Lords Sitting of 29 October 1970

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

BARONESS BACON
The Right Honourable Alice Martha Bacon, C.B.E., having been created Baroness Bacon, of the City of Leeds and of Normanton in the West Riding of the County of York, for life—Was, in her robes, introduced between the Lord Milner of Leeds and the Baroness Gaitskell.
Several Lords—Took the Oath.

THE SPORTS COUNCIL
3.17 p.m.
BARONESS BURTON OF COVENTRY: 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 when it is intended to make the Sports Council an independent body responsible for the grant-aiding functions at present exercised by the Government.]
THE PARLIAMENTARY UNDER-SECRETARY OF STATE, DEPARTMENT OF THE ENVIRONMENT (LORD SANDFORD): My Lords, the Government's attitude to the Sports Council remains as set out in our Election Manifesto. But as the noble Lady is aware, being herself a member of the Sports Council, we are currently engaged in consultations about the future composition and functions of the Council. No decisions will be taken until these consultations have been completed.
BARONESS BURTON OF COVENTRY: My Lords, I am grateful for the Minister's reply. May I ask him whether he is aware that for some 15 years I have been fighting for this principle, long before the Sports Council was established?
190
Is he further aware that many people concerned with sport, not only I myself, believe that the Sports Council should be independent, as is the Arts Council, and that no Minister, however capable, should be its Chairman? Finally, if I have understood correctly the trend of the Minister's reply, may I ask him whether, if I were to put down a Question at some later date, the House could expect a definite reply and an affirmative one?
LORD SANDFORD: My Lords, I think that the whole House will be aware of the crusade in which the noble Baroness, Lady Burton of Coventry, has been engaged. All I would ask her to do is to be patient for just a little longer, if she would be so kind.
BARONESS BURTON OF COVENTRY: My Lords, that would be very little after 15 years. I thank the noble Lord.
LORD BYERS: My Lords, would not the noble Lord agree that it would make much more sense to have this as an independent body?

TURNHOUSE AIRPORT: SECOND RUNWAY
LORD KILMANY: 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, as a result of further examination of the situation at Turnhouse Airport, it is now possible to make a more optimistic forecast when the summer of 1974 as the date by which construction of a second runway will be completed.]
LORD DENHAM: My Lords, the earliest date by which the new runway could be completed remains the summer of 1974. As I told the noble Lord in answer to his Question on July 16, the proposals for the development of Turn-house are subject to planning permission and land purchase, and it is important that there should be adequate local consultations.
LORD KILMANY: My Lords, while thanking my noble friend, may I ask whether he is aware that it is difficult to be other than disappointed at that reply? Whatever may be said about the delays

191
of planning permission, it would be mistaken to override them. But where there is a will there is a way, and I hope that the Government will have a will and show it in this matter.
LORD DENHAM: My Lords, we are very much aware of my noble friend's concern and interest in this matter and I assure him that no unnecessary delays will be allowed.
THE EARL OF DUNDEE: My Lords, can my noble friend say who exactly controls this airport: is it the Airports Authority or is it Edinburgh Town Council? To whom will the Government make representations?
LORD DENHAM: My Lords, negotiations went on for a long time with Edinburgh Corporation and it was not possible to reach a satisfactory financial agreement with them for the Corporation to take over the airport. Negotiations are now going on between the Department of Trade and Industry and the Airports Authority, and have been for some time, and it is hoped that the transfer to the Airports Authority will be finalised by April 1 of next year.
THE EARL OF DUNDEE: My Lords, will that accelerate the matter?
LORD DENHAM: I am afraid, my Lords, that that has been taken into account in the answers that I have already given.
LORD HOY: My Lords, may I ask the noble Lord whether there is any technical reason why the work is not being done? If delay is taking place at the present time, is the noble Lord able to say who is responsible?
LORD DENHAM: My Lords, there are really three phases before the new runway can be completed. First of all there is the transfer to the British Airports Authority, which I have already mentioned. Secondly, planning permission has to be obtained; there must be consultation with local interests, and there has to be the purchase of land. The third phase is the actual building of the runway, which according to my information cannot be done very quickly. It is between
192
these three phases that the estimate has been arrived at for the summer of 1974.
LORD FERRIER: My Lords, as the planning of the terminal building is part of the whole conception, would not the noble Lord agree that the ultimate planning of such a building is subsidiary to the construction of the main runway, and that the consideration of the building it-self should not stand in the way of progress in getting on with what Edinburgh really needs, which is a second runway?
LORD DENHAM: My Lords, I would agree, and that is in fact the position.

METRICATION
THE EARL OF CORK AND ORRERY: 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 they propose to do about metrication.]
THE MINISTER WITHOUT PORTFOLIO (LORD DRUMALBYN): My Lords, a statement on behalf of the Government was made in another place by the then Minister of Technology on July 20. Your Lordships will also have noted the debate which took place there the day before yesterday. I have put down a Motion for debate by this House on November 11 next, and I would ask my noble friend to await my speech on that occasion.
THE EARL OF CORK AND ORRERY: My Lords, I am grateful to my noble friend for that reply, and I am most happy to do what he suggests.
LORD WYNNE-JONES: My Lords, would not the noble Lord agree that Mr. Robert Boyle, the "father" of chemistry and uncle to the Earl of Cork, would have been rather surprised at any question being raised about the advantages technologically of what has been accepted for 150 years?
LORD DRUMALBYN: My Lords, I am clearly not acquainted with that, and I am afraid that I cannot answer the question.

RAILWAY GOODS WAGONS
THE EARL OF CROMARTIE: 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 progress has been made by British Railways since March, 1969, in replacing the 330,000 short-wheelbase goods wagons by others having a 15-foot wheelbase and being provided with suspension of improved design.]
LORD MOWBRAY AND STOURTON: My Lords, I am informed that the Railways Board have been able to make steady progress in reducing their large fleet of short-wheelbase wagons, whose number should be reduced to about 260,000 by the end of this year. Since January, 1969, some 3,200 new wagons, of 15-foot or more wheelbase and with modern suspensions, have been introduced. The short-wheelbase fleet continues to run under strict operating rules, and a number of measures are being introduced or are under development to improve performance.
THE EARL OF CROMARTIE: My Lords, while thanking my noble friend for his Answer, which considering the course of these things is probably satisfactory, may I ask him how many derailments there have been on British Railways since I first put this subject on the Order Paper?
LORD MOWBRAY AND STOURTON: My Lords, I cannot give to my noble friend the exact answer that he has asked for. I can tell him, however, that in the first eight months of this year derailments of goods trains compared to the number in the first eight months of 1969 are 16 per cent. down. This is a trend in the right direction.
LORD POPPLEWELL: My Lords, can the noble Lord say whether the short-wheelbase wagons are kept off main line running and confined to sidings and the ordinary type of work?
LORD MOWBRAY AND STOURTON: My Lords, I cannot give the noble Lord
194
a complete assurance on that, but I think that the Railways Board are trying to do that as far as possible.
LORD SOMERS: My Lords, can the noble Lord tell me whether the new rolling stock will be bogey stock and whether it will be through-brake?
LORD MOWBRAY AND STOURTON: My Lords, of the new rolling stock which is coming on—there will, for instance, be 3,200 new rolling stock which was authorised to the Board last year by the Minister—about 20 per cent. will be bogey; the remaining four-fifths approximately will be double axle, and the through-braking will be done.
LORD MERRIVALE: My Lords, can my noble friend say when it is expected that the short-wheelbase wagons will be entirely replaced by modern wagons?—because they are completely obsolete and not in accordance with Continental standards.
LORD MOWBRAY AND STOURTON: My Lords, I cannot say when the short-wheelbase wagons will be completely removed, because they are still the vast majority of the fleet. What I can say is that experiments are going on at the moment to improve the suspension and braking force, and the Board are hoping for another report from their experts in the early part of next year. When they have this they hope to be able to go a long way towards making the performance of short-wheelbase wagons much better than it is now.
LORD REA: My Lords, can the noble Lord say whether the new wagons will have a greater tonnage than the recent short-wheelbase wagons?
LORD MOWBRAY AND STOURTON: Yes, my Lords.

THE EUROPEAN ECONOMIC COMMUMTY
EARL ST. ALDWYN: My Lords, at a convenient moment after half-past three my noble friend Lord Lothian will be making a Statement on the European Economic Community.

DEPUTY CHAIRMEN OF COMMITTEES
THE CHAIRMAN OF COMMITTEES (THE EARL OF LISTOWEL): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the Lord Derwent be appointed to the panel of Lords to act as Deputy Chairman of Committees for this Session.—(The Earl of Listowel.)
On Question, Motion agreed to.

ANIMALS BILL [H.L.]
3.28 p.m.
THE LORD CHANCELLOR (LORD HAILSHAM OF ST. MARYLEBONE): My L1ords, in the debate on the gracious Speech the noble and learned Lord, Lord Gardiner, gave me various pieces of advice which in my then wholly untutored state I was only too glad to clutch. One of these pieces of advice related to the Animals Bill, which the noble and learned Lord suggested that I should reintroduce. He followed up this advice with a question, and before the end of July I was able to tell him that, pursuant to his advice, I was introducing the Bill, and it was read a first time. Seldom in the history of the Woolsack can one Lord Chancellor have been more compliant with the wishes of his immediate predecessor.
I now rise with great pleasure to move the Second Reading of this Bill. Apart from one or two changes, which I will mention at the appropriate point, it is in essence the Bill of 1969 as amended and as refined by your Lordships' House in the previous Parliament. Having passed your Lordships' House, with Amendments, this Bill in its present form was well received by both sides in another place. It was then given an unopposed Second Reading. It had not, however, proceeded further by the time Parliament was dissolved.
When he introduced the earlier version of this Bill into the House in 1969, the noble and learned Lord, Lord Gardiner, gave an exposition of the law both as it was (and still is), and as it was proposed to amend it. That exposition was widely acclaimed as masterly, both in this House and when the Bill was debated elsewhere. It would therefore be foolish
196
of me to seek in any way to compete with the noble and learned Lord, and imprudent to repeat what is still so fresh in your Lordships' minds, and what can so easily be referred to in the pages of Hansard.
Suffice it to remind your Lordships that it is widely, and I would say almost universally, accepted that the law relating to liability for damage done by animals is a fit and urgent subject for legislation. This was acknowledged at least as long ago as 1953, when the Goddard Committee reported, if not earlier, and the same theme was repeated by the Law Commission in their Report of 1967, which forms the foundation of the present Bill. I think it follows that if we are to be treated as serious in the zeal that all of us, on all sides of both Houses, profess for law reform it is incumbent upon us to pass a measure this Session embodying the best of the collective wisdom that we are able to bestow upon the subject. I hope that this may be done with the minimum of delay.
The first seven clauses of the Bill before the House are, I hope, relatively uncontroversial. They are an attempt to reduce to something like a code (though I am told that I must not call it a code) the existing common law on the subject of strict liability for the damage and injury caused by animals. Obviously the common law cannot be consolidated like a series of Statutes. If it were capable of such consolidation so clear that it did not require clarification, and so perfect that it did not need any alteration at all, presumably there would be little virtue in legislation. Nevertheless, the law as it is stated in Clauses 1 to 7 is, broadly speaking, a plainer statement than has hitherto been available of the law as I have understood it to be at the present time, with such additions as Parliament has seen fit to suggest up to the moment.
Clause 1 and the repeals provision substitute the new code which is contained in Clauses 2 to 5 inclusive for the corresponding provisions of the existing law. Under the new code, as under the existing law, there will be four cases of strict liability for damage done by animals. And here I should explain, what is doubtless well known to your Lordships, that when I use the phrase "strict liability"

197
I mean liability independent of negligence. First of all, there is a liability for damage done by "a dangerous species" of animals; and this phrase is defined in Clause 6. Secondly, there is a similar strict liability in respect of animals which, although not belonging to a dangerous species in the sense defined, are known to have particularly dangerous characteristics at particular times or to have individually dangerous propensities known to the person held liable.
Your Lordships will notice that the criteria which determine liability for the acts of a normally harmless species of animal have been reformulated since the Bill last left your Lordships' House. The earlier formula was that:
"… the animal has such characteristics that it is likely, unless restrained, to cause damage …".
This was objected to on the ground that it was arguable that even quite normal acts on the part of such an animal, which in certain circumstances could cause danger, might render the owner liable to damages. For example, it was argued that on the existing formula a large dog knocking over small children, or a stray cat causing a car to swerve into a collision, might render the owner liable. Under the revised clause (the refined clause in the present Bill) this is no longer so, and in the case of an animal not belonging to an inherently dangerous species only that animal's abnormal characteristics can give rise to liability.
The liability under these first two heads—that is, in respect of dangerous species and of animals with especially dangerous characteristics though belonging to a species not held to be dangerous—attaches to the keeper of the animal (and the term "keeper" your Lordships will find defined in Clause 6 of the Bill) and also to the head of the household if the keeper himself is under 16 years of age. In addition to these two heads of strict liability the Bill imposes a strict liability for dogs killing or damaging livestock: this liability also attaches to the "keepers" of dogs as defined in the Bill. This third head of strict liability reproduces the effects of some of the provisions of the existing Dogs Acts, now to be repealed by the Bill.
Clause 4 reproduces and extends the existing law relating to damage for cattle trespass; that is, damage to land or pro-
198
perty caused by straying beasts, other than those straying from the highway. Here again, under this head, the fourth head, the liability is a strict liability independent of negligence.
Special defences to the strict liability clauses are set out in Clause 5 of the Bill, and one of these special defences has been refined in comparison with the text of the 1969 Bill. Under the new provision, as now in the Bill, the owner of an animal which has caused damage by trespassing on neighbouring land will not be able to resist the neighbour's claim for injury done to his land simply by asserting that that neighbour was under a duty, owed no matter to whom, to fence the animals out. He will have to show that that duty to fence was owed to someone having an interest in the land from which the beasts have strayed.
In passing, I should point out that Clause 10 of the Bill applies the law of contributory negligence as partial defence to the types of strict liability that I have been describing. Clause 7 deals with' a slightly different subject; it re-enacts with improvements and clarifications the old and archaic law relating to the right of distress damage feasant, as it was called, to which, it will be remembered, Mr. Pickwick was rendered subject when he was put in the pound.
All this, I should have thought, was relatively uncontroversial, although in studying the reports of the debates on the 1969 Bill I noted that there was a certain amount of controversy on Clause 4 because certain noble Lords desired to add to liability for direct damage liability for indirect damage from cattle trespass due to the loss of a certification by owners of brucellosis-free herds. All this was fully discussed on Committee in the earlier passage of the Bill, and if need be we can discuss it on Committee again, though Her Majesty's present Government have come to exactly the same conclusion on this point as did their predecessors.
The main controversy on the Bill has always centred on the provisions of what is now Clause 8. This is the only clause which makes an alteration in the common law which I should have described as radical, and, because both the law as it is and the law as it will be when this

199
Clause 8 is passed involves a compromise between two perfectly legitimate sets of interest, it naturally gives rise to argument and sometimes even to strong feeling.
Our law as it is grew up at a time when highways passed for the most part of their length through land almost entirely unenclosed and when depasturing of cattle on manorial wastes or on uncultivated land outside the common fields was a common law or customary right. I am sure it will be remembered in this connecton that before the beginning or perhaps the middle of the 18th century many of our highways were virtually impassable in winter, and in summer a very great part of the traffic was foot, pack, or bridle, and long-distance transport consisted of rumbling carts or coaches pulled at a walking pace by teams of horses. Obviously at that time and in those ages such conditions lent themselves to the growth of the proposition that no farmer had any obligation at all to fence his animals in from the road. They were left to stray about the highway—and even in my own lifetime I can remember a prosperous farmer who had the reputation of having begun as a landless man who made his living by depasturing two or three milking cows on the palatable grass and herbage by the side of country lanes.
In such circumstances the rule caveat viator was obviously a sensible rule of thumb. But I think it would now be generally recognised that this idyllic picture no longer corresponds with reality in an age of fast moving mechanical transport, and the rules of law founded in such times do not succeed now in achieving justice between man and man. If it were simply a question of damage to property there might be more to be said than there is for leaving matters alone. But collisions between fast moving traffic and straying animals leave a horrid train of injury to life and limb behind them, and in these circumstances we feel that it is no longer justifiable to exempt the owners of straying animals on the highway from the normal law of negligence—there is, of course, no question here of imposing a strict liability.
The difficulty is that conditions differ almost indefinitely. In some parts it would be almost criminal to allow
200
animals to stray at all. In others, roads pass through long vistas of mountain country where important rights of pasturage exist and where hedging or fencing would be wholly uneconomic. On motorways the Government provide the fencing, although the farmer ought to warn the highway authority if he notices that parts of the fence have been broken down. There are of course other special areas where individual rights of depasturing exist which are in the nature of property rights which could be bought out only by means of a hybrid or local Bill, and this Bill would not be the appropriate instrument for invoking for this purpose.
Clause 8 is therefore to some extent a judgment of Solomon. I have no doubt at all that it is an improvement on the existing law. I should, personally, like to improve it still further, but it was very much and fully discussed on Committee when the Bill was before your Lordships previously; and I would not myself like to hold out any particular hope that further discussion or reflection will bring greater illumination. But I should welcome suggestions and promise to turn nothing down which seems genuinely likely to ease matters in a constructive way.
By itself subsection (1) of Clause 8 would perhaps be too uncertain and become an open invitation to litigation, and that is why subsection (2) provides the courts and the legal profession with some guidelines to assist their decisions or advise their clients. We hope that farmers who have anxieties about their position under Clause 8 will be somewhat reassured by the fact that the judge is specifically enjoined to have regard to factors affecting the nature of the land and to farming practices in the neighbourhood. There is a precedent for such guidelines being given in the Occupiers' Liability Act which proved helpful in the context of that Act.
Clause 9 of the Bill both extends in one direction and limits in another the right of an owner to defend his livestock against marauding dogs. These rights have hitherto depended on judge-made law. Clause 9 substantially reproduces that judge-made law, but with two exceptions. In the first place, the owner of the livestock can claim his immunity from liability only if he informs the police,

