) in that the duty was owed to a person having an interest in the land from which the livestock strayed.
Mr. Robin Wood, who was the farmer running sheep on the moor, had no interest in the moorland in that way, and therefore if this subsection went through as drafted he would not be able to plead

859
this defence and he and other farmers who run their sheep on the moor would be responsible for keeping up the moorland walls of all the farmers who did not run sheep. In the pre-war years this situation did not arise, because every farmer adjoining the moor kept sheep, and it was to his own interest to keep up his own moorland wall to keep his own sheep out during the summer. But nowadays there are many farmers adjoining the moor who do not keep sheep, and if the liability for keeping up the walls is to be put on the farmers who still keep sheep it will be a serious matter; and I suggest that a great many hill farmers would simply say that keeping sheep is not "on" if they have to keep up moorland walls of all the other farmers who do not keep sheep. If this clause goes into the Bill as it is, it would have a very serious effect on the farmers who keep sheep on the moors and, in consequence, on the wool trade. I beg to move.
LORD GARDINER: I hope that the noble and learned Lord the Lord Chancellor will give serious consideration to this Amendment. Of course, I support the Bill. It is in substance my Bill, and on Second Reading I said that I thought all the changes that had been made in the Bill since I last saw it were improvemenlts—except one. And this was the change at the end of Clause 5(6) with the introduction of a new subsection (7), which seemed to me to be quite incomprehensible. On this point the Law Commission said, in paragraph 67 of their Report:
"Any new rule must seek to state the difficulty so as to be limited in nature and clear in effect."
This was supported by the noble and learned Lord, Lord Denning, and other noble Lords. With great respect, nobody could possibly say that the subsection added is either limited in nature or clear in effect. I did not put down an Amendment, because I waited to see whether the Government would put down their own Amendment. If the noble and learned Lord the Lord Chancellor has come to the Committee this afternoon with a brief which on this point is marked "R", for reject, I should not be surprised, because the Amendment was not properly worded, but this was simply a mistake,
860
and it has been proposed that the mistake should be corrected.
In his reply on Second Reading, the noble and learned Lord indicated that he himself was not too happy about the wording of subsection (7) but said that when Lord Chancellors criticised drafting they were usually told to draft something better. But this point raises no difficulty of drafting, because if the noble and learned Lord was happy with the clause as it was when I saw it last, and as it would be if this Amendment were accepted, no drafting difficulty arises. I think that the advice of the Law Commission is right. One can try to cover too many things. I know that this was a well-intentioned attempt to please the Law Society, who wanted a rather obscure circumstance covered, but it does it in a most unhappy way. If we asked any educated farmer to read this and then tell us what it means, I should be very surprised if any of them could.
LORD DENNING: May I add a word in support of this Amendment? As I read the Law Commission's proposal, it was this: that although a farmer is liable in the ordinary way when his animals stray on to another's land, he is not to be liable if it is the duly of the other owner or tenant or farmer to fence them out. Under the clause, as I understand it, he is still liable for cattle trespass, unless the duty is owed—and this is what is so difficult to understand in subsection (7)(a):
"to a person having interest in the land from which the livestock strayed."
In the illustration which my noble friend Lord Ingleby has given, the man, Mr. Wood, who put his sheep on the moorland had no interest in the land from which the livestock strayed. Therefore there would not be a duty owed to him, and he would be liable in the circumstances for the cattle trespass, although it was the duty of Mrs. Crow, in that case, to keep up her fences.
I do not want to go further into the matter, except to say that this clause, even to a lawyer, is almost unintelligible. It is undesirable that a clause like this should be put in the Bill, when the clause as propounded by the Law Commission and included in the earlier Bill was clear, intelligible and applicable. I certainly support the Amendment.
Lord CONESFORD: I should like briefly to support this Amendment. I hope it is all right with regard to the words that my noble friend Lord Ingleby proposes to put in, but I am certain that it is right in its main proposal to leave out subsection (7). In the debate on Second Reading the noble and learned Lord, Lord Gardiner, used these words:
"I gravely doubt whether the educated farmer who reads subsection (7) will really understand what it means."—[OFFICIAL REPORT, 29/10/70, col. 205.]
I cannot speak of the educated farmer, because I am not a farmer. I can only say that the rusty lawyer now addressing the Committee cannot understand a word of subsection (7). It is about the most incomprehensible thing that I have ever seen put in a Bill. The learned Master of the Rolls, who is capable of giving a meaning to everything, would no doubt, if this subsection came before him, be able to attach a meaning here. I should like most wholeheartedly to agree with both the learned Master of the Rolls and with what the noble and learned Lord, Lord Gardiner, said on a previous occasion. The noble and learned Lord is a master of exposition and also a master of understatement, and when he used these words about the educated farmer he was certainly making an understatement.
THE LORD CHANCELLOR: As I indicated on Second Reading, I am not at all enamoured of this subsection (7); nor can I accept, in the strict sense, responsibility for the drafting of it. However, it is an ingenious piece of drafting. I should like to try to explain what this means, and we will see whether we get any further with it. I cannot, of course, accept the Amendment put forward by my noble friend Lord Ingleby for the reason that he gave. In the form in which the Amendment is drafted it succeeded in misleading me completely because of the misprint, if it was a misprint, or the lapsus calamae, if it was a lapsus calamae, which it contains. Precisely for that reason, I will ask my noble friend to withdraw the Amendment, and I will consider this matter again before the Report stage in the light of what has been said this afternoon, all of which presumes a different form of Amendment from that which is printed on the Marshalled List. I was prepared to deal more with the Amendment on the Marshalled List until
862
my noble friend told me earlier in the day that it contained this error. It certainly would be highly objectionable in the form in which it is printed.
Perhaps I may now explain what subsection (7) is meant to mean. I always muddle myself about this—not, I think, due to the phraseology used by the draftsman in the subsection, but because of the intrinsic complication of the train of thought to which it is designed to give effect. Broadly speaking, the clause dealing with cattle trespass is intended to reproduce the existing law. The existing law, again broadly speaking, until we come to some refinements, is that if I have a farm and my heifers go on to my neighbour's land and trample his corn I have to pay for what they do, irrespective of negligence: it is not open to me to say to my neighbour, "You should have fenced your farm better against my heifers." That is the situation which is, broadly, intended to be covered by the clause. A refinement clearly comes when I am able to say to my neighbour: "Not merely ought you to have fenced against my heifers, but you were under a contractual obligation to do so. In those circumstances, it is all your own fault. My heifers got out on to your land, but it is all your own fault because you did not perform your duty to fence." I think everybody would agree that in that rather simple case the plaintiff ought to fail, because he has brought his own misfortune upon himself.
It was pointed out, as a result of debates in the passage of the former Bill, that there was a further refinement. Clearly, if the plaintiff had brought it upon himself by not performing his contractual duty, then everybody would agree that he ought not to recover from the defendant. For this would be to add injury to insult. But it was pointed out that duties are owed to different people; or sometimes you may be under a duty of another kind altogether which is not owed to a particular person. It was said by those responsible for the preparation of the Bill: "In that case, the plaintiff really has not brought the misfortune upon himself in a form in which the defendant ought to be entitled to rely on it."
The defendant ought to be able to rely on it, so those responsible thought, only

863
if there was a complete chain whereby the plaintiff owed the duty, either directly by way of contract or indirectly by a chain of contracts, to the person who was seeking to set up the defence. In other words, the plaintiff says: "Your heifers trespassed on my field."—a prima facie case. The defendant says by way of defence: "Not so. It is all your own fault. You were under a duty to fence, and you did not."—prima facie a good defence. Reply by the plaintiff: "Not a bit of it! You are not entitled to rely on that duty. It was a duty owed to my landlord, and to nobody else. It was only an obligation of a tenant to a landlord, and had nothing to do with the straying of cattle from one parcel of land to another." It was thought that that refinement ought to be dealt with in the Bill, and the best efforts of the Parliamentary draftsman produced subsection (7) in order to deal with that refinement.
On the whole, I am convinced that the refinement is sufficiently important to be dealt with legislatively in the Bill, despite the inelegance and the complexity of the phraseology of subsection (7). But, as I have said, it was not until I heard from my noble friend who moved the Amendment that there was a misprint that I really got the point of the Amendment. Therefore I am wholly unprepared to deal with this debate. If he will withdraw the Amendment at this stage, I will undertake to give it further consideration before Report in the light of what has been said by several noble Lords, including my noble friend.
VISCOUNT INGLEBY: I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 5 agreed to.
Clause 6 [Interpretation of certain expressions used in sections 2 to 5.]
6.20 p.m.
LORD KILBRACKEN LORD KILBRACKEN moved Amendment No. 5:
Page 3, line 38, leave out ("British Isles") and insert ("United Kingdom").
The noble Lord said: In this Amendment I seek to replace the words "British Isles" with the words "United Kingdom". I do not want to give a great deal of time to this point, but I do not
864
know what the British Isles are. I assume that they include the Isle of Man; I do not know whether they include the Channel Islands. It is a phrase which is sometimes used to include Ireland—both Northern Ireland and the Republic of Ireland. This is a custom to which I am greatly opposed, since I would not agree that the Republic of Ireland is British. Surely the words "British Isles" have no official standing and no real meaning. The proper phrase to be used is "United Kingdom", or—as has occurred to me since I put down the Amendment—since the Bill refers only to England and Wales we should substitute "England and Wales". In any case, I do not think that any official acceptance should be given to this vague phrase "British Isles", and therefore I beg leave to move my Amendment.
LORD AIREDALE: I do not suppose it has escaped the eagle eye of the noble and learned Lord the Lord Chancellor that the words which this Amendment seeks to leave out do not in fact appear in the Bill. The words which appear in the Bill are not "British Isles" but "British Islands". If the noble Lord, Lord Kilbracken, wishes to know what the expression "British Islands" means, he will find the answer in the Interpretation Act 1899.
THE LORD CHANCELLOR: 1889.
LORD AIREDALE: I am sorry; 1889. I think there is much merit in the noble Lord's suggestion that, seeing that this Bill does not extend to Scotland or Northern Ireland, if the words "British Islands" are to be replaced by something else they might well be replaced by the words, "England and Wales". I am not forgetting that this Bill will, presumably, apply to the Channel Islands and to the Isle of Man. However, we can disregard them for this purpose, because presumably there are no animals commonly domesticated in any of those islands which are not also commonly domesticated in England and Wales.
THE LORD CHANCELLOR: This is basically a political rather than a legal point. When I was in another place, and in a former incarnation, I was concerned with some aspects of the affairs of Northern Ireland and sometimes visited Dublin, where my great-grandfather was a graduate of Trinity College. I was rapidly

