Lords Sitting of 25 February 1971

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

BRACKEN ERADICATION
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 any progress is being made towards the eradication of bracken the growth of which is spreading at an alarming rate, to the detriment of agriculture, in many part of Scotland.]
THE MINISTER OF STATE, SCOTTISH OFFICE (BARONESS TWEEDSMUIR OF BELHELVIE): My Lords, research into chemical treatment is continuing. Meantime, landowners and farmers in Scotland are cutting some 4,000 acres of bracken annually with the help of a 60 per cent. grant.
LORD KILMANY: My Lords, I thank my noble friend for that reply. Do I take it to indicate that the 60 per cent. grant will still be held? May I ask my noble friend to bear in mind that even with such a grant these methods of eradication can be very costly? What is really needed is a research project specifically directed at this problem.
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, the 60 per cent. grant for hill bracken areas in particular will continue certainly until 1972. The chemical treatment has not yet been successful either because it is too violent, so that it also stops the grass from growing, or else it is unreliable or too expensive. But research is still going on.
VISCOUNT MASSEREENE AND FERRARD: My Lords, is my noble
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friend aware that one of the causes of a great deal of bracken is the over-grazing of sheep? Is she also aware that one of the most effective means of eradicating bracken is the introduction of wild boar? But to be more practical, is my noble friend further aware that the folding of domestic pigs is very effective?
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, I thank my noble friend very much for the suggestion about wild boar. I should like to ask my right honourable friend whether he could give more consideration to this question. So far, the most practical way of controlling bracken—and indeed it is an expensive one—is to cut or crush the bracken for two years in succession during the growing season.
LORD SLATER: My Lords, can the noble Baroness say whether the 60 per cent. grant which operates in Scotland operates in other parts of the United Kingdom?
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, the Question specifically relates to Scotland, and therefore I was referring only to the Farm Capital Grants (Scotland) Scheme.

THORNE BY-PASS: USE OF BORROW PIT
3.8 p.m.
LORD GARNSWORTHY: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether they will state under what circumstances planning permission has been given to Sir Alfred McAlpine (Contractors) to exploit a borrow pit at Thorne, in the West Riding of Yorkshire, in connection with the construction of the Thorne By-Pass (M18).]
LORD MOWBRAY AND STOURTON: My Lords, this is a matter for the West Riding County Council, as local planning authority, but I understand that although the contractor intends to use substantial quantities of colliery shale the material from this borrow pit is required for certain purposes in the construction of the road, such as drainage

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and embankment, for which shale would not be suitable.
LORD GARNSWORTHY: My Lords, I thank the noble Lord for that reply. May I ask him whether he will please endeavour to ensure that the best possible effort will be made to use the shale from the Hatfield pit half a mile away, which is good quality shale? Would he also have inquiries made to see whether or not the material in the borrow pit is superior to the shale available, with a view to avoiding the despoliation of 23 acres of good agricultural land?
LORD MOWBRAY AND STOURTON: Yes, my Lords; I can reassure the noble Lord. This material is required because it is a bunter sandstone which is suitable for drainage and embankment. The contractor is also hoping to use 1 million to 1½ million cubic yards of colliery shale. The local district council intend that the 23½ acres from which the borrow is being carried out will be made into a marina, and it is reckoned locally in the West Riding that this will be an improvement in the amenities.
LORD GARNSWORTHY: My Lords, is the noble Lord aware that the local district council appear to be extremely dissatisfied that no provision has been made in the planning consent that the contractors shall fill the hole with water.
LORD MOWBRAY AND STOURTON: My Lords, I should like to have further notice of that question. It does not seem to correspond with my information.
LORD DAVIES OF LEEK: My Lords, may I, like Dr. Johnson, plead sheer ignorance—and I am probably the only ignorant one in the Chamber at this moment—of the connotation of the words "borrow pit"? I should be delighted to know clearly what we are talking about. What is a borrow pit?
LORD MOWBRAY AND STOURTON: My Lords, far be it from me to instruct the noble Lord, Lord Davies of Leek, but the borrow pit here is 23½ acres that has this suitable standstone which is needed for drainage purposes. It is adjacent to the South end of the M.18 extension, by Thorne, and it is therefore economic and useful.
LORD POPPLEWELL: My Lords, would the noble Lord have further inquiries made about drainage where shale is in the build-up, because surely in modern road construction drainage can be laid down above the shale? That would enable the roads to be put into an excellent condition and at the same time help considerably in removing the shale heaps that are all over the industrial areas of our countryside.
LORD MOWBRAY AND STOURTON: My Lords, this matter is under consideration. As noble Lords know, thanks to the noble Lord's persistent questioning, the Working Party is due to report in April, and we expect to announce the publication of the recommendations.
LORD KENNET: My Lords, may I ask the noble Lord to revert to his original Answer, where he said that this was a matter for the local planning authority? Does that mean that the Government have not advised local planning authorities to refuse consent to open borrow pits where the same material can be obtained from an industrial slag heap? Or does it mean that they have so advised local authorities and do not care whether their advice is accepted or not?
LORD MOWBRAY AND STOURTON: My Lords, my advice on this matter is that the Department at the moment uses the Institution of Civil Engineers General Conditions of Contract, which places on the contractor the responsibility for finding and supplying material to complete the contract. After we have the Report of the Working Party, and the recommendations, we shall perhaps review the situation in the light of them.
LORD HUGHES: My Lords, the noble Lord was asked what a "borrow pit" is. He went into great detail about where the borrow pit was, but he did not say what it was. Am I right in understanding that what happens is that you dig a hole, take the material away, use it in the road, and then go somewhere else and get material to fill the hole up again. Is that where the "borrow" comes from?
LORD MOWBRAY AND STOURTON: My Lords, roughly speaking, the noble Lord is correct. In this case the hole will be filled with water. This is a low-lying part of the country.

AFRICA AND ANGLO-FRENCH CO-OPERATION
3.14 p.m.
LORD MERRIVALE: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government to what extent they are co-operating with the French Government for (a) common or co-ordinated policies towards French and English-speaking African States; or (b) a broad Anglo-French partnership or entente in Africa.]
EARL FERRERS: My Lords, Her Majesty's Government keep in close touch with the French Government on a very wide range of affairs, including, of course, African affairs, particularly in view of the desire of those English and French-speaking countries to increase contacts with one another.
LORD MERRIVALE: My Lords, I thank my noble friend for his reply, which does not go very far. I should have thought he could have gone further, in view of the fact that our relations with France are, I believe, extremely good at the moment. Would he not agree that co-operation, an entente, or searching for common guidelines, would have the desirable effect of bringing closer together the English and French speaking African States to which he referred, and also of providing greater opportunities for the erection of a linguistic, military, cultural and economic barrier to a takeover in Africa by the U.S.S.R. and China?
EARL FERRERS: My Lords, my noble friend's question is couched in fairly wide terms. It would be misleading if I were to give him any indication that there was a direct and simple answer to this matter, or that there is an easy, simple policy which will cover his question. I can assure him that Her Majesty's Government are very concerned that the relationships between the countries and Africa—whether Anglophone or Francophone countries—shall be as close as possible, and Her Majesty's Government are keeping in touch with the French Government over this matter.
BARONESS GAITSKELL: My Lords, while sympathising with Lord Merrivale's
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Question at this time, would not the noble Earl agree that he has put it at a very unfortunate moment, in view of the Immigration Bill that has just come forward and the fact that the French Government are much better about colour than we have ever been?
EARL FERRERS: My Lords, that would be extending the Question slightly farther than its original purpose.
LORD BROCKWAY: My Lords, may I ask the noble Earl whether he will be very careful in this matter? Is he aware that there is a deep division now among African countries, and that there is the danger that we and France may be adopting a paternalist attitude towards them which may increase rather than decrease the dangers to which the noble Lord has referred?
EARL FERRERS: My Lords, I think the noble Lord will know only too well that all these countries in Africa, or the majority of them, are independent countries. All that we can do is to help them as much as possible along roads which are convenient to all sides.
LORD HANKEY: My Lords, will not the solution of the Question raised by the noble Lord, Lord Merrivale, be much clearer when the negotiations now going on in Brussels result, as it is expected that they will, in the adherence of most of these African countries to the Yaounde Convention, by which they will all get substantial advantages from the enlarged Common Market?
EARL FERRERS: My Lords, the noble Lord has touched upon a point which is one of the complexities of the situation. At the moment, the French speaking countries have a Yaoundé-type of association, whereas the British ones have not.

SIMONSTOWN BASE: TREATMENT OF COLOURED SAILORS
3.18 p.m.
LORD BROCKWAY: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether they will make representations to the Government of the Republic of

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South Africa to end all practices of racial discrimination at the Simonstown Naval Base under the Simonstown Agreement.]
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, the sole ground on which Her Majesty's Government might make such representations would be with regard to those terms of the Simonstown Agreement which govern employment conditions for non-whites at the Base. Her Majesty's Government are not aware of any departure by the South African Government from their obligations under that Agreement.
LORD BROCKWAY: My Lords, I thank the Minister for that reply. May I ask whether it is not the case that nonwhite members of British crews going to Simonstown have to travel several miles before they can eat in a restaurant? Further, is it not the case that the United States of America has decided that its crews shall not land at Simonstown because of the apartheid policy which is being pursued there?
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, the noble Lord perhaps is not aware that the Base Agreement referred to the Naval Base and Dockyard area, and related exclusively to employment and security of tenure conditions in employment. If any crew member goes outside the Simonstown Naval Dockyard and Base he comes under the same regulations and social customs as apply throughout South Africa.
LORD SHEPHERD: My Lords, I certainly have no objection to the noble Baroness answering a Question on behalf of Her Majesty's Government, but I must express very great surprise that a Question relating to Simonstown was not being answered by the Secretary of State for Defence, who is a very respected and honoured Member of your Lordships' House.
May I put this question to the noble Baroness? Is it not a fact that coloured sailors, who leave a ship in the Simonstown Base, are subject to the racial discrimination that exists in Africa; that a coloured sailor who comes off a ship in the Simonstown Base cannot have a
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drink or a meal in that Base with his white colleagues?
THE LORD PRIVY SEAL (EARL JELLICOE): My Lords, before my noble friend replies—and she also is a respected and honoured Member of your Lordships' House—I should like to make it clear in answer to the noble Lord that the noble Baroness was answering this Question because she also answers Foreign Office Questions, and this is a Question properly addressed to the Foreign Office.
LORD SHEPHERD: My Lords, I will take that as a reason, from the noble Earl the Leader of the House. But one of the things we have taken some satisfaction in in this House is that we have here the Secretary of State for Defence. We applauded that yesterday; on the other hand, we expressed the view that the other place suffered as a consequence of it. But it seems to me strange that the Simonstown Base, which is an issue that causes very great concern, is dealt with in this way, and that the Secretary of State, who has this special position in relation to the Services, is not answering this Question. I am prepared, as I am quite certain my noble friends on this side of the House are, to take the Answer from the noble Baroness. But will she now please answer my question?
BARONESS TWEEDSMUIR OF BELHELVIE: Yes, my Lords; I shall be delighted to do so, and I quite appreciate that noble Lords would much rather hear my noble friend. But, as the noble Earl the Leader of the House has said, this matter came under the Foreign Office and I was asked to reply, as my noble friend Lord Lothian was not available. On the specific question asked by the noble Lord, Lord Shepherd, it is a fact that anyone who ventures outside the Simonstown Naval Base and Dockyard will come under the ordinary laws in South Africa, which we in this country, as much as everywhere else, do not applaud or support. On the other hand, the agreement, which is the subject of this Question, has been completely carried out by the South African Government. There is no racial discrimination within the Base.
LORD SHEPHERD: My Lords, may I direct the noble Baroness's attention to the wording of the Question? It asks for

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representations by Her Majesty's Government,
"to end all practices of racial discrimination at the Simonstown Naval Base".
I asked the noble Baroness: is it not a fact that if a coloured sailor comes off a ship in the Simonstown Base he is prohibited from having a drink with his white colleagues in the Naval Base?
BARONESS TWEEDSMUIR OF BELHELVIE: No, my Lords. My information is that there is no racial discrimination whatsoever within the Naval Base and Dockyard. If a crew member wishes to go to get a drink, as the noble Lord suggests, or to have a meal, then he will have to go outside the Base, and he will then be subject to the usual laws of South Africa.
LORD BROCKWAY: My Lords, may I ask the noble Baroness and I think she knows the respect and honour in which I held her in another place, as well as I do here—whether it is not a fact that, within the Dockyard itself, a non-white sailor on a British ship cannot get a meal; that he must go outside the Dockyard many miles to do so? Is it not also a fact that the American Government have prohibited their crews from landing at Simonstown because of the racial discrimination which is practised?
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, I think one must make a distinction between the Naval Base and Dockyard and the conditions which appertain outside the Base and the Dockyard. There is no racial discrimination within the Dockyard. In fact, more non-Europeans are employed to-day than when the Agreement was made in 1957.
BARONESS WOOTTON OF ABINGER: My Lords, I find the noble Baroness's answer rather confusing. She says that there is no discrimination within the Base; and that a coloured man must go outside the base to get a meal or drink. May I ask whether a white man can get a meal or drink within the Base; and, if so, how does she come to the conclusion that there is no discrimination?
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, my information is that there are in fact no facilities,
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apart from on board a ship, for anyone to get the particular drinks or meals to which the noble Baroness refers. In the Base and the Dockyard, where the employment takes place, there is no discrimination; and indeed between the Europeans and the non-Europeans the conditions of pay and privileges have been greatly improved.
LORD LINDGREN: My Lords, while one is very diffident about pressing the noble Baroness in regard to this matter, because we are sorry she has got saddled with it, may I ask whether she is aware (although I do not suppose she can be) that even within the Base itself toilets, for men at least, are different for whites and for coloureds?
BARONESS TWEEDSMUIR OF BELHELVIE: Well, my Lords, I must confess that I am not aware of this particular fact. But if the noble Lord would like me to find out the information, I will certainly write to him.
LORD POPPLEWELL: My Lords, am I correct in understanding from the noble Baroness that there is no discrimination between the whites and the coloureds? Is it not a fact that out of just over 1,000 coloured employees in the Dockyard there are only just over 100 who are engaged on jobs which have equality of pay, and that all the remainder are temporary employees on a much lower rate of pay than the permanent employees have?
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, we are making inquiries on the exact configuration of jobs among the 1,231 non-Europeans. But, so far as preliminary inquiries are concerned, I am told that of these non-Europeans—they are mainly coloured, but there are few Africans because the work is mostly skilled or semi-skilled—only a certain number occupy fully established posts. I think that there are 167 fully established non-Europeans altogether.
LORD SHEPHERD: My Lords, in view of the fact that the noble Baroness has said she will look into this matter, and will no doubt be in a position to give further information, perhaps I may give notice to the noble Earl the Leader of the House that we shall seek an opportunity to raise the whole question of Simonstown conditions in relation to our Service people and also the coloured employees, and perhaps the Secretary of

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State for Defence will then answer for the Government.