201
and informs them within 48 hours, of killing or maiming a marauding dog. In the second place, this judge-conferred right is extended in cases of dogs roaming about out of control after an attack, and also to cases where, although the statutory conditions for the exercise of the right are not in fact satisfied, the owner of the livestock had reasonable grounds for believing, and did believe, that they were satisfied. Sheep worrying is a grave menace. It kills or injures about 9,000 sheep a year. It is very important that the farmer's rights to protect his sheep should be strengthened, and Clause 9 is an attempt to achieve this object.
Clause 10 is perhaps a rather inelegant piece of legislation by reference, but in brief it applies the Limitation Acts and the defence of contributory negligence to the cases of statutory liability established by Clauses 2 to 4. Clause 11 is the definition section, and here I need only draw your Lordships' attention to some further rationalisation of the definitions of "livestock" and "poultry". These had already been improved as the result of discussion at the Committee stage of the previous Bill. But your Lordships will probably also notice that a subsection which this House had added to the clause on a Division in the Report stage of the earlier Bill has again been omitted. That subsection, which would have permitted regard to be had to the Law Commission's Report in interpreting the provisions of the Bill, provoked a great deal of criticism, not only in another place but also from the legal profession and from the Judiciary. It has therefore been again omitted.
Clause 12 defines the position of the Crown, and Clause 13 is purely formal. It therefore, my Lords, only remains for me to commend the Bill to the House. It is not, of course, for me to limit in any way—nor would I desire to do so—the course of discussion in your Lordships' House, but I should respectfully think, for the convenience of the House and having regard to the previous passage of the Bill, that the Second Reading might be taken reasonably quickly and that any outstanding points of difference might he threshed out more thoroughly in Committee. I have much pleasure in moving that this Bill be read a second time.
Moved, That the Bill be now read 2a.—(The Lord Chancellor.)
3.50 p.m.
LORD GARDINER: My Lords, it is always a pleasure to meet an old friend, and this Bill is an old friend. It is none the worse for having nothing whatever to do with Party politics and therefore I must respectfully congratulate the noble and learned Lord the Lord Chancellor on reintroducing the Bill. To the extent that it is the same Bill as the one that left this House and went to another place I naturally strongly support it, and in any case of course I support the Second Reading of the Bill. The few observations that I have to make therefore relate to the changes in the Bill since we saw it last. These are not changes made by the other place but presumably they have been made by the Government.
The first change is a redraft of Clause 2(2). There were criticisms in Committee of the wording of this clause, and on the Report stage of the Bill on December 11 of last year (OFFICIAL REPORT, col. 657) on an Amendment moved by the noble Lord, Lord Foot, I said:
"I am not certain that the noble Lord has not got a point. I have, therefore, been reexamining the clause, in consultation with the experts in the Law Commission and others, to try to ascertain whether the noble Lord's concern is justified. It has not been possible so far to conclude these consultations in the time available."
I then stated what the intention of the Government was in regard to the clause, and I concluded by saying:
"As I have said, these consultations are still going on; and if the noble Lord would be good enough to withdraw his Amendment, if it is found that Clause 2(2) goes wider and imposes liability in circumstances not contemplated in the recommendation, I would undertake, in consultation with the Law Officers, to ensure that the necessary Amendments to narrow the scope will be introduced in another place."
My Lords, those consultations were not complete when I left office. They have evidently continued and resulted in the redrafting which has taken place. I would respectfully say that in my opinion the re-draft is an improvement and I hope that the House will accept it. There has also been a re-wording to some extent of the definition of "livestock" in Clause 11(1), and there again I think the change made is an improvement.
The noble and learned Lord the Lord Chancellor has also pointed out that one subsection, subsection (2) of Clause 11,

203
which was in the Bill as it left this House has now been omitted. That is the sub-section which would have enabled judges, in interpreting the Act, to look at the report of the Law Commission on which the Act was based. That was not inserted in the Bill originally. It was an Amendment moved by the noble and learned Lord, Lord Wilberforce, and accepted by the House. I could never see any objection to that. It seemed to me to be good sense, particularly because most of our existing law in this field is case law. To state what is the existing law one would have, strictly speaking, to look at about 260 reported cases going back over years, whereas the report of the Law Commission contains an accurate and authoritative statement of what the existing law is. However, as the noble and learned Lord has said, there were various criticisms of this subsection in the other place, and I should be inclined to think that no useful purpose would be served by trying to move it back into the Bill, because it raises a general question as to what documents, what reports, or, in the case of the implementation of a treaty, what documents, can be had regard to by those whose duty it is to construe the Act.
The whole question was the subject of a Report of the Law Commission which I think is about the only Report of the Law Commission made during the lifetime of the last Government which has never been considered by Parliament. I do not propose to put down an Amendment on this point, but I would ask the noble and learned Lord on the Woolsack whether he proposes to afford the House at some stage—possibly both Houses—an opportunity to consider the Report of the Law Commission on the interpretation of Statutes.
My Lords, Clause 13(3) naturally alters the date for the coming into force of the Act, which is now to be October 1, 1971. That may seem rather a long time ahead, but the lawyers must have time to assimilate new law and their clients must have time to consider, like the advice they get, whether the passing of an Act makes it desirable for them to take certain steps or not.
That leaves only Clause 5, subsections (6) and (7). Clause 5(1) of the Bill as
204
it left this House, and as the present Bill reads, says:
"A person is not liable under sections 2 to 4 of this Act for any damage which is due wholly to the fault of the person suffering it."
That is only sense, is it not? A person should not be able to get damages for something due entirely to his own fault. Clause 5(6) read then, and still begins, in this way:
"In determining whether any liability for damage under section 4 of this Act is excluded by subsection (1) of this section"—
that is the subsection I have just read—
"the damage shall not be treated as due to the fault of the person suffering it by reason only that he could have prevented it by fencing;"
That is right, is it not? Whether you ought to fence or not, must, as the noble and learned Lord has said, depend entirely on the nature of the country. The subsection goes on:
"but a person is not liable under that section where it is proved that the straying of the livestock on to the land would not have occurred but for a breach of' a duty to fence …"
Again that is right, is it not? There the subsection stopped, but we now find added these words:
"and that the conditions specified in sub-section (7) of this section are satisfied."
There is a new subsection (7) which says:
"The conditions mentioned in subsection (6) of this section are—

(a) that the duty was owed to a person having an interest in the land from which the livestock strayed; and

(b) that the person who suffered the damage was answerable for the breach,

and for the purposes of this subsection a person shall be taken to be answerable for a breach of a duty to fence if, and only if, cither—

(i) the duty was owed by him; or

(ii) he is under an obligation (however arising) to indemnify any other person for sums payable by that other person by way of damages for breach of that duty or by way of indemnity for any such damages or for a like indemnity."

My Lords, I must say that I find this wording very inelegant, and this conception of being answerable for a breach a somewhat difficult one. On this point the Bill as it left this House was based on paragraph 67 of the Law Commission's Report, in the course of which it said:
"Any new rule must seek to state the defences so as to be limited in nature and clear in effect".

205
I think we can say that in the form in which this clause left your Lordships' House the defences were limited in nature and clear in effect. Later in that paragraph it said:
"The plaintiff should not be regarded as responsible for or contributing to the damage by reason only of the fact that he could have prevented the straying of the livestock by fencing; but the keeper of the livestock should not be liable if the straying would not have taken place but for a breach by any other person, being a person having an interest in the land strayed upon, of a duty to fence."
That was the basis of the clause as it left this House. The addition to subsection (7) seems to me not to be limited in nature and clear in effect. I always thought it was one of the great merits of this Bill that it was in English and in words which any educated man could understand for himself. I gravely doubt whether the educated farmer who reads subsection (7) will really understand what it means, and I respectfully invite the noble and learned Lord the Lord Chancellor to reconsider this subsection before we come to the Committee stage of the Bill. With that exception, I welcome the Bill and I hope in any case that your Lordships will give it a Second Reading.
May I add this footnote? I understand that some amenities pressure group is now opposed to anything in the Bill which might result in any fence going up anywhere, on the ground that fences are unsightly. I shall not have an opportunity of answering anything said under that head, but the noble and learned Lord the Lord Chancellor will, and I would ask him, as his means of information are now greater than mine, whether I should be right if I said this. The whole subject is a serious one. Some of your Lordships may remember that in relation to dogs alone 500 people a year are either killed or seriously injured on the roads; and that is, after all, a large number a week. In view of the number of injuries on the main road running through Epping Forest, I believe it was, caused particularly by straying deer, the authorities responsible have now fenced the road. That has had two consequences: first, it has been found that the fencing is not at all unsightly in fact, and secondly, it has led to a dramatic fall in the number of accidents on that road. With those observations, I warmly commend the Second Reading of the Bill to your Lordships.
4.2 p.m.
LORD HENLEY: My Lords, I came here expecting every concession from the Conservative Government and I find instead a conspiracy of Lord Chancellors, with—what was it the noble Lord said?—advice on the one hand and compliancy on the other. This is the same Bill, in substance, as the previous one and of course I welcome it, except for my misgivings on Clause 8, which, as the noble and learned Lord, the Lord Chancellor, has told us, reverses the common law rule about straying animals and brings many difficulties with it. As the Lord Chancellor said, this is the only radical part of the Bill and it is the one which I think the agricultural interests have most doubts about. We debated the Bill at length last year, and though we passed it we did so without any of those Amendments to Clause 8 which many noble Lords, including some sitting on the Conservative Front Bench, when in Opposition felt ought to have been accepted by the Labour Government. I know that this is not a Party Bill in any sense, but I hope that the Conservative Government, who, as some of their Front Bench members strongly supported some of those Amendments, will look upon them with great favour this time. The Lord Chancellor has promised not to turn everything down. If he did turn everything down, it would be tantamount once again to according to the Liberals their undoubted privilege of being the only Party that is right all the time.
Those of us who wanted to amend Clause 8, notably by putting unfenced land which is not common on the same footing as common land, which is excluded from the Bill, are powerfully reinforced this time by the County Councils Association, the National Trust and the Council for the Preservation of Rural England. I was sorry that the noble and learned Lord, Lord Gardiner, referred rather pejoratively to these as certain amenity pressure groups; I think that is an unsuitable thing to say. Nor do I think that the noble and learned Lord has quite got the point about fencing previously unfenced land. I know that in certain circumstances fences can look extremely attractive. I know that in many other circumstances we are doing our best to prevent fences, where they exist, from being removed. But one does spoil some of this wild

207
open country by putting up fences, however elegant they may be. That is a fact very much in the mind of the County Councils Association, the C.P.R.E. and the National Trust. Again, if it were to become necessary to fence all this land, the expense might mean that it would cease to be agricultural land or pastoral land at all and would have to be turned to commercial forestry; and this, again, is something which probably we should all think a mistake.
I agree with the Lord Chancellor to-day, as indeed I agreed with the noble and learned Lord, Lord Gardiner, when he made the same point a year ago, that it is quite clear that conditions in the modem world have changed and so must the law. I think that the noble Lord then referred to it as simplification and modernisation, and I agree that it is time this was done. But at whose expense? The livestock keeper in the past was always liable for damage to his neighbour's crops, because his neighbour's crops were always there, and so was the risk to those crops of straying animals. But the liability for damage to users of the highway was a risk that could be ignored, because it was virtually non-existent when such traffic as there was went at the pace of the horse, an animal itself. I agree that this no longer complies with reality and that we must make the farmer, in this as in other cases, liable to the ordinary law of negligence. But I think that by reversing the whole of the common law here you are doing more than that. Not merely are you making him liable, as everyone else is, and as he ought to be, for the ordinary rules of negligence; you are putting upon him a burden for something not of his making. It was, after all, the motorist who created the possibility of damage, and it is the motorist who has created this situation and who now asks the keeper of livestock to bear the burden of its attendant risk.
The noble and learned Lord, the Lord Chancellor, refers to this as the judgment of Solomon. I think Solomon's judgment in the famous case we all know was more equitable than the one the noble Lord proposes. It simply is not enough to suggest that this is a burden which it is quite easy for the keeper of livestock to take over, and to say that it is just a
208
matter of insurance. It is extremely difficult to get insurance for a number of things now. The rates of insurance are going up very much. The National Farmers' Union have conducted an initial survey on this matter and they are not at all happy that it is going to be so easy to insure against this risk. But even if it is such a simple burden, why should the keeper of livestock have to accept it and not the motorist who has put the livestock keeper at risk? I made these points at the Second Reading and I do not want to bore your Lordships by saying any more about them now until we come to the Committee stage.
I have, however, one new suggestion which is not immediately part of this Bill but very closely related to it, if a new liability is going to be put on one section of the community by another. It concerns the present obligation with regard to the fencing of roads. In the case of motorways the Ministry of Transport erect and maintain the fence, but there is no statutory duty on them to do so and hence in theory there is no liability on the Ministry of Transport for any accident that might be caused. You may well say that in practice this would not arise, because if cattle escaped on to a motorway, through the fence which had been erected and maintained by the Ministry of Transport breaking down, the Ministry would accept that liability, or if they did not the farmer could sue them. I suppose that may be so, but there is no certainty that the livestock owner would have any success, and in any case he would be put to great expense.
Moreover there are roads which are not motorways but which are being brought up to motorway standard; they were in some cases quite small roads and are now of motorway standard. Thirdly, and probably the most unjust case of all, there are new roads across land where there was no road and where the landowner is compelled to take over a new fence that has been erected by the Ministry of Transport. There is compensation: a capital sum is paid to the landowner in order to commute this annual liability for a fence. But, in effect, the landowner is being asked to take over liability where there was none before. It is a heavy liability and the compensation is proving quite inadequate.

209
Then there is the question of damage to fences and to roads by passing motorists who do not report the matter. In the case of an extensive sheep farm—or, for that matter, an extensive cattle farm—the farmer may not know for many days that the fence has been broken down, and animals may escape. But he may well be held liable. Quite clearly, under the Bill it can be shown that he has not in fact been negligent, but he may be put to considerable expense in defending himself in the courts against what may well be a frivolous charge. Furthermore, there is at present no liability on a motorist even to report damage done to a wall or a fence. It is interesting that the Ministry of Transport are not willing to accept the proposition that a motorist should report such an accident: they say that it is too difficult to enforce. A motorist is required to report running over a dog and in this context I should think it much more important that he should have to report damaging a fence.
Many of us feel that in all the cases that I have described it should be the statutory duty of the Ministry of Transport to erect and maintain the fencing, with a corresponding liability for accidents that may occur. We have approached the Ministry of Transport a number of times on this issue over many months, but they will have none of it, because they say that the frontager has always been responsible for a fence and always should be. This is all very well, but the noble and learned Lord is here asking for a radical change in the law, and I think that if we are to have a radical change in the law, putting on to a livestock keeper a liability which is not of his making, then correspondingly we must help him by changing the old custom that the frontager should always be responsible for his fences. It may be a reasonable proposition in the case of a new fence on an old road, but it is totally unreasonable where it concerns an altogether new road where there was no fence previously. So much for this new suggestion. As I say it has nothing to do with this Bill as it stands, and it probably could not be the subject of any Amendment; but it is something which I think your Lordships would do well to consider in the context of this Bill.
210
Lastly, I would say a word with regard to the specific matter in Clause 8 which so many of us felt should be put right, that of unfenced land. If unfenced commons are excluded from the new liabilities imposed by this clause so must unfenced roads which are not common. It is a ridiculous distinction. In defending it for the last Government the noble and learned Lord, Lord Gardiner, seemed to me totally to fail to answer the question as to why there should be this meaningless distinction. I think he failed to answer because it is unanswerable. I shall certainly put down another Amendment along the same lines to try at least to gain this point, and I am quite certain that I shall get a great deal of support from both sides of the House.
As I said last year, most of this Bill is good; and that part of it which is bad is bad not because it is in itself intrinsically wrong—as I say, we all agree here that the law must be changed—but because it is charging the cost of this change to the wrong people.
VISCOUNT TENBY: My Lords, may I ask the noble and learned Lord the Lord Chancellor a question about cats? Normally they are outside the law and their owners have no liability. What is to happen about that matter?
4.15 p.m.
LORD CLIFFORD OF CHUDLEIGH: My Lords, as a farmer and landowner I wish briefly to support what the noble Lord, Lord Henley, has just said, particularly on Clause 8. I feel it is hard on hill farmers, who traditionally have a lot of unfenced land and who traditionally are themselves generally poorer and less able to afford the aforementioned insurance. As I see it, this contentious clause can put the onus on the farmers, whereas it should be on the motorist and the road authority.
I should like briefly to tell your Lord-ships of my own particular circumstances in Devon. I have here three photographs, which I will willingly show to any noble Lord, of a particular stretch of the A.380 between Exeter and Torquay which passes through my land. Several years ago the road authority asked me whether a solid bank and hedge could be bulldozed out, so that better visability would be provided for the

211
motorist. I naturally concurred. The hedge and bank were removed and the road authority erected a fence. Two years later they made another new road which split three of my farms and turned this road, the original dual carriage road, into a single carriage road. The obvious thing happened. Within a period of six months uneducated drivers, not used to our windy Devon lanes, smashed through the fence fourteen times. My arrangement with my tenants is that I provide the material and they provide the labour for renovating fences.
This question of onus is one which I think should be put right. But how does that apply to Clause 8? Sometimes we can catch the motorist, but often he gets pulled out or gets out of the field before his number can be taken, and we have no insurance. These fences are broken sometimes two or three times in a night, especially in the high season, and cattle escape. I ask the noble and learned Lord on the Woolsack whether on the Committee stage it would not be possible so to amend this Bill that the farmer has no legal responsibility for damage done in that way by passing motorists, or in regard to unfenced highland. It is our feeling that the road authorities should be made responsible for this damage. In my case they erected the fence and removed a good, substantial bank. But they have no responsibility for repairing the fence and, as I see it, no responsibility for any damage done by reason of cattle straying.
I should like also to support the plea made by the noble Lord, Lord Henley, that it should be made statutory that motorists going through fences should report the damage to the police, so that even if we can get no other compensation, or if the road authorities will not pay up for what I consider they ought to, then we can at least approach the motorist's insurance company and get some sort of compensation there.
4.20 p.m.
LORD MARGADALE: My Lords, I should first of all disclose my interest, namely, that I am a motorist who does quite a lot of long-distance motoring, and I am also a farmer and landowner. I am not a man of law, and I am diffident about speaking, after hearing the speech made by the noble and learned Lord
212
the Lord Chancellor, whom I heard make his first speech I believe nearly fifty years ago—and a very good one, too—and after hearing his predecessor, who has also spoken on this Bill. Nor did I take part in the discussions in this House on this Bill as it was in the last Parliament.
I do not want to take up more than a minute or so of the House's time, but the noble and learned Lord the Lord Chancellor has said that he would be open to a few suggestions and that Clause 8 is a bit controversial. As I see it, Clause 8 is unfair in some instances to the farmer and the stock-owner, or holder. If an accident occurs through an animal getting on to a main road thanks to a vehicle going through the fence at midnight, the responsibility, so far as I can see, will be the farmer's. I may be told by the legal profession that that is not so, because if somebody has seen the accident, or the number of the vehicle has been taken, the onus can be put on the breaker of the fence. But often enough on main roads—and a main road goes through the farm that I have—vehicles go through at midnight, and by 4 o'clock in the morning some animals can be out on the road. I hope I can be reassured that that will not be held to be the responsibility of the farmer, because it would affect a great many farmers throughout Britain.
To turn to motorways, the noble and learned Lord the Lord Chancellor said that they were covered because a fence was made when the motorway was being constructed. It is a wooden fence, which looks nice and fits in with the excellent landscaping of our motorways, but often enough it is low enough for any form of cattle, or a horse, to jump over, and it is not sufficiently fenced underneath to stop a sheep, pig or a dog from going under. I think that where stock-proof fences have been taken over in the building of a motorway, it is only right that the transport authorities should put back a proper stockproof fence to stop animals from straying.
Lastly, on the question of unfenced land, I may say that there is a great deal of unfenced roadway in Wales, in the North of England and in Scotland; and to the average black-faced sheep there is some fatal attraction in sitting on a warm tarmac road. There is also the case of the New Forest. I think that my noble

213
friend who is sitting in front of me is a verderer. I do not know whether ponies sit on a road, but if they do in the New Forest, and along comes a motor car going too fast and is responsible for a concertina smash, I should think that that is the motorist's liability and not that of the owner of the pony; but I do not know and I should like to be reassured on that point. There are other things in the Bill which I feel sure are excellent, but I hope that before a final decision is taken the Government will not close their mind regarding these important and costly provisions for the farming community in this country.