865
told that South of the Border I must never use the expression "British Islands" or "British Isles". I do not know what they suggested it should be called instead; they never went quite so far as to offer another geographical expression for what I had always thought to be a perfectly harmless phrase. At any rate, the last thing I should wish to do in the course of the Animals Bill, is to cause any trouble of that kind. However, animals are not political animals—only human beings, according to Aristotle, are 3ωα πoλITIκα—and animals do not, in their types of domestication, or otherwise, take notice of political boundaries.
It is part of the mystique of the Republic of Ireland that there are 32 counties in it and not 26. Whether this be so or not, it is well established that Saint Patrick drove all the snakes out of the whole island, and not simply out of the 26 counties. So animals do not bear relationship to political boundaries; they have a relationship to geographical boundaries. Happily, as the noble Lord, Lord Airedale, said, the British Islands, whatever may be said in Dublin, have a statutory definition in English law, contained in Section 18 of the Interpretation Act 1889, and although this refers in terms to the United Kingdom, it refers to the United Kingdom as it was then constituted, which covers the entire 32 counties of Ireland. It also includes the Channel Islands and the Isle of Man.
Personally, I think that the question of the absolute liability for damage done by animals should relate to geographical boundaries rather than political boundaries, as a matter of principle. Although I apologise sincerely to the noble Lord, Lord Kilbracken, and to any Irish nationalists who may be thereby offended, if they will think of another phrase which has exactly the precise meaning that I want it to have I would substitute it; but in the meantime I prefer the Bill as drafted.
THE DUKE OF ATHOLL: Could the noble and learned Lord tell me the definition of the word "species"? The interpretation clause says:
" 'Species' includes sub-species and variety."
So do I understand from that that "species" could mean a cow, or could it mean a Highland cow? If Lord
866
Kilbraken's second suggestion were adopted there would be extreme danger that under certain conditions Galloway cows, which are ferocious (although usually the bulls are not) might not be allowed in England and Wales, which I personally would regard as a pity.
LORD KILBRACKEN: May I try to answer the question put by the noble Duke? I understand, having consulted the Concise Oxford Dictionary, that the important point about a variety is that it should be capable of breeding with other members of the same species, but it should also have certain characteristics which it is capable of perpetuating. So the Hereford, for instance, is a variety because it can perpetuate its white face, and the Black Angus is a variety because it can perpetuate its black colour and absence of horns. Accordingly the cattle to which he is referring would count as a variety and, therefore, as a species so far as the Act is concerned.
I am disappointed to learn that the Republic of Ireland is classed as part of the British Islands. I think that an Amendment to the Act in question should be introduced with the smallest possible delay, because I do not believe, and I do not think that the noble Lord, Lord O'Neill of the Maine, would believe either, that the Republic of Ireland should be part of the British Islands. There is the problem that arises when, on certain sporting occasions, it mysteriously happens that England and Ireland have a combined team, such as a Rugby team or a golf team, containing members of both countries. This is always described in Britain as "England", but in Ireland either as "England and Ireland" or sometimes as "the British Islands", although I strongly disapprove of that usage. But we are getting rather far from animals. I do not know whether the noble and learned Lord would give sympathetic consideration if, at a later stage, I were to propose substituting "England and Wales" for "British Islands".
THE LORD CHANCELLOR: No, I do not think I could help with regard to this Bill. If the noble Lord proposed a Bill in which the Interpretation Act was amended so that another phrase, such as the "Islands of the Blest", were substituted in Section 18 for "British

867
Islands", I would promise to put it before the appropriate Government Committee.
LORD O'NEILL OF THE MAINE: As my name has been mentioned, I may say that perhaps the noble Lord, Lord Kilbracken, is a little more nationalistic than the Southern Irish are themselves There are all sorts of anomalies. I do not want to detain this House for any length of time, but I may mention that the lifeboats which look after the situation in the South of Ireland are still controlled by the British, and the Irish Lights, as they are called, who look after all the lighthouses round the coast of Ireland, are also controlled by the British. If you go and have lunch with the Irish Lights Commissioner you will sit for your luncheon under a picture of Her Majesty the Queen.
LORD KILBRACKEN: In view of what has been said I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
6.30 p.m.
LORD KILBRACKEN LORD KILBRACKEN moved Amendment No. 6:
Page 3, line 42, leave out lines 42 and 43 and insert ("death or injury to persons or livestock").
The noble Lord said: The purpose of this Amendment was to change the definition of "a dangerous species" and to make it necessary that its fully grown animals should not merely be likely to cause damage—or that any damage they may cause is likely to be severe—but should be likely to cause death or injury to persons or livestock. I have since come to realise that this Amendment cannot be accepted because it would make impossible difficulties, or it would necessitate amendment of Clause 2(2) and without such amendment this Amendment is impossible.
While I am on my feet I should like to draw your Lordships' attention to two objections that I have to Clause 6(2) as it stands at present. The first is a minor one. It speaks of:
"fully grown animals"
which
"normally have such characteristics that they are likely, unless restrained, to cause damage
868
or that any damage they may cause is likely to be severe".
I should like your Lordships to consider that there really cannot be an animal of whom it can be said that any damage it may cause is likely to be severe. Even if an elephant causes damage, that damage may be severe but any damage that it causes may not be. If it steals in a zoo, if it takes a loaf of bread from a housewife's basket, it would be causing damage, but it can hardly be said to be severe damage. It seems to me that the word "any" should be deleted.
My objection to the language as it exists is that we are calling an animal a member of a dangerous species simply because its fully grown animals are likely to cause damage; and I do not think that this is what we normally understand by using the word "dangerous". If we talk of an animal of a dangerous species we imagine one that is likely to cause death or injury; not one that is likely to cause damage of any kind. It is possible to think of a number of animals that are not normally domesticated—animals such as the rabbit, the hare, even the little coypu—but which, if they escape, are certainly most likely to cause damage, and do cause damage. It is absurd to refer to rabbits and hares and coypus and even deer as being members of a dangerous species. The solution might be to substitute for the word "dangerous" some other adjective or phrase, although it is not an easy one to find, such as "wild and harmful" or simply "harmful". I do not intend to press this Amendment, but I should like to put those thoughts before the Committee. I beg to move.
THE LORD CHANCELLOR: I am glad that the noble Lord recognised that this was probably in its present form not an acceptable Amendment, as indeed it is not. I am not now absolutely sure whether his complaint is about the drafting of the clause, or whether there is a point of substance relating to the law which he wishes to be elucidated. I accept, perhaps, that there could be another phrase at the end of paragraph (b) of subsection (2) in place of "any damage". I see his point, but I am not sure it is a very substantial one. I should have thought that anyone would be disposed to say that if an elephant caused damage, whether to human beings or to property,

869
it was likely to be severe owing to the great size of the beast, and I would have defended the draftsmen on that ground.
As regards the noble Lord's second point, I am not prepared to accept that rabbits are not commonly domesticated in the British Islands—if I may now use that term with confidence. I think that rabbits are commonly domesticated. No doubt there are plenty of wild rabbits, too. I have even heard of Belgian hares which are commonly domesticated in the British Islands, although I am told that they are really rabbits—I do not know enough about biology to know which is right. And I am not prepared to say that coypus are not liable to commit severe damage. I think that this is a question of fact which I should have to refer to the Minister of Agriculture. I think that on the whole this particular clause stands up to criticism.
LORD KILBRACKEN: As I indicated, I shall not press the Amendment. I beg leave to withdraw.
Amendment, by leave, withdrawn.
6.37 p.m.
LORD AIREDALE LORD AIREDALE moved Amendment No. 7:
Page 4, line 15, leave out ("accepts") and insert ("incurs").
The noble Lord said: Perhaps we may discuss Amendments Nos. 7 and 8 together because the point is exactly the same in both. This is an Amendment to the subsection which, as I understand it, prevents the defence which lawyers call volenti non fit injuria being raised against a servant. I do not quarrel with that at all, but I do quarrel with the language in which this objective is sought to be achieved. It seems to me to do violence to the English language to say, as this subsection says, that a person shall not be treated as accepting a risk voluntarily. In my submission, acceptance is a voluntary act. Acceptance, it is true, may be under protest or grudging, but it is still a voluntary act. It is really a nonsense to say, whether in an Act of Parliament or anywhere else, that a person shall not be treated as accepting something voluntarily. I feel that the mot juste in this case is "incur" in substitution for the word "accept". I know how much respect the noble and learned Lord the Lord Chancellor has for the English language—it is apparent in every
870
speech he makes—and I very much hope that this Amendment will find favour with him. I beg to move.
THE LORD CHANCELLOR: I am not sure. I am very grateful to the noble Lord, Lord Airedale, for the compliment about my regard for the English language. It is one which I try to deserve but I should be very unwilling to say that I actually have earned it. On many occasions when I see the verbatim account of what I happen to have said when I speak without a text in front of me I am appalled at my own illiteracy and confusion of thought. The subsection to which these Amendments are designed as an alteration is intended of course to read back to Clause 5(2). If we were to accept them, we should make a cross-reference which did not work, as it were, because Clause 5(2) provides the defence available to a defendant in proceedings under Clause 2. A person is not liable, under Clause 2, for any damage suffered by a person who has voluntarily accepted the risk thereof.
Subsection (5) of Clause 6, to which these Amendments are designed as an alteration, goes on to say:
"Where a person employed as a servant by a keeper of an animal accepts a risk incidental to his employment he shall not be treated as accepting it voluntarily."
I am bound to say that if the noble Lord had confined himself to the first of the two Amendments—"incurs a risk"—there might have been more to be said for the operation, but I venture to put before him the view that the text is better as it stands.
I understand the point the noble Lord makes: that if one accepts something, one must necessarily accept it voluntarily. I am not sure that that is true. There was an awful Chinese proverb that used to be recited to me:
"Where rape is inevitable, relax and enjoy it."
I think perhaps this is an example of where one accepts something but does not accept it voluntarily, and I think perhaps my draftsman has stood up to criticism in this particular case. I could not accept these two Amendments. If the noble Lord will withdraw the Amendment I will suggest my compromise halfway house. One of them might do, but I cannot accept them both.
LORD AIREDALE: I am grateful to the noble and learned Lord for that encouraging reply. Before I formally withdraw my Amendment, may I suggest that at the next stage we might consider making the corresponding Amendment to subsection (2) of Clause 5, which will then read "voluntarily incur" instead of "voluntarily accept"? The two subsections will then tie up, as they do not at present. Having said that, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 6 agreed to.
Clause 7 agreed to.
Clause 8 [Duty to take care to prevent damage from animals straying on to the highway]:
6.44 p.m.
LORD NUGENT OF GUILDFORD LORD NUGENT OF GUILDFORD moved Amendment No. 9:
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: I beg to move the Amendment standing in the name of my noble friend Lord Hives and myself. This is a familiar Amendment to most noble Lords in this Committee; indeed, noble Lords may remember that we divided the Committee on this Amendment before and narrowly missed success. My arguments evidently persuaded many noble members of the Committee, but I am sorry to say that they failed to persuade the noble and learned Lord, Lord Gardiner, when he was in the position of Lord Chancellor. I can but hope that my noble and learned friend the Lord Chancellor, speaking from his present position, may be persuaded of the soundness of my arguments and that on this occasion I may be able to carry the whole of the Committee with me.
This is a point of some importance. The effect of the Amendment would be to put land as described in the Amendment on the same basis as common land and village greens; that is to say, the owner of cattle who had grazed his cattle on land unfenced for the previous twenty years would have no duty to restrain them from straying on the highway. In the main, this would be land that we call
872
"livestock rearing land", which exists throughout England and Wales by the tens of thousands of acres, especially in the uplands. I did not take part in the Second Reading debate, but I listened to most of it, and afterwards I studied the words of my noble and learned friend the Lord Chancellor, especially when he was discussing Clause 8, which I observed he did at some length in an endeavour to calm the fears of some of my noble friends who feared that Clause 8 was asking them to buy a "pig in a poke", if I may use an agricultural metaphor. However, the noble and learned Lord the Lord Chancellor in his most lucid arguments has not entirely removed this impression. Briefs have poured in from the Country Landowners' Association, the National Farmers' Union, and indeed now the County Councils Association as well.
I will briefly restate the point. This Bill, in Clause 8, makes a radical change in this particular respect, and it is a change, of course, to the major disadvantage of the farmer. I need not recapitulate all the arguments. At present, a farmer who allows his cattle to stray on the highway is under no liability. The change is that Clause 8 makes him liable for damage which results from his cattle straying on the highway unless he can prove that he has taken reasonable care to prevent it. In many contexts I accept that this is a sensible change in the law. In this particular context, the various points in subsection (2) of Clause 8 are to be taken into account by the courts in deciding whether or not the farmer has taken reasonable care.
But I would suggest that, as a matter of general principle, when Parliament is making such a radical change as this in the law there is a general obligation to go the very maximum distance to make sure that there is not unfairness or uncertainty at the end of it. The last subsection in Clause 8 recognises that no liability can arise for the owner of cattle grazing on common land where no fences exist or can exist. My argument is that the same absolute exclusion should be made in favour of livestock rearing land, which never has been fenced and almost certainly never will be; simply because the cost of fencing this land would be totally uneconomic. Nevertheless, it is in the national interest that this land