LUTON CORPORATION BILL [H.L.]
3.27 p.m.
THE CHAIRMAN OF COMMITTEES (THE EARL OF LISTOWEL): My Lords, I beg to move that the Luton Corporation Bill be now read a second time.
Moved, That the Bill be now read 2a.—(The Earl of Listowel.)
LORD LINDGREN: My Lords, may I ask the noble Earl whether this Bill includes any reference to the extensions of the Luton Airport as runways?
THE EARL OF LISTOWEL: My Lords, this Bill is one which provides various powers for the County Borough of Luton. It does not in the Title suggest that any of those powers relate to the airport. However, I will make further inquiries and, if I am wrong, I will immediately inform the noble Lord, Lord Lindgren.
LORD LINDGREN: My Lords, I thank the noble Earl.
On Question, Bill read 2a, and committed to the Committee on Unopposed Bills.

MANCHESTER CORPORATION (GENERAL POWERS) BILL [H.L.]
THE CHAIRMAN OF COMMITTEES: My Lords, I beg to move that the Manchester Corporation (General Powers) Bill be now read a second time.
Moved, That the Bill be now read 2a.—(The Earl of Listowel.)
3.29 p.m.
THE EARL OF KINNOULL: My Lords, I should like to raise an issue on this Bill, of which I have given Notice to the noble Earl the Chairman of Committees. It is an issue which is causing some concern and relates to the present drafting of Clause 76(1) of the Bill. May I remind the House shortly that this clause grants the Manchester Corporation the power to acquire or subscribe to shares, stocks, debenture stocks, and so on, in a development company which is carrying out development within the City of Manchester. Although similar powers
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have been granted already in other Private Bills to local authorities, notably the Durham County Council, I am advised that Clause 76(1) of this Bill as at present drafted goes a great deal wider in its scale. Because of the present drafting of the clause, it is feared that the result could lead to a considerable extension of municipal ownership and the possibility that, if the Manchester Corporation so chose, it could become a local Industrial Reorganisation Corporation, which I am sure was not the intention of the Promoters of the Bill.
The specific objections to the present drafting of this subsection which I should like to place on record and to draw to the attention of the House and of the Committee that will be examining this Bill are, in the first place, that there is no precise definition of "development", and this would appear to open the door for the Corporation to acquire an interest in any company expanding in that city, and, in the second place, that there appears to be no apparent limitation to the size of the holding. The Corporation may take in any development company within the city, and in consequence it would be free, if it chose, to take control of any company in which it had an interest.
The third point is that although the intention granted under similar powers to other local authorities was to give security for any loan granted for developments, the Corporation under this clause has apparently no obligation to have the loan liquidated and then to relinquish its holding. I am advised that to ensure that there would be no opening under this clause for the extension of municipalisation, it is suggested that some undertaking should be written into the Bill under this clause, so that the clause will not be used to claim more than a temporary security during the life of a loan to a development company. For instance, a limit should be set both to the time a local authority can hold the shares in the company and the size of that holding. My Lords, the purpose of raising this matter to-day is both to draw the attention of the House to the drafting of the clause and to express genuine concern at the effect of it. It is not to stimulate debate but simply to place the matter on record.
THE EARL OF LISTOWEL: My Lords, I have no doubt that the noble Earl's observations will be noted both by the Promoters of the Bill and by the Select Committee to which the Bill will be referred if your Lordships give it a Second Reading.
On Question, Bill read 2a, and committed to a Select Committee.

MERCHANT SHIPPING (OIL POLLUTION) BILL [H.L.]
3.33 p.m.
THE MINISTER WITHOUT PORTFOLIO (LORD DRUMALBYN): My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Merchant Shipping (Oil Pollution) Bill, has consented to place Her interest, so far as it is concerned on behalf of the Crown, at the disposal of Parliament for the purposes of the Bill. I beg to move that this Bill be now read a third time.
Moved, That the Bill be now read 3a.—(Lord Drumalbyn.)
LORD KENNET: My Lords, the shortness of the noble Lord's remarks make me wonder whether he is even going to say "goodbye" to the Bill, like a certain famous Naval officer under training who was too tongue-tied to order his squad to "about turn" on the Quarter Deck, and who said, "Good God, Your Majesty, aren't you even going to say goodbye to the poor fellows?".
There are one or two things I should like to say about this Bill which I hope the House will not take as any criticism of the Government for having introduced it, or indeed in any way derogating from our approval on this side of the House of the general outlines of the Bill. We raised two points at Report stage and the noble Lord was then good enough to say that he would have another look at them. I would dearly like to know whether he has had another look at them and, if so, what his look revealed to him.
One was the question of taking the precise level of liability out of the fine and putting it in regulations, for which I advanced three separate reasons. The noble Lord was going to look at that
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point and we should like to know the result. I must say that the presently prevailing silence gives me, at least, the impression that the Government have not the least intention of doing anything about pressing on towards the next Convention which is going to enshrine in international law the present voluntary arrangements under CRISTAL in exactly the same way as the Convention to which this Bill gives force enshrines in international law the earlier and voluntary arrangements under TOVALOF. Can it really be true that the Government are going to do nothing about that? If not, why have they not told us what they are going to do about it?
On the second point we raised, the noble Lord undertook also to re-examine the possibility of using the power of certification which this Bill gives the Government to induce countries to sign the Convention and to induce shipowners to register their ships in Convention countries. The noble Lord said that he would re-examine it, but his silence makes me assume once again that the Government have not the least intention of using these new powers to get other countries to join the Convention or to get shipowners to register in Convention countries. If the Government have no intention of using the powers to that end, what on earth do they want them for? Does it really mean that the Government are going to give a certificate to any ship wherever registered and wherever insured, without any examination by the Government? If not, what do the Government plan to do with these very extensive new powers which Parliament is giving them?
LORD DRUMALBYN: My Lords, it is not often that I am encouraged to make speeches in this House. It is the case, as the noble Lord said, that these two points were put to me at the previous stage of the Bill and I undertook to look into them. I have in fact looked into them and I shall try to reply to the points that he has made.
If the actual sums of liability were removed from Clause 4 of the Bill and stated instead in regulations, then when the amount of the liability came to be increased in future—for example, to the 30 million dollars provided by the CRISTAL fund—it would of course not be necessary to bring in further legislation.

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That was the first point made by the noble Lord. The point which we
particularly discussed at the last stage of the Bill was whether the intention of the Government to go ahead and make further provision in conjunction with other countries for a compensation fund over and above the owners' liability would affect the situation. The noble Lord seemed to think that because of what is known as the CRISTAL fund it would be possible at some given point to raise the whole of the liability that we are talking about in this Bill to a higher amount. I can assure him that a draft Convention is being prepared by the IMCO Legal Committee under which importers of oil would contribute to an international fund to provide compensation over and above the limits of the 1969 Convention. I cannot say when that drafting will be completed, or when a conference will meet to do it. It is hoped that this work can be completed before long and that a conference will take place before the end of the year. As I said before, this may be a little too optimistic. I think I gave this information to the noble Lord before.
LORD KENNET: My Lords, the noble Lord is perfectly right. But by whom is it hoped? Is it hoped
by the noble Lord? It is hoped by me.
LORD DRUMALBYN: My Lords, it is hoped by the noble Lord and it is also hoped by me. I have been given reasons for hoping and it is this hope that I am transmitting to your Lordships. It has to be clearly understood that this would be a different fund—it is not the same fund—and it would not be affected by the terms of Clause 4 at the present time.
So far as the fixing of liabilities by Statutory Instrument is concerned, we can see no possibility that the limits of liability will be changed, as I told the noble Lord before, except where further legislation is in any event necessary, for example to ratify a Convention on the fund. So the removal of the amounts from the Bill would in fact serve no purpose.
With regard to certification—this is the certification that a loaded tanker coming
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to ports in this country is covered by insurance sufficient to cover the owner's liability—the noble Lord asked 'whether it was the intention under Clause 10 of the Bill, subsections (3) and (4), I think he said, to give a certificate to any ship. I should have thought that the words of Clause 11 indicate that that was very far from being the intention of the Government. Subsection (2) says:
"If the Secretary of State is of opinion that there is a doubt whether the person providing the insurance or other security will be able to meet his obligations thereunder, or whether the insurance or other security will cover the owner's liability under section 1 of this Act in all circumstances, he may refuse the certificate."
As Clause 10 stands at the moment, a ship registered in a non-Convention country must have,
"a certificate issued by the Secretary of State or a certificate recognised for the purposes of this paragraph by regulations made under this section".
Subsection (4) then goes on to say what the particular regulations would specify.
Of course it must be the case that in making these regulations the Secretary of State will have regard to the interest of this country in ensuring that every tanker that comes to this country is covered by a certificate which is worth while; in other words, that those who have given the certificate know or can be trusted to find out, that the insurance cover which is certified is valid and good. I cannot at this moment tell the noble Lord exactly how the Secretary of State will exercise his powers to make regulations, but he will certainly have regard all the time to the interests of this country in seeing that every tanker that comes to our ports will be covered by a certificate which is really worth while; in other words, it will be backed by proper insurance cover.
As to ships passing by the shores of this country, the hope is, of course, that all the countries around the North Sea, for example, will also ratify the Convention; and it is equally in their interest to do so in order that they may get the cover provided for in the Bill against the risk of oil pollution on their shores.
On Question, Bill read 3a, and passed, and sent to the Commons.

LEGAL AID (SCOTLAND) (EXTEN- SION OF PROCEEDINGS) REGU- LATIONS 1971
3.44 p.m.
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, I beg to move that the Legal Aid (Scotland) (Extension of Proceedings) Regulations 1971 be approved. I am sure that these Regulations, which have been made by my right honourable friend the Secretary of State for Scotland, will command general support among noble Lords on both sides of this House. Their purpose is to make legal aid available in connection with proceedings before the Lands Tribunal for Scotland, and so to ensure that no one is denied legal representation before the Tribunal because his means are limited.
The Tribunal, which begins its work on March 1, will have important functions to carry out under the Conveyancing and Feudal Reform (Scotland) Act 1970: it will consider applications from proprietors of land for the variation or discharge of obligations which have become unreasonable or burdensome; and it will deal with applications from feudal superiors in relation to the allocation of unallocated feu duties. These are functions arising under the Act which was passed by this House at the end of last Session. Your Lordships may recall, however, that its provisions are firmly based on recommendations of the Halliday Committee that judicial machinery should be provided for the variation and discharge of out-dated and oppressive land conditions and that action should also be taken to relieve the owners of tenement and other property subject to a cumulo or lump feu duty of the burden of collecting that feu duty on behalf of their superior. The Lands Tribunal has been established primarily to tackle these problems. In addition, it will determine disputes over the valuation of land for compensation or tax purposes which have hitherto in Scotland gone to independent arbiters appointed ad hoc for this purpose.
My Lords, legal aid will be available on the same conditions as apply to the provision of legal aid in connection with civil proceedings in the courts: applicants will require to satisfy the appropriate legal aid committee both that they have reasonable grounds for their action
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and that their financial resources bring them within the scope of the Legal Aid Scheme. I hope, therefore, that your Lordships will approve these Regulations. I beg to move.
Moved, That The Legal Aid (Scotland) (Extension of Proceedings) Regulations 1971 be approved.—(Baroness Tweedsmuir of Belhelvie.)
LORD HUGHES: My Lords, the noble Baroness does not yet seem to be reaching the point at which she no longer has anything to bring forward which she has inherited from her predecessors, and it may well be because she was quite certain I should welcome these Regulations that she had no word of apology for the time factor. It was a considerable surprise to me to find Regulations which are to take effect from March 1 tabled at such a very late stage, almost at the last minute, without any word of explanation as the reason why we have not had them before now. We all know the procedure under which Scottish Ministers work in your Lordships' House, and the noble Baroness has been kind enough to follow precedent in giving notice of the weeks in which she expects to be in London and Scottish business is to be taken. This is a Scottish week, and therefore there can be no complaint about Scottish business coming before the House. But, particularly in these days of difficulties, when one does not know before one gets here what the business is going to be, it would have been very helpful if we could have known earlier, and not just on Tuesday, that this was to be the business for to-day—it may have been on Monday that we knew; but certainly it was very late. I hope that the noble Baroness will not be willing to found on our co-operation continuing after she reaches the end of our list.
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, I would just say, if I may, if no other Lord wishes to speak, that I quite appreciate Lord Hughes' point that he would have liked much more notice. If he will look at the Regulations he will see that they were laid on February 11; and, as he will know, the procedure is that Orders are scrutinised in the appropriate Committee. It is true that these Regulations are due to come into operation on March 1. I appreciate that the noble Lord would have liked longer than the

1177
fortnight from when they were laid, and we shall hope to have a longer period in future. But I thank him for welcoming the Order as a whole.
LORD HUGHES: My Lords, my point was not about inadequacy of time from when the Regulations were laid, but about the inadequacy of notice of when they were to come before your Lordships' House. That is a different thing, and it was about that that I was complaining.
On Question, Motion agreed to.