BRITAIN AND THE EUROPEAN COMMUNITY
4.25 p.m.
THE PARLIAMENTARY UNDER-SECRETARY OF STATE, FOREIGN AND COMMONWEALTH OFFICE (THE MARQUESS OF LOTHIAN): My Lords, with the permission of the House I should like to repeat a Statement made by my right honourable friend the Chancellor of the Duchy of Lancaster in another place. It is as follows:
"I should like to make a brief Statement on the progress of the negotiations for British membership of the European Communities since my right honourable friend the Chancellor of the Exchequer made his report, as Chancellor of the Duchy of Lancaster, on July 23.
"During the period since I assumed my present office I have had contacts with many Commonwealth Governments on the subject of the negotiations, which I believe to have been of great mutual benefit. I thought it right to visit Hong Kong, Australia and New Zealand during September in order to see myself, on the spot, the nature of the problems which might arise; and I was able to have extensive discussions with representatives of all three Governments. I have also had the pleasure of meeting Ministers of Canada, Fiji and Commonwealth Caribbean Governments in London. In addition, I am in the course of making visits to all Community Capitals. I have already been able to meet several of my Community colleagues, including
214
the President of the European Commission.
"I turn now to the progress of the negotiating conference. As my right honourable friend explained in his Statement on July 23, fact-finding work was instituted on a broad range of subjects by the Ministerial meeting on July 21. As has been recognised by the Six themselves, this phase is now over.
"Four useful meetings have taken place at the Deputies' level in the meantime, largely concerned with preparing the ground for the Ministerial meeting which I attended this week.
"I am happy to report that as a result of this preliminary work it was possible to record on October 27 the first agreements of the negotiations.
"At previous meetings we expressed some concern whether the Community's existing arrangements would be adequate, in the circumstances of the enlarged Community, to ensure stability in the markets for pigmeat and eggs and to allow adequate supplies of liquid milk. On October 27 the Community recorded its agreement with our understanding of the possibilities that will be open to us and which would ensure the provision of adequate supplies of liquid milk to meet consumer demand throughout the country and throughout the year; they accepted our views on the importance and characteristics of the bacon market in an enlarged Community and the need for keeping the situation under careful review during the transitional period and thereafter; and recognised the desirability of stability for pigmeat and eggs. We concluded therefore that no further points need be raised on these items during the negotiations, except in the general context of transitional arrangements.
"We were also able to reach agreement on procedures for an annual review of the economic conditions and prospects of the agricultural industry in the enlarged Community. The Commission will draw up this review for the Council of Ministers on the basis of all the relevant information and after contacts with the agricultural organisations. These arrangements will ensure effective contacts with producers.
"The Community confirmed that in principle they saw no objection to

215
British dependencies being associated with the enlarged Communities under Part IV of the Treaty of Rome; and that Gibraltar would be covered by Article 227(4) of the Treaty which covers European territories of Member States. On the other hand, they indicated that they did not regard the case of Hong Kong as comparable with other dependencies and that it posed special problems which would have to be examined in greater depth. In reply, I stressed the importance of providing for Hong Kong's interests. The question of Hong Kong will therefore need further discussion with the Six.
"Finally, in response to a suggestion from the Community side, I confirmed that as a member of the Community we would accept the Common Commercial Policy, subject to the development of that policy, and that we should be prepared to make every effort in the meantime to harmonise our policies. We agreed that a mutual exchange of information in this field would be of value to both sides.
"These, then, are the results achieved at the meeting on October 27. They indicate that the negotiations have got off to a serious and positive start. They represent an achievement reached by both sides working together towards a common objective. The political will to make the negotiations a success was evident. It was clear that all realised that a successful outcome is a major interest for Europe as a whole. This was shown not only by the agreements I have outlined but by the desire expressed by both the Community and ourselves to step up the pace. We have in fact agreed to tackle all the major issues before the end of this year and to continue to discuss them urgently in the coming months."
That, my Lords, is the end of the Statement.
LORD SHEPHERD: My Lords, on behalf of the House I thank the noble Marquess for repeating the Statement. On the question of how substantial has been the progress, I think we shall have to wait until we see full details of the agreements reached. But we on this side of the House welcome the fact that the pace is to be stepped up, and that negotiations
216
on the major issues will be tackled by the end of this year.
Having said that, I would add that I hope the Government will remember their pledge to have full consultation with the Commonwealth and with other countries affected. I welcome very much the fact that the Chancellor of the Duchy has visited Australia, New Zealand and Hong Kong, and has had other discussions, but I must express some concern about the question of consultation, in the light of what appeared to be the startled reaction of Australia and New Zealand to the Statement earlier this week by the Chancellor of the Exchequer when there was a vague reference to the imposition of levies on foods. I do not know whether the noble Marquess can confirm that there were consultations with Australia and New Zealand before that Statement was made in Parliament. I think that underlines the need for full consultation.
I welcome the fact that dependencies are to be covered by Article IV of the Treaty of Rome, and in the case of Gibraltar, by Article 227 of the other Treaty, though I regret that the case of Hong Kong is causing difficulty. I hope that the phrase in the Statement is not merely a gloss, and that there is an intention to pursue the Hong Kong case vigorously with the E.E.C. members. But may I ask whether the Associated States—those countries in the Caribbean for whose external affairs we are directly responsible—are covered by the phrase "dependent territories"? They are not strictly dependent territories in the full sense, but they are dependent in terms of negotiation. It is particularly important for those countries that their position is clearly understood, especially in regard to bananas, and I wonder whether the noble Marquess can give us some information. Can he tell us whether they are included, and whether there is a reasonable expectation that the Windward bananas will be treated in much the same way as, and certainly no less fairly than, the bananas from the former French colonial territories when they are imported into the E.E.C. countries?
I give a welcome to the Statement. Certainly we hope later on to get further information as to what arrangements are arrived at. But we shall wait for the Government to produce those in their good time.
LORD HENLEY: My Lords, my friends and I are very pleased to know that the Chancellor of the Duchy is pursuing his efforts with such zeal and we wish him every success.
THE MARQUESS OF LOTHIAN: My Lords, I should like to thank the noble Lord, Lord Shepherd, for his general welcome to the Statement, and also the noble Lord, Lord Henley. Of course I entirely share the views of the noble Lord, Lord Shepherd, on the need for full consultation with the Commonwealth, especially while the negotiations are proceeding. I think I can assure him that, as we have started in this way, we intend to go on.
The noble Lord asked me several questions. The first was whether the Associated States are included in the "dependent territories". My understanding is that they are. I entirely agree with the noble Lord on the subject of bananas. This is a very important matter, but a very technical one, and I should not wish to mislead the noble Lord by stating exactly what the position will be. However, I will certainly bring to the attention of my right honourable friend what he has said. We are certainly pursuing with vigour the question of Hong Kong, and my understanding is that the deputies will be discussing this matter next month in Brussels.
LORD MERRIVALE: My Lords, as a Back-Bencher who would very much welcome our entry into the Common Market, should it come about, may I say how pleased one is to hear the progress report? May I also say how encouraging it was to read the reports in the Press on Wednesday, following the meeting last Tuesday when the Chancellor of the Duchy appeared to make reasonable progress with his colleagues of the Common Market; and, I think, had very good relations with Monsieur Maurice Schumann and other Ministers present. I think that is very encouraging for the future.
May I ask my noble friend whether he can give the House any idea of the timetable that is to be followed for these meetings in the coming months? Also, may I ask him a question on Gibraltar, which may be of interest to the noble and learned Lord, Lord Gardiner, and the noble Lord, Lord Shepherd, because
218
it is a matter which was raised under the previous Administration? The noble Marquess said that Gibraltar would be covered by Article 227. Does that mean that if we entered the Common Market all the facilities and commitments involved would affect Gibraltar? Does it also mean that Gibraltarians would have free access to countries of the Common Market, including Great Britain, as other Member States do?
THE MARQUESS OF LOTHIAN: My Lords, in reply to my noble friend I must say, to be quite honest, that I should like notice of his question on Gibraltar. This again is a pretty technical matter. I think he is right, but I should like to make absolutely certain. As to the timetable, it is always difficult to estimate, but the next Ministerial meeting is due to take place at the beginning of December, and the hope is that the bulk of the negotiations will be completed by the end of the summer, in June or July.

ANIMALS BILL [H.L.]
4.37 p.m.
Debate resumed.
LORD JANNER: My Lords, perhaps I ought at the commencement to declare a vested interest in the Bill which is now before the House, in that I attempted on eight occasions in seven years in another place to introduce a Bill similar to Clause 8 but was unable to get a Second Reading for it. I consider the introduction of this Bill to be an extremely important matter. The question of the damage that can be done by animals to human beings is something which has been raised by Commissions and in the courts of our country for very many years. Learned judges have commented on the bad state of the law. I am not going to trouble your Lordships with many quotations to-day, but I am sure that everybody in this House is well aware that the situation is a very serious one from the human standpoint. While people may argue about certain aspects of the situation, in so far as those other than the injured are concerned, the main purpose of a Bill of this nature must nevertheless be, and indeed is as I see it, to protect people from being either killed or injured by animals.

219
Clause 2, which deals with dangerous or exotic animals, is a clause to which I should like to refer before coming to the main purpose of my speech this afternoon. I think that while we are considering this we ought to consider very seriously how damage can be prevented, so that a question of damages being sustained will not arise. We have had an illustration in the last few days of an exotic animal, a puma, doing extremely serious damage to a youngster. I do not know whether everybody in the House realises that, if the reports in the Press are correct, some twelve or fourteen months ago that same puma attacked a dog, with very serious consequences.
The matter was raised in another place by myself and others, and I am sorry to say that the answer given there was that whether there was any need to amend the law was questionable, that the problem was extremely small and that there was always recourse to the civil law. The same puma about which that question was raised has now caused extremely serious damage to a young person. At that time it was to a dog: now it is a young person. Of course, a situation of that description is absurd; and, if I may, I should like to ask the Government, when they are considering what further steps to take in regard to this measure, to consider the possibility of putting something into it to deal with such a situation.
At present, this measure deals with the question of liability for injury or damage caused by wild animals, and the remedies which may be invoked by the victims of the attacks. I think that everybody in this House is aware of the increasing number of such accidents. At least 22 or so have been reported in the Press in recent months; and we have been reminded of the urgency of this question by the savage accident which occurred to the young boy to whom I referred. Other similar accidents have been equally distressing: a child was mauled by a lion in a safari park; another was injured by a leopard in a small zoo; and in a private collection of animals two children have been injured by tigers. It is clearly becoming urgent, I submit, that the question of prevention of accidents, and not only the question of compensation, should be seriously considered. Increas- 220
Ingly animals appear to be being kept by those who cannot properly control them, and the public are too concerned to allow matters to be left as they are. In the opinion of most people there should be some form of licensing of zoos, of dealers in animals and of all keepers of wild animals.
In this context, the damage that can result not only from mauling by animals but also from the possible transmission of disease from wild stock to domestic stock and from wild stock to man, ought not to be overlooked. Wild animals can transmit dangerous and fatal diseases. This has been made abundantly clear, for example, in recent years by the deaths caused by herpes, virus B and "Marburg's" disease, which are transmitted to man from imported monkeys. There is clearly something wrong with the way in which the question of dangerous animals is being dealt with. Although I agree that possibly it may not come within the context of this Bill I sincerely trust that the Government will take note of these things and that some steps will be taken (if possible in this Bill but, if not, in some other way) to deal with this position.
Now I come to the matter to which I referred when I opened my speech. I cannot for the life of me understand what on earth happens when, time after time, the question is raised of no compensation being paid to a person who has been injured, or to the relatives of a person who has been killed, by straying animals and the position is not dealt with. It is all very well to bring forward points about who should be responsible for the fencing of the land. The real point here is: who is going to pay compensation where the breadwinner of a family is killed, or where people are injured, as they have been in very many cases (it is not a question of one or two cases; it is one of very many cases) in recent years, and when everybody who has any real authority to speak, or is accepted as an authority, has said that this position must be remedied?
I have already intimated that I tried to do something about this in the other place year by year for seven years, and other people have tried before. Each year I managed to get permission for a Bill under the Ten-Minute Rule, but there it finished. Somebody or other objected

221
each time when the Bill came up for Second Reading on a Friday, and eventually that was the end of it. I am glad, nevertheless, that the noble and learned Lord the Lord Chancellor has seen fit to make this Bill a non-Party matter, after my noble friend Lord Gardiner had introduced it under the auspices of a different Government. It is a non-Party issue: there is no question about that. Perhaps I may be permitted to say that during the very many years that I had the experience of being a Member of the other House I came into contact (and many noble Lords have had similar experiences) with the man in the street and with the people who had actually received injuries, or who had actually complained about other difficulties in consequence of incidents that had occurred to them.
It is now some eight years since a lady whose daughter was killed in the course of a motor accident caused by a horse which strayed on to the roadway—a daughter with an excellent future, who was a teacher, and had great ability—came to me and asked me whether I would do something, not for them but in consequence of the accident which had occurred. The anguish which came to that family was indescribable. They then realised that other people who were dependent, or might be dependent, upon a person injured or killed were placed in the difficulty of not being able to get any compensation.
Of course, the situation is just nonsensical. It is as ridiculous as the position I referred to with regard to the keepers of dangerous animals not being compelled to have a licence, or something of that sort, in order to protect the community against them. This point is being dealt with in the Bill, and I do not intend to elaborate on it. But what I do want to ask is that those noble Lords who have some questions to raise with regard to the difficulties that will be encountered by farmers should realise that, whatever steps may be taken in the direction of dealing with those difficulties, there is no question at all that a person who is injured, or the relatives of a person who is killed, should not in any way suffer loss of damages in consequence of any bars that they may put in the way of the passing of this Bill with regard to fencing.
I should like to draw the attention of noble Lords to the fact that when parts
222
of the New Forest were fenced in the statistics given by the Hampshire and Isle of Wight Constabulary for accidents on one of the lengths of trunk road so fenced showed a fall in the number of accidents in which animals were involved. The figures for 1961 were 81 accidents; for 1962, 94; for 1963, 80. In 1964, the number was reduced to 35; in 1965, the first full year of fencing, the number fell to 3; and in 1966 to 1. It indicates that there must be fencing. It is perfectly true that there may be difficulties. It may be that the local authorities or some other authority ought to come forward, or be called upon to come forward, to help; but the farmers' main duty is to see to it that animals shall not stray. They should not be negligent in that regard. Whatever steps have to be taken—and I put it most respectfully—in the way of protecting them are ancilliary and not the main matter.
I hope that noble Lords will forgive me if perhaps I have spoken for too long; but I feel very keenly about this subject. I am a little disturbed that the date of coming into force of the Act is so late. We have had ample time to consider what should be done, and I certainly think that this Bill should become an Act very speedily. I hope that the Government will try to arrange for the date on which it comes into force to be brought forward. I believe that the country as a whole would regard a step of that nature to be very commendable indeed.
4.52 p.m.
LORD CLITHEROE: My Lords, I shall not detain the House for more than a few minutes. I am sure that all noble Lords have sympathy with much of what the noble Lord, Lord Janner, has been saying. With regard to the question of fencing all the roads in the country, I think it is possible to have a difference of opinion. There are very large moor-land areas in the North of England and in Scotland which have never been fenced and which do not as a rule have many accidents. I do not think it would meet with the approval of the greater number of people who use those roads if they were to be fenced. But those are the exceptions.
Clause 8 is the clause which has been most under discussion in the early part of this afternoon. I should like to reinforce the points made by the noble Lords, Lord Henley, Lord Clifford of