873
should be farmed and kept in production, and indeed the Ministry of Agriculture, Fisheries and Food give grants in order to encourage just that.
I can omit the reference to insurance, because it has not been referred to again. But I would just add the point that since we debated this measure last year a new protagonist has entered the field on my side, the County Councils Association, who naturally are particularly interested in this context in amenity. They have added the argument that in these areas fencing would cause injury to amenity and should not be introduced anyway. I am sure noble Lords will agree that this is a strong additional argument, of which we should take note.
Finally, in replying to my argument last year the noble and learned Lord, Lord Gardiner, explained that the points set out in Clause 8(2) to which courts are directed to pay attention would ensure that a farmer whose straying cattle caused an accident would have no difficulty in convincing a judge that he had taken reasonable care in the circumstances. Perhaps my noble and learned friend the Lord Chancellor will make a similar reply to me now, no doubt illuminated with some original quips as well. But, in case he is going to make such a reply, I should just like to add that subsection (2) of Clause 8 is helpful to the farmer. There is no question about that, and it does cover a great deal of this problem.
It is helpful, so far as it goes; but it does not go far enough to cover the class of land I am referring to. For this unfenced rearing land there should be an absolute exclusion, and it just is not fair that farmers farming on this land should be left even in this degree of uncertainty that is left after taking account of all that has been provided for in Clause 8(2). This is the nub of the argument. I quite accept that in most cases the courts would rule that the farmer had acted with reasonable care although he had not fenced these roads. But there is still that degree of uncertainty, and it does not seem right, when such a radical change in the law is being made, that the farmer should be left with that degree of risk. These, broadly, are the reasons why I think the noble and learned Lord should consider this again. I beg to move.
LORD GARDINER: As the noble Lord, Lord Nugent of Guildford, has referred to me, perhaps I may say a word on this Amendment. If the Government are disposed to oppose it, I shall advise my noble friends to support the Government. The real point, it seems to me, is that it is the law—common law, because it is not written down anywhere—that we all owe a duty not to injure our neighbours. I should have thought that on the face of it that is a sensible and indeed a Christian principle. As the noble and learned Lord reminded us on Second Reading, if you say, "Who in law is my neighbour?", the answer is that it is someone you ought to have in contemplation as likely to be affected by your action when you are doing whatever it is. This again, I should have thought, is common sense. When one says, "Is this a guarantee that nothing I do will injure my neighbour?", the law answers, "No, not at all; all you have to do is to take reasonable care". This applies in all fields. When you drive a motor car, although there is no law written down which says so, the common law is that you owe a duty to other people on the road, motorists, pedestrians, anybody who might be affected by your driving, to drive with reasonable care. The duty owed by a doctor to his patient is exactly the same. If you take a car to a garage to be repaired, they are under a duty to take reasonable care. The same applies if you go to a dentist; and it applies, as I said, in almost any field of life.
In none of these cases is there any law which says that when a judge is deciding whether a motorist has exercised reasonable care he must have regard to (a) the speed at which he was driving; (b) whether he was on the right side of the road; (c) whether he gave proper warnings; (d) whether he applied the brakes soon enough—and so on. We leave that to the judges; and in all this they have their own experience. The Report of the Winn Committee on personal injury cases showed that, apart from matrimonial cases, 85 per cent. of the cases tried in London and on circuit are cases in which somebody is saying the other man had not exercised reasonable care. What the judge does is to put himself in the defendant's place and ask himself: would any reasonable doctor, or motorist, or whoever it is, have done

875
what this man did? Doctors themselves differ; there are different medical schools of thought. But the judge says, "I am not here to decide which school of thought is right. The question I have to ask myself is: would any doctor exercising reasonable care have done that which this doctor did, or have failed to do what this doctor failed to do?"
It is quite impossible to write down what are the circumstances in which the judge is going to hold somebody liable and those in which he is not, because whether it is a road accident or a surveyor examining a house who does not take any steps to see whether dry rot is present, the circumstances vary infinitely. I have suggested before that perhaps it was a mistake for the Law Commission in their draft Bill not simply to say that there is a duty to take reasonable care to stop animals straying on the highway. But in order to try to satisfy the National Farmers' Union, they set out things which of course any judge, being a man of common sense, would naturally 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; and (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.
Then, to please the National Farmers' Union, who said, "What about fencing?", in order to make it plain that no farmer would be liable simply because he had not fenced, they added (e), the seriousness of any such risk and the steps which would have been necessary to avoid or reduce it and, where it could have been avoided or reduced by fencing, the extent, if any, to which fencing is normal practice in the area in which the land is situate. The Law Commission themselves, again to meet points raised by the National Farmers' Union, considered whether they could take any geographical area and exclude that so far as fencing is concerned. Various instances were given on Second Reading. I cannot remember a single one in which any judge would for a moment have held the farmer liable. Of course no judge is going to
876
say, with regard to farms on moors in Cumberland, and hill farms, that the farmer is liable because he does not fence. Nobody would suggest that for a moment. But you cannot draw a line on a map.
There is no particular point, so far as I know, in twenty years; it has not been explained. Why not fifteen years or twenty-five? The Law Commission say in their Report:
"Apart from the question of definition, it would be extremely arbitrary to fix an exemption from liability for negligence only by reference to whether land was enclosed or unenclosed irrespective of other considerations, such as the traffic or the road concerned. Such an exemption might also discourage fencing or other preventive measures where it would be reasonable to undertake them, and perhaps even encourage the removal of an existing barrier."
The Law Commission had considered this. There is no reason why farmers should be treated differently from motorists, or those who run factories, or doctors, or lawyers, or dentists, or garage owners, or every other class of the community, for whom the law is that in certain circumstances they must take reasonable care. In every other case it is always left to the judges to decide, having regard to all the circumstances of a particular case, whether reasonable care was exercised or not.
It was for these, among other reasons, that I ventured to oppose exactly the same Amendment considered on the previous Bill, both at Committee and Report stage. On Report stage the House divided—there are no Party politics in this—and the Amendment was defeated, I submit rightly, and I hope that the Committee will take the same view as they did last time.
VISCOUNT GAGE: We laymen are in a difficulty here. What the noble and learned Lord said sounded extremely reasonable. But it must be remembered that the noble and learned Lord, Lord Denning, who said that most of these cases ended up in the court over which he presided, said this:
"Whatever be the right test, I would suggest, for the courts, in particular, and for the farmers in general, this Bill should make it clear when and when not a landowner is under a duty to fence, so that he can know beforehand and put up his fence, rather than wait until an accident happens and have to be carried through the courts to know whether

877
or not he was negligent."—[OFFICIAL REPORT, 29/10/70, col. 229.]
That was what another great lawyer said. It is true that this Bill as it stands has produced a number of fears in the minds of a quite formidable body of people, including the County Councils Association, the C.P.R.E., the National Farmers' Union and landowners. They may all be wrong. It is difficult for us laymen to decide.
This point has not been mentioned so far, but I hope it will not be argued that because the fencing in Epping Forest has had a marked effect in reducing the number of accidents, it follows that the same process would have a marked effect on the accident rate in quite different parts of the world. If farmers were to be treated in the same way as in Epping Forest, then I think the fears of all those bodies would be extreme, and that, as my noble friend says, a lot of land would go out of action and farming would become unprofitable. I feel that we are in considerable difficulty. It may be that we ought to leave this matter to the judges. I notice that Lord Denning is not here now, and when he intervened he did not suggest an appropriate form of words. But that is the difficulty. I do not know if we are also discussing Lord Henley's Amendment at this time?
THE LORD CHANCELLOR: No.
VISCOUNT GAGE: Then I will leave the matter there.
7.3 p.m.
LORD HENLEY: As I have an Amendment in quite similar terms to this Amendment it might be helpful to address your Lordships on it at this time. I agree with almost everything that the noble and learned Lord, Lord Gardiner, said in his passionate opposition to this Amendment, except his passionate opposition. What I mean by that is that I take the point that it might have been as well to have left the Bill in the form provided in Clause 8(1) by itself. By explaining to the judges in subsection (2) exactly what they are supposed to do, inevitably you limit what they are supposed not to do. This, I think, is the difficulty in which, as the noble Viscount, Lord Gage, explained, we laymen find ourselves.
878
You could also, if you cared, leave in the whole of subsection (2) and merely remove from the clause the exclusions of common land. Either of those two things would, I believe, have satisfied us. But we have argued this over two Parliaments at such length that I think either of those two courses would now be unacceptable to nearly everybody in the agricultural industry.
So we get back to the position in which we still have this anomaly, upon which neither the present Lord Chancellor, who argued against it last week, nor the last Lord Chancellor who argued against it last year, have satisfied me that, if the Bill is perfectly safe for owners of livestock on unfenced land who are not negligent, then there is sense in excluding common land. The noble and learned Lord the Lord Chancellor said that you had to exclude common land because it cannot be fenced whether you will or no. That is all very well, but in the same way the owner of land which is not common and which is not fenced, is virtually excluded from fencing because of the expense. This would mean that the land was no longer used for agriculture, for pastoral use, and it would probably either revert to nothing or be used for planting sitka spruce of which a great many of us think that there is a lot too much already and that it ought to be left as unfenced land. Again, I said to the noble and learned Lord, Lord Gardiner, on Second Reading that any fencing of this sort of land damages its peculiar beauty, whether it is a good fence or is a wretched, shoddy fence. The fact is that the owner of this sort of land may not, in theory, be debarred from fencing it, but in practice he is debarred from fencing it. Therefore, common land, and land which is not fenced and which is not common, should be treated on all fours.
I may have misunderstood what the noble and learned Lord, Lord Gardiner, said about the Law Commission. But I think I am right in saying that the earlier body which did a lot of the work in this respect, the Goddard Committee on Civil Liability for Animals, recommended in 1953 that the sort of land that I am talking about—that is to say, unfenced land which is not common—should be excluded. We are left with an anomaly which I think ought to be cleared up

879
somehow. From the remarks on Second Reading I thought that we would have the valuable support of the noble and learned Lord, Lord Denning, but I am afraid that that is not so.
I think that perhaps it might help your Lordships if my Amendment were considered at the same time as that of the noble Lord, Lord Nugent of Guildford. If that Amendment were to be successful—although with the formidable array of the present Lord Chancellor and the former Lord Chancellor I suspect that it will not be—then of course I would not move my Amendment. But it may well be that some of your Lordships prefer my Amendment to this one. I am not absolutely sure that I do myself. My own Amendment leaves untouched certain kinds of land which I think, if any is to be excluded from the Bill, ought to be excluded too—I refer to unfenced parklike land such as one finds in the Midland Counties, which has always been grazed and which is not fenced, with grids on the road at either end, and which in fact should not be fenced because I think it destroys an amenity which is fast disappearing. My Amendment does not take account of that because by no stretch of the imagination could it be described as moorland or any of the other things that my Amendment suggests should be excluded. Therefore, if it is acceptable to noble Lords, I hope that some of your Lordships may speak to my Amendment at the same time as speaking to that of the noble Lord, Lord Nugent, because they cannot both be successful.
THE LORD CHANCELLOR: I do not at the moment want to speak in reply to the debate, but for the convenience of the Committee may I say that I do not think it is very convenient to discuss these two Amendments together because different considerations apply to Lord Henley's Amendment. However, I think it would be convenient if the general arguments about unfenced land could be deployed on this Amendment, as indeed they have been. There are special considerations relating to the second Amendment, that of Lord Henley, which I would suggest should be left to the time when he moves it, if he does.
7.9 p.m.
LORD CHORLEY: I prefer the second Amendment, but I accept the suggestion of the noble and learned Lord that we should discuss the problem generally at this stage. This is the first time that I have intervened in the argument about this particular clause, although I have been present on all the previous occasions and have listened carefully to what was said. I now feel myself a little freer than I did a year ago. I have always been worried about this particular clause, and I think that anybody who is intimately acquainted with the conditions in the Lake District, in North Wales and in Yorkshire will be bound to be worried about it. Anybody who has given, as I have, a great part of his life to the work of the National Trust, the C.P.R.E., and to the amenity societies is bound to be worried about it. As has been said, there is no question at all that these organisations are very worried about this particular aspect of this Bill.
On the whole, this is a good Bill, but it does not really introduce the safeguards which are required. Although I have listened to my noble and learned friend Lord Gardiner making his speech twice, I am afraid that he just has not convinced me. One cannot tell what a judge will do in the particular circumstances of a case which is brought before him. In the circumstances of something happening on a road, it may well appear to him, from all the evidence given, that there has been negligence, that within a general conspectus of the whole situation it was a position in which no one could have expected the farmer to erect a fence along that particular part of the road. It is extraordinarily difficult. I have been engaged in a substantial number of road accident cases, and even in cases of animals straying on to roads, during my time at the Bar, and, with great respect, it is dangerous to lay down any general propositions of that kind. I do not feel that any altogether satisfactory way out of this difficulty has been found.
The Amendment of the noble Lord, Lord Nugent of Guildford, would, as the noble Lord, Lord Henley, has said, go a good deal further. From the point of view of the amenity societies I should be quite happy if his Amendment were