OIL IN NAVIGABLE WATERS BILL
3.50 p.m.
THE PARLIAMENTARY UNDER-SECRETARY OF STATE, DEPARTMENT OF THE ENVIRONMENT (LORD SANDFORD): My Lords, on behalf of my noble friend Lord Jellicoe, I beg to move that this Report be now received.
Moved, That the Report be now received.—(Lord Sandford.)
On Question, Motion agreed to.
Clause 8 [Shipping casualties]:
LORD KENNET LORD KENNET moved Amendment No. 1:
Page 5, line 36, leave out ("on a large scale").
The noble Lord said: My Lords, this Amendment, and indeed all the Amendments which are before the House this afternoon, are to a substantial new clause and the relevant Schedule which were introduced by the Government at the Committee stage. In its outline the new clause is very acceptable to noble Lords on this side of the House, and we agree with the Government that it was not possible to bring it in before because the new clause is founded on lessons learned after the "Pacific Glory" accident, and it could not have been done earlier. I make these points simply to make it quite plain that the Amendments which both the Government and we are putting down are put down at the first possible opportunity, and there is neither repetition nor delay in the Amendments which we are now inviting the House to consider.
The Amendment to which I now address myself has to do with the following
1178
situation. An accident has occurred. There is a tanker, and it has suffered an accident. It is grounded, or it has had an explosion; or there has been a collision. The Bill says that the Secretary of State shall have certain powers conferred on him to order it about or, if not, to take action himself. But Clause 8(1)(a) says that he may not do that unless he holds the opinion that oil from the ship "will or may cause pollution on a large scale".
There are two points here. First, any damaged tanker may cause pollution on a large scale. It is not very likely that the risk could certainly be asserted to be only a small one. But if we put this in, and if the House allows this wording to stand it will, I submit, face the Secretary of Slate with a certain period of nail-biting, a certain period of very anxious consultation with his advisers, both technical and legal. He will be saying to himself, "Can we really be absolutely certain that pollution is going to be on a large scale, if it happens at all; because if not, they will be able to get back at us later in court and say, 'Even although it did not happen, if it had it would have been on a small scale. Therefore we have a right of compensation against the Government '?" And the Secretary of State may be tempted to do nothing in circumstances where he ought to have done something. I think it would be safer if these words came out. For that reason, I beg to move my Amendment to delete them.
LORD SANDFORD: My Lords, I am grateful to the noble Lord, Lord Kennet, for repeating his agreement and his welcome for the new clause and the new Schedule which the Government introduced into this Bill at such a late stage in order to incorporate the lessons learned during the handling of the "Pacific Glory" case. The new clause and Schedule were intended to give us, in relation to ships within our jurisdiction—that is to say, all ships within our territorial waters and United Kingdom ships anywhere else—similar rights to those provided in respect of foreign ships on the high seas by the 1969 Convention. That Convention, relating to intervention on the high seas in cases of oil pollution casualties, followed the "Torrey Canyon" episode. It limits the action which may

1179
be taken in the event of a maritime casualty on the high seas to:
"such measures as may be necessary to prevent, mitigate or eliminate grave and imminent danger to their coastline or related interests from pollution or threat of pollution … which may reasonably be expected to result in"—
note these words, my Lords—
"major harmful consequences."
That is a quotation direct from the International Convention.
We think it right that the circumstances in which action can be taken under our Bill to deal with episodes in our territorial waters should be similarly limited, and that our legislation should be kept in harmony with the International Convention. There is the further important point that it is only when pollution occurs, or is threatened on a large scale, that in practice these powers would be needed. No one would dream of issuing a direction or taking action which might extend to destroying a ship where only a ton or two tons of oil had been or might be spilled. The powers provided by the clause are far-reaching. They may involve considerable loss to salvors and others, and it is essential that we should make sure that, so far as possible, the powers are exercised only when the threat of pollution is really serious, and then only after efforts to secure the co-operation of the shipowner or the salvor have failed.
I realise that whether pollution is "on a large scale" must always be a matter of opinion, and that objections can be taken to the use of such a criterion on the ground that it is too vague. However, when it comes to deciding when there is an infraction under this clause then it is the sole opinion of the Secretary of State as to the scale and the imminence of the threat that will be decisive. This Amendment would have the effect of extending the powers of the Secretary of State to cases far beyond the scale of the cases envisaged in the International Convention which has been so recently agreed, and which he is never likely in practice to wish to use them; and I would contend that it is unnecessary. I hope that, following that explanation of our belief and desire that our legislation, made necessary by the "Pacific Glory" episode, should be kept in harmony with
1180
the International Convention, which applies only to the high seas, the noble Lord will not feel disposed to press his Amendment. But I must ask your Lordships, if he does, to join with me in resisting it.
LORD KENNET: My Lords, did I hear the noble Lord say that it was the Secretary of State's decision as to what was "a large scale"?
LORD SANDFORD: Yes, my Lords.
LORD KENNET: My Lords, in that case I will in a moment beg leave to withdraw my Amendment, not because I do not think the Bill would be better without these words, but because there are more important points to come and I do not wish to harass the Government on every detail of this fundamentally well-conceived new clause. I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
3.57 p.m.
LORD SANDFORD LORD SANDFORD moved Amendment No. 2:
Page 5, line 39, at end insert ("and
(c) in the opinion of the Secretary of State the use of the powers conferred by this section is urgently needed.")
The noble Lord said: My Lords, I said during the debate on the Committee stage that we were considering a suggestion that the threat of pollution needed to be imminent before the Secretary of State was entitled to exercise his powers under this clause. That was because Article 1 of the International Convention, on which our legislation is modelled and under which action may be taken against foreign ships outside our territorial waters, requires that the danger of pollution damage which must exist before action can be taken should be both "grave and imminent"—again I quote from the International Convention.
We think it would be unreasonable not to apply the concept of imminence to action under the Bill as well, especially as such action may sometimes affect United Kingdom ships outside our territorial waters. But, rather than adding words to the clause which would apply the description "imminent" to the pollution threat itself, we have thought it better to amend the clause in a way which requires the Secretary of State to decide in each case that the use of his powers

1181
is urgently needed. This will have the effect of protecting the shipowner against precipitate action without opening the way to argument as to whether the threat of pollution is or is not imminent.
I am satisfied that this is a reasonable Amendment. It does not depart from the tenor of the International Convention, but slightly improves it. It is designed to meet a point which was troubling the shipping industry, and it is consistent with the Government's view that the powers given to the Secretary of State by Clause 8 are of an exceptional nature, to be resorted to only in a serious emergency when all else has failed. It also follows the principle of Article 1 in the 1969 Convention. I therefore commend the Amendment to your Lordships.
LORD KENNET: My Lords, at first blush this seems a reasonable Amendment, especially as it was so reasonably put by the noble Lord. However, I would ask the House to imagine the real situation as it might happen. There has been a collision between two tankers in the Channel at night, in fog, in heavy weather, and both have been deprived of their communications. Now the Secretary of State is considering the matter. At present he has two things that he has to be sure of before he can do anything: first, that an accident has occurred, and secondly, that it will, or may, cause pollution. We have just agreed that he must always be sure that the pollution it will or may cause will be large-scale pollution. I submit to your Lordships that the owner's agents will also be present, and they will he saying to him, "You should not intervene because you are not sure that the pollution is going to be large scale; and there may not be any pollution at all." If it is in their interests to be doing this, as it sometimes is, you can be sure they will be doing it.
The Amendment proposed by the noble Lord will force the Secretary of State to take a fourth matter into consideration. He will have to sit there and gnaw his nails once again, and ask his legal and technical advisers whether the use of his powers is also urgently necessary. His advisers may say to him, "Well, we are pretty sure that if you don't use your powers there is going to be the most dreadful pollution within four days. On the other hand, you could use them within two days, and if we are
1182
right then the reduction in the likelihood of your preventing the pollution of the coast will be only 5 per cent. So perhaps it is not urgent—or, on the other hand, is it?". Then there will be a salvor in the act, there will be the owner in the act, and everybody will be pressing him in different directions. He may not have his computer handy, and if he did, it would probably give him the wrong answer. I submit that it is too much to ask him to take this factor of urgency into account as well. He should be allowed to go ahead and give his directions—which are going to be perfectly sensible and moderate ones, as we all know—without bothering whether once again they can afterwards come back at him in court for compensation, on the ground that the matter was not urgent.
All this is only to say that I think the noble Lord, Lord Sandford, got it right first time. I do not think he has advanced sufficient reason for amending his own excellent first formulation. He is being somewhat blown off course and displaying a certain lack of resolution in this matter. I hope, on reflection, that he will conclude that to be resolute is, in these circumstances, the right course, and will withdraw his Amendment. If he is not able to do so, then I shall advise noble Lords on this side of the House that it is not an Amendment which should be accepted.
LORD HAWKE: My Lords, I like my noble friend's Amendment and I hope he will stick to it. Try to imagine the purpose for which this clause might be invoked. Normally speaking if there is a disaster there are two parties, and perhaps a third party, who are vitally interested in saving the ship and her cargo: they are the owners and the underwriters. Under the Bill as it stands, the owners and the underwriters will be left to save that ship's cargo to the best of their ability, and only if the Secretary of State thinks that their efforts are likely to endanger another party by fouling beaches, and so on, will the Secretary of State have to do anything. With my friend's Amendment it will be left to the people who know best how to salvage ships, and the Secretary of State will step in only in emergencies. I am sure that that is the proper way to do it, and I am certain the underwriters would prefer it that way.
LORD SANDFORD: My Lords, I suppose the situation could get as complex as the noble Lord, Lord Kennet, envisaged, but I recall several occasions in the operations room while we were dealing with the "Pacific Glory" where matters did not quite take on that form. They could have been more complicated, but everything passed off very well in the end. I believe that the adjustment that we have made here by the use of this phrase importing urgency for the Secretary of State to take the action that he is empowered to take, rather than imminence related to the threat, improves the situation from his point of view, rather than making it more difficult and damaging.
I would ask your Lordships to envisage a relatively straightforward situation where a ship which is damaged would, if it broke up, undoubtedly cause pollution. A salvor is dealing with it. He has a tug and he has lines on board. He is proceeding to beach the ship in order to save it in that particular way. The weather is rough and getting worse, and the Secretary of State comes to the view that it would be better not to beach the ship but to move it somewhere else. If the word "imminent" relating to the pollution threat were in—that is to say, the clause from the International Convention was transposed as it stands into our legislation—the Secretary of State would have to wait until it could be said that the threat of pollution was imminent. The threat of pollution might well not be imminent until the ship was aground and was in the process of being broken up, or was likely to be broken up quite soon, by the waves beating upon her. As long as she is at sea and under tow the imminent threat of pollution simply is not there. But the clause that we are putting in enables the Secretary of
State to come to the view that his restraint, his action to stop the salvor beaching the ship, is urgent, and he can act then without waiting for the threat to become imminent. I hope that indicates to your Lordships and to the noble Lord, Lord Kennet, that we have improved the Bill in the direction that he wants to improve it, and that this Amendment is really making it easier for the Secretary of State to take the kind of decision that would be necessary in that particular case.
LORD KENNET: My Lords, with the leave of the House, may I say that I am sure the noble Lord has not the least intention of misleading the House about anything at all, but he was comparing his Amendment with what is in the International Convention. I think what must interest the House is the comparison between his Amendment and what is in the Bill at present. There are three things: the Bill leaves the Secretary of State quite free on the question of urgency or imminence; the Amendment says that in his opinion the use of his powers must be urgent; the Convention says that the risk of pollution must be imminent. The House is not invited to choose between "urgent" and "imminent"; it is invited to choose between "urgent" and nothing, or freedom. I simply repeat my contention that it is better to give him the greater powers as they stand in the Bill. What is in the Convention is neither here nor there; it is not before your Lordships' House either in the Bill or in the Amendment.
4.10 p.m.
On Question, Whether the said Amendment (No. 2) shall be agreed to?
Their Lordships divided: Contents, 103; Not-Contents, 43.