223
Chudleigh and Lord Margadale. There were really two points of importance: one with regard to unfenced roads and one with regard to fenced roads. If I may, I will just deal with the question of fenced roads. The point has been made by the noble Lord, Lord Henley, that new roads are now being driven through open farmland. There is one at present near my home consisting of seven or eight miles of a new road (a much-needed by-pass) and it is being driven through open farmland. On that new road many miles of fences are being erected which will become the liability of the landowners and farmers on either side of it. This is a totally new liability for these farmers. It is not like a small road being widened, where there is already a liability for the farmer to fence. It is a case of a completely new road being driven through his land.
It is already greatly to his disadvantage that the road should be driven through his land and that it should divide it—and he is compensated for that so far as it is possible to compensate in money—but the question of liability for maintaining these miles of new fences should, I think, be borne by the road authorities. In the case of motorways they do so; in the case of roads not motorways which may be just as big and just as dangerous, they have not so far accepted the liability to maintain them. Therefore, if one of these farmers who has already been put to great expense in maintaining these long fences has sheep or lambs by the side of that fence and they cross through it or possibly it is broken down by a careless motorist, as is often the case, his sheep or lambs or cattle escape on to the road and may cause an accident for which he is not at all responsible.
I agree with the noble Lord, Lord Janner, that so far as possible those responsible for accidents should be liable for them. I do not think it is fair that those who are not responsible should be liable. Therefore, I beg the noble and learned Lord the Lord Chancellor to see whether it is possible to make some amendment to Clause 8 which will meet some of these difficulties.
4.58 p.m.
VISCOUNT INGLEBY: My Lords, I should like to support those who ask for
224
the complete exemption of traditionally unenclosed land. My home is on the North Yorkshire moors where there is a great deal of open land that has never been enclosed, on which considerable numbers of sheep graze completely un-tended. As Clause 8 now stands, looking at it as a layman—I was going to say, as an intelligent farmer; I am not a farmer but I hope I have a reasonable amount of intelligence—it seems as if there may be a liability on many farmers under that clause. I would ask whether this is in fact what the Government want. If not, would it not be simpler to say so and to leave out of this clause all land which has traditionally been unenclosed whether it is common land or not?
5.0 p.m.
VISCOUNT MASSEREENE AND FERRARD: My Lords, I should like to says a few words on two clauses in this excellent Bill. I put one or two Amendments down to the almost similar Bill when the last Government were in power, and the noble and learned Lord, Lord Gardiner, was kind enough to put right some of my objections. But I should like to say a few words about Clause 5. In moving an Amendment that I put down on the earlier Bill, I indicated that I was rather worried about the words "kept" and "keeping", because in Clause 5(3) it states:
"(a)that the animal was not kept there for the protection of persons or property; or (b) (if the animal was kept there for the protection of persons or property) that keeping it there for that purpose was not unreasonable."
My Lords, my dilemma is that premises are often guarded by dogs which may be brought from quite far away each night; they are not kept on the premises. I should have thought that in those circumstances the word "kept" does not amount to a defence under this clause. As I read the Bill the definition of "keeping" will not cover this and a defence will not be available. The keeper has to be the person who is the owner or occupier of the property. I may be wrong, but that is how I read the Bill and I should have thought that the word "found" or, where appropriate, "finding", would be more suitable. But I will not dwell on that point now, as it is a Committee point.
A number of noble Lords have spoken about Clause 8. I was pleased to hear my noble friend Lord Clitheroe say that

225
he thought the authorities should be responsible for fencing roads where necessary, and I agree with him. Where a farmer's land is unenclosed and lies alongside a very busy road, even if he does enclose it his insurance company will charge him a higher premium for his insurance than if his land lies alongside a road which is not so busy. I should have thought that in all fairness, if unenclosed farm land alongside a road has to be fenced, either the Department of Agriculture should grant a 100 per cent. subsidy or the responsible authority should provide the fencing.
Clause 8(2)(e), referring to fencing and to the risk of an accident, states:
"… where it could have been avoided or reduced by fencing, the extent (if any) to which fencing is the normal practice in the area in which the land is situate."
That could be interpreted very widely, and I should prefer to have clearly defined what unenclosed land need not be fenced. During the Second Reading debate on the earlier Bill I suggested that such land could be defined by saying that it should be land which had not been enclosed for 50 or even 100 years—but perhaps that was too long a period. We might define unenclosed land as land that had not been fenced for 30 years. But if the appropriate authority would fence roadside land anyway, that point would not arise, because there would be no liability on the farmer to fence the land.
I should like again to point out, as was pointed out during the debate on the previous Bill, that fencing is not a complete protection from liability on the part of the farmer. If there is drifting snow which freezes, animals can sometimes get over a fence and on to a busy road. If the farm is situate in an area where there are heavy falls of snow, an insurance company would probably require a heavy premium from the farmer. So I come back to the point made by my noble friend, that it would be fairer to the farmer if the appropriate authority would pay for all the fencing. It is no doubt possible to provide financial compensation by insurance in the case of a fatal accident, but that would be poor compensation for the parents of a child who was killed, and it would be far better if the responsible authority fenced all land which should be fenced and the liability removed from the farmer.
226
My Lords, there is one other point which I should like to raise in respect of Clause 9. I consider it an excellent clause and one that I heartily endorse. I understand that cats cause a considerable number of road accidents and, of course, kill poultry. But I do not see any reference to cats in the Interpretation clause. There is a reference to such odd animals as "hinnies", which I believe has something to do with donkeys, but there is no mention of cats. They apparently do not come under the definition of "livestock", but I sincerely hope that cats will be covered by the provisions of this Bill. I agree that it is difficult for cat owners to control their cats, and I know that it would be a difficult matter to legislate for; but compared with dog owners, the owners of cats get off lightly.
Before sitting down I wish to allude to what was said by the noble Lord, Lord Janner, who was rightly concerned over accidents which have happened recently in which dangerous animals in captivity have been involved. This matter is covered in Clause 5(1) where it states:
"A person is not liable under sections 2 to 4 of this Act for any damage which is due wholly to the fault of the person suffering it."
If you are driving through a game park and you have been told to keep your car windows closed, if you open a window and tickle the nose of a lioness you can expect to get a "swipe", especially if that lioness is in a bad mood. Members of the public must obey the instructions which they have been given.
Having said that, I should like to give a warm welcome to the Bill, though I hope that the noble and learned Lord the Lord Chancellor may perhaps look at Clause 5(3)(a) and (b) and change the word "kept" to "find", and the word "keeping" to "finding".
5.10 p.m.
LORD DENNING: My Lords, most of the cases relating to animals finish up in the court over which I have the honour to preside, the Court of Appeal. Only one has reached this House in its Judicial capacity, and that decision was the notorious decision that if animals strayed on to a highway and did damage, the farmer was not liable. It is a very good thing that that decision of the House is now to be reversed by this Bill.

227
May I first give a welcome to the excellent work which the Law Commission have done in producing this Bill, which clears up many doubtful and wrong points in the law? There is, for example, the distinction between a wild animal and a tame animal. A tiger, of course, is a wild animal, but the law says that a bull is a domesticated animal. The law said that the owner of an animal was liable absolutely for the escape of any danger-our animal but was liable in respect of a domesticated animal only if he was guilty of negligence. This Bill preserves a distinction—not the distinction between a wild animal and a tame animal but that between a dangerous and a safe animal.
As I understand the first few clauses, the law still is that for a dangerous animal, whether it be a tiger or a puma, or any other kind of animal, the householder or person who has control of it is absolutely liable. Surely that is right. Even if it is a bull—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. There is nothing about negligence in the Bill. In all other cases the keeper of an animal is under a duty to use reasonable care to see that it does not escape and do damage.
I should like to say a word about cattle trespass, a very ancient head of our law, under which anyone whose cattle escaped or trespassed from his land on to that of another was liable for any damage to crops or property that they did. That, in principle, is being preserved. Farmers know that if their animals escape, they must get them back. But there are two subsections in the Bill, Clause 5(6) and (7), which not only depart from the Law Commission's recommended subsections but seem to me to leave an ambiguous and uncertain position to farmers, such as my noble friend Lord Ingleby mentioned, who have their sheep out on the moorland. We had a case on this in the Court of Appeal only this year.
On the vast moorlands of Yorkshire over the centuries, the farmers have enclosed with their stone walls the fields in which they keep their cattle and their hay, but at the same time those farmers have a right to put so many sheep—20, 30 or 40—on to the vast moorland. The
228
tradition and custom has been for the farmers to fence against animals; there is not a duty on the moorland sheep owner to fence his sheep in. They are not bound to fence the whole of the moorland. The wife of a bank manager came to live in Yorkshire and, not knowing their custom, she contended that a farmer who owned sheep was bound to keep them in at his peril and was liable for damages when they got over the wall into her land. It was really her duty to fence. The Court held that the farmer was not liable for the sheep getting over her wall.
I raise this point because Clause 5(6) and (7) speak of a duty to fence but nowhere tell anyone what it is—I fancy because they could not tell themselves. In an appendix, the Law Commission say:
"The law relating to the obligation to fence and its effect upon the present liability for cattle trespass is exceedingly complex."—
so complex that they could not state it. I wonder whether this clause, at least, should not be further considered, so that farmers in such a situation as I have described on the moorlands should know whether or not they are under a duty to fence. As I read the Bill at the moment, the farmer would be held liable for his sheep getting over the wall.
LORD HENLEY: My Lords, surely in the case the noble and learned Lord described the farmer would not be held liable because the case would be excluded from the Bill. If it was land on which he had a right to graze cattle—stinted land—then it would be common land.
LORD DENNING: My Lords, it was not common land in the case to which I referred. I cannot go into all the details of the case now, but so far as I remember it was unenclosed land, on which every farmer had a right to put so many sheep, but it was not common land. At all events, I think that the duty to fence ought to be made clear, so that people in such a position should know where they stand.
I have been talking about trespass between adjoining owners, but there is also the question of the duty to fence as against the highways. Then there is the question of negligence. The Bill tries to provide for it by saying that the owner of animals is liable only if he is

229
guilty of negligence, and that in considering whether he is guilty of negligence the courts can consider whether it has been normal practice to fence or not. I venture to suggest that this is a very uncertain guide. Lord Goddard's Committee suggested that it should not be extended to unenclosed land. But whatever be the right test, I would suggest that 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 or not he was negligent. My Lords, subject to these matters, which no doubt are matters more for a later stage, I would say that this Bill is to be wholly welcomed.
5.20 p.m.
THE LORD CHANCELLOR: My Lords, I think I can thank the House for a reasonably friendly welcome to these proposals. I should like to assure the noble Lord, Lord Henley, whose title, I believe, emerged at an earlier date from the Woolsack, that there is no conspiracy in this matter between the Lord Chancellor and an ex-Lord Chancellor. The noble and learned Lord, Lord Gardiner, and I have been rather different kinds of animals, he being mansuetae naturae, and I am not perhaps the same. We have arrived at the same conclusion by different routes. It is, however, the same conclusion. The fact is that law reform, as such, ought to be something in which Parliament has a positive interest. Otherwise it will not get through. It usually gets through this House fairly simply because we have time. But unless Parliament takes a positive and constructive interest in the promotion of law reform, however well intentioned the Lord Chancellor or indeed his predecessor may be, it will not get through Parliament. I speak now from thirty years' experience in one place or the other. I would say that of all types of law reform which are difficult to get through Parliament that relating to animals is one of the most intractable, because almost everybody likes talking about animals, either on their behalf or against them. Therefore it is extremely difficult for a law reformer to get through a Bill about animals, and I think it indicates good will
230
on my part that I have undertaken this, from a legislative point of view, technically difficult task.
There is also the problem that there is an almost total want of communication between the lawyers and the farmers. The farmers do not understand what the lawyers say to them, and the lawyers do not sympathise with the farmers' difficulties. I have been a farmer for 14 years and know something of their difficulties, and I am also in a kind of way a lawyer. So I am hoping, so to speak, to bridge the gap.
If I may deal with the speeches which have fallen from your Lordships, I should like first of all to thank the noble and learned Lord, Lord Gardiner, for his general welcome to the Bill. I was particularly grateful when he agreed that the general point about the interpretation of Statutes which was raised in what I may call, without, I hope, any offence to the noble and learned Lord on the Cross Benches, the Wilberforce Amendment to the Bill when it came before the House before, was not really appropriate to so specialised a Bill about liability for animals. It is a matter for general debate. The noble and learned Lord asked me about a debate on the subject. I think that in this House my answer is perfectly simple. If the noble and learned Lord puts down a Question or a Motion, then I think I have to answer it. There is no question, as there is in another place, of the Government finding time: time has to be found. We are at the service of the House in these matters, and if the noble and learned Lord wants to discuss the matter, it is up to him and his noble friends, and it is my duty to do my best to give some sort of answer, satisfactory or otherwise.
The noble and learned Lord criticised the new subsection (7) of Clause 5 as inelegant, and, I think by implication, obscure; and a similar criticism fell from the noble and learned Lord, Lord Denning, whom I am sure the House was delighted to hear speaking from the wealth of his judicial experience. I have considerable sympathy for this criticism; indeed, I voiced it myself in a more private connection. But when Lord Chancellors are bold enough to criticise as being obscure the drafting of a Bill for which they are responsible, they are nearly always asked to think of a better

231
phrase themselves. This is a difficulty that I cannot pass on to noble and learned Lords, although of course I should be grateful if the noble and learned Lords could think of a better phrase.
Nor can I answer out of hand the complicated question about the moors of Yorkshire and the imprudent banker's wife that fell from the noble Lord, Lord Denning. I understand that the position is really this. A duty to fence may arise by reason of a variety of different circumstances. The purpose of subsection (7), in order to meet criticism which was directed to the old subsection (6) in the previous Bill, is to limit the special defence to cases where a duty is owed to a particular class of person, whom one might broadly refer to as the owner of the land from which the animal has strayed, or those from whom he claims his title, probably by reason of contract. So that a mere abstract duty to fence was not sufficient to attract the special defence in the Statute. It may be that it could be more elegantly expressed and, having regard to the criticism, I shall ask my advisers to look at it again. If the noble and learned Lord can think of a better phrase, and will put it down, I can assure him that it will receive a very warm welcome from the Lord Chancellor.
A similar criticism, but a slightly different one, was levelled at Clause 5 by my noble friend Lord Massereene and Ferrard. He objected to the word "kept" in connection with another of the special defences—I think subsection (3) of Clause 5. The answer to that objection is that the word is adequate to cover the kind of case which my noble friend had in mind. It would cover the case where the animal was kept for any period of time on particular premises, however short. The reason why the word is used in that connection is because it ties in with the word "keeper" in Clause 6. At any rate, the noble Lord made his point, and I hope that I have given him an adequate answer. If I have by any chance not given him an adequate answer, I shall try to correct it by writing.
The noble Lord, Lord Henley, and a number of other noble Lords from various parts of the House were more robust in their criticism of Clause 8 than I feel is altogether fair to that clause. It is at this moment of time that I think
232
I ought to say a word on behalf of Clause 8 as it stands, fortified as I am by the enthusiasm of the noble Lord, Lord Janner, whose earlier endeavours in the same direction in another place deserve all our sympathy and respect. Incidentally, I think the noble Lord will realise that in introducing, as he quite legitimately did, the possibility of preventive action in this connection, or possibly criminal liability for the owners of pumas and other wild beasts who may keep them in unsuitable places with disastrous results, he is quite outside the scope of the Bill. But I have noted carefully what he said. I have no doubt that the matter will be raised in another place, and I will certainly draw the attention of my right honourable friend the Home Secretary, who is responsible for this, to the noble Lord's remarks.
To come back to Clause 8, I think we have to face this dilemma. I think that it should be put in this way. If damage occurs to persons or property—that is to say, if somebody is killed or hurt, or their property is injured—you can do one of three things. You can say that the loss, the injury, the pain, the suffering and the damage must He where it falls, upon the person who suffers it, as it does when a thunderbolt falls from the sky and kills a person without anybody's fault. That is one solution and is, roughly speaking, what happens now under the existing law when cattle stray on to the highway from a farm, as the noble and learned Lord, Lord Denning, indicated under a decision of this House some time ago. That is the law now. The loss must be suffered by those who suffer it. Nobody else is to pay compensation. That is one possible solution, and it is the present situation, broadly speaking.
Another possible solution is to say that the loss must be suffered by the person who causes it, without regard to the degree of his fault. That is not what is proposed in Clause 8. It is what is proposed under the other branch of the Bill, in Clauses 2 to 4 in respect of dangerous animals. If you keep a puma you must pay for any damage it does. That is, broadly speaking, what is the law now, and that is not what is proposed in this Bill. We are talking about damage on the highway caused by livestock, mainly sheep or cattle—though not limited to

233
them—which get out and then cause an accident. The law as it is proposed does not follow that second solution; it does not propose any kind of absolute liability on the farmer. I must say, with the greatest respect to some of my noble friends, to the noble Lord, Lord Henley, and, for instance, my noble friend, Lord Margadale, that much of the argumentation which they presented against Clause 8 would have been a serious criticism of Clause 8 only if that clause had proposed the second solution and not the solution which it does propose.
Clause 8 imposes liability for negligence on the owner of the animal which escapes on to the highway. What is negligence? Negligence is fault; it is a failure to take reasonable care. When I heard some of the speeches to-day I sent for a book which contains the classical definition of negligence because I thought it might interest the House. This was given in this House in a very different type of case, by Lord Atkin in the case of Donoghue v. Stevenson. It is a very famous passage, known to lawyers, but it is so very good and so very simple that I venture to read it to your Lord-ships before going on to discuss its application to Clause 8 of the Bill as it stands. Lord Atkin said:
"The rule that you are to love your neighbour becomes in law you must not injure your neighbour, and the question who is my neighbour receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question".
That is the definition of negligence, and now I seek to apply it to the facts of the present Bill. The question which the House has to answer is: supposing a farmer is guilty of fault in that sense, if he fails to take reasonable care for his neighbour in letting his animals out on to the highway, ought he to pay for the damage that they do or ought he not? Forgetting for a moment whether you are a lawyer or whether you are a farmer, I believe the answer to that question is, "Yes, he ought, in modern conditions". The answer given by the law as it stands is, "No, he ought not". In answer to that,
234
the noble Lord, Lord Henley, the noble Lord, Lord Margadale, and, I think, the noble Lord, Lord Clifford of Chudleigh, put forward a number of what they think are hard cases. By far the hardest case put forward by all three of them was the case where the fencing is provided by the local authority, and one day a wicked motorist, at the dead of night—midnight or four o'clock in the morning—drives into the fence and makes a hole in it. A cow gets out on to the road and causes an accident. "Surely, the farmer ought not to pay then", they say. Well, of course not. Incidentally, may I say to one noble Lord who asked that the motorist should be made to report the accident, that he certainly ought to do so. If a motor car causes any kind of damage to property, and fencing is property, it ought to be reported to the police.
The answer to the question is that the farmer ought not to pay. The reason why he ought not to pay, and will not be made to pay under this Bill, is that he has committed no kind of fault. In the supposed case there is no want of reasonable care on the part of the farmer, no omission to do something which he could have done by taking reasonable care, and which he ought to have done. There is no act which he did which he ought not to have done. As I see it, there is in the Bill no liability on the farmer unless there can be attributed to him something which is his fault. In such a case, unless the motorist can be traced I regret to say that the injured person would be without a remedy. But the farmer would not be liable.
I would agree that there are much more difficult cases than that, which I should not like to pronounce about without very careful consideration, because if Lord Chancellors start predicting the results of litigation they will do the noble and learned Lord, Lord Denning, a great disservice when he comes to disagree later. That is why if you look at the terms of the subsection in Clause 8 you will see that the courts are told to have regard to certain circumstances.
Circumstances vary almost indefinitely. Some land has become unenclosed by neglect; some land has never been, enclosed—moorland—and the courts would want to see what was done. If you live in a mountainous part of Wales,

235
where there is nothing but unenclosed land for miles around, nobody is going to say that the farmer on adjacent land is ordinarily in any way to blame for the straying of his sheep on the highway. When they sit down on a warm patch of tarmac, as was graphically described by one noble Lord, the farmer will not be responsible—motorists must look out for that kind of situation. 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 it has not been fenced before"—
LORD HENLEY: Will the noble and learned Lord give way for one moment? If what he says is true, why then does his Bill propose to exclude common land from the province of the Act?
THE LORD CHANCELLOR: Because, my Lords, the owner of the common land cannot be ascertained for this purpose. If it is a village green, or common land—and I was going on to that point in reply to the noble Viscount, Lord Massereene and Ferrard—there may be a right to depasturage, but there an obligation to fence cannot be placed upon the person who happens to exercise that right, because he does not own the land. It is true, I think—although I am speaking beyond my brief now—that in a case like that of Epping Forest, where the rights of depasturage are very close to a big town, there would be a case for a hybrid Bill, because those property rights are of great danger on occasion to individuals who may be driving through the roads there; but they could never be taken away by a general Bill because they are rights of property. There would have to be a hybrid Bill to buy them out in order to do it within the law and custom of Parliament.
In essence, one must face the dilemma that either the loss lies where it falls, or you impose strict liability, or you say that the person who is to blame, if any, must bear the loss to the extent that he is to blame, because if there is contributary negligence his liability is reduced. For the life of me, I cannot see why the third solution is not the right one in this context. Of course, it may well be that in the course of the Committee stage on
236
this Bill noble Lords with a greater turn of ingenuity than I have will be able to think of a more precise definition in parts of the guidelines we have provided. If they can, I shall be only too glad. I have already asked my own staff to see whether something more precise cannot be invented. But, in the meantime, I think I can honestly claim this solution to be right in principle for the purposes of the Second Reading of the Bill, and also the best we have thought of hitherto. With these words, I commend the Bill to the House.
On Question, Bill read 2a, and committed to a Committee of the Whole House.