881
accepted, because it is in these wide open spaces in the Lake District, North Wales, Yorkshire and other parts of the country, where this matter is of particular importance from the point of view of the preservation of the beauty of the countryside.
The noble and learned Lord, Lord Gardiner, has tried to persuade us that these safeguards in Clause 8(2) are adequate to cover all the situations, but they are not. It is quite obvious that they have been drafted by people who are not really knowledgeable about the particular part of the country with which they are dealing. They are theoretic, townsmen's proposals for dealing with the situation; they are not the proposals of a practical farmer, or of a person who is concerned with the protection of the beauties of the countryside. If you study them carefully you will see that that is so. The subsection starts off with paragraph (a),
"the nature of the land and its situation in relation to the highway;".
That is very vague. The situation of the land in relation to the highway is, of course, that it is contiguous; therefore it is not saying anything extra.
Then we come to the next one, paragraph (b),
"the use likely to be made of the highway at the time the damage was caused;".
That is very penalising indeed. The roads over the passes in the Lake District are most used when they are covered with motor cars (and not only by day, when you can see reasonably well, but also by night), at holiday times. They are quite different then from what they are in other parts of the year, the winter, the early spring, the late autumn. Is the farmer to take all the sheep off his fells because this is a dangerous period of the year, as there are so many motor cars being driven about at the time? It just shows that the draftsman who invented this clause has been sitting in an office and does not understand the situation for which he is supposed to be providing safeguards. It continues
"the obstacles, if any, to be overcome …".
I remember that in one of these debates the noble Earl, Lord Swinton, pointed out that what we are concerned about in these cases is sheep. Well, sheep are very good at getting over obstacles, and it could be easily proved to any judge or jury that a particular piece of wire fencing, which is the only feasible fencing in
882
a situation of this sort, could be surmounted by a sheep and therefore was not adequate to the situation. The draftsman has not envisaged the sort of situation which actually exists in these parts of the country. I do not think I need ask your Lordships to look at the others.
This is a Bill which is supposed to be simplifying the law in relation to animals and it proceeds here to complicate the law to a very substantial extent. It would have been much simpler to leave it as it is, and, as the noble Lord, Lord Henley proposes to do, so leave this mountain land and moorland that this particular clause does not apply to it. That was realised by the Law Commission when they were dealing with the common lands. It was not feasible to apply these new rules to the common lands, and evidently they thought that we should, if possible, devise some form of words which would apply to this mountain land and moorland the same exception as is being applied to the common lands. But evidently they could not devise a scheme of that kind.
If one reads what the noble and learned Lord, Lord Gardiner, said in his speech on the previous occasion, I think one comes to the conclusion that that was how they came to invent this complicated set of types of consideration which have to be applied if a plea of negligence is made against a particular farmer. If you could get some form of words which would bring this mountain land and moorland into the same category as the common land, then I think you would have solved the problem, and solved it in a simple way, instead of having all the complication which will result from putting subsection (2) of this clause on to the Statute Book. That is what it seems to me the noble Lord, Lord Henley, is trying to do, and that is why I hope that, when the time comes, we shall accept what he is proposing.
LORD HIVES: May I say a word, as my name is on this Amendment? Really I continue to express the doubts that are all the time expressed to me by my farming friends in Derbyshire, where I live, and where we have a lot of this type of land. We are very concerned about the effect of this clause. The noble and learned Lord the Lord Chancellor did not quieten those fears when he said at

883
Second Reading—and I should like to quote him:
"On the other hand, it may be very different where the road is a busy one and where the ordinary man would say, 'If you want to take due care for the safety of your neighbour your paddock should be fenced, even if it has not been fenced before'."—[OFFICIAL REPORT, 29/10/70; col. 235.]
If you go into North Derbyshire you find large open areas, but very busy roads. If you go up the A.57—
THE LORD CHANCELLOR: I think my noble friend is taking a rather bad point, if he will forgive me for saying so. He fails to understand that what we are discussing in my noble friend's Amendment is not a paddock, which is what I was referring to in the passage which he quoted.
LORD HIVES: I apologise to the noble and learned Lord. I must have misunderstood him. I want to stress that there will be doubt, but the Bill should be clear as regards the court and the farmer. The noble and learned Lord the Lord Chancellor said that if one wanted to be a good neighbour one should not be negligent; but surely that applies to everyone in the community. I do not consider that it is being a good neighbour to drive a 20-ton truck at 60 or 70 m.p.h. over these open roads. It is also not being a good neighbour when an authority puts salt on the road, which attracts all the sheep and animals from miles around. It is imposing a load upon an ancient system of farming which it ought not to be asked to bear. The definition in the Amendment would relieve doubts felt by a great many people.
The land in North Derbyshire seems very little different from common land in the way it is run, and in the fact that people have rights of putting on sheep. But instead of being common land it is owned by a water board, by a corporation or by someone else. The farmers there have a right only to erect what we call a sheep gate. If we can exclude common land we can also exclude this other land.
7.22 p.m.
LORD HURCOMB: I shall not detain your Lordships for more than two or three minutes. I am in sympathy with both of these Amendments. It seems to me, from the point of view of both the
884
farmer and the landowner, that the arguments put forward by the noble Lord, Lord Nugent of Guildford, are enough to carry Amendment No. 9. But the wider effect upon amenity, which is voiced by the county councils and by the amenity societies, ought also to have great weight. I remember when I was young the eagerness with which I looked on the Ordnance map for what were then called unclassified, unfenced and even, in those days, unmetalled roads. I would say, "That is the place I want to walk along"; nowadays, that is the place where people want to motor along. The effect of being in country which is not fenced on either side is surely very great. The charm of the New Forest, in spite of the risks from deer, consists very largely in being able to drive or walk along many miles of completely unfenced road. I suggest that that general effect upon the environment ought to be considered, before putting any pressure on the owners and occupiers of these open lands to fence them.
It may be said that the clause puts no pressure on them, but is that quite so? There is a long list of points to which consideration has to be given, and just at the end the clause states
"… a person shall not be regarded as committing a breach of the duty to take care by reason only of placing animals on any common land ",
and so on. Does that not create some kind of presumption (I am not using the word in a legal sense), or general opinion, among all those who will deal with this matter that, if anything goes wrong, Parliament having expressly said that not fencing some type of land is not to be a breach, the fact that an owner has failed to fence some other type of land will count against him or whoever put the cattle on it?
I recognise the great force which lies behind the argument of the noble and learned Lord, Lord Gardiner. But it seems to me that paragraph (a) of subsection (2), which begins by stating that regard may be had to "the nature of the land", and then merely states, "and its situation in relation to the highway"—which, as has been pointed out, can hardly be elsewhere than alongside it—is very vague and unsatisfactory. I wonder whether it is possible to say a little more about the nature and characteristics

885
of the land to which regard has to be had. Perhaps the clause could refer to the nature of the land, including the substance of the points in these two Amendments—such as whether for twenty years or from time immemorial it has been unfenced; whether it is really open, whether it is of a moorland character, and so on.
If the Government object to these Amendments, perhaps they can go further towards destroying what seems to me the bias of the clause in favour of fencing in any disputed case, and indicate, by way of assistance or guidance to the judges or the courts which have to deal with accidents, what sort of features in the nature of the land they should have regard to. Something might then be done to meet the intention of these two Amendments. As I said, this matter is related to the environment in a wide sense and, at a critical moment, when a new Secretary of State will be having questions of this sort before him, I think this is the time when the Government themselves, before the next stage of this Bill, should give a little further thought to this clause.
LORD INGLEWOOD: I live in an area where there is a great deal of open land, both common land and other land, and I should like to give support to the noble Lord, Lord Hurcomb, and to the noble Lord, Lord Chorley, in the way they have commented on subsection (2) of Clause 8. We all know how difficult it is to draft different circumstances which have to be taken into account when we are considering men and women. Here it is a great deal more difficult, because we are concerned not with men and women but with sheep; and it would seem very much better not to try to be too specific.
The noble and learned Lord, Lord Gardiner, was not quite fair to farmers when he spoke about the reasonable care which dentists, doctors and other professions have to take in dealing with their neighbours. I am sure that farmers do not wish, any more than anyone else, to evade their duty to their neighbours to take reasonable care. But this is not a problem of their choosing or of their making; it is a problem created entirely by the motorist who wishes to go faster and faster. When the motorist was content to go less fast, this problem did not
886
arise. Therefore it is not quite fair to suggest that farmers are asking for a special position for themselves. If this Bill becomes law in its present form, many farmers will feel that there will be an obligation on them to fence, if they are to be spared all the trouble of litigation and possible damages. They will then sense that low-value land in the high country will not bear the cost of fencing, and much good land will go out of food production, thanks to a decision which we in Parliament will have made.
My last point, which again has been made before, concerns the distinction in the Bill between common land and land in other ownership. I always hope that in Parliament we try not to make these distinctions between Her Majesty's subjects, putting burdens on some which we do not put on others who are in virtually the same circumstances. It may be difficult at the moment to treat common and other land in the same way, but I would submit that since it cannot be very long before we have legislation dealing with common land it would be very much better if we did not try to legislate now for privately owned land but left it over and then dealt with all land, whether it be common land or privately owned land, at a later date when it is possible to do so.
LORD JANNER: I have listened very carefully to the arguments which have been deployed in respect of, I assume, the first of these Amendments with which we are dealing. I think that what is being overlooked is that Clause 8 was introduced to ensure that, in the event of persons' receiving injuries, or being killed, compensation was received, either by those who were injured or by the dependants of those who were killed. That was the purpose of Clause 8.
The first consideration here is not the question of the animal: it is the question of the individual, the person, who has suffered. It is to see that every precaution is taken to ensure that such a person is protected, or that the relatives of a deceased person are protected, in so far as is reasonably possible. I want to say quite definitely that, for my part, I would not have been prepared to accept all the provisions which are contained in Clause 8(2). What I feel is that, in order to meet the wishes of the owners of the