CONTENTS

Aberdare, L.

Brooke of Ystradfellte, Bs.

Elliot of Harwood, Bs.

Aberdeen and Temair, M.

Carrington, L.

Emmet of Amberley, Bs.

Albemarle, E.

Clwyd, L.

Falkland, V.

Alexander of Tunis, E.

Colville of Culross, V.

Ferrers, E.

Amherst, E.

Cork and Orrery, E.

Fortescue, E.

Atholl, D.

Cottesloe, L.

Glasgow, E.

Auckland, L.

Courtown, E.

Gowrie, E.

Audley, Bs.

Craigavon, V.

Gray, L.

Beaumont of Whitley, L.

Cromartie, E.

Greenway, L.

Belhaven and Stenton, L.

Daventry, V.

Grenfell, L.

Belstead, L.

de Clifford, L.

Gridley, L.

Berkeley, Bs.

Denham, L. [Teller.]

Grimston of Westbury, L.

Boothby, L.

Drumalbyn, L.

Hacking, L.

Boston, L.

Eccles, V.

Hailsham of St. Marylebone L. (L. Chancellor.)

Brooke of Cumnor, L.

Effingham, E.

Hankey, L.

Malmesbury, E.

Ruthven of Freeland, Ly.

Hanworth, V.

Margadale, L,

St. Aldwyn, E.

Hawke, L.

Massereene and Ferrard, V.

St. Just, L.

Henley, L.

Milverton, L.

Sandford, L.

Hood, V.

Molson, L.

Sandys, L.

Howard of Glossop, L.

Monck, V.

Sempill, Ly.

Hylton-Foster, Bs.

Mowbray and Stourton, L. [Teller.]

Skelmersdale, L.

Ilford, L.

Stonehaven, V.

Inchyra, L.

Napier and Ettrick, L.

Strang, L.

Inglewood, L.

Nugent of Guildford, L.

Strange of Knokin, Bs.

Jellicoe, E. (L. Privy Seal)

Ogmore, L.

Strathclyde, L.

Jessel, L.

O'Neill of the Maine, L.

Swanborough, Bs.

Killearn, L.

Perth, E.

Swansea, L.

Lauderdale, E.

Rankeillour, L.

Teynham, L.

Leathers, V.

Rathcavan, L.

Thurso, V.

Loudoun, C.

Rea, L.

Tweedsmuir of Belhelvie, Bs.

Lucas of Chilworth, L.

Reigate, L.

Vivian, L.

Luke, L.

Rhyl, L.

Windlesham, L.

MacAndrew, L.

Rochdale, V.

Wise, L.

McCorquodale of Newton, L.

Rockley, L.

Younger of Leckie, V.

NOT-CONTENTS

Ardwick, L.

Gardiner, L.

Serota, Bs.

Beswick, L.

Greenwood of Rossendale, L.

Shepherd, L.

Brockway, L.

Henderson, L.

Shinwell, L.

Buckinghamshire, E.

Hughes, L.

Soper, L.

Burntwood, L.

Kennet, L.

Sorensen, L.

Champion, L.

Leatherland, L.

Stonham, L.

Chorley, L.

Lindgren, L.

Stow Hill, L.

Constantine, L.

Llewelyn Davies of Hastoe, Bs. [Teller.]

Strabolgi, L. [Teller.]

Crook, L.

Summerskill, Bs.

Davies of Leek, L.

MacLeavy, L.

Wells-Pestell, L.

Diamond, L.

Moyle, L.

Williamson, L.

Donaldson of Kingsbridge, L.

Noel-Buxton, L.

Willis, L.

Douglass of Cleveland, L.

Nunburnholme, L.

Wootton of Abinger, Bs.

Faringdon, L.

St. Davids, V.

Wynne-Jones, L.

Gaitskell Bs.

Segal, L.

On Question, Amendment agreed to.

Resolved in the affirmative, and Amendment agreed to accordingly.
4.22 p.m.
LORD SANDFORD: My Lords, on this Amendment I can be brief. Its purpose is to make it plain that the Secretary of State has the power to take direct action under subsection (4) of Clause 8 when a direction has been given and not complied with, as well as when action by way of a direction is impracticable. I beg to move.
Amendment moved—
Page 6, line 19, leave out from ("State") to first ("the") in line 22 and insert ("the powers conferred by subsection (2) above are, or have proved to be, inadequate for the purpose").—(Lord Sandford.)
LORD SANDFORD LORD SANDFORD moved Amendment No. 4:
Page 6, line 37, at end insert—
"( ) Every person concerned with compliance with directions given, or with action taken, under this section shall use his best endeavours to avoid any risk to human life."
The noble Lord said: My Lords, it may be for the convenience of the House if I speak to this and the next Amendment together since they are two aspects of the same point. It has never been our intention that action taken in compliance with a direction or action taken by or on behalf of the Secretary of State should put human life in danger. Indeed, Article III of the 1969 Convention, the principles of which we are following, enjoins coastal States, before taking action, to use their best endeavours to avoid any risk to human life. Your Lordships will recall that I undertook at the Committee stage to consider introducing an Amendment to make this explicit.
Amendment No. 4, now before your Lordships, will require every person concerned with compliance with directions given, or with action taken, under this clause to use his best endeavours to avoid any risk to human life. Amendment No. 5 provides a person charged with contravening or failing to comply with a direction with a defence if he proves that he had reasonable cause for believing that

1187
compliance would have involved a serious risk to human life. We are all concerned about the consequences of oil pollution of the sea, and there has been general support for the drastic powers and penalties provided by this Bill. But I think we have to keep that concern in perspective, and I am sure your Lordships will agree that in a disaster at sea the lives of those involved must still he the first concern. I beg to move Amendment No. 4.
LORD KENNET: My Lords, I did not object to the noble Lord's proposals to consider both these Amendments together simply for the sake of courtesy, but I am afraid that I find it hard to agree that they hang together, or indeed that they make the same point at all. Amendment No. 4, which binds the Secretary of State's servants to have due regard to human life, is one of those Amendments to see which is to agree with it, and I accordingly do so. Amendment No. 5 is rather another matter, because it would give yet another defence to those who may disobey the Secretary of State's order.
Let us imagine what happens. The Secretary of State wants something done. He asks himself, "Does this, in my opinion, constitute a risk to human life?" He decides that it does not, and he orders something to be done. The recipient of that order, who will be a servant of the shipowner or of the salvor, is considering whether or not to do it. If he says to himself, "Notwithstanding the Secretary of State's obvious opinion that this is not a risk to human life, it is yet my opinion that it is a risk to human life, and I will therefore not do it", he will then have a defence in court or will be able to exact compensation from the Secretary of State if the Secretary of State afterwards proceeds to do it himself. I do not think it is right to set up the judgment of interested parties in this way against that of the Secretary of State. I do not propose to discuss this again when Amendment No. 5 is called, but I would ask the noble Lord if the Government could not have a look at it again in the light of what I have said to see whether it is not true that these two Amendments concern two very different things: the first is unexceptionable and altogether beneficial, but the second, in
1188
its wake for all its plausible appearance, I brings very real dangers.
LORD SANDFORD: My Lords, I am grateful to the noble Lord for his acceptance of Amendment No. 4. I do not think I claimed that both these Amendments deal with the same point, but that they are two aspects of the same point. I think it is very difficult to have Amendment No. 4 without providing the defence included in Amendment No. 5. Although I fully appreciate the noble Lord's wish not to provide easy excuses for those whose duty it is to comply with the Secretary of State's instruction, I feel that if, as a result of complying with an order, human life is at stake—for instance, if the Secretary of State, assuming that no one is on board a ship, gives a direction which has the effect of placing in jeopardy the ship and the lives of people on board—it must be a defence to an action alleging failure to comply with the Secretary of State's direction. But if we deal with Amendment No. 4, we can, if the noble Lord wishes, have a further discussion on Amendment No. 5 and regard it as a separate issue.
LORD SANDFORD: My Lords, I beg to move Amendment No. 5.
Amendment moved—
Page 7, line 3, at end insert ("or that he had reasonable cause for believing that compliance with the direction would have involved a serious risk to human life.")—(Lord Sandford.)
LORD KENNET: My Lords, I have already spoken to this Amendment, and I hope that the Government will reconsider it in the light of my remarks.
LORD SANDFORD: My Lords, I should like to do that and give that assurance, but I am afraid I cannot do so for the reason that I am satisfied that it must be a defence in a case like this to allow for the situation where somebody has to decline to take the action ordered by the Secretary of State in order to preserve life.
LORD KENNET: My Lords, if I may speak with the leave of the House. I think this is a remarkable situation. I note with dismay the noble Lord's refusal to consider this again in the light of what I have said. I think I heard him correctly: he said that he was not going

1189
to reconsider it in the light of what I had said. I would remind the House that this is the first appearance of this Amendment. It is not customary to lean on Amendments to heavily at first appearance. I would also remind the House that this is the fifth stage of this Bill before the House, the fifth and penultimate stage; and if we are to have Amendments put down at the fifth stage, when that is the very first opportunity to put them down, and the Government refuse to consider them, I think that I can only regret such a procedure in British Parliamentary terms.
LORD SANDFORD: My Lords, I very much appreciate the point that the noble Lord is making, and I am very conscious that we have had to steer a line between getting this legislation on the Statute Book and the considerable risk of discourtesy to your Lordships' House. On the other hand, as he says, we are nearing the end of the proceedings on this Bill and we have now to try to come to a decision upon it. The Report stage has been delayed in order to give more time for consultation and consideration. There is another stage, and the noble Lord is perfectly free to return to this point and to put down this Amendment when we can debate it again. But it would be wrong for me to give an assurance when I am reasonably satisfied that we have come to our final view on this particular point.
LORD KENNET: My Lords, I am sure that it would help the House if the noble Lord would keep his place. We are discussing one of his Amendments, and he has just said that I could put this Amendment down again later; I cannot, it is not my Amendment.
LORD SANDFORD: But there is nothing to stop the noble Lord from putting down Amendments on Third Reading, and he could put down this particular Amendment, to give effect to what he wants, if he wishes.
LORD KENNET: My Lords, if I may have the leave of the House to speak for
a second time, I would accept that challenge. But would it not be more courteous, and more customary, if the noble Lord undertook to reconsider the matter between now and Third Reading?
LORD SANDFORD: I do not think so, my Lords. As I say, I am very conscious that in this particular case we are introducing a major change to this legislation at a very late stage—I believe that the House understands the reasons for that—and it is necessary to come to a view on as many points as we can. Later on I shall be undertaking to take back other features which we feel we have still to consider. But on this particular point I am satisfied that the Amendment proposed here, Amendment No. 5, is necessary, and no amount of reconsideration will make us change our minds.
LORD KENNET: My Lords, if I may speak once again with the leave of the House, I hope that noble Lords behind me—there are not many at the moment—will think that I am right in doing what I propose to do. This is the first time in my experience that on the first appearance of a Government Amendment, at any stage in the progress of a Bill through the House, the Minister in charge has refused to consider what is said about it between then and the next stage. Since this is my first experience of such a thing, during quite a few years as a Member of your Lordships' House, I think it would be wrong if I did not divide the House against this Amendment on that ground alone. We have not the least chance of winning, but I think the noble Lord's attitude in this matter is so extraordinary and so unprecedented that to refrain from dividing the House might be taken to be condoning an action which, as I have said before, I find to be quite deplorable in Parliamentary terms.
4.35 p.m.
On Question, Whether the said Amendment (No. 5) shall be agreed to?
Their Lordships divided: Contents, 87; Not-Contents, 45.

CONTENTS

Aberdare, L.

Audley, Bs.

Boston, L.

Aberdeen and Temair, M.

Belhaven and Stenton, L.

Brooke of Cumnor, L.

Alexander of Tunis, E.

Belstead, L.

Brooke of Ystradfellte, Bs.

Atholl, D.

Berkeley, Bs.

Clwyd, L.

Auckland, L.

Birdwood, L.

Colville of Culross, V.

Cork and Orrery, E.

Hankey, L.

Rankeillour, L.

Cottesloe, L.

Hanworth, V.

Rathcavan, L.

Courtown, E.

Hawke, L.

Redcliffe-Maud, L.

Craigavon, V.

Hood, V.

Reigate, L.

Craigmyle, L.

Howard of Glossop, L.

Rhyl, L.

Cromartie, E.

Hylton-Foster, Bs.

Rochdale, V.

Daventry, V.

Inchyra, L.

Rowallan, L.

De Clifford, L.

Jessel, L.

Ruthven of Freeland, Ly.

Denham, L. [Teller.]

Killearn, L.

St. Aldwyn, E.

Drumalbyn, L.

Kilmarnock, L.

St. Just, L.

Eccles, V.

Lauderdale, E.

Sandford, L.

Effingham, E.

Loudoun, C.

Sempill, Ly.

Elliot of Harwood, Bs.

Lucas of Chilworth, L.

Skelmersdale, L.

Emmet of Amberley, Bs.

Luke, L.

Stonehaven, V.

Ferrers, E.

McCorquodale of Newton, L.

Strang, L.

Fortescue, E.

Margadale, L.

Strange of Knokin, Bs.

Glasgow, E.

Massereene and Ferrard, V.

Swansea, L.

Gowrie, E.

Merrivale, L.