PARLIAMENTARY CONSTITUENCIES (ENGLAND) ORDER 1969
5.41 p.m.
THE LORD CHANCELLOR THE LORD CHANCELLOR rose to move, That the Draft Parliamentary Constituencies (England) Order 1969, laid before the House on 28th October, 1969, be approved. The noble and learned Lord said: My Lords, in the course of the debate which has just been concluded it was said that law reform has nothing to do with Party politics. I should like to be able to tell your Lordships that these Motions have nothing to do with Party politics, but I should be perhaps stretching your Lordships' credulity beyond the point to which that credulity could be stretched. I none the less beg to move the first of the Motions standing in my name on the Order Paper, and it may be for the convenience of the House if, in so doing, I speak also to the remaining Motions standing in my name. Our debate can thus range over the whole subject covered by the four Orders before the House.
The House of Commons (Redistribution of Seats) Act 1949, as amended, lays certain obligations on the Secretary of State for the Home Department and the Secretary of State for Scotland. It sets up Boundary Commissions for England, Scotland, Wales and Northern Ireland—four Commissions in all—and the appropriate Secretary of State in each case is under the obligation to lay the Reports from these Commissions before Parliament as (here I quote the actual words) "soon as may be", together in each case

237
with a draft Order giving effect to the recommendations (here again I quote) "with or without modification". At the time of the passing of the Act of 1949 the appropriate interval between the periodic reviews of constituencies by the Boundary Commissions was laid down as between three and seven years. But this was found in practice too short, and amending legislation was later passed which extended the period to a span of from a minimum of 10 to a maximum of 15 years between reviews; and that is how the law now stands.
Both the principal Act and the amending enactment received at the time of their passage all-Party support in the context of the matters to which I have referred. The object of the legislation was to maintain the boundaries of constituencies more or less in keeping with the facts of life and to set up machinery which would put the delineation of boundaries of constituencies more or less cutside the ambit of Party politics. As a further guarantee of impartiality it became the practice to appoint under the presidency of Mr. Speaker leading members of the Judiciary to take the chair of these Commissions. The system as a system had been found necessary by reason of the experience which had preceded it, which showed that without it constituencies became after a time hopelessly distorted, and the question of boundaries, which in my experience is always political dynamite, gave rise to local and national political difficulties which actually succeeded in preventing any periodic review taking place within a reasonable time at all.
Since 1949 there has been one review, in 1954, and the Government of that day duly performed the duty which had been laid upon it by the Statute and brought the Orders into force; and those Orders, brought into force in 1954, form the present constituency boundaries in the four parts of the United Kingdom. The current review which forms the basis of the present Order was concluded in 1969: that is to say—and this is of the essence, the heart, of the whole matter—at the very end of the maximum period of 15 years laid down as the extreme limit of what was desirable by the amending legislation. By that time, as might be expected, the constituency boundaries had already become seriously dislocated.
Nobody, I think—at least I hope nobody in this House—expects Parlia-
238
mentary constituencies to represent exactly equal numbers of voters. This is impossible and undesirable. There are many other factors to be taken into account. There are geographical features and areas; the nature and boundaries of local communities. These are all matters which have to be taken into account, as is also the balance between the different parts of the United Kingdom. In Scotland it is partly guaranteed by the Act of Union. And in the Schedule to the legislation of 1949 account is duly taken of such matters in the instructions given to the Commissioners which they are bound to follow.
By 1969 changes in population had produced a number of dwindling dwarf constituencies, down to 18,000-plus in the case of Ladywood, and a number of mammoth constituencies, up to, I think, about 125,000 in the case of Billericay. There were in England alone 56 over-size constituencies with over 85,000 voters, and 45 with under 45,000. Of course, the effect upon the Parties of this distortion was, and is, to some extent a matter of speculation, and I do not propose myself to speculate upon this subject. And obviously it will vary according to what is popularly called the "swing", which is a mathematical conception that I have never wholly understood. But it so happened that both the Labour and the Conservative central offices appraised the status quo as favourable to the Labour Party and the proposed changes as favourable to the Conservative Party. They may have been wrong, but that is what they thought.
In the event, the then Administration elected at first not to perform the statutory duty laid upon it by the 1949 legislation. Instead, it began by proposing legislation which exempted the Administration from compliance with the Act. The justification alleged, rightly or wrongly, was the impending change in local government boundaries. Instead, it was then suggested that the changes in London should be carried out with some compromise and improvised constituency changes elsewhere, the net effect of which was widely believed to be in favour of the Party then in power. The proposed legislation, as your Lordships will remember, did not in fact reach the Statute Book; and your Lordships may have

239
played a considerable part in achieving that result, viewing your Lordships' duty as that of a watchdog of constitutional propriety. It would not be appropriate, I think, for me to comment further since I was not at that time a Member of this place but was in fact a much more vigorous and outspoken critic of the Government in another place.
The next chapter was legal proceedings brought by a public-spirited individual to enforce the law. These proceedings were withdrawn on the Secretaries of State complying with the Act to the extent of laying the Orders in question. The then Secretary of State for Home Affairs paid the village Hampden a substantial proportion of his costs. In another place, under the lash of a three-line Whip, the Government Order was then voted down by the Government's own majority. In this House the draft Order, having been placed on the Order Paper, was never discussed at all until to-day.
It is obvious that this sequence of events gave rise to serious political controversy, which was still going on at the time of the General Election. In spite of the advantage given, as we thought unfairly, by this dilatory conduct the Labour Administration lost the Election. It is the intention of the present Government to comply with the law, and yesterday another place passed the requisite Resolutions. It is to the credit of the Labour Party that they do not appear to have whipped in another place against those Resolutions. I now ask your Lord-ships to endorse them. Whatever may have been the original justification for delay, it is clear that local government reform is not going through at the pace optimistically and, as we thought, un-realistically predicted by the late Administration. No doubt we shall debate this subject of local government reform again on other occasions. But as regards this issue the only argument against implementation is now removed, if it ever existed.
In another place, exception was taken to the existence of four Resolutions and not the number necessary to debate each set of changes separately, which would have involved a total of something over 90 Orders. This is hardly a point which will affect your Lordships because
240
I understand that in your Lordships' House it has never been the custom to debate particular political boundaries at length. This House is simply concerned to safeguard constitutional propriety. I do not myself think that the criticism was ever a good one. Had the Reports been implemented at once there might have been some case for individual modifications. But after the unusual and, I would say, unhappy history which I have sought to outline (without undue passion, I think) common sense dictates that it should be all or nothing. Some of the boundary changes will help one Party; others will help another. But they are the changes recommended by impartial commissions under the leadership of impartial members of the Judiciary. I therefore recommend them to the House as a tardy implementation of the law and the best that imperfect human wisdom can achieve.
My Lords, I beg to move the first of these Resolutions.
Moved, That the Draft Parliamentary Constituencies (England) Order 1969, laid before the House on 28th October 1969, be approved.—(The Lord Chancellor.)
5.52 p.m.
LORD SHACKLETON: My Lords, the noble and learned Lord who sits on the Woolsack was at his most urbane and, for him, his most self-controlled, and on that I would congratulate him. I do not propose to make a very long speech. Passions may not have risen as high in this House, with the possible exception of the noble Earl, Lord Arran (whom I now see removing himself from the Chamber, and who did actually practically call us to the barricades on one occasion), and our debates were fairly moderate. But as the noble and learned Lord has said, there really is nothing to debate in your Lordships' House to-day.
I will not go over the grounds, which were certainly valid enough for one Cross-Bencher—a very distinguished former Civil Servant—to change sides and support the Government on the last occasion, with regard to the possibilities of carrying out changes in local government boundaries. Whatever noble Lords may think of the whole operation, I think they will admit that there was an argument there. But that argument is removed. The present Government do not propose

241
to go ahead with the reforms envisaged in the Maud Report and as subsequently contained in a Government Paper. Therefore the procedure which in any case we should have followed if we had been returned, would follow. We had committed ourselves that if by a certain date it was not possible to reactivate the Boundaries Commission the existing recommendations would come into force.
I agree with the noble and learned Lord that there is political dynamite here, and while I can see the imperfection, even now, of the present machinery, he and I can recall some of the debates on particular constituency problems in the 1945–50 Parliament. I remember that the first time I voted against my own Government was to provide an extra Member of Parliament for Plymouth. Looking back on it, I cannot really say that it was a particularly useful exercise of freedom on my part. On this occasion the Government in another place (I am not quite clear whether or not they had the Whips on, but I will not press that point) have carried this Order, and I do not think I need take up any more of your Lordships' time, beyond saying that my only real regret is the fact that local government reform is delayed, for reasons which may be good or may be bad.
On Question, Motion agreed to.

PARLIAMENTARY CONSTITUENCIES (SCOTLAND) ORDER 1969
THE LORD CHANCELLOR: My Lords, I beg to move the second Motion standing in my name.
Moved, That the Draft Parliamentary Constituencies (Scotland) Order 1969, laid before the House on 28th October 1969, be approved.—(The Lord Chancellor.)
On Question, Motion agreed to.

PARLIAMENTARY CONSTITUENCIES (WALES) ORDER 1969
THE LORD CHANCELLOR: My Lords, I beg to move the third Order.
Moved, That the Draft Parliamentary Constituencies (Wales) Order 1969, laid
242
before the House on 28th October 1969, be approved.—(The Lord Chancellor.)
On Question, Motion agreed to.

PARLIAMENTARY CONSTITUENCIES (NORTHERN IRELAND) ORDER 1969
THE LORD CHANCELLOR: My Lords, I beg to move the fourth Motion on the Order Paper.
Moved, That the Draft Parliamentary Constituencies (Northern Ireland) Order 1969, laid before the House on 28th October 1969, be approved.—(The Lord Chancellor.)
On Question, Motion agreed to.

EDUCATION: COMPREHENSIVE SCHOOLS
5.56 p.m.
LORD SILKIN LORD SILKIN rose to ask Her Majesty's Government whether, in the light of the strong opinions held by those concerned with secondary education, they will reconsider their declared policy on comprehensive schools. The noble Lord said: My Lords, I beg to ask the Question standing in my name on the Order Paper. Noble Lords will remember that in the debate on the humble Address last July very few speakers made reference to the question of comprehensive schools. There were only two speeches in all which were devoted entirely to this subject, and it was in no sense a debate. With all respect to the Government's comments, it was wholly inadequate. Therefore I make no apology for raising this vitally important question: vitally important to the children of this country and to the future of this country.
Comprehensive schools have been in existence for a good many years. I think they originated in the days of the former Conservative Government and were continued and extended in the days of the last Labour Government, and in July, 1965, they reached the stage when the then Minister of Education, Mr. Short, thought it right to issue a Circular, No. 10/65, in which he requested local education authorities to prepare and submit to him plans for reorganising secondary education in their areas on comprehensive

243
lines. The circular provided advice on the methods by which this could be achieved. For guidance he set out six different methods, forms of comprehensive education, to suit different conditions which have so far emerged. I fully recognise that conditions differ in different parts of the country, and what might be suitable in one area as a form of comprehensive schooling might not be suitable in another area. He thus recognised that uniformity in the set-up was not desirable or practicable.
To-day, two-thirds of the local education authorities have responded to his request, and many schemes were prepared and carried into effect. The comprehensive system to-day is well established. It has long passed the experimental stage. Throughout the country there are 1,300 comprehensive schools of different kinds. A large proportion of the local education authorities have one or more. Some have entirely comprehensive secondary education. Nearly one child in three over the age of eleven is attending a comprehensive school. The best of them have educational results equal to, or even better than, some of the best secondary or grammar schools. I do not want to overstate my case and I would not claim that that is the case so far of the majority, but it is of the best.
My Lords, within a week or so of her appointment the Minister of Education and Science issued a new Circular withdrawing the earlier Circular No. 10/65 and asking the local education authorities who were not already committed to bring forward fresh proposals, "fresh proposals" presumably meaning not necessarily for comprehensive schools. She did this with the knowledge that this was contrary to the views of practically all teachers' organisations and the majority of educational experts and parents. It was also contrary to the trend and practice in most European countries. There is complete comprehensive education in the United States of America and also in the Soviet Union. These facts, which presumably she knew, ought to have given her cause to hesitate before coming to the decision within days of her coming into office, and at least to have discussed the matter with the local education authorities before issuing a new circular.
Replying for the Government on July 9 on the point of consultation, Lord Aberdare, who I assume is not going to reply to-day, said that the withdrawal of Circular 10/65
"is hardly a subject on which there is very much point in consultation, especially when you have just had a mandate in an election to that action."—[OFFICIAL REPORT, 9/7/70, col. 337.]
I felt at the time that this was not wholly in keeping with the character of the noble Lord as I knew him; he is not usually an aggressive person, and I cannot help thinking that he was somewhat exhilarated by the unexpected result of the Election. It reminded me of an equally hasty statement made after the 1945 Election, "We are the masters now", which the person who stated it at that time has never ceased to regret. If by that statement, that the Government had a mandate for doing this and therefore there was no point in further discussion, he meant that everything in the mandate has really the force of law and was not going to be discussed, then it is a very bad look-out for the democracy of this country and for the future of Parliament.
Is the Tory Manifesto without discussion to become the law of the land? Fortunately, the Government are having second thoughts about a good many of the things in their Manifesto, and I have every reason to think and hope that in the case of some of them they will be altered. I mention only the case of supplying arms to South Africa. Whatever may be the outcome of it all, there was a definite statement that the Government were going to supply arms to South Africa. I think they have very good reasons for hesitating and considering and discussing, and that is exactly what they are doing. But not so the Minister of Education. On this matter she needs no discussion or advice.
The purpose of my Question is to ask the Minister to think again, at least to hesitate and hold up further action, and, in spite of Lord Aberdare's view, to discuss the question with the bodies I have mentioned and with the local education authorities. This is obviously a political question; the reference to the Tory Mandate proves it. But the decision ought to be on educational grounds, on the merits of education, and not on

245
the merits or otherwise of things in the Tory Mandate.
Why has the Minister been so hasty in doing this? Her circular states that she objects to complete comprehensive secondary education because it imposes a uniform system. She wants freedom of choice. But the circular put forward by Mr. Short does give freedom; it is not a uniform system. He puts forward six different choices which local authorities can adopt, widely different in type, although of course all providing for children at the age of 11, 12 or 13 attending a comprehensive school of one or other description.
But what is this freedom that the Minister talks about? By far the greater bulk of the children, perhaps 90 per cent. of them or more, still attend comprehensive and secondary modern schools, and the secondary modern are gradually fading out with the comprehensives. What choice will parents or children have? What choice have they in determining what school their children will go to? Those who can pay fees to send their children to grammar schools of one kind or another, of which there are not more than about 5 per cent., think that they have some kind of choice, but the remainder have no choice whatever but to send them to the school that is near to their home, whatever it may be. Parents think that they are entitled to use their money to give their children a better education than the child whose parents cannot afford fees—in other words, buying a place in a grammar school, regardless of merit and possibly at the expense of keeping out a child who would better benefit. It is true that a limited number get access to grammar schools by competitive examination al the 11-plus. I need not dwell at any length at all on the educational and psychological dangers of such a system, nor on its unreliability; so much has been said and written. It is really entirely discredited, not only in education circles but throughout the country.
This is the pernicious system which the Minister want to go back to or to give local authorities the right to go back to. She suggests that there is nothing sacred about 11-plus; it can be 12-plus or 13-plus. But the entry at 12 or 13 causes great educational disadvantages. Children are introduced to new subjects—
246
languages, science, mathematics and others—which other children have been doing for some years, and it is exceedingly difficult for a child to jump in, to be plunged in, and follow what other children have been doing for a long time. I remember in my own case that my first lesson in chemistry was in the manufacturing process of sulphuric acid. I was then 11-plus. I had never heard of sulphuric acid, to my shame, and I must confess that I did not follow the manufacturing process, with the result that I was never particularly interested in chemistry; it took away my interest entirely. I devoted myself more to mathematics.
It is alleged to be the aim of the Government, as set out in Circular 10/70, to ensure that all pupils shall have
"full opportunity for secondary education suitable to their needs and abilities."
Nothing is said about "full and equal opportunities", which is the point of the comprehensive school. It not only gives children an opportunity of an education "suitable to their needs and abilities" but it gives them an equal opportunity regardless of their means.
As things are, two children of equal ability living in different areas of local government will have entirely unequal opportunities. One local education authority will be in favour of comprehensive schools; another will be against them. It will be just a matter of chance as to which area the child happens to live in. A child in one area may have one chance in four or five of entering a grammar school, whereas in another area, by means of a scholarship, and other than as a fee-payer, that same child may have only one chance in 20. A child moving from one area to another may have completely different chances of getting to a grammar school. Is that giving, or likely to give, a "full and equal" opportunity to every child, or is there any freedom of choice, except to the 5 per cent. or so of fee-paying pupils?
The Government are proposing to leave this question of secondary education to the local education authorities. In my view, they are quite unsuited, and indeed unfit, to determine so vital a matter as the kind of education our children should get. Surely this is a matter for national policy. It ought not to vary from area to area,