887
land, a considerable concession has been made in these provisions; and I think the noble and learned Lord, Lord Gardiner, was perfectly correct when he said that there is sufficient in them to enable a judge to decide what is reasonable and to come to a conclusion, taking into consideration the fact that it is for the protection of the individual who has been injured or of the dependants of those who have been killed.
I cannot see why it could not be left to the courts. In view of the circumstances, I am prepared to accept—and so are other noble Lords who feel similarly to myself, and other persons in another place—a degree of protection for the farmers which should not be unreasonable, leaving it to the courts to decide on this issue. Take, for example, the first of these Amendments. Why twenty years? Why not eighteen years? Why not seven years? Why not thirty years? Who is to decide whether a specified period is the correct one? Obviously, the whole intention of the clause is to point out that, in consequence of the changes which have taken place in respect of transport and traffic since the time when it was reasonable—or at least when it was considered reasonable—not to protect the individual, it is now important that the person who suffers damage should be protected. Why put in twenty years? I just cannot for the life of me understand why there is this attempt to have a kind of squatter's interest (because that is what it amounts to if you put in a period of this sort), which may be quite opposed to the realities of the situation and to the justice of the situation. Therefore I think we ought to reject both these Amendments.
7.34 p.m.
THE LORD CHANCELLOR: I hope I am not curtailing the debate in any way, but I think that perhaps it would be convenient if I now reply to it. It is of course right to say that we are now on the most important clause in the Bill. It is also right to say, I think, that if Clause 8 were not in the Bill it would hardly be worth Parliamentary time at all. There are marginal advantages to be gained in the other clauses, but Clause 8 is the only one which it is really worth passing at all. Personally, I do not know whether I should have troubled to take the Bill to Parliament if it had not contained Clause 8. The
888
rest of the Bill is polishing up fairly well known areas of the law, with minor improvements. But Clause 8, as my noble friend Lord Nugent has said, makes a radical change in the law—and I hope my noble friend accepts that I have been perfectly candid about that from the start. I said so in the Second Reading debate, and I candidly acknowledge it now. So far we are entirely in agreement with one another.
But then my noble friend made an observation which, with the greatest respect to him, is the reverse of the truth, and it is because of his misunderstanding—and I think some of my noble friends' misunderstanding of this clause begins at a very early stage in their thinking—that I would respectfully ask him to think again about some of the crticisms which have been levelled at this clause. My noble friend went on to say that Clause 8 makes the farmer or the owner liable for damage unless he can prove that he has taken reasonable care. I beg him to believe that, whatever else is true about this clause, whatever else is true about these Amendments, that is the reverse of the truth, the opposite of the truth, and it is, as I believe, because most farmers believe this, that they are deeply disturbed. As my noble friend Lord Hives has said, and as we all know from our experience of this Bill in the past, that is the case.
It is not true that a farmer is liable unless he can prove that he has taken reasonable care. It is the other way round. Let us get that absolutely clear. The burden of proof is on the plaintiff to establish negligence. This is the law, and this is where it remains. This is where it is as created in the Bill. What we are doing in this clause is to take away an absolute protection from the farmer and to say, "No, you must take reasonable care in all the circumstances". That is all we are doing; and nobody is to be held liable for negligence unless the plaintiff, the person who claims to have suffered damage, establishes against the farmer that he failed to take reasonable care. It is not for the farmer to prove himself innocent: it is for the plaintiff to prove him guilty. That, I think, is just. But it is precisely because this is not fully understood by the farming community, by the agricultural community, that most of these anxieties have

889
been aroused. I feel strongly that that is something which must be clearly kept in mind the whole time that one is considering the merits or demerits of this clause.
Of course, I would fully agree with the noble and learned Lord, Lord Gardiner, that on reflection and after experience I think Clause 2 might very well have been omitted from the Bill altogether. I think much of the trouble is due to the fact that we tried to reassure people with a clause which was not strictly necessary. Even now, were it not for one circumstance, I think I would rather take out subsection (2) altogether and leave all these esoteric and almost metaphysical arguments out of the discussion altogether. In many ways it would be much simpler to do so. But I happen to agree with what the noble Lord, Lord Henley, said: that probably, having seen subsection (2), people would think that we were taking safeguards away from them. The subsection was really intended not so much to provide the safeguards, as to tell them that the safeguards were there; and if we took it out it might have that psychological effect. Otherwise, speaking simply as a lawyer, I would rather that it were out.
Having said that, let us try to look at one or two other basic considerations. We have said that a man is only to be liable for the results of an accident if he is to blame for it; that is to say, if an impartial tribunal, having looked at all the relevant facts, think he failed to take the care which a reasonable man would regard as reasonable care. It is only if he is to blame that he can be made liable for the results of his actions.
I come to two classes of argument with which this Amendment has been supported. Let me say that in the substance of the case I do not believe there is anything between me and my noble friends who have supported it. That is to say, that on the subject of the uplands, I have not the slightest intention, nor have the Government the smallest intention, of rendering a single farmer liable in respect of land which we have heard described in more or less eloquent terms in the Lake District, in Derbyshire, in Wales and in Ashdown Forest by my noble friend Lord Gage. There is not the smallest intention to impose liability
890
there. Why? Because no sensible man would say that a farmer was under an obligation to fence such land. We are at one about this; we are absolutely clearly at one. And this would be true in my judgment—and I do not know whether the noble and learned Lord, Lord Gardiner, would agree with me; but I would expect him to—whether we had the whole of subsection (2) in or whether we had the whole of it out. No sensible man would blame a farmer for not fencing land which has not been fenced and never is going to be fenced; and nobody would expect him to be liable for accidents in that sort of circumstance. We are absolutely at one about that.
Let me pass now to the other class of argument, the amenities argument put forward by the noble Lord, Lord Hurcomb, whom I do not see in his place, and by other noble Lords. Equally, we are at one about this. I do not believe, I sincerely do not believe, that any single mile (or kilometre, as we shall soon have to call it) of land along a road will have to be fenced in that sort of country to which they rightly attach amenity importance as a result of this clause as it stands. No single extra mile of fence will be put down anywhere in the country. Why? Because nobody would think it reasonable to do so; nobody outside Bedlam. Therefore, I do not attach amenity importance to these Amendments—not because I do not attach amenity importance to the Lake District or to Wales or to Derbyshire or to the Ashdown Forest; but because nobody is going to fence them. Nor are they going to go out of pasture, because nobody is going to be held liable for them. So my noble friend, Lord Inglewood is, I think, fearing what does not exist in this clause.
How much I should like therefore—because we are wholly at one on the substance of the policy here—to be able to give some reassurance of a more positive and absolute kind to noble Lords who have supported the Amendment. I am wholly at one with them. But, like the noble and learned Lord, Lord Gardiner, who tried before me, I have come to the conclusion that the difficulties are probably insuperable. The first difficulty is a logical difficulty, a logical difficulty which I do not think my noble friends have fully faced. It was

891
touched on by the noble and learned Lord, Lord Gardiner; but I should like rather to put it in my own way and rather in the way that I put it on Second Reading.
If this clause is passed, the law will be that a farmer or an owner is liable for an accident caused on the road by the straying of his cattle if he has failed to take reasonable care. Both of these Amendments, and any other Amendment which could be devised in this context, are really Amendments which must logically be designed to say that even if the accident is the fanner's fault he must not pay. For that is what they mean. That is what they mean whether you take the Amendment of the noble Lord, Lord Henley, or whether you take the Amendment of my noble friend Lord Nugent. What the farmer is saying is, "If I can establish some objective facts then, however much I am to blame, however much I am at fault, I am not to pay." With great respect, that is not what he wants to do; nor is it what I want to do. What we want to say is that where the farmer or the owner is to blame then, and only then, he shall pay. What the Amendment will effect is that where he is to blame there will be a set of circumstances where he is not to pay. That is directly contrary to the principle of the clause. This is the logical difficulty he is in.
May I take this to a practical level? How would this Amendment operate in practice? I am simply not going to take from the noble Lord, Lord Chorley, that I am not a countryman and that I do not know where the country is or about the Lake District, and that I have never been up Snowdon. The fact is that the contrary is true. As my noble friend Lord Inglewood knows, I have a warm affection for the Lake District and, as other noble Lords may know, for Snowdonia. But how would it affect things in practice? I have already said that I do not believe that anybody outside Bedlam is going to make a farmer liable in those uplands.
Let me put another case. I remember that in the small town of Hailsham there was when I was a boy an open patch of land. It had been unfenced so far as I know for a very long time; it may have been for more than 20 years. I was not 20 years old at the time so I
892
cannot verify this by my own experience. But there used to be kept a donkey on this patch of land. It was usually tethered; and it was tethered because, being in the town of Hailsham, the donkey would have got on to the road and caused an accident if it had not been tethered. Supposing somebody put a donkey on that piece of land without either tethering it or fencing the land—and incidentally there is nothing about fencing in this clause; tethering is just as good in that sort of case—why should it be a defence to such an ass (if I may call the human being for the moment an ass in this context) if he kills somebody by leaving his donkey untethered in that piece of ground to say that it had been unfenced for 20 years?
Supposing that he bad a close in which only two or three yards abut on to the highway and it would cost him perhaps a couple of pounds to have the close fully fenced against the highway. This is not uncommon either in the neighbourhood of a town or anywhere else. Suppose he chooses not to do so and his cows or sheep get through a gap of two or three feet. Why should it be a defence that he has been as silly as that for the past 20 years? I do not understand. The fact of the matter is that the law may be an ass; but it is not as big an ass as that. Judges may be silly—many of them are and often talk out of turn—but they are not as silly as that. Perhaps a jury would be a good tribunal in these circumstances. But one must apply commonsense.
Negligence is basically an issue for commonsensical people, whether they happen to have a legal qualification or whether they happen to be twelve ordinary men off the Clapham omnibus; or, if we are talking about a country case, off the unfenced uplands of Derbyshire. In my respectful submission to the Committee, once you have clearly seen that all this clause does in subsection (1) is to say that when a man is to blame he shall pay; and that all it is designed to do in subsection (2) is to say, "In making up your mind whether he is to blame in a given case I am going to give you a few examples of the sort of thing you ought to think about ", a lot of the difficulty, trouble, doubts and anxieties which are inherent in these Amendments disappear.