Teynham, L.

Gray, L.

Milverton, L.

Tweedsmuir of Belhelvie, Bs.

Greenway, L.

Molson, L.

Vivian, L.

Grenfell, L.

Monck, L.

Wakefield of Kendal, L.

Grimston of Westbury, L.

Mowbray and Stourton, L. [Teller.]

Windlesham, L.

Hacking, L.

Wolverton, L.

Hailsham of Saint Marylebone, L. (L. Chancellor)

Napier and Ettrick, L.

Younger of Leckie, V.

Nugent of Guildford, L.

NOT-CONTENTS

Airedale, L.

Henderson, L.

Shepherd, L.

Amherst, E.

Henley, L.

Shinwell, L.

Ardwick, L.

Kennet, L.

Soper, L.

Beaumont of Whitley, L.

Leathers, V.

Sorensen, L.

Beswick, L.

Lindgren, L.

Stonham, L.

Brockway, L.

Llewelyn-Davies of Hastoe, Bs. [Teller.]

Stow Hill, L.

Buckinghamshire, E.

Summerskill, Bs.

Champion, L.

Lloyd of Hampstead, L.

Thurso, V.

Chorley, L.

McLeavy, L.

Wells-Pestell, L.

Crook, L.

Moyle, L.

White, Bs.

Davies of Leek, L.

Noel-Buxton, L.

Williamson, L.

Diamond, L.

Nunburnholme, L.

Willis, L.

Donaldson of Kingsbridge, L.

Phillips, Bs. [Teller.]

Wootton of Abinger, Bs.

Gaitskell, Bs.

Rea, L.

Wynne-Jones, L.

Gardiner, L.

Segal, L.

Greenwood of Rossendale, L.

Serota, Bs.

On Question, Motion agreed to.

Resolved in the affirmative, and Amendment agreed to accordingly.
4.47 p.m.
LORD KENNET LORD KENNET moved Amendment No. 7:
Page 7, line 8, leave out ("£100") and insert ("£50,000").
The noble Lord said: My Lords, if I may stretch our elastic rules of procedure for a moment, I should like to impress on the House that that was a vote on the Parliamentary conduct of the Government; it was not a vote on the content of the Amendment. Things have so far been going very smoothly between the noble Lord and me on this Bill and on others. I very much hope that they will continue to do so. I would warn him against any attempt, which I am sure has not crossed his mind, to seek to make out that that was a vote against the content of that Amendment. He knows it was not; I said so beforehand.
I hope that we can now return to the customary courtesies of the House, which are that when remarks are made upon an Amendment for the first time that it is possible for that to be done, those remarks are considered. If we cannot return to the customary courtesies, then I fear that this stage of the Bill may be prolonged. I turn now to Amendment No. 6 which calls to leave out subsections (9) and (10). My purpose in moving this Amendment is to enable the noble Lord—
THE DEPUTY CHAIRMAN OF COMMITTEES (LORD CHAMPION): My Lords, I must inform the House that Amendment No. 7 is the Amendment that has been called. What was No. 6 appears now to have become No. 7A.
LORD KENNET: My Lords, I am grateful to the noble Lord and I apologise to the House. It is because I am

1193
working on an out-dated Marshalled List. I am talking about the Amendment to leave out "£100" and insert "£50,000". The Bill says if the owner of a ship or any of his agents refuse to do what they are told, there is a fine of £50,000. It then goes on to say that if they obstruct the Secretary of State when he tries to do it himself there is only a £100 fine. I quite see that this might look less of an offence, but I should like to ask the noble Lord whether he could tell us more about it. It seems to me that there might be a "fiddle" or a way through for an ill-intentioned company which I mentioned last time and will not dwell on now.
Alternatively, if there is a good reason to keep the much lower level of penalty, might it not be advisable to consider the possibility of imprisonment for the offence committed by a servant of the company in positively resisting the agents of the Secretary of State? Because it seems to me that an ill-intentioned company might instruct the master of a ship or any seaman on a ship simply to take a crowbar and keep resisting the boarding of the Secretary of State's agents—the Navy, as it might be—time after time. Even if he did it several times a day it would still only tot up to a £1,000 fine for him; and the company might say that they would pay the fine. But he will be deterred from accepting such blandishments from his employer if there were also a prison sentence for this offence of obstructing the Secretary of State. I beg to move.
LORD SANDFORD: My Lords, I assure the noble Lord that the Government want to be as reasonable as we can on all the Amendments to this clause, in view of the fact that it has been introduced so late, and I hope that he will be satisfied with what I am about to say. Noble Lords will recall that there were special reasons why the exceptionally high maximum of £50,000 was accepted in Clause 7 of the Bill in the case of summary conviction for illegally discharging oil. They were, first, that it is sometimes necessary to proceed urgently against the master of an offending ship before he leaves the jurisdiction; and, secondly, that the maximum had to be high enough to act as a real deterrent, even where the shipowner (who in practice would pay any fine imposed on the
1194
master) might gain a large financial advantage from the commission of the offence. We thought it right that the same maximum should apply on summary conviction for failure to comply with a direction, for that is tantamount to illegally discharging oil and the same considerations apply.
In view of the exceptional nature of such a high maximum on summary conviction we wanted to confine it to those cases where it was essential. However, I am grateful to the noble Lord for drawing attention by his Amendment to the point that obstruction of action under subsections (4) and (5), and even obstruction of the service of a direction, could have precisely the same effect as a failure to comply with a direction. So there is a case for providing in subsection (8) and in paragraph 2(3) of Schedule 2 the same penalties as in subsection (6). In effect, they are three aspects of the same general offence of preventing effective action from being taken, and it may be better to deal with them in the Bill in a way which reflects that fact. I should like, therefore, to reconsider the penalty provisions of the clause and the Schedule, and to put down Amendments in time for Third Reading, if the noble Lord will withdraw this Amendment and not persist with his Amendment No. 14.
LORD KENNET: My Lords, I am delighted to meet the noble Lord once in the middle of the road of Parliamentary courtesies. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
LORD KENNET LORD KENNET moved Amendment No. 7A:
Page 7, line 9, leave out subsections (9) and (10).
The noble Lord said: My Lords, I have put this Amendment down in the hope that the noble Lord will be able to assure us on certain things. Subsection (9) says that although the Secretary of State may give these orders about British ships anywhere, and British ships in territorial waters and foreign ships in British territorial waters, he may not give them about foreign ships on the high seas. It may be that this is specifically set out out in this way (and it comes again later) because it is not necessary to write it into the Bill. I ask the noble Lord to let the House know whether that is so, and

1195
if so, whether he can say that the Secretary of State already has precisely equivalent powers over foreign ships on the high seas to those which he now propose to assume over British ships on the high seas. I beg to move.
LORD SANDFORD: My Lords, I certainly can give those assurances, but I should like to do so in some detail, because on first reading subsections (9) and (10) certainly give the impression that the necessary action will not be taken: that no action shall be taken. In fact the action will be taken, but not under the powers that we are considering. Perhaps I may go into this at some little length. These two subsections both contain cases in which the powers in the clause are not applicable. Subsection (9) excludes foreign ships on the high seas, and subsection (10) excludes our own naval and other Government ships. As I have said, this does not mean that no action could or would be taken to forestall pollution if such ships were involved. It means only that, although action could be taken, it would not be done under this clause.
In relation to foreign ships on the high seas, the procedure to be followed is that contemplated in the 1969 Convention relating to an intervention on the high seas in cases of oil pollution casualties that is to say, the international agreement resulting from the negotiations following the "Torrey Canyon." That Convention authorises Governmental action when there is a threat of oil pollution on a large scale but does not envisage any extension of our criminal jurisdiction, which is normally regarded as being limited to our own territory and United Kingdom ships, wherever they may be.
With regard to warships and other Government ships, those covered by subsection (10), the Government are of course in a much better positon to give directions and to ensure their compliance through the ordinary administrative machinery of Government than in the case of a merchant ship, and consequently there is no need to give the Secretary of State the powers in the clause in relation to our own warships. I hope that that explanation will satisfy the noble Lord.
LORD HAWKE: My Lords, can my noble friend satisfy me on one point? He referred to "the powers in the Convention". What happens if a foreign ship refuses to obey an order by a British Secretary of State to do something or other to avoid pollution?
LORD SANDFORD: My Lords, I would rather not get drawn into all the details of the Convention, because we are dealing specifically with those episodes and situations which are outside the Convention. If my noble friend will look through the Convention itself, he will see all the powers and the way in which they operate in detail. But if, after he has done that, there is any point on which I can help him, I shall be glad to do so. But I would rather not get drawn into it at this point.
LORD KENNET: My Lords, I am glad to have those words on the Record, and beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
LORD SANDFORD LORD SANDFORD moved Amendment No. 8:
Page 7, line 24, at end insert ("whether under international law or otherwise.")
The noble Lord said: My Lords. I think I can be quite brief on this Amendment. Clause 8(11) makes it clear that the powers given by the section are without prejudice to any powers that Her Majesty's Government may have apart from the section. The Amendment is designed to make it clear that the section will not in any way prejudice or limit Her Majesty's Government's rights in international law. I beg to move.
Schedule 2 [Shipping casualties]:
4.58 p.m.
LORD KENNET LORD KENNET moved Amendment No. 9A:
Page 9, line 30, leave out paragraph 1.
The noble Lord said: My Lords, with the leave of the House. I should like to speak to Amendments Nos. 9A, 10A and 11 together. They all refer to Schedule 2. First, I propose to delete this Schedule, and the other two Amendments propose two minor changes in it if it is not deleted. I think it would be clearer if I put all the arguments in one breath. I propose

1197
to delete the Schedule altogether, for the simple reason—
LORD SANDFORD: If I May interrupt the noble Lord, I think he means that he would like to delete paragraph 1.
LORD KENNET: I apologise. I propose to delete paragraph 1 of the Schedule altogether, for the simple reason that it seems to me that if the Secretary of State takes these actions in circumstances of great danger and difficulty to the best of own ability and judgment, that ought lo be the end of the matter. This endless pursuit of decades through the courts
which is opened up in paragraph 1 of Schedule 2 is something that ought not to happen. That is a simple view, a layman's view and no doubt the noble Lord has good reasons for thinking that these things ought to happen. I should just like to know what they are.
I now come to the minor points. Amendment No. 10A proposes to leave out the word "disproportionately" in the clause which says that you can bring suit against the Secretary of State for damages afterwards if you think that the good that his action did, or was likely to do, was disproportionately less than the damage resulting from it. I really do not know what "disproportionately less" means. As I put it on an earlier occasion. "disproportionately less" is more than less or less than less, and whichever way, why? The word "disproportionately" imports the concept of proportion, and a proportion must exist between two things. Between what two things the proportion imported by "disproportionately" does not exist and (a) and (b) seem to me to be very unclear. It is a lawyer's paradise. Can the noble Lord clarify this? If he cannot, would it not be better to leave it out?
Thirdly, on Amendment No. 11, to leave out "or the risk of such damage", it seems to me that it is not only a loophole for profiteering companies, it s something about the size of the Thames Estuary through which they could flood and get damages on anything. All they have to do is to assert that although they caused no pollution resulting from the accident, yet if they had caused damage the good which might have been done, or might be only likely to have been done
1198
by what the Secretary of State did, or proposed to do, was disproportionately less than the damage which would have ensued if there had been any damage. It opens to them the possibility of comparing two events which never took place, and of obtaining compensation if one of them were proved to be disproportionately less (whatever that means) than the others. This is a complete nightmare, and it ought to go out, and no suit should lie at all unless some damage occurred. I hope that the noble Lord will be able to agree at least to the last two of these Amendments, and will be able to give us good reason for leaving in this whole cumbrous procedure at all.
LORD SANDFORD: My Lords, I hope to be able to show that we have very good reasons for wanting to keep in paragraph 1, and I hope to be able to clarify the reasons why we want to keep the word "disproportionately". I also think the noble Lord has a point with his Amendment No. 11, although he did not actually say very much about it.
First of all, I should like to explain fully why I cannot advise your Lordships to accept Amendment No. 9, which seeks to delete the whole of paragraph 1. This paragraph gives a person who has suffered damage as a result of complying with a direction or action by or on behalf of the Secretary of State the right to recover compensation. We regard this right as a most important qualification or counterpart of the new powers we are taking under Clause 8. It follows, generally speaking, the principles in Articles 5 and 6 of the 1969 Convention. This is something, as I have said, that we are trying to do throughout the new clause and new Schedule. The rights and property of shipowners, salvors and others may be prejudiced by action taken under it and, as a result, they may suffer loss or damage. In so far as the action is reasonably necessary for the prevention of large scale oil pollution, and the loss or damage suffered is not disproportionate to the oil pollution which is threatened, I do not think there is any case for making the Secretary of State liable to pay compensation. When, however, that action can be shown to have been unnecessary, or disproportionate, it would seem reasonable to make provision for compensation. In short, this Amendment would destroy a vital element in the new provision which