247
usually according to the political complexion of the local education authority which at that time happens to have a majority. By all means leave administration to the local education authorities; that is quite suited to their constitution and capabilities. But policy should be for the Government. I would ask the Government to consider the social advantages of a comprehensive system of education given to all young people of all sections, classes, incomes and environment, to meet and mix on equal terms, not only in their lessons and work, but also in games and sport and outdoor activities.
Finally, the Government circular contemplates the existence of the grammar school system and the comprehensive system side by side. I regard this as most unfortunate because it will tend to cream off from the comprehensive schools the most able of the children, those who will be attending grammar schools and who can have a better influence on children in the comprehensive schools. I therefore ask the Minister to postpone her final decision and to discuss this matter with those authorities and bodies who have definite views about it. I am sure that she has not given enough thought to the matter. The future welfare of this country and of our children depends far more on the vast majority of the children of whom we have been talking than on the future fee-payers, who certainly will not suffer by becoming integrated into the comprehensive system.
I hope that I may receive a favourable reply. The Government will not lose face by putting right this blunder of failure to consult. In any case, the fight for equal opportunities for all our children is not over. We shall return to the attack, over and over again if necessary, until all our children are attending comprehensive schools. It is bound to come even though the Government can impede and delay progress towards the objective. But in the long run they will not prevent this from coming about, because it is right and fair to all our children and it gives them an equal chance of the best education that we as a nation can afford.
6.15 p.m.
LORD BEAUMONT OF WHITLEY: My Lords, it is not my intention this afternoon to talk about the merits as
248
such of the comprehensive system in education. As the noble Lord, Lord Silkin, has said, it is already well known. Indeed, I think that the battle is won, with majorities certainly in all educational circles and also, I think, in all political Parties, agreeing about the merits of comprehensive education. That this is so is shown by the fact that the Conservative Party, in pursuing the present policy, is not in any way denigrating the comprehensive system, but is producing two arguments. The first is that comprehensive schools and grammar schools can co-exist; and the second is that there should be a local option.
On the first of those arguments, that grammar and comprehensive schools can co-exist, I shall not spend any time, because it seems to me to do violence not only to common sense but also to the English language. But the question of local option is a serious one, and indeed for a Liberal who believes in devolution, and the maximum amount of it, it is an extremely important question and one upon which we may be expected to have a great deal of sympathy with the Government.
In July of this year in the Bedfordshire County Council, following Mrs. Thatcher's circular, it was decided by two votes to reverse the comprehensive system which was due to be put into force. It was an admirable system. New Society, the following week or the week after, devoted the whole of its leader to praise of the comprehensive system, which was to have been put into operation before the county council reversed their decision. Soon after that, one of the people who had voted for the reversal of the comprehensive plan died, and there was a by-election in the Goldington Ward, normally a strong Tory Ward in Bedfordshire. This was contested on the one side by a Conservative, who was strongly for reversing the comprehensive scheme. On the other side, the other Parties and other interested bodies got together and agreed to put up one candidate, who I am proud to say was a Liberal. The by-election was held yesterday, and as many of your Lordships will be aware the Liberal, fighting on this specific issue, won in this hitherto sound Tory area. As a result, the majority against com-prehensivisation in Bedford has disappeared, and whether or not the scheme

249
will go forward depends on the casting vote of the chairman of the council.
In itself, this is a splendid example of local democracy at work and of how local option should work. But see how dependent it is actually on chance! If the majority on the council had been greater than two the by-election would have made no difference. If a councillor had not very sadly happened to die, nothing could have been done about it. Even now the whole future of education in that county will depend upon how one person, as chairman, interprets his duty and how to use his vote. I suggest that that is not a very satisfactory way of deciding the future of hundreds of thousands of children.
To guarantee children the best education possible is surely a matter of a human right. I do not want to overstate this, and I know that we can talk too glibly about human rights, but I should have thought it was pretty basic. Surely this is something which should be enforced by the highest authority that can enforce it. Where matters of human rights are concerned, it is much better, for once, to give the power to a national body than to a local body, and better still if you can give it to a supra-national body. In this case, I think it is only right that the Government should give a lead, and should set down a policy; and the only part of Lord Silkin's Question with which I would disagree is where he spsaks about the "policy" of the Government, because it does not seem to me that there is any policy.
As I have said, one of the main reasons against local option is because of the importance of the future of the children involved. The second reason why I do not think that in this case local option is really a worthwhile argument is that as the noble Lord, Lord Silkin, says, it does not work. The local authorities are not necessarily representing what the people concerned believe. As noble Lords know, I have had some research carried out into this subject, and so far as I can see there is no local education authority anywhere in England where there is not a majority of parents of those children already at school, and parents of children who will be going to school, in favour of the comprehensive system. Indeed, I think we have a minor example of this in the strong Tory ward of
250
Goldington, where quite obviously it is the parents who have rallied to the defence of the comprehensive system.
Further, there is nowhere in England where there is not a majority of the teaching profession in favour of comprehensive schools. The overwhelming majority of the National Union of Students is in favour of comprehensive schools, and I would remind your Lord-ships that although to a certain extent we may discount their evidence as not being experienced, nevertheless they are the people who have just had the experience of going through the schools system. A great many of them, almost by definition a majority of them, have probably come through the lucky grammar school side of the old system and not through the secondary modern.
Therefore, I venture to suggest that local government does not represent what the majority of the people who are most intimately concerned actually want. However, I agree that one should not always follow the dictates of the majority. There is one very good example where one should not do so, and that is where the majority oppresses a minority, and where the majority, by insisting on something that they want, actually take away rights from the minority. I think perhaps this could be said, and has been said, to be the case in this matter of comprehensive schools as against selection. I do not think that argument stands up for a moment. The noble Lord, Lord Silkin, quite rightly said that the question of parental choice is not affected by this decision one way or the other for a single person. What is affected is that if you have a comprehensive system you have a much wider variety of choice for the child inside the school, and that is extremely important. I do not think that by following the wishes of the great majority of the people concerned in this case and having a comprehensive system, any injustice would be done to the minority that does not want it.
I think that this is a case where local option, for once, does not really stand up to examination. I think it is important that the Government should have a policy and give us a lead on this matter. I think it is important that this lead should be given. Even if it is the wrong policy, I think it better that the Government should have that policy and should give

251
us the lead than that they have no policy at all. It is for that reason that I should like to identify myself, and my colleagues who usually sit on these Benches, with the Question being asked by the noble Lord, Lord Silkin, and I hope that he will receive a slightly less dusty reply than we have had in the past.
6.25 p.m.
LORD CROWTHER: My Lords, my excuse for intruding upon your Lordships' time on the subject which has been raised by the noble Lord, Lord Silkin, is simply that some years ago I served a sentence of three years very hard labour as Chairman of the Central Advisory Council on Education, with a particular remit to concern ourselves with the organisation of secondary education in England. This was a period during which I acquired a certain amount of information about the schools in this country, and a great many opinions. I have always been a convinced believer in, and advocate of, comprehensive schools. When I use the word "always", I mean for the whole of my adult life.
I think I was first converted to that view when I first went to the United States, more than 40 years ago, and had an opportunity of observing the part that the public high school, in the American definition of that term, has played, and is continuing to play, in welding a single nation out of the many diverse elements who inhabit the United States. Ever since then I have hoped that in this country we could move towards a system of education which would reproduce those social and nation-building features without, let me hasten to add, some of the more purely educational and pedagogic faults of the American high schools, which seem to me to be almost as great as their social merits.
The time I refer to was long before the invention of the term "comprehensive" in this country, and even longer before comprehensive education became a matter of Party controversy. I think I can claim that, as occasion has served, I have been writing and speaking on this subject from the 1940s onwards, and on one occasion I played a part in persuading the governors of a secondary school of which I was a governor to accept a comprehensive scheme which at first sight they were disposed to reject.
252
My Lords, I think it is worth recalling a little of the historical perspective of this question. Until as recently as ten years ago the advocates of comprehensive education were quite definitely a minority, both in educational circles and in wider circles of public opinion. The tripartite scheme of education was based upon the Education Act 1944, passed by the Coalition Government with a Conservative Minister and a very distinguished Labour Parliamentary Secretary. But it was implemented, and the rules and regulations and details were worked out, by the Labour Government which came into office in 1945, and of which the noble Lord, Lord Sillkin, was such a distinguished member. That was the Government which created the system that he now describes as the pernicious system of tripartite education. Indeed, it is a matter of historical record that the first proposal for a comprehensive scheme of education put forward by any local education authority—and I am very glad to say it was by the West Riding of Yorkshire—was disallowed by Miss Ellen Wilkinson. I do not say this to score a point, but simply to illustrate the fact that in those days this was not regarded as being a matter of political controversy. In fact, the comprehensive view was very definitely the minority one.
My term of office as Chairman of the Central Advisory Council lasted from 1956 to 1960. The Council was a very representative body, specifically constituted to examine secondary education and representative of every interest that was thought to bear on the subject. I remember that those very few members of the Council, of whom I was one, who believed in the comprehensive principle at that time had quite a struggle to persuade our colleagues to insert a few kind words in the Report in favour of the principle. So that it is only in very recent times indeed—less than ten years—that this has been regarded as a matter of Party controversy. I must apologise for this rather long historical prologue of the remarks that I want to make, but it is because I am anxious to establish my claim to have what I think are the strongest credentials of any noble Lord present in the House to-night for being a lifelong believer in comprehensive education. And yet I am very doubtful whether I agree with the

253
noble Lord, Lord Silkin, in the views that he has been putting to the House to-night.
His Question asks the Government to reconsider their policy, without stating in the words of the Question in what direction they should reconsider it. But he made it clear that the direction in which he wished the policy to be reconsidered was to bring it more into line with the policy of the Government that went out of office on June 18. The noble Lord, Lord Silkin, did not mention, in addition to Circular 10/65, the Education Bill of 1970 which, though debated in another place, never reached this House. I was very interested in the progress of that Bill. I paid very close attention to the debates in the other place, and was looking forward to those that would take place in this House when the Bill reached us. I hope, therefore, that noble Lords will not think that I am simply taking this opportunity to make a speech that I should have made on another occasion. But I cannot deny the fact that the views that I am going to put before your Lord-ships are coloured quite considerably by what the last Government put into their Education Bill.
I shall not attempt to conceal from your Lordships the fact that, on the whole, I took a very adverse view of those proposals; and they are very relevant to the debate which we are having to-night, because, as I understand it, the question at issue is not (though to listen to the noble Lord, Lord Silkin, one would hardly realise it) whether comprehensive schools are a good thing or a bad thing—I think that they are a good thing—but whether they should be made compulsory and universal by law. It is on that that I venture to take issue with the noble Lord, for a number of reasons.
First (and I hope that I shall not get into too much trouble with noble Lords sitting on this side of the House if I say this), I cannot help having some distrust of the motives of the Labour Party. Their conversion, as I have been trying to argue, has been a very rapid one—it has taken place in a very few years—and I simply do not believe that a political Party becomes massively converted on a matter of this sort for purely educational reasons. This has been a political conversion, and I do not believe that the basic elements in it have been strictly educational. I do not know that
254
that is necessarily a bad thing. I am not one of those who believe that you can keep politics out of every section of national life in which you happen to be interested. But there are some special reasons why it seems to me deplorable that this particular issue should be made a matter of Party controversy for, as I believe, not strictly educational reasons.
First of all, if one Party becomes strongly attached to a particular educational policy, then, very naturally, by one of the inevitable processes of politics, the other Party will become strongly attached to a different policy. This I should deplore; and if we are holding this debate for any reason it is, as I apprehend it, to prevent that. Yet the strong, the passionate, attachment of the Labour Party, for reasons which their opponents at least do not accept as being educational, is likely to give rise to precisely this division of opinion on education on Party lines, which I should hope we all agree would be disastrous. How dreadful it would be if the educational structure of the country were to be reversed every few years, just as if it were the nationalised steel industry!
If this state of affairs is beginning to come about, I cannot acquit the Labour Party of being the aggressors in the matter. They—not the Conservative Party—have been the first in this country to nail their Party banner to a particular line of policy. How much better it would have been if they had relied more upon the weapons of persuasion within the framework of educational policy agreed so far—
LORD GARNSWORTHY: My Lords, does the noble Lord not think that by issuing Circular 10/65 the then Secretary of State for Education and Science was doing precisely what he is now saying he would prefer the Government to have done, instead of legislating at that time? I put it to him that, whereas we had previously had Acts of Parliament to ensure that local education authorities would conform with national policy, in 1965 the then Secretary of State for Education and Science did precisely what the noble Lord is suggesting the Government ought to have done.
LORD CROWTHER: No, my Lords. I am afraid that I cannot agree with the

255
noble Lord; and I speak not as a member of either Party, but, as nearly as I can, as a disinterested observer. The freedom that was put forward in that circular, which was mentioned by the noble Lord, Lord Silkin, reminded me so much of the freedom which was given by Henry Ford to his customers—that they could choose any colour of car, provided it was black. The freedom provided by Circular 10/65 was to choose any system of education you liked, provided it was comprehensive. No, my Lords, I fear I cannot agree with the noble Lord that the remarks I made were not applicable to the case.
Secondly, apart from distrusting the nature of the way in which this controversy has arisen, and deploring the consequences of it in dividing the country on educational policy, I also deeply distrust the principle of uniformity in education. Standards we must have, yes. But that is a very different thing from uniformity. Had the frustrated Education Bill of 1970 been passed it would have been the very first time in this country that the Central Government had imposed a particular pedagogic doctrine—a doctrine with which I find myself in very wide agreement—upon the local education authorities of the country. But this imposition of uniformity is very dangerous, because it is based on the doctrine that the gentleman in Whitehall or Curzon Street knows best, and, indeed, that he is so sure that he knows best that he is not going to allow any other view to prevail. This I dislike. Much as I myself agree with the principle, I detest the application of it by compulsion. My position is what I might call the modified Voltairian principle: "I accept your views, but I will fight to the death against any attempt by you to impose them by law".
In education, more than elsewhere, surely, where we are dealing with the training of the minds and the forming of the character of the young people of the country, we should preserve enough decent humility to be prepared to admit that the other man may be right. In any national educational system there must be scope for variety and experiment. How often have we scoffed against Continental countries who did not believe in that ! How often have we laughed at the story of the French Minister of Education
256
under Napoleon III pulling out his watch and saying, "At this hour every student in France is tackling a Latin essay"! The great glory of the English educational system in the past has been the scope that it has provided for variety and experiment. If there had not been that scope, and if there had not been a willingness to allow experiments and new ideas and even minority views to be tried out, how could the comprehensive idea ever have got started?
Once you accept the principle of imposed uniformity, where is it going to stop? Let me give your Lordships an example. There is a campaign beginning now—those who read the educational Press are now very familiar with it—against streaming. I am not sure that I can rely upon all noble Lords knowing the definitions of these terms, so let me say that "selection", as customarily used, refers to the schools to which children go; "streaming" refers to what happens to them when they get into their school. The new doctrine is that, having got all the children in an area into a comprehensive school, you should not then divide them into different classes by their ability but treat them all in the same way.
This campaign is starting in much the same way (and my memory on this is very clear) as the campaign for comprehensive education started. For myself, I think it is very valuable and useful that there should be a discussion on these matters, and also experiment—that it should be tried out. But I should be horrified at the prospect of legal prohibition of streaming. Yet let me assure your Lordships that once you adopt the principle of imposed uniformity it is no more ridiculous to think that in ten years' time it might be used to prevent streaming than, ten years ago, it would have been to suppose that there would be legal imposition of comprehensive schools in 1970. This is a very dangerous road on which to start.
Now if you remove the pressure for imposed uniformity there is no risk whatever of excessive diversity or fragmentation in educational organisation. Thought goes in fashions in the educational profession, just as it does everywhere else. At the moment—I repeat, to my pleasure—the comprehensive principle is the fashionable doctrine; but whatever the fashionable doctrine is at