893
I said earlier that I thought it would perhaps be more convenient to deal separately with the Amendment of the noble Lord, Lord Henley, because it is slightly different. Perhaps I was wrong. But I have dealt now with the general problem. I should like to close with this assurance. I started with all the prejudices—if I may use that word without giving offence—and all the feelings of my noble friends. It is only the logic of the case that has driven me to the belief, rightly or wrongly, that the difficulties of identifying the kind of land which is meant by some universally applicable definition are insuperable. Because I started with the desire to do this, with a strong inclination to do it. What is more, not only did I want to do it when I started, but I still want to do it now. When I leave this debate, even assuming that the Amendment is defeated, or withdrawn, as I hope it will be, I shall go back to my advisers and say, "Cannot we now devise some means of excluding certain types of land which are at present not excluded?" I do not expect to succeed, but I shall try. But if I am asked whether this Amendment, with its twenty years' prescriptive title to do something negligent, is an Amendment I could advise the Committee to accept, the answer is, "No",
7.53 p.m.
LORD NUGENT OF GUILDFORD: I must thank my noble and learned friend the Lord Chancellor for his brilliant exposition in reply, and I am sure that all noble Lords enjoyed it as much as I did. Let me assure him that my position is not illogical; it is perfectly logical. And so is that of my noble friend. We have not shifted one inch from it, despite the brilliance of my noble and learned friend's polemics. The position is that we want this particular type of land dealt with in the same way as common land; and the fact that this is specifically mentioned in Clause 8(2) creates an immediate doubt as to whether land of this unfenced type would be dealt with in that way in the future. This is our position and this is why we cannot be satisfied with the clause as it now is.
I should be the first to acknowledge that my Amendment is not perfect, and I see the weakness in definition. If my noble and learned friend would be willing
894
to look at this again, to see whether it is possible to find a satisfactory definition, and come back to us on the Report stage, I would be prepared to advise the Committee to accept that assurance. I am very much encouraged by what my noble and learned friend said at the end of his speech that he would like to find a way. I realise that it is very difficult, but I feel sure that something very difficult is not beyond him and his advisers. Therefore I hope that he will give such an assurance; and if he will I will ask leave to withdraw the Amendment.
THE LORD CHANCELLOR: I gladly give that assurance, but I urge my noble friend not to be deceived by it. I do it without the expectation that I shall succeed. But I shall try to succeed: that is all I can promise. May I, with the leave of the Committee—if it is needed; or with the indulgence of the Committee if it is not—say a word about common land, because I omitted in my reply to deal with the question of common land? As I told the noble Lord, Lord Henley, common land raises two factors which are wholly absent from the land which is the main subject of the Amendment. In the first place you cannot ask a person with rights of depastur-age to fence common land. He has the right to depasture with his cattle, but he cannot fence it because it is not his land. You cannot identify with any ease the person whose land it is, because it is common land.
Secondly, this Bill is not a Bill to deprive people of their rights of property, and if you were to deprive the people who have rights of depasturing on common land of their right to depasture, you would be depriving them of their rights of property. I did say, in relation to some notoriously awkward commons, that it would be a very good thing to buy them out. But this is not a buying out Bill: it does not attack rights of property at all. It imposes an obligation of care, and nothing more; and it is for that reason that we have to differentiate between common land, where the commoners have rights of property and no right to fence, and land privately owned and occupied and where a duty of care is imposed.
Amendment, by leave, withdrawn.
7.56 p.m.
LORD HENLEY LORD HENLEY had given Notice of his intention to move an Amendment, No. 10:
Page 5, line 39, after ("green") insert ("or on any open country consisting wholly or predominantly of mountain, moor, heath, cliff or foreshore").
The noble Lord said: I do not propose to bore the Committee by going over these arguments again. I should like merely to use this moment to answer the noble and learned Lord the Lord Chancellor on this question of common land. He still has not convinced me that this is a good enough reason for differentiating between the two. He attempted to show in his earlier speech this evening that there was a logical difficulty. He said that to some extent the Amendment of the noble Lord, Lord Nugent of Guildford, and my own Amendment, were an attempt to give prescriptive rights to do something negligent. If this is true of the land we tried, unsuccessfully, to exclude from the Bill, it is true also of common land. You cannot resolve that; you cannot have the argument both ways. I do not want to say more because it would waste the time of the Committee. I do not propose to move my own Amendment, It is now too late, psychologically, to take out the whole of subsection (2) but could we not think again about Lord Hurcomb's suggestion that if we are going to leave in subsection (2) we should extend paragraph (a) so as to give effect to the sort of thing we have been talking about to-night?
On Question, Whether Clause 8 shall stand part of the Bill?
LORD WISE: We have spent a long time over this clause, but before we leave it I have one small query that I wish to raise regarding fencing. It has nothing at all to do with mountains or moorland. In the predominantly arable areas there are a number of farmers practising a system of ley farming, and extensive use is made of electric fencing to graze the temporary pastures on their farms. There has been a certain amount of fear among farmers in those areas over the position that might arise if cattle should stray from these grazings, which are enclosed by electric fences, on to the highway, and cause damage. In that event, could it be argued that this was not the type of fence which was normal in the area; and
896
would the farmers perhaps be held to be negligent? I would entirely disagree with this view, but I wonder whether, in order to allay the quite natural fears and doubts of these farmers, the noble and learned Lord the Lord Chancellor could give some assurance about the point. I think he has done so to a certain extent in his reply when he said that the onus was on the plaintiff to justify damage. But I wonder whether he could give some assurance that this type of fencing would be recognised as adequate and normal within the area in which this type of farming is practised.
THE LORD CHANCELLOR: I am afraid that I have been rather brash in disclosing the fact that I have at one time farmed land. I do not put myself forward as an agricultural expert, though I suppose I have the duty ex officio of putting myself forward as some sort of legal expert. Negligence is, basically speaking, a question of fact, and not a question of law. I am not prepared to say that it is necessarily negligence to use an electric fence to the exclusion of all other kinds, provided it is stock-proof in regard to the kind of stock pastured on the land. If the battery runs down or is defective, the situation may be very different. I should have thought that on the land I used to farm (which was not the sort of land the noble Lord, Lord Wise, referred to but was enclosed land in East Sussex) it would have been highly negligent to fence along the highway with electric fence only, but I should have thought there were areas of land on which it was perfectly reasonable to do so as a half-way house between not fencing at all and fencing close.
Clause 8 agreed to.
8.2 p.m.
LORD HENLEY LORD HENLEY moved Amendment No. 11:
After Clause 8 insert the following new clause:
Driver of motor vehicle to report damage to roadside wall etc. caused by his vehicle
". The driver of a motor vehicle who causes damage to a roadside wall, hedge or fence shall report the accident at a police station or to a police constable as soon as reasonably practical, and in any case within twenty-four hours of the occurrence thereof."
The noble Lord said: I am aware that this new clause dealing with the reporting of accidents is not relevant to this Bill,

897
but I think that it is cognate and arises out of points that I raised on Second Reading. I am anxious to hear what the noble and learned Lord the Lord Chancellor has to say about this, because from his speech on Second Reading I think he agrees with me that the motorist should be under an obligation to report damage.
I could have made this new clause relevant to the Bill by an Amendment to the Long Title, cutting out the reference to civil liability. The provisions of the Bill could be extended to any damage done by animals but as I do not want to press this Amendment to a Division, I thought there would be no point in putting down an Amendment to the Long Title. I am fully aware that the new clause creates a criminal offence not related to civil liability.
Under the existing law under the Road Traffic Act 1960, Section 79, and the case of Paget v. Mayo, motorists who damage fences of any kind are not under an obligation to report that damage. This is something of which I have been aware for a long time. I did not feel that I was on strong enough ground to challenge the noble and learned Lord on Second Reading but he was kind enough to write to me. My friends and I pressed the Ministry of Transport to do something about this, but they were not willing to do anything. They said that it was not suitable for a Road Traffic Bill since such Bills deal with traffic on the road but not with traffic which has trespassed off the road on to private land. They also said that it was not suitable for a Highways Bill because that would deal with highways and not with traffic on or off the road. I dare say it should be part of a Trespass Bill. I understand that some months ago the Attorney General suggested that it was time to deal with some of our laws of trespass, which were antiquated and not very effective and that he would try to do something about them. I have not heard anything from him on this score since he came into the Government, but perhaps when he considers the matter he will consider this point, too.
Nevertheless, I must point out that frequently Governments can and do put irrelevant things into Bills. A good
898
example of this was the Agriculture Act 1970, which contains two sections amending the Rent Act 1968. I do not think that was very relevant, and if such an irrelevancy can take place, it might well take place in this Bill. I do not know whether that is the view which the noble and learned Lord the Lord Chancellor will take, but I want to hear what he has to say about it. The view of the Ministry of Transport, I believe, is that they do not want to create a new criminal offence which they think would be unenforceable, because the motorists would not report damaged fences. I do not know. I think we ought to try. The noble and learned Lord thought that motorists should be obliged to report damage to fences, and I know that he has it in mind to suggest to the Ministry of Transport, to the Home Office or to the Minister for the Environment that something like this could be done.
THE LORD CHANCELLOR: I think that in the circumstances the noble Lord, Lord Henley, has dealt with me very gently, because he could have been much nastier than he was. I have to confess to misleading the House on Second Reading; and, having confessed my sin to the noble Lord, I now come metaphorically in sackcloth and ashes to confess my sin to the Committee. A motorist needs to report damage if it is done to a vehicle, an animal or a person. I ought to have remembered that. The noble Lord was right when he said that I approached this sympathetically, a sympathy increased by his chivalrous treatment of my error.
I wrote to two of my colleagues on this subject. One of them pointed out that it would be inappropriate to have to report damage to a roadsign, wall, hedge or fence at a police station and not to report damage if you knocked down a cottage but went on casually by without saying so much as "Sorry", or barged into somebody's shop front with a lorry. This illustrates the point which the noble Lord very properly made, that this is not appropriate for an Animals Bill at all—and perhaps the Lord Chancellor had already shown he is not an appropriate Minister to give an adequate reply to it, as I think I could hardly have demonstrated better than in my Second Reading speech.

899
I should like to quote from the reply of the Home Secretary the following passage, which illustrates some of the difficulties:
"There is a not inconsiderable history of representations on these lines from the National Farmers' Union, both to my Department and the Ministry of Transport. We have considered the matter inter-departmentally and have consulted representative chief constables, but our conclusion has always been that it was doubtful whether the advantages that would accrue from implementing the suggestion would be worth the price of extra enforcement and reporting burdens that would be placed upon the police and the creation of a largely unenforceable law which would easily fall into disrepute. Except in cases where witnesses were both present and came forward, in which case police participation serves a minimal useful purpose, or the motorist voluntarily made a report which the police kept in a convenient place for the landowner to come and collect, a considerable diversion of police effort would be involved in following up possible car drivers or property owners. By removing himself quickly from the scene the unwitnessed tortfeasor"—
a splendid phrase—
"takes himself out of any reasonable likelihood of being traced and this would become the norm. Even when the outcome of police inquiries was successful, a result would be achieved with a low priority in terms of police objectives. Police problems are acute, and we cannot afford to disperse their activities over fields where the returns in terms of police objectives are poor. Although I have every sympathy with Lord Henley's case, I consider that the answer must be that the law should not be changed as suggested."
That was the answer that I got, and it was meant for me as well as for the noble Lord. In one respect I would corroborate what my right honourable friend says about the difficulty of enforcing such a law, by what is, I think, rather a chestnut of a story, but it illustrates the point rather well. As your Lordships know, you have to report damage to a vehicle. The story is of a motorist who left his car perfectly properly parked outside a shop and came back to find the wing bashed in. On the windscreen there was a polite little note held in by the windscreen wiper, and it said: "The people who are watching me write this think that I am giving you my name and address; but I am not". So there is substance in what my right honourable friend said.
LORD AIREDALE: In all seriousness, does not this discussion show that in these days of the hit-and-run motorist the
900
time really has come to extend the criminal law to make it an offence not to report any serious substantial damage to property, whether knocking down somebody's cottage, fences, walls or anything like that? When one is discussing burdens on the police, surely less of a burden is on the police when people have to report these things on pain of prosecution if they do not, rather than now, when there is no such duty and when the police have to spend their time trying to chase the hit-and-run motorist.
LORD HENLEY: I am grateful to the noble and learned Lord the Lord Chancellor for his explanation from the Home Office, which I may say I have heard before from the Ministry of Transport, not once, but several times. I quite see the difficulties. This is one of those problems where one has to face the fact that the difficulties are so great that it may well be better to leave it alone. But, having said that, I should also like to say that this Bill does radically change the liability of livestock owners for certain things—for negligence; I accept that. But where something is not due to negligence, but due, for instance, to a fence being knocked down, it might psychologically be acceptable to the keepers of livestock if the Government could be seen to be taking some active steps to deal with such a case. I should like to thank my noble friend Lord Airedale for having put extremely forcefully my point of view. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
8.14 p.m.
LORD HENLEY LORD HENLEY moved Amendment No. 12:
After Clause 8 insert the following new clause:
Duty of Minister to fence roads
". The Minister of Transport shall erect and thereafter maintain stockproof fences on or along special roads and trunk roads, and on or along any highway maintainable at public expense constructed through agricultural land after 1st October 1971."
The noble Lord said: Exactly the same remarks apply in regard to this Amendment, because it imposes a duty on the Minister of Transport which is unconnected with civil liability for damage. It arises out of the point that I made on Second Reading—one that I made on