1199
has been carried over from the Convention.
LORD KENNET: My Lords, I think we can cut this short. If the noble Lord can assure me that, "disproportionately less" means, "less than less "and not" more than less", then I shall be very happy to let it stand.
LORD SANDFORD: My Lords, I am just coming to "disproportionately", and I may have to spend a little longer on it. I will now turn to Amendment No. 10 which deals with this word, and would remove the element of proportionality from paragraph 1(1)(b). My objection to this Amendment is in the opposite sense of the proposal to delete the whole of paragraph 1; namely, that its effect would be unduly favourable to the claimant of compensation. At present a claimant relying on the second of the criteria in paragraph 1(1)(b) of the Schedule must show that the good which an action did, or was likely to do, was disproportionately less than the damage which resulted from it. In other words, the claimant has to show that he suffered damage on an altogether different scale of magnitude from the good which was, or might have been, achieved by the action.
If the Amendment were made, on the other hand, he would have to show only that the good was less than the damage—perhaps only £1 in a £1 million less. In this case, if he were able to do that, he would be able to recover all the damage that he had suffered. It would be very difficult to show that the benefit resulting from an action was just less than the damage suffered by a claimant, and it is not intended to throw on the court the burden of making any such accurate calculation. In my view, this would encourage frivolous claims for compensation and perhaps make the provision completely unworkable. We have preferred to follow the concept in the 1969 Convention and provide for compensation only when the action taken is shown to be unnecessary or quite disproportionate.
This concept of the lack of proportionality between the benefit of the action taken and the damage done is important, and seems to me to be sensible and intelligible if one thinks about it carefully
1200
for a little time—although it is not immediately clear at first sight. We are looking carefully into the wording of the whole of this sub-paragraph. As at present drafted, it contrasts the benefit accruing from action taken with damage caused, actual or potential. For example, it might come into operation if a small oil slick was averted at the cost of considerable damage to a large ship, and the risk of even more damage. Amendment No. 11 would remove from consideration in this context the risk of damage, and would confine the items to be taken into account to the actual damage. The noble Lord, Lord Kennet, may well be right in this point, and I must thank him for pointing it out.
In any event, on further reflection we feel that the drafting of this sub-paragraph is defective in at least one other respect, in that while it refers to damage suffered as a result of action taken it does not take into account expenses incurred in taking the action. In the light of all these considerations, I hope to be able to take away the sub-paragraph, and put down appropriate Amendments in time for the Third Reading. I hope that, in view of my assurance on Amendment No. 9; my explanation of the points raised by Amendment No. 10, and my assurances about Amendment No. 11, the noble Lord will be able not to persist in all three of his Amendments.
LORD KENNET: Certainly, my Lords. Would not the noble Lord prefer me to move Amendment No. 9A, so that it deletes the paragraph, and the Bill stands without it until he can bring back the redrafted version? I fully accept the explanation of the word "disproportionately". This is just what I hoped it meant. I am delighted to know that the risk of such damage would be removed.
LORD SANDFORD: My Lords, it is really immaterial. If the noble Lord would like to move his Amendment No. 9A which will delete paragraph 1—on the understanding, of course, that the broad principle behind it will have to be restored—we can do it in that way.
LORD KENNET: My Lords, I beg to move Amendment No. 9A.
LORD SANDFORD LORD SANDFORD moved Amendment No. 12:
Page 10, line 10, leave out ("and")
The noble Lord said: I now come to Amendment No. 12, and it may be for the convenience of the House if at the same time we consider Amendments Nos. 13, 15 and 18, which all bear on the same general point. These are to adapt paragraphs 1(4) (Admiralty jurisdiction of the High Court to cover claims under the paragraph), 2(1) (service of directions on companies) and 3 (ships under arrest) to the requirements of Northern Irish law. The courts in paragraph 1(4) will include the Supreme Court of Northern Ireland. The companies referred to in paragraph 2(1) as being ones on which the special procedure for service of directions is permitted under the sub-paragraph will, in relation to Northern Ireland, be companies which neither are registered nor have established a place of business in that country; and the protection given by paragraph 3 to the Admiralty Marshal will extend to the Admiralty Marshal in Northern Ireland. My Lords, I beg to move Amendment No. 12.
LORD SANDFORD: My Lords, I beg to move Amendment No. 13.
Amendment moved—
Page 10, line 11, after ("Session ") insert ("and of the Supreme Court of Northern Ireland").—(Lord Sandford.)
5.12 p.m.
LORD KENNET LORD KENNET moved Amendment No. 14:
Page 10, line 31, leave out ("£100") and insert ("£50,000").
The noble Lord said: My Lords, this is another of these £100 and £50,000 Amendments. The Bill says that when the Secretary of State orders the owner of a ship to do something, he must serve a notice on the ship telling it what to do. As the Bill is drafted, it is open to the company to tell one of their servants, any sailor on board, to stand at the head of the companionway with a belaying pin in his hand and "dot" over the head any British sailor, or any number of British sailors, who may crop up during the day attempting to serve such
1202
a notice. If he does this, he will be fined £100 each time—and that will be small beer for the company. It seems to me better that either this figure should be "upped" to £50,000, or that a penalty of imprisonment should be introduced for such actions. I hope that the noble Lord will say that he will consider this matter before the next stage, just as he did in the case of obstruction of the Secretary of State's own agents in the execution of their duty. My Lords, I beg to move.
LORD SANDFORD: My Lords, I think I said, when dealing with Amendment No. 7 of the noble Lord, that we would consider both these matters if the noble Lord would withdraw Amendment No. 14, as he has already withdrawn Amendment No. 7. The kind of situation he mentions is one we have very much in mind.
LORD KENNET: My Lords, I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
LORD SANIDFORD: My Lords, I beg to move Amendment No. 15.
Amendment moved—
Page 10, line 31, at end insert—
"(4) In the application of sub-paragraph (1) above to Northern Ireland for references to sections 412 and 437 of the Companies Act 1948 there shall be substituted references to sections 361 and 385 of the Companies Act (Northern Ireland) 1960."—(Lord Sandford.)
LORD SANDFORD LORD SANDFORD moved Amendment No. 16:
Page 10, line 34, leave out ("in the custody of the Admiralty Marshal") and insert ("which is under arrest").
The noble Lord said: My Lords, this is a drafting Amendment to paragraph 3 of Schedule 2. That paragraph makes special provision where a ship is under arrest in civil proceedings, and protects any person taking action in pursuance of Clause 8 from proceedings for contempt of court. The drafting, which refers to a ship which is in the custody of the Admiralty Marshal, is not apt to cover proceedings in Scotland and Northern Ireland, and consequently the paragraph will be generalised by the substitution of the words "which is under arrest" for the words "in the custody of the

1203
Admiralty Marshal". My Lords, I beg to move.
LORD SANDFORD LORD SANDFORD moved Amendment No. 17:
Page 10, line 39, leave out sub-paragraph (b) and insert—
"(b) does not in any circumstances make the Admiralty Marshal liable in any civil proceedings."
The noble Lord said: My Lords, I beg to move Amendment No. 17. This is a minor Amendment to sub-paragraph (b) in paragraph 3 of Schedule 2. It is designed to ensure that the protection given by this paragraph to the Admiralty Marshal is not confined to cases in which the ship in question is removed from his jurisdiction, but should also extend to any other circumstances in which his duty to retain custody of the ship is prejudiced in any way by an action taken under Clause 8. My Lords, I beg to move.
LORD SANDFORD: My Lords, I beg to move Amendment No. 18.
Amendment moved—
Page 10, line 40, at end insert—
"(2) The reference in this paragraph to the Admiralty Marshal includes a reference to the Admiralty Marshal of the Supreme Court of Northern Ireland.—(Lord Sandford.)

POWERS OF ATTORNEY BILL
5.15 p.m.
LORD DIPLOCK: My Lords, I beg to move that this Bill be now read a second time. I am sure that your Lordships will share my deep regret at the circumstances which have made it necessary for me to move the Second Reading of this Bill in place of my noble and learned friend Lord Hodson. For my part, I should have wished that the first occasion on which I addressed your Lordships had been in a less responsible role, but I feel confident that I can still expect your Lordships' traditional indulgence if my explanations of the Bill should be too short or, what is more likely, too long and yet too obscure.
The Bill is short, technical and I think wholly uncontroversial; so much so that
1204
it passed through all its stages in another place formally, without any exposition or discussion. I am told that that makes it desirable that in this House there should be at least a brief explanation of what it is intended to achieve. It carries out the recommendations of the Law Commission which are designed to clarify and simplify that relatively minor branch of the law which deals with powers of attorney. As your Lordships will be aware, those are the formal instruments by which one person, the donor, delegates to another, the donee, the power to act in his place in legal transactions. Although it is a minor branch of the law, it is one which may well affect each one of us at some time in the course of our activities.
The requirement that such a document should be under seal is imposed in some cases by Statute but more often results from the Common Law rule that one can delegate a power to execute a document under seal only by a power of attorney which is itself under seal. Thus the power of attorney forms an important part of documents of title to land and plays a part in other business transactions. The Law Commission made extensive inquiries lasting over nearly three years, as a result of which they found that there was wide agreement, not only on the defects of the present law, but also as to the necessary cure. To their Report last September they annexed a copy of a proposed Bill, which is substantially that which I am now submitting to your Lordships' House. The Bill applies only to England and Wales, except for one provision, Clause 3 (which I shall mention in a moment), which applies to the rest of the United Kingdom; that is, to Scotland and to Northern Ireland.
Coming now to the substantive provisions of the Bill, I would point out that there are three clauses which deal with what I may call the "mechanics" of the power of attorney. They are Clauses 1, 2 and 3. Clause 1 provides, naturally, that a power of attorney shall be signed and sealed. What there is new in it is the provision that a power of attorney may be made by direction and in the presence of the donor of the power. That is to meet the case where, because of physical handicap, the person desiring to give a power of attorney is unable to sign it by himself; and the Bill provides that in

1205
those circumstances it can be done in his presence and in the presence of two witnesses.
Clauses 2 and 3 deal with two related matters. As the law stands at present, there are some statutory provisions which require powers of attorney to be filed in the Central Office or in the Land Registry; and, apart from that, there is a general permissive power for such filing. The practical purpose of that is to enable office copies—official copies—to be provided, because it frequently occurs that the power of attorney is a necessary part of the documents of title of a number of different transactions which are all done under the same power of attorney.
What the Law Commission recommend in this respect is to take advantage of modern scientific advances and provide that a power of attorney may be proved by a photocopy or other facsimile copy, certified either by the donor of the power or by a responsible person, such as a solicitor or a stockbroker. The existence now of these methods of facsimile reproduction makes the possibility of errors in copying impossible, and accordingly it is proposed that the present requirement, where there is a requirement of filing, and the present practice of filing shall be abolished so far as future documents are concerned, the necessary documents for the purposes of proof being obtained by photocopying and certification by witnesses.
There is one other clause which deals with what I may call the mechanics of the thing and that is Clause 9, which, with the Schedule, provides that there shall be a simple statutory form in which powers of attorney may be granted. I think your Lordships may welcome the new trend in which the incantations and the runes are no longer necessary and simple words understood by every person are substituted in their place. It is very brief and very simple, and Clause 9 provides that the effect of doing it in that form will be to give to the donee all the powers of the donor.
The next matter with which the Bill deals is with the protection of donees and third parties, and these are to be found in Clauses 4, 5 and 6. There are existing statutory provisions in the Law of Property Act and in the Trustee Act but the Law Commission found—and indeed I think all lawyers can agree
1206
with them on this—that those clauses were obscure and, it may well be in some cases, illusory. Therefore, the Bill proposes to repeal those clauses and to substitute something which it is
hoped is clearer. Clause 4 deals with a special case on which I need not linger, where the power of attorney is granted for the protection of the donee.
Clause 5 deals with the general protection of dortecs, which in effect provides that they shall be protected by what they have done so long as they have no knowledge that the power of attorney had been revoked. Clause 6 removes some minor obscurities as to how instruments executed by attorneys can be executed. Clause 7 repeals a provision which is now spent and which resulted from the disabilities which at the time, in 1925, affected the status of married women. Those disabilities having disappeared, the necessity for this clause also disappears.
Finally, Clause 8 deals with the special position of trustees. The existing law on this subject is unsatisfactory in this respect. It enables a trustee to delegate his powers when he intends to go outside the United Kingdom for more than a month, but there is automatic revocation upon his return; and if he only returns for a day and then goes back again the power of attorney has gone and a fresh one has to be executed. The solution proposed in Clause 8 of the Bill is to grant to trustees a power to delegate for a period not exceeding 12 months. They remain liable to beneficiaries for anything done by the donee under the power of attorney; the power of attorney requires to be witnessed, and there are provisions that notice of it shall be given to the other trustees and to those persons who are entitled to appoint fresh trustees. This power is not dependent upon going outside the United Kingdom. It is simple and workable and the protection of the beneficiaries, I venture to submit, is sufficiently ensured by the fact that the trustee remains liable for anything that has been done by the donee acting under the power of attorney. There is also a clause which adapts these powers to trustees in a special position under Statute.
My Lords, those are the substantive provisions of the Bill. There is, however, one recommendation of the Law Commission to which I should draw attention.