257
the moment, it imposes enormous pressure upon the administrators of the schools who, up and down the country, have to conform to it. To my mind the State, instead of imposing uniformity, should exercise all its influence against the pressure to conform. The State should regard itself as the guardian of the non-conforming authority.
Finally, my third reason for deploring the policy that was developing under the last Government and to which, if I am not doing him an injustice, Lord Silkin would wish us to return, is that I deplore haste in these matters. As I have tried to show to your Lordships, comprehensive education is a very new idea in terms of educational life and development. Even if all other objections to its imposition could be satisfactorily answered, I think it would still be right to wait a little bit longer and see the results. Schools are living organisms; they change their character only slowly. That character does not depend upon the buildings or the education authority, or, come to that, upon the parents of the children. It depends upon the changing body of the teachers in the schools, and if you do violence to the opinions honestly held by the teachers in a school you cannot fail but do harm to the cause of education.
That is why, believing as I do in the principle of comprehensive education, I have lent such little support as I could from time to time to attempts to prevent individual schools from being swept into a comprehensive system. Because the question that one should ask oneself about the preservation of a grammar school is not, to my mind, whether it is a grammar school or not; it is whether it is a good school or not, whether it has built up a momentum and a tradition of scholarship and of character-forming which would be unlikely to be continued under the new form to which it is subjected. It must be wrong, it seems to me, hastily to force good schools into a Procrustean mould designed for other purposes. Time and persuasion, and the eroding effect of professional opinion, will achieve the results, perhaps not quite so quickly but much more surely and much more satisfactorily.
Now, holding the views that I have attempted to set before your Lordships, should I agree with the noble Lord, Lord
258
Silkin, in asking that the Government should reconsider their views? Governments should always reconsider their views, on education perhaps more than on other subjects. They should be prepared constantly to reconsider their views; and if, indeed, the new Government's policy were one which was hostile to the comprehensive system, then I would cheerfully align myself with Lord Silkin against it. But as I apprehend the matter—and no doubt we shall get more enlightenment when the noble Lord, Lord Belstead, answers for the Government—that is not the policy of the Government. It is simply to remove the pressure of compulsion and, if you like, of official persuasion, which can come so closely to the same thing, towards the comprehensive system, and allow those who devote their lives, their thought and their attention to building up the schools system a freedom of choice, at least for a considerably longer period of time. If that is the policy of the new Government, I, for one, think it needs more support than condemnation.
6.46 p.m.
BARONESS PHILLIPS: My Lords, I should like to thank my noble friend Lord Silkin for putting this Question on the Order Paper and for giving us an opportunity to hear from the Minister something of the policy of the new Government in relation to this vital matter. I cannot spend too much time at this late hour in attempting to reply to the noble Lord who has just sat down. Nor, indeed, have I any power to speak for the Labour Party. But I can tell him, as a teacher and as one who has been concerned in education all her working life, and as a Socialist of many years' standing, that I am no "Johnny-come-lately" to the idea of comprehensive education. The Socialist philosophy and way of life believes in equal opportunity, and therefore you can believe only in comprehensive education; and I am rather appalled that the noble Lord should suggest that we should not have any kind of compulsion. Would he have suggested, therefore, that the 1870 Act should not have been introduced, or that the 1944 Act should not have been introduced? In other words, should we have allowed people who did not want to attend schools not to be educated?
LORD CROWTHER: My Lords, if the noble Baroness will forgive my interruping, I am sure she does not wish to misrepresent what I said. I think I said quite clearly that the State should insist upon standards; but standards are very different from uniformity.
BARONESS PHILLIPS: My Lords, as I understood the noble Lord—and I shall read with great interest to-morrow what he did say—he said that he did not want direction from central Government. He made some reference to Curzon Street, and so on, and although at the time of 1870 and 1944 there was no Curzon Street, one did in fact have direction. I would suggest to him that he could examine many Acts of Parliament in which there was an clement of compulsion which has worked only in the best interests of the democratic State in which we all live.
I should like to remind the noble Lord and other noble Lords—we are having something of an historical survey this evening—that the comprehensive development in education has deep roots, like all major policies. I think it would be useful to say that as long ago as 1925 the Assistant Masters' Association (not, I should have thought, a Socialist group) proposed that secondary education for all should be provided until the age of 16 in different depths in the same school—and that is certainly comprehensive education. Since the famous Circular which we have heard mentioned this evening was issued in 1965 by the then Government, there has been a forward move in comprehensive education, and the noble Lord, Lord Silkin, gave the figures concerning the situation at the moment. I will not repeat them, but I will repeat what has been said several times outside this House and what obviously needs to be said again within this House: that Circular 10/65 did not impose a uniform pattern of reorganisation; it asked that local authorities should look at their plans and that it should be recognised that the method and the timing would vary to suit local needs and local circumstances. It was not in any way an attempt at uniformity.
My Lords, the previous Secretary of State for the Department of Education and Science gave three relevant criteria in judging whether a particular plan was justified, and these are the ones on which we have based our case. First, the school must be fully comprehensive in its objective,
260
and must provide for the elimination of selection; secondly, it should provide a better deal for the children; and thirdly, it should take account of the particular circumstances of the area in which it is to operate. After the issue of this Circular we had the Election and, a few days following the Election, after the formation of the new Government, the Secretary of State issued a Circular withdrawing the previous Circular which we have heard referred to this evening.
The Circular issued by the present Secretary of State seems to be the only statement of Conservative policy on secondary education that we can take as being factual. I think it is useful, therefore, to read it. In one sentence we are told that where a particular pattern of organisation is working well and commands popular support the Secretary of State does not wish to cause change without good reason. I should like to ask the Minister who is to reply what that means. What does "working well" mean? Is it "working well" for the people who are in the grammar schools or for those not fortunate enough to get in them because there are not enough places? Is it "working well" because the teachers are happy about it or is it "working well" because the parents are happy with it? It seems to me to be an extraordinarily ambiguous Circular which has given the Minister the opportunity, as I understand it, slightly to retract her original hasty statement.
I have read an account of her speech made yesterday. I should like to commend her on tackling the problem of the Victorian primary schools and on reducing the size of classes; and here she is following a policy adopted by her predecessor in office. But she says in her speech that schools are for children and that what goes on in them is the thing that matters. Nobody would quarrel with that. Then she goes on to say that we must avoid becoming preoccupied with systems and structure to the detriment of the actual content of education. What does the Minister mean by that? It sounds rather like one of those arguments of people who, if you have a different philosophy from theirs, will say, "Don't introduce politics". What they usually mean is: "Don't introduce your politics; I am much happier with mine. Yours are dangerous."

261
The system and the structure of an educational grouping will determine largely the kind of education the children will have. You cannot divorce the two things. I am not clear what the Minister wants. I would merely say that she cannot have it both ways. You either have schools which are non-selective or you have schools which are selective. Ï can remember that when I was teaching—and I have said this before in this House—I found that in one county the chance of a child getting into a grammar school could be 20 to 1; in another it could be 50 to 1. No child should be deprived of opportunity because of the geographical location of his home. It is senseless and unfair.
My Lords, I conclude by asking whether the noble Lord who is to reply would like to explain again what another of his colleagues meant in this connection. This was the statement by the noble Viscount, Lord Eccles, who said in this House:
"We said in our Election Manifesto that the aim is to improve the quality of life. Your Lordships may well think that this is a vague phrase, but perhaps I can clarify it by making three points: first, our object is to raise the quality of life for everybody, for children and parents, for grown-ups of all ages …"—[OFFICIAL REPORT, col. 165; 8/7/70.]
If you are to raise the quality of life for children they must be given equal opportunity of the best kind of education we can offer; and in my humble judgment this can be done only through a comprehensive system.
6.55 p.m.
BARONESS GAITSKELL: My Lords, I am grateful to my noble friend, Lord Silkin for introducing this Question. I shall try not to repeat the arguments that have already been made. Personally, I should have liked a completely non-partisan discussion of this important subject, which is the future of secondary education and its reorganisation in this country. But this has been made absolutely impossible by two things. The first was the contribution of the noble Lord, Lord Crowther, who made, I think, one of the most naïve statements that I have ever heard in this House when he said that education is not a political question. I really have never heard anything quite so naïve as that. He based his arguments on this idea of compul
262
sion; when he knows perfectly well that even Circular 19/70 asked for minimal plans for reorganisation. Therefore to talk about compulsion—no-one is against private education; but it must be private; this is State education we are talking about.
LORD CROWTHER: My Lords, I am sorry to interrupt the noble Baroness, but may I briefly say that I shall be astonished if I discover in Hansard tomorrow that I said that education was not a political question or that I condemned compulsion in any other respect than for the imposition of uniformity.
BARONESS GAITSKELL: My Lords, I am sorry if I misunderstood the noble Lord but I distinctly heard him say that education was not a political question. Also I think that the noble Lord has completely misunderstood comprehensive education, which is a philosophy, an attitude to the whole question of education. It is not just about particular comprehensive schools or what the noble Lord called "uniformity" of schools. There is absolutely no uniformity about comprehensive schools—in any event, so far. However, it is very difficult to be non-partisan on this issue.
I should like to begin by congratulating the Secretary of State for Education on her escape from the Chancellor's axe. I think she has done very well in obtaining the money for rebuilding the old primary schools. Thinking and research on all aspects of secondary education is going on throughout the whole of the Western World and I find little evidence of the retreat from the comprehensive approach to a more élitist pattern. As has been said, since the Education Act 1944 the selective system has come increasingly under attack, and by the middle 1950s most parents had reacted against selection. Comprehensive education had become part of the educational policies of the Labour and Liberal political Parties, but many Conservative-controlled local education authorities came to realise that there were few votes to be gained in defending the 11-plus. Since 1965 nearly all education authorities have embarked on some form of secondary reorganisation on comprehensive lines—not uniformity: simply reorganisation on comprehensive lines.
In fact, the first major impediment to the steady if difficult progress to overall

263
plans for this reorganisation was brought about by the Secretary of State's first speech in Parliament when the electoral catchwords "Freedom of choice; no compulsion!" were trotted out and the Government left the crucial decision to the local authorities; so that where there are reactionary councillors the 11-plus examination which labels 75 out of 100 as failures can continue. It does not even take into account that up to 70,000 children are allocated wrongly to grammar schools and secondary modern schools. Then there is the anomaly of the regions, as most speakers have pointed out; 40 per cent. selected in Wales and 15 per cent. in some boroughs in Lancashire. Little wonder that younger parents now look at comprehensive education with an open mind! It would be fair to say the majority of parents and teachers now oppose the 11-plus.
I have taken these conclusions, not from such papers as the Guardian, or the Mirror, but from articles in Cross-bow, the Sunday Telegraph, the Sunday Times and The Times not papers one could easily brand as Socialist. But this new Conservative Government have shown themselves very partial to selection by numbers. The Chancellor of the Exchequer in his "mini-Budget" has this week introduced the "7-plus" in his milk shake-up proposals. So now we have two things: the 11-plus and the "7-plus".
Those of us who are dedicated to the idea of faster progress towards genuine secondary education are not against good grammar schools or good secondary modern schools. We wish to adapt them so that they do not remain a quarantine for specially selected children, because we do not accept the idea that only a small minority is capable of benefiting from grammar school education or that separate schools are needed for different abilities. We know that when a former grammar school becomes fully comprehensive more children stay on and go to university. The noble Lord, Lord Boyle (then Sir Edward Boyle), said in 1963, after the Newsom Report, that all children should have the same opportunity of acquiring intelligence. I agree with him, but I do not see how this could be achieved without a change, a fundamental change, in our attitude towards
264
the advance of genuine comprehensive secondary education. It is senseless, my Lords, to speak of approving comprehensive schools only if they are what people call "custom built". We shall have to wait for the millennium for that.
It is also not fair to judge a comprehensive school alongside a grammar school which has creamed off the more able children in the neighbourhood. A genuine comprehensive intake is absolutely essential to attract and to keep staff of high calibre and to produce good results. People who speak of the setting up of comprehensive schools as imposing a uniform pattern—as the noble Lord, Lord Crowther suggested—are simply ignorant of the reorganisation that has taken place up to date, and the diverse forms that it has produced. I know that some of the reorganisations have not been very good or successful. One reason for this is that Central Government have given advice and local authorities have had to carry out this advice; and not all local education authorities are filled with educational experts. It is when the Government abdicate, and leave it largely to the local authorities, that grave and sometimes wrong decisions are made.
My Lords, I cannot believe that the best teachers in this country—and there are many—can envisage and consider teaching only in one type of school, only in a grammar or secondary modern school; nor that they do not wish to have a stake in reorganising secondary education in the 1970s, in this continuously advancing scientific and technological age and that they can contemplate only the educational pattern of the 1950s. I found a very clear definition of present-day educational goals in a pamphlet from a West German education research institution:
"To change the élite orientated education into an education for all, continuous throughout life."
This is the philosophy fundamental to comprehensive education, equal opportunity for all our children—not just the rich and the clever—to become educated. So I hope that the Government will forget the throw-away slogans of the General Election, about "freedom" and "parental choice", and ask themselves the questions that we on this side of the House ask: Freedom for whom? Freedom for how many? Whose choice?

265
Choice for how many? And, finally, my Lords, what price freedom of choice without equal opportunity?
7.5 p.m.
LORD GARNSWORTHY: My Lords, I was lunching with a friend to-day and he quoted precisely the point that the noble Lord, Lord Crowther, made about what was happening in French schools at any particular time. My friend is not a poor man; he could afford to have his children educated privately if he wished; but I was delighted when he informed me that he had studied the situation very closely and he thought that he ought to send his children to comprehensive schools because there they would learn to grow as members of one community, and would continue throughout their school lives to enjoy opportunities to study courses suited to their developing aptitudes and abilities. It is odd that it should have been to-day that that happened.
May I say to the noble Lord, Lord Crowther, that my friend is a comparatively young father of children and is facing the future. He is anxious to do his best to serve them to the utmost of his ability. He is not a member of the Labour Party and I was deeply impressed by What he had to say. When he began his speech the noble Lord, Lord Crowther, claimed a background of experience that he suggested none of us in this Chamber could equal. May I say that not one of us would question that. The noble Lord will have to rest content to be judged on the impression he made, as the rest of us have to. If he wants to study Hansard to-morrow he will be able to do so; but we in this Chamber have to judge what he said on the basis of what we understood him to be saying. We shall do our best to interpret the points he was making as faithfully as we can, but as I understood him, the noble Lord laid great stress on the fact that he had had experience that the rest of us had not shared.
LORD CROWTHER: My Lords, I am very sorry to intervene once again, but the only claim I made was to have advocated comprehensive schools for as long, I believe, as anybody now in the Chamber.
LORD GARNSWORTHY: That is quite all right, my Lords. I am not in the least perturbed that the noble Lord
266
should want to re-emphasise that point. He made it in such a fashion, if I may say so, as to influence the reception of his remarks at a later stage; and I have no doubt at all that he was establishing a background position of experience which entitled him to address us in a manner which I thought was certainly interesting and provocative.
The noble Lord said a number of things—and I hope I quote him correctly. He said that the State should regard itself as the guardian of those who do not wish to conform. I may not have that precisely correct, but there I understood him to be defending the local authorities who feel that they have a right to impose on the children in their localities the system of education which they think is right. Against that point of view I would quote the view expressed by one with long experience in the field of education, R. H. Tawney, for whom I have a very deep respect. He has inspired much of my thinking about education. I think I should be quoting him correctly if I used these words:
"What the wise parent would desire for his own child, that the State, in so far as it is wise, should desire for all children."
That, as I understand it, is the motivation of the Labour Party, whose motives the noble Lord said that he mistrusted. I was sorry that he committed himself to that particular expression—that he mistrusted the motives of the Labour Party. It seems to me that in the field of education criticisms arise in some quarters only when the Labour Party is in power and wants to do something. I think that the Labour Party has good reason to be proud of its record in the field of education, not only in the last few years but almost from the time of its inception. I do not think that anybody can say that the Labour Party's educational policy has not been primarily and overwhelmingly concerned with the educational advantage of all children.
As for suggesting that it is a matter of political motivation, with respect to the noble Lord, Lord Crowther, I deeply regret that he gave tongue to the words he used on that matter. He suggested that Circular 10/65 was like the Henry Ford selection—if you buy a Ford car, you can have any colour you wish so long as it is black. Was there ever such a travesty of Circular 10/65 as that?

267
What it suggested was six alternatives to reorganising secondary education on a comprehensive basis, and there was nothing in the circular to suggest that if an authority did not meet all the requirements they could not have it. I suggest that that reference was hardly applicable.
I share the concern of my noble friend Lord Silkin about the present position. I see Circular 10/70 as the forerunner of the "Barber's rash" we have had this week, as an attempt to put the clock back, in the sense that it plays into the hands of the most reactionary elements in education in this country. I have spent many years in a county where the noble Lord's father was a colleague on the county council. For five years controversy has been raging, and the immediate consequence of Circular 10/70 being issued was that the most die-hard elements on the county council immediately attempted to hold up such progress as we had made in the matter of considering the reorganisation of secondary education.
I doubt whether any Member of this Chamber, either tonight or at any time, including the noble Lord, Lord Crowther (particularly having regard to what he says about his early conversion to the best in the comprehensive system) would dare to try to defend selection at the age of 11 plus—not one. The system that has been operating here has been condemned by every educationist of any standing at all. The Party opposite are as committed to ending selection as we are. I do not know whether they go the whole way with the Bow Group in their latest publication, but it seems to me that the Bow Group has gone a long way towards the comprehensive principle.
What is the alternative to selection and separatism? And what is the comprehensive system when we have got it? Is there anybody in the Labour Party who advocates a comprehensive system which means that every local education authority should conform to one particular pattern? The noble Lord, Lord Crowther, knows Very well that this is not so. He reads educational publications and is as well aware as I am that local education authorities have considerable opportunity for a varied approach to the type of comprehensive system they may adopt.
268
After all, what is it that we want when we talk about a comprehensive system? All we are seeking to do is to create a framework in which progressive change can continually take place. What else is it? Does anybody imagine that when we put a label on a school and call it comprehensive, we have made any change at all? We in the Labour movement do not want sham comprehensives. But we are convinced that we cannot have a sound comprehensive system and have a separatist system running alongside it. If we do, we shall give the man in the street the impression that there is a first-class system and a second-class system of education, and before long we shall have him regarding the comprehensive school as little more than a glorified secondary-modern establishment. And even the Bow Group has not a kind word to say about the secondary-modern school to-day.
I believe that my noble friend Lord Silkin is fully justified in expressing his concern. It is shared not only by us in the Labour Party, but also by members of the Liberal Party, by members of the Conservative Party and by many people who are not members of any Party. Before I sit down, may I say that in our consideration of secondary reorganisation we are over-concerned about academic examination results. The time has come when we ought to be giving more thought and concern to the needs of the children who appear not to be able to take advantage of academic courses. The time has come when, as we are seeking to free the primary school system from the restrictions of the 11-plus procedure, we ought to be seeking to free the secondary school system from the restrictions of the present examination system procedures.
I think we have a long way to go before we have a secondary system that really serves the needs of all our children. We do not have all the resources we should like to have. We have to face the fact that we have limitations in buildings, that we are not going to get all the money we want and that we could do with more teachers than we have. In conclusion, may I quote the words used by the then Secretary of State who issued Circular 10/65, Mr. Anthony Crosland:
"We should go forward as quickly as we can and as slowly as we must."
7.19 p.m.
LORD WOLVERTON: My Lords, I wish to intervene to put a point of view from this side of the House. My only justification for doing so is that I have spent nine years on a county council and for ten years have been a governor of a big grammar school in East Anglia. In my county we have decided to go comprehensive in about two years' time, provided that we get the funds.
Having served nine years on a county council, I believe in local government and in local choice. I would remind your Lordships that local authorities pay about 40 per cent. of the bill for education in their areas and the State pays the other 60 per cent. Are not the local authorities then entitled to have some free choice? The Minister's latest Circular, 10/70, does not say that we are not to have comprehensive education. What it does say is that we are to have freedom of choice. That is the point we must consider.
No doubt a large number has gone comprehensive, and many more will do so when money is available. But there will never be enough money to go round for all the things that we want to do in education. In the reorganisation that we have in Suffolk—and I think Suffolk and Cambridge will be more or less the same—there will be a three-tier system, instead of the two-tier as at present; and it means building schools. We are hoping that we shall get the money, but the task will be extremely expensive. You cannot just find sites and provide the extra teachers needed when you are bringing in a three-tier system; it can only be done gradually.
I was delighted when the Minister announced that she had managed to get quite a lot of money to proceed with the modernisation of primary schools, because during the nine years that I spent in local government we were busy implementing the 1944 Butler Education Act which gave everybody a good education. I deplore the running down of our great new secondary modern schools. They have been improved enormously in the last ten years, and the children are given a very good education. A large number of pupils are passing their O-levels, and if they are late developers they change, after a year or so, to the grammar schools.
270
I agree so much with the noble Lord, Lord Crowther, on the question of uniformity. I think this is up to local authorities. The noble Lord, Lord Silkin, in his particular Party speech, said, rather surprisingly, that there should be complete dictation from the centre. If there is to be complete dictation from the centre, then the Government had better take over the whole of education and pay the whole bill. But there are a large number of people who do not want this. If we do not want it, then there must be freedom of choice for local authorities, and their education committees, which are comprised of very able people, to decide what is best. As I have said, we in Suffolk are going comprehensive, but it will take some time and it cannot be done if the money is not available.
I welcome the relaxation from 10/65 to 10/70 and the giving of freedom of choice. Obviously the previous Minister was not getting all he wanted, otherwise he would not have produced the Education Bill of 1970 to say that all areas should go comprehensive, whether they liked it or not. I deplore this, because there are excellent grammar schools in this country which many people desire to see carrying on. I support the Minister in what she has done. She has not said that she is against the comprehensive system in any way, but she is giving local authorities that freedom of choice which we did not have before.
7.25 p.m.
LORD SOMERS: My Lords, I apologise for not putting my name down on the list of speakers, but when I heard of the debate this evening, as one who has done a good many years of teaching the young, I felt that I must join in. I do not often differ from the noble Lord, Lord Silkin, because he is a far more experienced and older politician than I am and I often bow to his opinion. But on this occasion I feel that I must differ from him on one or two points.
A great deal has been said this evening about the two points of elimination of selection and equal opportunity. To deal first with selection, the great thing that we must realise is that no two children are exactly alike in their mental capability or the possibility of their achievements. It has nothing whatever to do with class, social status or anything like