901
Second Reading last year and about which I feel strongly. It is that this Bill puts a new liability upon the owner of livestock, in the words of the noble Lord, Lord Inglewood, not of his own making or choosing. He is doing nothing other than what he has always done, and this burden has been put upon him by the motoring public. It seems to me, therefore, that the motoring public ought to bear the burden and expense of this new liability. That could be done through the Minister of Transport, who should have a statutory duty to erect and maintain roadside fences in certain cases.
The present position is that the Minister of Transport does erect and maintain fences on motorways, but he has no statutory duty to do so and he has no ultimate liability. We think that there should be a statutory obligation comparable with that on the railways, for motorways to be fenced by the Minister of Transport. Under the Railway Act 1845 it was open to a landowner to accept compensation, a commuted payment, in lieu of the fence being erected and maintained by the railway. That did not alter the fact that if he accepted compensation he was still under a statutory duty to maintain; but he could, as it were, accept this liability, for payment, if he wished. I do not believe many landowners accepted that alternative choice. We think that the same principle should apply not only to motorways but to roads which were not previously of motorway standards but have been brought up to motorway standards. In certain cases one finds quite a minor road which has been converted into something much better; the whole character of the road has changed and it has become virtually a motorway.
Lastly, there is a point that has been made in this House more than once by the noble Lord, Lord Clitheroe. We feel that it is most unfair that where a completely new road is made across agricultural land the landowner should not have the choice that was given in the case of the railways; that is to say, either to take the compensation if he wishes, or for the Ministry of Transport to take the maintainance on themselves. I believe that if he had that choice it would be found that no landowner wished to have compensation and do the job himself, as the Ministry of Transport know perfectly well, because they know
902
that they are paying inadequate compensation. That is why they are most unwilling to undertake this obligation. I think that there should be this obligation in regard to those three classes of road. Again, I do not expect the noble and learned Lord the Lord Chancellor to give me a detailed or, indeed, very satisfactory answer, because it is not his job to answer for the Minister of Transport; but I hope he will show that I have made this point and that he has some sympathy with it. I beg to move.
LORD GARDINER: There was a similar Amendment proposed to the last Bill, and I had sympathy with it. I said that I would consider the point with my colleague, the Minister of Transport, and see what I could do. I had later to report that, while I had done so, I had had no success. Whether the noble and learned Lord the Lord Chancellor will have more success, I do not know. But there is this further point. It is not the Minister of Transport who is concerned any more; it is the Minister for the Environment, and we have been told that he will take a much broader view. Perhaps the noble and learned Lord will think it right to have a shot and see what he can do with him.
THE DUKE OF ATHOLL: I should like to support the thesis of the noble Lord, Lord Henley, but I very much hope that if this does come about it will come in a Bill that applies to the whole of the British Isles (or whatever we have to call them now), including Scotland, because this is a serious problem in Scotland. I believe the death rate this summer on the unfenced parts of the A.9 between Perth and Inverness was something like one sheep every 200 yards. It is becoming a great problem. There are many more cars on these roads, which go much faster, thanks to the improvement of the roads; and people have a habit of feeding the sheep, which attract the roadside motorists, particularly in the lambing season. Until these roads are fenced the death rate among sheep and the accidents caused by people trying to avoid them will be considerable. As an example, may I inform the noble Lord that a lorry on the A.9, in swerving to avoid a sheep, went on to the railway line, completely

903
blocking it, and only because the "Royal Highlander" was half-an-hour late did it not pile into the lorry. I hope that the Ministry of Transport will consider very seriously the point which the noble Lord, Lord Henley, has raised in his Amendment.
LORD ROWALLAN: I should like to support most heartily the words of the noble Lord, Lord Henley. I am in the unfortunate position of having the A.77—one of the main arterial roads in Scotland—passing through my farm. Not a week passes when we do not have at least one car or lorry go through the fences. These fences, fortunately for me, are built up by the road authority, under an agreement made many years ago. The fence at the side of the road is made up of five strands of wire on concrete posts. Cars go through these posts half a dozen at a time, and in the summer-time there is just one long procession of cars being towed away. What am I to do if my man happens to have his day off, or is sick, and a car or lorry goes through the fence, with my cattle in the field alongside to the fence? It is a constant anxiety. I am sure that if we did not have the arrangement that we have with the road authority it would cost me hundreds of pounds a year to keep up the fencing, simply through the thoughtlessness and recklessness of drivers who, on a straight piece of road, really get up a high speed.
8.22 p.m.
THE LORD CHANCELLOR: I think I have learned my lesson not to reply on transport questions on behalf of the Government; that is a salutary experience which a young, newly appointed Lord Chancellor has had to learn the hard way. I take the points which have been made by noble Lords, particularly by the noble Lord, Lord Henley, who has proposed this new clause, and I can undertake to draw the attention of my right honourable friend, now the Secretary of State for the Environment, and his team of able and efficient Ministers, to what has fallen from your Lordships.
I must also insist that this is not a provision which can be handled in the Animals Bill. If the last part of the new clause were accepted, where it imposes
904
an obligation on the Minister of Transport to maintain stockproof fences after October 1 next,
"… on or along any highway maintainable at public expense constructed through agricultural land,"
I am advised that it would impose a new obligation on the Ministry of Transport to construct fences on each side of 150,000 miles of highway, which clearly indicates the strength of the objection to its being included in the Animals Bill.
So far as motorways are concerned, the Minister of Transport maintains fences, but expects farmers—and reasonably so—to co-operate with him to the extent of telling him if there is a sizeable breakdown in the fencing on their land. It is in the interests of both that they should report the matter. In so far as new roads of general purpose character are concerned, all-purpose trunk roads being driven through farming and agricultural land, it is the case that compensation is supposed to cover the maintenance of a fence, although I understand that it may be the practice of the Ministry to erect the fence in the first place. That may be as it should be, but I will draw the attention of my right honourable friend to what has been said by your Lordships. On that undertaking, I hope the noble Lord will not press his Amendment.
LORD HENLEY: Again, may I thank the noble and learned Lord the Lord Chancellor. I have no intention, as I have already stated, of pressing my Amendment. I am not quite sure that I understood the significance of his saying that the Ministry would have 150,000 miles of new fences to erect. They have already erected those fences. My point is that we feel it is unfair that the maintenance should be upon the new owner, even if he is compensated for it—at least he should have the choice of accepting a commuted compensation, as in the old Railway Act, or of the Ministry of Transport maintaining them. With regard to fencing of motorways, which it is already the practice for the Minister to erect and maintain, it ought to be a statutory obligation and not just a practice. Apart from that, I am glad that the noble and learned Lord is going to pass on the comments that have been made in your Lordships' House, and I beg leave to withdraw the new clause.
Amendment, by leave, withdrawn.
Clause 9 [Killing of or injury to dogs worrying livestock]:
8.26 p.m.
LORD SOMERS LORD SOMERS moved Amendment No. 13:
Page 6, line 8, leave out paragraph (b) and insert—
("(b) that notice was given by the defendant to the officer in charge of a police station within 6 hours from the event.")
The noble Lord said: This is a simple Amendment, and it really might have been made by merely saying, "Leave out '48' and insert 'six' ". I had altered the words of the Amendment before deciding upon the figure of six hours, and so I have left it like that. I am entirely in sympathy with the principle of this paragraph. A farmer has every right to see to it that his stock is not worried by dogs. Those who live in the country and own dogs must learn, if they do not know it already, that it is their responsibility to see to it that their dogs do not damage the livestock of farmers. I think that 48 hours is too long a period for the farmer, who either injures or kills a dog, to give such notice. He could give notice perfectly well in six hours. That means either the entire morning or the entire afternoon. Surely he can manage to get back to his house within six hours and telephone the police station. I sincerely hope that this will be considered seriously.
Another attitude from which one might look at it is this. Most people are fond of their dogs—sometimes rather misguidedly—and they do not always train them very well. None the less, they are fond of them, and I would ask your Lordships to imagine that one's dog had gone out in the middle of the day and had not returned that night. One would feel extremely anxious and would telephone the nearest police station to find out whether anybody had seen the dog. One would then go through the night waiting, and next morning one might still find that the dog had not returned. That would cause an owner a great deal of unnecessary mental tribulation. To remedy this, and to make the period of notice to be within six hours is not in the least unreasonable. Therefore, I hope that in spite of the number of my Amendment it will meet with your Lordships' approval.
LORD JANNER: I do not propose to keep the Committee very long. It should be obvious that the period mentioned in the clause is much too long to keep a person whose dog has been injured or killed waiting to know what has happened. It is not a question of getting home; it is a question of getting to the nearest telephone; it is a matter of how long should it take. Whatever view one may take of these matters, the Road Traffic Act 1960, which in Section 77 deals with accidents, and the fact that there is a duty to stop and furnish particulars in the case of an accident, says:
"If in the case of any such accidents aforesaid the driver of the motor vehicle for any reason does not give his name and address to any such persons aforesaid he shall report the accident to a police station or to a police constable as soon as reasonably practical and in any case within 24 hours."
It seems to me that even that was too long a period to give, but the actual time limit is in fact restricted because the notification has to be "as soon as reasonably practicable". If the noble and learned Lord the Lord Chancellor does not feel that six hours should be mentioned, perhaps he would consider at a later stage introducing an Amendment reducing the time and putting in something similar to the clause I have just referred to. I certainly think that nowadays, with all the facilities that are available, six hours should be sufficient.
LORD KILBRACKEN: I am in general in sympathy with this Amendment, but I feel that possibly the suggested period of six hours is too short. We have to remember that in certain parts of England and Wales to which this Bill will apply the person who kills a dog may be a long way from home. It may take him a couple of hours before he gets back to his house, and it is quite possible he is not on the telephone and has to go some distance to use one. Therefore, possibly twelve hours, or something of that order, would in the circumstances be more reasonable.
LORD AIREDALE: Perhaps I might say a word from the point of view of the police. This Amendment would mean—would it not?—that someone who killed a sheep-worrying dog at 9 o'clock on a summer's evening would have to report it, probably to a small country

907
police station, by 3 o'clock the next morning. A policeman's lot is not a happy one, we know, but I would think the police are entitled to a good night's rest, other than in very exceptional circumstances. If a person is killed, of course the police must be knocked up in the middle of the night. I hope that, with a name like mine, I am not thought to be unsympathetic to a dog, but I should have thought that the following morning, in ordinary working hours, was time enough in which to have to report the shooting of a sheep-worrying dog.
LORD SOMERS: Before the noble Lord sits down, may I point out that there is nothing in my Amendment to say that he may not report it before the end of six hours. If a man kills a dog at 9 o'clock he can perfectly well report it at 10 o'clock.
LORD AIREDALE: Can he?
LORD WISE: May I support my noble friend Lord Kilbracken and quote an experience of my own? A short while ago I had a case of sheep-worrying in which I lost a number of sheep, and we shot the dog. I must confess that at that time I was not the least bit concerned about notifying the police; nor was I concerned with the feelings of the owner of the dog. I was completely concerned with the state and condition of my sheep. One obviously should notify, but I think that a day would be quite adequate.
THE LORD BISHOP OF DURHAM: I had assumed out of ignorance that "notice" meant notice given in person. Would it be sufficient for notice to be given by telephone?
8.34 p.m
THE LORD CHANCELLOR: On this occasion I can assume, for the first time for some hours, the noble garments of the farmer's friend. I cannot accept this Amendment from my noble friend. Perhaps he has forgotten what this is about. This provision does not impose any obligation on the farmer to do anything at all at any time within a hundred years of the event, or indeed at all. It has nothing to do with reporting an accident to the police, when for not reporting it one can be fined. It simply says this: that if you shoot a dog which is worrying sheep in the circumstances
908
described in this clause, Clause 9, you can avail yourself of a defence. That is to say, you are not liable for damage to the dog; but if you want to avail yourself of that defence you must report the incident—you must give notice of the incident: I beg the right reverend Prelate's pardon—to the appropriate officer within 48 hours. This is to authenticate that what you have done was done in good faith. But it does not impose an obligation on you to do it. If you choose not to do it, the only difference is that you cannot avail yourself of that defence in a civil action. In reply to the right reverend Prelate, I would point out that the provision says nothing about how the notice is to be given. I suppose that, theoretically, one could do it by post or by sending a man or horseback. But one has to give notice, somehow in an effective manner.
Now I come to the essence of the problem which is within what period of time the notice shall be given. It seems to me that to deprive a farmer of the defence if he fails to do it within six hours is to impose a very great deal of hardship on the farmer. My noble friend Lord Somers (another of the numerous Lords in this House whose title derives from the Woolsack; they almost form a majority by now, I think, among hereditary Peers) really does assume too much when he assumes that a farmer on the uplands, whom we have been talking about for the major part of the afternoon, is necessarily on the telephone, or necessarily has a motor car, or necessarily is within miles of a police station; or that the policeman will necessarily be in when he calls within the time, or that it does not happen at night or in the early hours of the morning.
When I had a case of sheep-worrying in my farm it took place between 3 o'clock and 4 o'clock in the morning, and of course I did not find it out and did not shoot the dog—I wish I had done. Incidentally, I must say to my noble friend that, although I keep dogs myself and am very fond of them, and should be very concerned, I think it is one's business to stop them from worrying sheep. I do not sympathise very much with the anxieties of the owner who lets his dog go out in the countryside as if he were just a member of the family. One should keep one's dog under proper