1207
One of the problems in connection with powers of attorney arises in those cases where the donor of the power is in a state of increasing mental incapacity. As the law stands at present, the power is revoked at the moment at which the mental incapacity reaches a stage recognised by the law as rendering him incapable of managing his affairs. Those are the circumstances in which in real life it is very convenient and very useful and very practical that a power of attorney should be used, but it is subject to this great difficulty under the existing law. This the Law Commission drew attention to, but their recommendation was:
"The question of the granting and continued validity of a power of attorney by persons suffering from diminishing mental capacity should be considered as part of a wider review of the administration of the property of persons of unsound mind."
This aspect of the matter is clearly one which could not be dealt with in a Bill the purpose of which is to deal primarily, and indeed solely, with powers of attorney, and it is for others to consider whether that inquiry which the Law Commission have recommended should proceed or not.
My Lords, I will not pretend that this Bill will effect a major reform in the law. It will clear out, however, one of those cubby holes in the law which ought to be cleared out in this part of the twentieth century. It will. I believe, be beneficial to lawyers and to those engaged in commerce. I beg to move.
Moved, That the Bill be now read 2a.—(Lord Diplock.)
5.32 p.m.
LORD GARDINER: My Lords, the whole House will regret very much the reason why the noble and learned Lord, Lord Hodson, cannot be present to move the Second Reading of this Bill this afternoon, and I am sure that the whole House will wish him a very speedy recovery. It has, however, given us the pleasure of a maiden speech by the noble and learned Lord, Lord Diplock. It is not, I imagine, often that the subject of a maiden speech is the Motion for a Bill to be read a second time, but there can certainly be no Member of your Lordships' House more qualified to do so than the noble and learned Lord, Lord
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Diplock, and I am sure that after hearing him do so your Lordships will agree that we shall all look forward to hearing him in the future.
This Bill is only another example of the patient and careful work which the Law Commission do. Finding that some branch of our law is not in a satisfactory state, and after consulting fully all those who are most expert in the field in question, they provide us with a remedy. It is not merely that part of our law in this field is anomalous or unsatisfactory. Some of it is unsatisfactory merely because we live in a changing world, and perhaps a good example is the old provision that if a trustee intended to be out of the United Kingdom for at least a month there was a power of attorney which ceased on his return; and as the Law Commission say in their Report this requirement
"appears to have more relevance to the past when going abroad was an adventure undertaken seldom and then usually for an extended period. To-day, a large proportion of the population, and a still larger proportion of those who are likely to be trustees, go abroad at frequent intervals, often for periods of less than one month".
Similarly, after commenting on the wisdom of restricting the right, as now, to delegate in cases where a trustee was out of the United Kingdom, they pointed out that,
"a person holidaying in a remote part of Scotland was probably more inaccessible than someone … in New York where he could be reached by airmail in under 48 hours. And, at present, a person may delegate if he intends to go to Dublin, but not if he intends to go to Belfast."
In another field to which the noble and learned Lord has referred, namely, recent inventions in the reproduction of documents, I have no doubt that your Lordships will agree that the provisions made by the Bill for the recognition of photo copies and photo copies of photo copies are sound. There is one point on which I am not quite clear. In this well-reasoned Report, which is followed by a draft Bill and explanatory notes on the draft Bill, the explanatory note on Clause 3 says, in referring to the photo copy:
"This expression, as subsection (1)(a) says, includes any reproduction made by a device for reproducing documents in facsimile whether or not the process is photographic in the technical sense"—
the clause does not in fact include the words, "Whether or not the process is

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photographic in the technical sense". The note goes on:
"… many of the modern devices are not".
It may be that some noble Lords are as ignorant as I am, and perhaps in replying the noble and learned Lord could tell us what are the devices referred to which are so common the substance of which is not photographic at all.
The question of incapacity from infirmity of mind or old age or illness is, of course, of great importance, and I entirely agree with the noble and learned Lord, Lord Diplock, that the Commission were right in coming to the conclusion that it was part of a larger subject which they ought not to deal with in this Report. They refer to the Memorandum of the Law Society, in paragraph 27 of their Report, in which the Law Society say:
"It seems anomalous … that whereas so complete and exhaustive a study of the law regarding mental health has been made and the conclusions of this study given statutory effect, the law relating to the care of the property of all mentally ill has never been examined at all".
And the Law Commission further say:
We agree with these observations and strongly support the Council's recommendation that this branch of the law should be reviewed. A wide-ranging examination could not appropriately be undertaken as part of the present exercise, and accordingly we make no further recommendation on this matter."
In paragraph 1 of their Report, on the same subject, they say:
"We hope, therefore, that this aspect of the matter will receive further consideration as part of that wider review by a Departmental Committee, or similar body, suggested by the Council of the Law Society in their recent Memorandum".
I cannot ask the noble and learned Lord, Lord Diplock, but I apprehend that I can ask the noble and learned Lord the Lord Chancellor what the Government's intentions are in this regard, and whether, and if so when, it is their intention to set up such a Departmental Committee or similar body in order to undertake that larger review.
I was not perhaps as clear as I should have been from what the noble and learned Lord, Lord Diplock, said as to why, although the draft Bill was not intended to apply to Scotland, Clause 3 now applies to Scotland, or whether the alteration in the definition of the word "stockbroker" is related to the change in making Clause 3 apply to Scotland. I
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welcome the abolition in the repeal Schedule of any distinction between married and single women, and agree with the Law Commission that this is now clearly an anachronism.
Subject to those observations, I would welcome this Bill. It is, of course, as the noble and learned Lord indicated, entirely non-Party political, and I would hope that when it reaches another place my noble friends here and those concerned on the other side in another place may think it right to agree to this being taken there by a Second Reading committee, which of course, avoids a loss of time on the Floor of the House, because it is, after all, entirely non-political. It is, of course, not unknown for Lord Chancellors—and maybe other members of the Government—when Government legislative time is rather full, to invite some private Member to introduce a Bill which would otherwise have been introduced by the Government. This is a Law Commission Bill. I certainly take it that the fact that the Government are not introducing it themselves casts no reflection by them on the Report. For those reasons I welcome the Bill from this side of the House, and hope that it will soon obtain a speedy Second Reading.
5.40 p.m.
THE LORD CHANCELLOR (LORD HAILSIIAM OF ST. MARYLEBONE): My Lords, I intervene in this debate only to indicate the attitude of the Government towards this piece of legislation and to say one or two simple things about it, because the content and purpose of the legislation has been so admirably set out by my noble and learned friend Lord Diplock, and the noble and learned Lord who sits on the Front Opposition Bench has added whatever footnotes might have been necessary. I should like to associate myself with what both noble and learned Lords said about Lord Hodson and my hope for his speedy recovery. It was a very sad event, and I hope that Lord Hodson will soon be back with us. The news I have of him is relatively good. I should also like to congratulate my noble and learned friend Lord Diplock on his maiden speech. It is a great pleasure to hear Law Lords playing a part in our political activities without the smallest impropriety. I have known the noble and learned Lord for many

1211
years. I have known him since he was Secretary of the Oxford Union, which is quite a long time ago. I know as a matter of fact that politics lost a formidable debater when he embarked upon a sedulously austere legal career. He is also known in many other fields—as an intrepid horseman, where I do not follow him; nor can many horses be found of sufficient strength to bear my weight.
If I may deal with the few points which I can deal with out of the speech of the noble and learned Lord, Lord Gardiner, may I say at once that the Government welcome this Bill. As the noble and learned Lord, Lord Gardiner, indicated, in getting on with the business of law reform in a rational way the limiting factor is of course Parliamentary time in another place; and the Lord Chancellor has to adopt various devices in order to get that time. One method of doing so is to induce willing Members of the Back Benches in another place to sponsor Private Member's Bills. Quite a number of Law Commission Bills have been so sponsored in the present Session by Members of both Parties. I think the noble and learned Lord, Lord Gardiner, overlooked for the moment that the Bill has come up from another place and has not to go down to it.
I should like to thank not only my noble and learned friend on the Cross-Benches for introducing the Bill here, in which he did a notable public service of a rather difficult and onerous kind in the middle of a busy and distinguished life as a Law Lord, but also the Member of another place, Mr. Martin McLaren, who, with great public spirit, introduced a Bill which cannot, I think, affect many votes at a General Election but which none the less will slightly improve our law. I should like to thank them both for what they have done. The noble and learned Lord, Lord Gardiner, bowled a very fast ball at me about photocopies. But I had a long stop, and I can now tell him that the Xerox process is not a photographic copy but a thermographic copy; and as this is one of the commonest forms of reproduction of documents available, I think that partly answers his question.
The question of incapacity is a very real one in this connection. I am not sure myself that a wide review of the way in which the property of the mentally
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afflicted is administered will be necessary. It may be in the end. The Court of Protection exists for this very purpose, and the more I hear of the Court of Protection, for which I am departmentally responsible, the more I feel I ought to seek its advice in my own affairs at the earliest possible moment. It seems to be the most ideal way in which one can arrange one's affairs in the latter part of one's life.
But many people use powers of attorney, for the very intelligible reason that they want their affairs to be administered by close relatives. Often a father uses his son for this purpose. When I went abroad in the war I certainly executed a power of attorney in favour of my father. Had I been shot in the head instead of the leg, that power of attorney would have lapsed, I think, because I should then have become mentally incapacitated for a time. That is very inconvenient, because one of the main purposes for which the power of attorney is used is when you feel that for some reason or another you may become incapable of managing your own affairs; and even in the case of a young man like myself going off to fight, this may very well happen in the ordinary course of battle experience. So this is not by any means a purely academic subject. In practice, the donee of the power of attorney goes on using it. There is no question but that had I been shot in the head my father would have gone on acting under the power of attorney that I had signed, but it would have been totally illegal. I feel that this is a serious matter, and one which deserves fairly urgent consideration. That, I know, is the view of the Law Society and of the Law Commission.
I can only tell the noble and learned Lord now that I have the matter very I much in mind. There is a limit to the number of inquiries that I can set on foot simultaneously, and I hope to find a solution to this particular problem fairly shortly without a wide-ranging inquiry. But if I do not, then I suppose a wide-ranging inquiry will be the only solution, I and sooner or later I shall have to set one up. But I am not in a position this afternoon to make any announcement. As the noble and learned Lord who proposed the Second Reading rightly said, it is not really part of this particular exercise.

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My Lords, I think that covers all the points except one, the variation in the language of Clause 3 about stockbrokers. That I cannot answer ex improviso. Perhaps my noble and learned friend on the Cross-Benches can; otherwise I shall have to write to the noble and learned Lord who raised the question and tell him the answer. I am much obliged to both noble and learned Lords who have taken part in this debate.
5.47 p.m.
LORD WILBERFORCE: My Lords, I should like first to add my congratulations to my noble and learned friend Lord Diplock upon introducing this Bill and to express my gratitude to the Law Commission. At this stage, I have only two points to which I should like to refer. The first reflects the feeling I often have about the Law Commission's proposals: I welcome what they have done but regret a little that they have not gone a little further along the path of modernising the law. The path that I wish they had taken (and it may yet not be too late to take it) is to get rid of this medieval doctrine of the seal. It really is time that we got rid of executing documents under seal. This is still provided for in the Bill. Even the nice little form at the end, which is an excellent document and which I thoroughly welcome, still provides for sealing of the document.
My Lords, everybody knows that sealing is now a completely fictitious matter. There may be some noble Dukes, or some old-fashioned people, who get a seal off their watch chain and put down a piece of wax, but normally the sealing consists of either placing a ruler on the piece of paper, or doing nothing at all, or taking a look at a rather scrubby red mark which the Solicitors' Law Stationery Office has put on the document. I would have hoped that we might have got rid of that mumbo-jumbo and aligned ourselves with most other civilised countries. Of course I know that there is a doubt (to which the Law Commission refer at the end of their Paper) as to whether a document which has to be under seal can be executed by a power of attorney which is not under seal. I do not know whether or not that is so. But if it is so, it should not be difficult to get round it by inserting a simple clause to the effect that anyone who is in possession of a valid power
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of attorney may execute any document which the donor could have executed whether under seal or not. If that were done, we should have taken one more step towards modernising the law. Perhaps the noble and learned Lord will consider whether that can be done at a later stage. The power of attorney of course, under Clause 1, still has to be witnessed by one or, in some cases, two persons, so the necessary precautions are there, and the sealing is, as I said, just a bit of mediæval ritual.
The other point is rather more difficult, and it relates to delegations by trustees in Clause 8, where a number of suggestions are made for replacing certain provisions in Section 25 of the Trustee Act 1925. There is a long passage in the Law Commission's Report which deals with this matter: they have certainly given it very through treatment. It is easy to criticise the existing state of the law. I quite agree that it seems absurd that a trustee may appoint an attorney trustee if he is going to Dublin but cannot do so if he is going to Belfast; that if he is going up into the wilds of Scotland, miles from any telephone, he cannot appoint an attorney, but if he is flying to Paris, where he can be dialled within 30 seconds, he can. As I say, I agree that that does not seem very sensible.
On the other hand, the point which was referred to by the noble and learned Lord, Lord Gardiner, does not, with respect, seem to me to be a good reason for changing the law. It may be true, and it probably is, that nowadays people tend to go abroad frequently for short periods without thinking anything about it, whereas previously, when the Trustee Act was drafted, journeys abroad tended to be longer and more elaborate. I should have thought that that was a reason for not changing the law, because nowadays most people can, in practice, get by without executing powers of attorney. They fly to New York and back in a couple of days. They will soon he able to do the same with Australia. It does not seem so urgent as it might have been to change it.
The proposals made in Clause 8, on the other hand, are rather drastic. I must say that they filled me with a little alarm. The new subsection (1), referred to in subsection (2), gives an absolutely