271
that. Two children of the same parents may be entirely different: one may be absolutely brilliant and the other very slow-going. From this fact it would appear obvious that every child should have an education that is wholly suited to it.
This plea for uniformity is to my mind entirely wrong, because it does not give the other essential of equal opportunity. I agree it is essential that equal opportunity must be given to every child. But the child will not get it if he is going into a school where some children are being taught things that are entirely beyond him, and he will not be able to keep pace with the others. That is why I feel that the idea of the elimination of selection is the greatest mistake that could possibly be made in education. I am not entirely against comprehensive schools, because I think there are many cases in which they work extremely well. It depends where they are, how they are run, what the administration is like and on many other things. But we must remember that this is a free country, and one of the freedoms that we must preserve is freedom of choice of the type of school to which we are going to send our children: and that choice must be influenced by what the child is like. Suppose your child has a particular leaning towards one subject or another. Suppose, for instance, that he has an outstanding talent for music: naturally you would want to send the child to a school where the musical standard was very high. But if you have only one choice, the child will not be able to make the most of it.
LORD SILKIN: My Lords, I do not like interrupting, and I have not done so before this evening, but if one was a parent in Stepney with very limited means, what choice would one have of indulging a child's taste for music or anything else? Surely the only choice one would have would be to send the child to the school which the local authority dictated.
LORD SOMERS: I agree with the noble Lord that there are some cases where the family is so poor that there is no choice other than to send a child to the local school, but in these days when wages are rising to a very high peak I cannot believe that the number of cases of this category is large.
LORD BEAUMONT OF WHITLEY: My Lords, I wonder whether the noble Lord will give way? Would he tell us what more choice a parent has in the State system under the selective method than under the comprehensive method? Is it not true that when the child takes the 11-plus examination, if he passes he goes to a grammar school and if he fails he goes to a secondary modern school? There is no question of choice.
LORD SOMERS: Most certainly, my Lords, as comprehensive schools are at the moment, with their streaming system, that is probably true. There is another point about comprehensive schools that one must consider. Education is not simply the doling out of factual knowledge. The best education is given in the school which is small enough for the headmaster or headmistress to know every single boy or girl individually, and to be able to cope with their difficulties. Naturally I do not say that that is always the case in schools of a size of 500 or so, but it is largely so. The comprehensive school is so vast that no head-master or headmistress can ever know anything particularly personal about many of the pupils. That makes a great difference, because the purpose of schools is not only for the giving of knowledge; it is also for the developing of character. This freedom of choice for parents who are sending their children to school must be preserved and maintained. That choice may often be a comprehensive school. Well and good; let it be so. But I cannot feel that it is right that we should dictate to parents the type of school to which they should send their child.
7.33 p.m.
THE PARLIAMENTARY UNDER-SECRETARY OF STATE, MINISTRY OF EDUCATION AND SCIENCE (LORD BELSTEAD): My Lords, the House is grateful to the noble Lord, Lord Silkin, for providing this opportunity to debate secondary reorganisation. The noble Lord would wish us to study the terms of the Question. The essence is:
"… to ask Her Majesty's Government's policy on comprehensive schools."
The noble Lord has fairly stated that the origins of reorganisation did not spring from Circular 10/65. This immediately leads us to one of the main points in the speech by the noble Lord, Lord Crowther,

273
which I felt was misunderstood by the noble Baroness, Lady Phillips. The 1944 Act left open a freedom of choice for local education authorities of which a few authorities gradually began to avail themselves, and we have listened with great interest to several noble Lords this evening recounting some of the doings between 1945 and 1965. The impetus was also provided partly by the 1958 White Paper, Secondary Education for All, which encouraged comprehensive experiments and partly by the free thinking of individual local education authorities, some of them under Conservative control, which comprehensive education as the best organisation for their needs. By 1964 there were 195 of these schools in existence.
I cordially agree with the noble Baroness, Lady Phillips, that Circular 10/65 gave some form to the aspirations of many authorities by setting out six alternative patterns for reorganisation. I take issue with the noble Lord, Lord Garnsworthy, when he says that this means that there was entire freedom of movement from 1965 onwards. The noble Lord for a moment forgot that in the following year the building circular, Circular 10/66, was sent out.
LORD GARNSWORTHY: My Lords, will the noble Lord give way? May I remind him that a number of Conservative controlled authorities have defied Circular 10/65 to this very day, or certainly up until the Conservative Party were returned to power.
LORD BELSTEAD: My Lords, this is adding a little fuel to my flames. The noble Lord has obviously forgotten the sending out of Circular 10/66, which made it clear to all local education authorities that unless they put forward plans which were compatible with reorganisation they would not take a place in the building programme. The noble Lord is therefore now quite right when he says that if anybody did not wish to conform to what was being forced upon them by Circular 10/66 they were having to go into a situation where they defied the Government. That is as may be. What has happened—and I think we can agree on this—is that more recently the increasing popularity of middle schools, and still more recently sixth form colleges, is proof of how, looking back to Circular
274
10/65, many local education authorities interpreted what their actions should be.
Meanwhile, with these increasing experiments, and in the light of much of the evidence which was in the Crowther Report, there were many people who genuinely came to doubt the continuing wisdom of secondary modern schools catering for a narrow range of ability; but it would be quite wrong to see these schools, many in spendid buildings, with devoted staff and with self-confident children, as centres of failure. Such a view is a total injustice. Indeed, it has been the very success of the teaching in these schools, particularly in the education of less able children, which has stimulated many plans for reorganisation. When the noble Baroness, Lady Phillips, questions the words of the noble Viscount, Lord Eccles, upon the quality of life, may I beg the noble Baroness to recognise the general rise in educational standards which has taken place in the past decade, for which both political Parties have been responsible.
Yet Circular 10/65 was and has been a target for criticism. Why? The noble Baroness, Lady Gaitskell, said in her speech that difficulties have sometimes arisen in comprehensive education because Governments have directed and local authorities have not been expert enough to administer. I agree with the evidence of the noble Baroness which she put in a moderate form, but I would not agree with her conclusion. In 1968 the National Foundation for Educational Research's Report, in defining fundamental problems in comprehensive schools, held that lack of established traditions could be turned to advantage by schools which were purpose-built or which had organisations tailored to suit. But in issuing the circular the Government have made it clear that comprehensive plans could receive no special comprehensive allowances, and undoubtedly the circular created a situation where a limited number of authorities proceeded with schemes which have given rise to difficulties of organisation within some schools.
Then suddenly, early this year, the situation altered. Either the noble Lord, Lord Silkin, and the noble Lord, Lord Beaumont of Whitley, were not aware of

275
a Bill which did not reach your Lordships' House, or else they do not take the same view of it as do the present Government. The Labour Government introduced an Education Bill to remove selection from all maintained secondary schools. This Bill sought to upset the balance between local education authorities and Central Government which is implicit in the 1944 Act, whereby the authorities put forward their proposals and the Secretary of State has the power of final decision.
The Bill perpetuated the idea of policy without resources: of financial help there was no mention. It ran headlong into the problems of securing a balanced intake into schools which some authorities have earnestly tried to achieve by a process of banding, as it is called; and, most serious of all, the Bill sought to introduce blanket compulsion of all local authorities, including several where officials and elected representatives were still working to secure agreement to their plans. In the event the first clause of the Bill was defeated in Committee in another place and by the time it was put back again the General Election had ensued. So this Government inherited an evolutionary process for which the previous Administration had suddenly sought compulsory powers. And in view of a great deal that has been said this evening I would beg your Lordships' indulgence while I say a word or two now about what our policy is and what it is not.
Our major objective is to ensure that all pupils shall have full opportunities suitable to their needs and abilities. The noble Lord, Lord Silkin, spoke at length about lack of consultation. It really is inherent in the circular that consultation will occur for the very reason that in paragraph 1 the Government oppose a uniform pattern. Paragraph 2 makes local needs and wishes a criterion, and paragraphs 3 and 4 both refer to the need for consultation.
LORD GARNSWORTHY: My Lords, I understood my noble friend Lord Silkin to be making the point—and I think it is a very valid one—that Circular 10/70 was issued without any consultation either with L.E.A.s or with professional organisations.
LORD BELSTEAD: My Lords, if the noble Lord, Lord Garnsworthy, will bear
276
with me for a moment I think he will see that the circular is not Draconian and for that reason the light of consultation does not beat as heavily on it as it might have done on other circulars.
Many times we have emphasised that 11 (and this, I think, is common ground and has been said before this evening) is too early an age for final decisions on a child's future. For this reason, Circular 10/70 does not imply or express any insistence on 11-plus selection. The noble Lord, Lord Silkin, has described local authorities as unsuitable and unfit for organisational decisions. I quite realise the noble Lord's point on that—for organisational decisions on secondary reorganisation.
LORD SILKIN: For policy, my Lords. I thought they were suitable for organisation; for carrying out things.
LORD BELSTEAD: For policy decisions on secondary reorganisation. And the noble Lord, Lord Beaumont of Whitley, spoke at length in his speech about the worthlessness (I hope I do not misrepresent the noble Lord) of local choice in this field.
LORD BEAUMONT OF WHITLEY: My Lords, I apologise for interrupting. It is true that I left out a section of my argument with which I have burdened your Lordships before, because I thought it was not completely pertinent to the debate to-night. But in view of what the noble Lord, Lord Belstead, has said, I think I ought to make it clear that I am in favour of a reorganisation of local authority work which would put the power for the organisation of education into the hands of representatives of the parents and the teachers in the particular area, and not in the hands of the council elected on an overall change of political outlook every three or four years. This is obviously a major point which needs discussion on another occasion. But it is not that I am against local option completely as such. I think it cannot work in our present constitution.
LORD BELSTEAD: My Lords, the noble Lord makes himself crystal clear and we will proceed along those lines. When all is said and done, plans for secondary schools, which are so much more expensive than primary school building, depend upon a supply of money;

277
and this was a point on which my noble friend Lord Wolverton put his finger with unerring accuracy. It is for this reason that we are convinced that it is right that the main initiative for change should rest with the local authorities, and we welcome reorganisational plans which stem from an assessment of how resources for new educational ideas can best meet local needs. Indeed, many are the authorities where clearly the careful development of plans, with support of teachers and parents, has at no point been concerned with political alignment.
So the central principle of the Government's policy once again is evolutionary. Circular 10/70 permits local education authorities to proceed with approved reorganisation schemes. It asks those authorities with plans currently lodged at the Department to state their wishes. And, finally, the circular welcomes the submission of new plans. Once again, for this there must be consultation. Already the Secretary of State has approved schemes for Leeds, Tees-side and for areas of Hampshire, Wiltshire and Derbyshire. These cover a variety of patterns—middle schools, sixth-form colleges and all through 11-to-18 schools. Not too bad for a Government which has apparently no policy! The authorities have justified them, based them on careful planning and detailed consultation; and the plans were, I assure your Lordships, realistic in their use of existing buildings and application of new resources. Educational considerations, local needs and wishes, and the wise use of resources—these are the general criteria by which we intend to judge schemes submitted for our approval.
My Lords, what of the future? First, a point of the noble Lord, Lord Crowther, that comprehensive education, of which he is such a distinguished supporter, is something which is comparatively new. The noble Lord said, if I read him aright, that he distrusts strong political opinions made in haste on the subject. Your Lordships may be interested to know that the National Foundation of Educational Research, which has published its first two surveys—one in 1968. and the other one only about a month ago on comprehensive reorganisation—is now planning its third one, and this it is hoped may be out in 1971. It is intended that it shall concentrate upon the aims of comprehensive
278
schooling and what are its aims. This year, 31 per cent. of pupils in the maintained sector were in fact in comprehensive schools. Yet the noble Lord, Lord Silkin, is in essence questioning this evolutionary process. During the abortive progress of the Education Bill earlier this year it was the previous Administration who tacitly admitted this process by resisting pressure from their own supporters in another place when they tried to set a date for a completely comprehensive system.
I accept that different schemes within the comprehensive system and different schemes in general can sometimes occasion administrative headaches. But this is a price that Government must always pay for the benefits of educational experiment and local responsibility, and for the benefit of the words which I believe were in the Crowther Report—I paraphrase: "We really cannot afford to lose even one good school."
The truth is, my Lords, that while pupils increasingly are choosing to stay on at school, and with the school-leaving age just about to be raised, our real concern surely should be what happens within the schools. Is it beneficial to "stream", as it is called, or to "set"; and what methods of general organisation within the school should be preferred? What administrative load can a headmaster or a headmistress reasonably be called upon to bear; and what methods can large schools devise for the pastoral care of pupils and contact with parents which has been the concern of so many in education for years past? I am aware that these are matters for the authorities and for the schools—and not for the Department—in consultation with Her Majesty's Inspectors, but they are matters which surely should be the concern of us all.
How should the very gifted be taught, and what unfulfilled need exists for boarding education, and are the greater expenses in this field worthy of deeper consideration? To what extent can we meet the higher expenses of special education, in human terms so richly deserved; and for the purposes of this debate what are the best arrangements, in terms of manpower application, which can be made in comprehensive schools for teaching the less able?

279
My Lords, Section 8 of the 1944 Education Act laid a duty on local education authorities to provide secondary schools sufficient in numbers, character and equipment to afford for all pupils opportunities in education, offering such variety of instruction and training as may be desirable in view of different ages, abilities and aptitudes. If Section 8 provides a firm base for continuing educational advance, then within our resources we must try to pursue the ideal of satisfying diverse interests and needs. What do you do, I wondered, as I listened to the noble Lord, Lord Somers, with a particularly nervous child if the neighbourhood schools by reason of size or character are totally unsuitable? It is surely no discourtesy to comprehensive education to envisage within our resources a pattern of freedom of choice.
When noble Lords on the other side of the House are misguidedly castigating us, may I just remind them that it is not without interest that two education authorities so frequently referred to by the previous Administration as recalcitrant are reported to be moving towards comprehensive planning now that the sting of coercion has been removed. Let us encourage authorities who fear that some waters may be cold to dip in a foot and so convince themselves that perhaps a swim would be beneficial. Let us allow local education authorities to review their plans to make the best of all that has been found good, and let us advance, not with threats but in co-operation and on a broad front. This is a policy of which we could all be proud and which would have a beneficial influence on us all.
LORD GARNSWORTHY: My Lords, before the noble Lord sits down, may I
280
ask this question? He was so courteous that I did not want to interrupt him before. The noble Lord referred to the nervous child mentioned by the noble Lord, Lord Somers, and he indicated that at the moment parents had a choice. Would he please explain what element of choice there is for the parent whose child has to go to the nearest neighbourhood secondary modern school?
LORD BELSTEAD: My Lords, the choice is in the pattern of education to be found in many parts of the country and which Circular No. 10/70 says it will not upset.
BARONESS GAITSKELL: My Lords, before the noble Lord sits down, may I ask a very small question? The noble Lord said that in the present state of education we cannot afford to lose one good school. Why do people like noble Lords opposite assume that if there is reorganisation we shall lose the good schools? What is going to happen to these good teachers—are they all going to become "bookies", or something? Or are they going on teaching?
LORD BELSTEAD: My Lords, the assumption is in the mind of the noble Baroness; not in mine.

BRISTOL CORPORATION BILL [H.L.]
The Queen's consent signified, and Bull reported from the Select Committee with Amendments: a special Report made.
BERKSHIRE COUNTY COUNCIL BILL [H.L.]
Reported, with Amendments.