909
control. I have no doubt that if they do not come back one feels anxiety, but I am not sure that I have not more sympathy with the farmer, and perhaps even with the sheep, than with the owner of the dog.
At all events, 48 hours was the period recommended by the Goddard Committee; it was the period recommended by the Law Commission, and it is the period I recommend to the House. Certainly six hours is impossible, and I do not think there is any particular advantage in having any intermediate period of time that noble Lords choose to mention, having regard for the fact that what is being imposed is not an obligation upon the farmer, for non-compliance with which he can be fined, but a condition of his availing himself of a defence in a civil action.
LORD SOMERS: In view of what my noble and learned friend has said, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 9 agreed to.
Clause 10 agreed to.
Clause 11 [General interpretation]:
8.40 p.m.
LORD KILBRACKEN LORD KILBRACKEN moved Amendment No. 14:
Page 7, line 17, leave out ("any") and insert ("one or more").
The noble Lord said: I hope it will be for the convenience of your Lordships if we consider Amendments Nos. 14 and 16 at the same time, as they are interrelated. We are here concerned with the definition of "livestock", and as I certainly understand it the definition of a word should be capable of being substituted in any part of the Bill for the word defined. As the definition stands at present, "livestock" means
"any animals of the bovine species, horses, asses, mules, hinnies"—
and so on. The purpose of my Amendment is that the definition should read that livestock means:
"one or more animals of the bovine species, horses, asses, mules, hinnies, sheep, pigs, goats or poultry"—
which can therefore be sensibly substituted for the word "livestock" in any part of the Bill. It seems to me at present that, with any normal use of the English language, the word "livestock" wherever
910
it appears will have to mean animals of all these different kinds and would not be applicable to one or more of any one of them. It is with that in mind that I have put down the Amendments to Clause 11. I beg to move.
THE LORD CHANCELLOR: I do not suppose the Committee will wish to take a great deal of time over this Amendment, which is really basically a drafting Amendment. The only trouble is that I take a slightly different view from the noble Lord, Lord Kilbracken. This is a definition of what is meant by "livestock" and I do not think anyone could feel any doubt from reading the definition in Clause 11 about what is meant by "livestock". The only doubt I have about it is whether the word "any" is not otiose. I think it probably is, but this is not the particular improvement suggested by the noble Lord, Lord Kilbracken. However, I will ask my advisers to look at it and see whether, having read his speech in Hansard, they understand it better than they did before. As I say, I have some doubts whether the word "any" is not otiose, but I doubt whether I can go further than that.
LORD KILBRACKEN: I am most grateful to the noble and learned Lord. I feel that the word "any" is otiose, and I am glad that he is to bring this point to the attention of his advisers. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
LORD KILBRACKEN LORD KILBRACKEN moved Amendment No. 15:
Page 7, line 17, leave out ("animals of the bovine species ") and insert ("cattle").
The noble Lord said: I suppose this might also be called a drafting Amendment because it is certainly not one of substance. My proposal is that the word "cattle" should be used instead of the phrase "animals of the bovine species". I really do not know why we have to talk about "animals of the bovine species": it is not the way in which farmers, or anyone else, refer to cattle. If I am showing a visitor my bullocks, my heifers, my calves, and my bulls and cows, I do not invite him to admire these splendid "animals of the bovine species". I say, "These are my cattle".
It may be objected that the first definition in the dictionary—the one we never

911
use, that is never employed in modern times—the first definition of "cattle" is in fact "livestock", and it would be rather a nonsense to say "'livestock' means livestock". But by the same token the first definition of the word "fowls", which is used as one of the meanings of "poultry" is simply "birds—the fowls of the air". Therefore it is just as justifiable to use "cattle" instead of "animals of the bovine species" as it is to use "fowls" as one of the categories of "poultry". I prefer to use words which are commonly used in every day speech by ordinary people, and I think it would be an improvement if we used the word "cattle" here. I beg to move.
THE LORD CHANCELLOR: This again is a fascinating discussion. I am not sure whether yaks, which are certainly bovines, are cattle, or whether buffaloes are cattle. They may both be kept in this country, and probably are—almost everything happens in this country. But I cannot resist reading out, or at least following very closely—the rather interesting piece of learning which is in my brief. It says this:
"The reason for the present fomulation is that 'cattle' is not a precise term in law, whereas there can be no doubt, at least among biologists, about the meaning of 'the bovine species'. 'Cattle' at common law, as in 'cattle trespass' is used as the rough English equivalent of the Law-French word 'avers' which defies satisfactory translation and covers all domesticated creatures which are part of the productive stock of a farm. Broadly, it includes all farm animals except cats and dogs as well as all farm birds. In modem parlance the term is, however, well understood as covering only animals of the bovine species, and as the rest of animals and birds which could be covered are anyway listed in the definition there is no risk of misinterpretation. The Amendment is therefore acceptable as a neat simplification of the language."
LORD KILBRACKEN: Did the noble and learned Lord say that the Amendment is acceptable?
THE LORD CHANCELLOR: I said that very thing. The noble Lord has scored a bull's eye.
LORD KILBRACKEN: I could hardly believe my ears !
On Question, Amendment agreed to.
8.47 p.m.
LORD KILBRACKEN LORD KILBRACKEN moved Amendment No. 17:
912
Page 7, line 19, leave out from ("state") to second ("and") in line 24 and insert (" 'poultry' means domesticated birds")
The noble Lord said: After that triumph, I could hardly expect another one. We move on to poultry. We have always had a great deal of trouble with birds in this Bill. It has always proved difficult to define exactly what birds should be included under "livestock" within the meaning of this Bill. There have been all kinds of arguments, and all kinds of difficulties have arisen, which have resulted in there being this long list of birds, including pigeons, peacocks, quails and pheasants and partridges when in captivity, and so on, and certain difficulties still exist. For example, "poultry" is said to mean certain domestic varieties, whereas in point of fact there cannot be such a thing as a domestic variety since domesticity is something that cannot be perpetuated in breeding. We have to use the word "fowls". I am not sure that it should not be "fowl", but again "fowl" is a word which embraces every kind of bird, and if fowls are included why do we have to include guinea fowls a few words later on?
There must be all kinds of other birds that are just as worthy of being included in "livestock". The only one I can think of at the moment is the black swan. Your Lordships will remember that Sir Winston Churchill used to have black swans. These would not be protected, whereas domesticated guinea fowl or domesticated pigeons would be, and I found myself wondering what on earth are we really trying to say? I decided that what we are trying to say is quite simply that "poultry" means domesticated birds. If we mean birds that are domesticated, which means tamed or brought under human control, then that is what we should say. My Amendment therefore proposes to leave out all reference to pheasants, geese, guinea fowl, peacocks and all the rest of it and to say "'poultry' means domesticated birds". I admit that that would include canaries and budgerigars, but I do not think that is a very profound objection and I do not think it would matter if they were included. If it did we could say "domesticated birds with the exception of cage-birds." I beg to move.
THE LORD CHANCELLOR: This again raises a fascinating list of verbal

913
questions. One certainly would have to include budgerigars and canaries, and I think parrots, and one rather questions whether one ought to shoot dogs that are guilty of worrying budgerigars, canaries and parrots. It raises questions of policy of some importance. I think it is wrong to kill an alsatian that goes off with a pet canary; I think the canary ought to be sacrificed to the alsatian. It is certainly right to give the owner compensation, but should we shoot the dog? This question would be raised acutely by the acceptance of the Amendment in its present form. What does the noble Lord say about pheasants, partridges and grouse, which are at the moment included? One doubts whether pheasants, partridges and grouse would come within the definition "domesticated birds" One should perhaps shoot the dog which is loose among pheasants in the presence of Lady Chatterley's gamekeeper; he would be entitled to use his gun. The noble Lord has done very well this afternoon, and if he will consent to withdraw the Amendment, I shall consider it further.
LORD KILBRACKEN: I am very grateful to the noble and learned Lord for that undertaking. I have great pleasure in withdrawing the Amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 11, as amended, shall stand part of the Bill?
THE DUKE OF ATHOLL: May I ask the noble and learned Lord this question? Deer not in the wild state are included in the definition of "livestock". I have no doubt there is some good reason why hares and rabbits, which many people keep and which are sometimes quite valuable, are not included. Also while in captivity, pheasant, partridge and grouse are included, but there is no mention of duck, other than in the next definition of poultry, and that is only the domestic variety. Many people nowadays keep ornamental duck not of the domestic variety. I should have thought it advisable to include wild duck while in captivity in the definition of "livestock".
THE LORD CHANCELLOR: I cannot give the noble Duke an exhaustive set of reasons. Of course, it would follow, if we had rabbits and hares, that we should extend liability for cattle trespass
914
to a tame rabbit which got out and ate the owner's neighbour's lettuces. I am not sure that this was intended in the Bill. I certainly had not contemplated it when I first introduced the Bill.
THE DUKE OF ATHOLL: Are we extending it to deer in that way? Because deer can do far more damage in a far shorter space of time than any number of rabbits or hares possibly could.
THE LORD CHANCELLOR: We are extending cattle trespass to deer—that was the purpose of the definition—provided they are not in the wild state. My noble friend's red deer on his highland forest will not lead him into trouble, because they are in the wild state, or at least one hopes so. Anyhow, he is in Scotland, so he need not worry about this Bill at all. The object is to make the owner of tame deer or domesticated deer, whatever they are called, liable for cattle trespass, as he would be for yaks, or animals of the bovine species, which I may now call cattle. As regards ducks and grouse and pheasants, I must ask my noble friend to allow me to consult my advisers.
LORD AIREDALE: As this concludes our deliberations, no doubt the noble Lord, Lord Kilbracken, is relieved to have scored a bulls-eye, rather than an optical triumph of the bovine species.
Clause 11, as amended, agreed to.
Remaining clauses agreed to.
House resumed.

MINES MANAGEMENT BILL [H.L.]
8.57 p.m.
THE MINISTER WITHOUT PORTFOLIO (LORD DRUMALBYN): 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 Drumalbyn.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD AILWYN in the Chair.]
Clause 1 [Managers' Assistants]:
LORD DRUMALBYN: I beg to move the Amendment on the Paper. Under the Secretary of State for Trade and

915
Industry Order 1970 the functions of the Minister of Technology under the Mines and Quarries Acts 1954 and 1969 have been transferred to the Secretary of State. That is the reason for this Amendment.
Amendment moved—
Page 3, line 3, leave out ("Minister of Technology") and insert ("Secretary of State").—(Lord Drumalbyn.)
On Question, Amendment agreed to.
Clause 1, as amended, agreed to.
Remaining clauses agreed to.
House resumed.

GREATER LONDON COUNCIL (GENERAL POWERS) BILL
Brought from the Commons; read 1a, and referred to the Examiners.