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general power, to delegate for up to twelve months, and the Law Commission's Paper makes it plain that there is nothing to stop a trustee, after he has given one twelve months power of attorney, doing the same thing again for another period of twelve months. It seems to me that that is going rather far in breach of the principle that a trustee is supposed to exercise his powers personally. That is why he was nominated: because he is a person of trust; and he should not delegate to someone else.
I know of course that there are safeguards in the clause. Notice has to be given to persons who have the power to appoint new trustees and to the co-trustees, but there may not be any person who has the power and who is nominated to appoint co-trustees. In any event, in the case of an executor that would not apply because nobody could appoint a fresh executor. I would think that a testator might be rather alarmed if he were to reflect that a person whom he had selected carefully to be his executor could execute a power of attorney which would enable some other person to execute all the powers in the estate for a period of twelve months.
I know, too, that there is in Clause 8(2) the proposed new subsection (5), which says that the donor is liable for any acts or defaults of the donee. But, with respect, that does not really meet the case, because what goes wrong with trusts nowadays is not so much breaches of trust, which are comparatively rare, but errors of judgment or wrong exercises of discretion. It is very much to be feared, I should have thought, that under this provision trustees would nominate a solicitor, or perhaps an accountant, to exercise the power for twelve months who might, in the course of acting perfectly within the powers of the trust, nevertheless commit the trust to some very unfortunate line of policy or decision.
I have read the Law Commission's paragraphs with some care, and I see that they put out working papers on this subject and invited comments. However, it would very much help me if the noble and learned Lord, in replying, or perhaps at a later stage, could let us know to
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what extent this change really reflects demand from solicitors, accountants, people who manage trusts, or even from the members of the Chancery Bar who are accustomed to seeing how trusts are in fact administered. I am not saying at the moment that this is undesirable, but I suspect that it goes too far.
I would like to see some further safeguard, for example, which required notice to be given to some of the beneficiaries. I can see objections to that, too, and the Law Commission considered them. But I have a feeling that the existing safeguards against this very wide power are not entirely adequate, and I should be glad to be reassured that professionals think otherwise. If that is not so, I should like to reflect on this, perhaps in consultation with the noble and learned Lord, before the Committee stage in order to see whether some further tightening up of the precautions in relation to this matter may be necessary. My Lords, I am sorry to have said more than a few words on this subject, but it is perhaps the most important innovation in this Bill, and I rather think that noble Lords ought to give it a little consideration before they just pass it on the nod. Otherwise, I entirely welcome the Bill.
5.56 p.m.
LORD DIPLOCK: My Lords, I apprehend that the points which have been raised by my noble and learned friend Lord Wilberforce are probably better dealt with at the Committee stage. Obviously they require a considerable deal of reflection. There was one point I omitted—my noble and learned friend Lord Gardiner raised it—and it was to explain why Clause 3 of the Bill is applicable to the United Kingdom and not merely to Scotland. It deals with the proof of powers of attorney executed in the English form. It is obviously desirable that they should be proved throughout the United Kingdom in the same way as in England and Wales. This alteration in what the Law Commission recommended has had the approval of the relevant authorities both in Scotland and in Northern Ireland. I think that all that remains for me is to thank your Lordships for the welcome which has been given to the Bill, and in particular for the kindness and indulgence which has been shown to me personally in my very

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inefficient manner of moving its Second Reading.
On Question, Bill read 2a, and committed to a Committee of the Whole House.

BETTING, GAMING AND LOTTERIES (AMENDMENT) BILL [H.L.]
6.0 p.m.
LORD STONHAM: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Stonham.)
House in Committee accordingly.
[The BARONESS WOOTTON OF ABINGER in the Chair]
Clause 1 [Amendments of Betting, Gaining and Lotteries Act 1963]:
LORD STONHAM LORD STONHAM moved Amendment No. 1:
Page 1, line 7, leave out from ("5(1)") to ("after") in line 9.
The noble Lord said: There is a fairly large number of Amendments down for consideration this afternoon, having regard to the fact that this is a very small Bill. In the main, they arise from observations made by the noble Lord, Lord Windlesham, during his Second Reading speech and they are observations with which I am in agreement. In referring to the new notification procedure which will be required, the noble Lord said:
"It involves a fairly complicated alteration to the existing law to ensure that local authorities are given adequate notice in advance of the actual days chosen and which of them are to be 'special' days on which double racing will take place; and indeed some notification in arrear of the days on which racing did not take place at all.—[OFFICIAL REPORT, 11/2/71; col. 343.]
Perhaps the most far-reaching observation which the noble Lord made was in respect of the possibility that the extra days which the Bill permits might be used, at least in part, for some newly-arising sport or for one which is at present unknown but which becomes suddenly popular. He was good enough to say that his objection could, however, be overcome if the proposed increase in the number of betting days was confined to
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betting on dog racing. Most of the Amendments arise from those two remarks, particularly this Amendment. It is necessary to delete the words covered by the Amendment, because there is need to make separate provision in Section 5 of the Betting, Gaming and Lotteries Act 1963 for the increase in betting days to be made applicable only to dog racing. That is what the Amendment achieves. I beg to move.
THE MINISTER OF STATE, HOME OFFICE (LORD WINDLESHAM): I explained on Second Reading that the attitude of the Government towards this Bill was one of benevolent neutrality, and I said that we recognised the aims of the Bill and did not dissent from them. As the noble Lord, Lord Stonham, has said. I pointed out one or two aspects of the Bill where it appeared that the drafting could be improved, and I am pleased that my Department has been able to point out one or two of these defects and suggest ways of meeting them. So I can say to your Lordships at the beginning of this Committee stage that the Government are in general agreement with the Amendments which have been put forward. Of course they are the noble Lord's Amendments—it is his Bill—and they are rot in any way to be taken as Government Amendments. But we see the reasoning behind them and we are very happy to give them our support.
LORD STONHAM: I beg to move Amendment No. 2. This is purely drafting and avoids a double negative.
Amendment moved—
Page 1, line 11, leave out ("not").—(Lord Stonham.)
LORD STONHAM LORD STONHAM moved Amendment No. 3:
Page 1, line 11, leave out ("13 days (other than special betting days)") and insert ("14 days").
The noble Lord said: Amendments Nos. 3 and 4 are both concerned with paragraph (c). If Amendment No. 3 is accepted, the total number of betting days permitted in a month could be 14, but the 14 will include the special betting days. The custom as operated at some tracks, particularly those at the seaside, is to have three meetings a week and in some of the longer calendar months that means they hold 14 meetings. The

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Amendment will take account of that, so that they can carry on as they do now. I beg to move.
LORD STONHAM: I beg to move Amendment No. 4. It was not the intention that horse racing should be in any way affected by this Bill, and this Amendment makes that perfectly clear.
Amendment moved—
Page 1, line 12, at end insert ("except on an approved horse racecourse").—(Lord Stonham.)
LORD WINDLESHAM: As I mentioned on Second Reading, this is a point of some substance. The Bill is not intended to deal with horse-racing. If confusion should result it would be unfortunate, and it is not at all what the noble Lord has in mind. So this Amendment clarifies one possible area of doubt.
LORD STONHAM LORD STONHAM moved Amendment No. 5:
Page 1, line 12, at end insert—
"( ) after section 5(1) there were inserted the following subsection—
"(1A) In relation to a dog racecourse which is a licensed track paragraph (a) of the foregoing subsection shall have effect as if for the words 'one hundred and four' there were substituted the words 'one hundred and thirty'"."
The noble Lord said: This Amendment reinserts the words which were taken out by Amendment No. 1, but in a somewhat different form. They are solely to make separate provision for the increase of betting days to apply only to dog racing. Again, this follows the suggestion of the noble Lord, Lord Windlesham, and achieves what is wanted. I beg to move.
LORD STONHAM LORD STONHAM moved Amendment No. 6:
Page 1, line 17, leave out from ("days") to end of line 18 and insert ("notified to the licensing authority under section 2 of the Betting, Gaming and Lotteries (Amendment) Act 1971")
The noble Lord said: This new form of words is necessary to tie in with the new procedure of notification to the licensing authority, which is covered in the new Clause 2 which I propose to move later. I beg to move.
LORD STONHAM: I beg to move Amendment No. 7 which is purely drafting.
Amendment moved—
Page 1, line 19, after ("7(2)") insert ("(a)").—(Lord Stonham.)
LORD STONHAM: I beg to move Amendment No. 8, which is purely procedural. It is necessary to refer to the special betting days, in accordance with the new procedure of notification to the licensing authority.
Amendment moved—
Page 1, line 23, leave out from ("words") to end of line 25 and insert—
(" "day notified to the licensing authority as a special betting day under section 2 of the Betting, Gaming and Lotteries (Amendment) Act 1971" ").—(Lord Stonham.)
LORD STONHAM: Amendment No. 9 is also procedural. I beg to move.
Amendment moved—
Page 1, line 25, at end insert ('and
(b) at the end there were inserted the following proviso—
"Provided that not more than four days in the same period of twelve months being a period beginning with 1st July in any year shall be special betting days.".")—(Lord Stonham.)
LORD STONHAM: I beg to move Amendment No. 10. Again, this new wording is necessary because of the notification procedure in the new Clause 2; and, as your Lordships will have noticed, it is similar to Amendment No. 6. I beg to move.
Amendment moved—
Page 2, line 3, leave out from ("one") to end of line 4 and insert ("of the betting days notified to the licensing authority under section 2 of the Betting, Gaming and Lotteries (Amendment) Act 1971").—(Lord Stonham.)
LORD STONHAM: Amendment No. 11 is moved for exactly the same reasons as Amendment No. 10. I beg to move.
Amendment moved—
Page 2, line 8, leave out from ("day") to end of line 9 and insert (""which is one of the betting days notified to the licensing

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authority under section 2 of the Betting, Gaming and Lotteries (Amendment) Act 1971" ").—(Lord Stonham.)
Clause 1, as amended, agreed to.
Clause 2 [Notification of meetings fit which betting occurs]:
LORD STONHAM LORD STONHAM moved Amendment No. 12:
Leave out Clause 2 and insert the following new clause:
Notification of betting days
"2.—(1) Not less than twenty-eight days before the commencement of any month, the holder of a track betting licence shall give notice in writing to the licensing authority within whose area the track falls of the proposed betting days not exceeding fourteen, that is to say days on which betting facilities may be provided on that track in that month.
(2) The notice given under subsection (1) of this section shall include notice of any of those days which are proposed to be special betting days for the purposes of section 7(2) of this Act.
(3) If in any month betting does not take place on any of the betting days or special betting days in respect of which notice has been given under subsection (1) or (2) of this section, the holder of a track betting licence shall not more than thirty-five days from the commencement of the following month give notice to that effect in writing to the licensing authority within whose area the track falls."
The noble Lord said: I beg to move Amendment No. 12. This provides seriatim what the noble Lord, Lord Windlesham, suggested we should provide. Subsection (1) requires 28 days' notice instead of the seven in the Bill as printed; subsection (2) provides that the notice shall include any special betting days (they do not have to be separately provided for), and subsection (3) deals with days on which betting does not take place, because of the weather or for some other reason, and the operator is obliged to inform the local authority within 35 days. I think it is perfectly clear. I beg to move.
LORD WINDLESHAM: Perhaps we should pause on this clause for a few minutes. The Bill is so short that when one complete clause is deleted and another is put in its place it indicates a change of considerable importance. The clause in its present form, as moved just now by the noble Lord, Lord Stonham, introduces a new system of notification of betting days to the licensing authorities in place of the old system of fixing days
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within each area over twelve months in advance. The clause in the Bill was defective in a number of ways. This Amendment substitutes a new clause which makes a number of important changes. Perhaps I may refer briefly to five of them, because they are the main changes.
The first is that the period of advance notice which must be given
to the licensing authority is increased from seven to 28 days. This is in response to representations from the police and local authorities to the effect that seven days' notice was too short. Secondly, the notice is required to state not just the number of days but which days these are to be. This is essential to enable the days to be known, so that the police can make adequate provision for crowd control, and so on. Thirdly, the notice may not specify more than 14 days. This prevents an operator notifying every weekday of the month and then selecting the 14 that will suit him best.
Fourthly, the notice is required by subsection (2) of the clause to specify which, if any, of the betting days are to be special betting days. Fifthly, separate notice is required to be given to the licensing authority after the month of any days notified as betting days on which betting did not in fact take place. That is under subsection (3). It will be in the interests of the operator to make sure of this notification because it will enable him to make up these days in a later month, subject to the overall limits.
There are one or two points which still remain on the wording of Clauses 1 and 2 as drafted which my Department would be happy to discuss with the noble Lord, Lord Stonham, to see whether there are any final details which ought to be picked up on Report stage.
LORD STONHAM: My Lords, I should be very glad to discuss these two clauses between now and Report stage, and if they are capable of modification, and such modifications are helpful, I shall naturally be glad to make them. I am grateful to the noble Lord for dotting the "i's" and crossing the "t's" of my remarks. I thought I had mentioned most of the things which the new clause contained and I am grateful to him for re-emphasising them. We did have consultations with the local authorities and, of course, there were consultations with the police, and I believe that the new clause

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satisfies all concerned. If, perhaps, with the winning post in sight, I got the wind under my tail and went too quickly, I apologise.
New Clause 2 agreed to.
Remaining clauses agreed to.
Schedule agreed to.
House resumed: Bill reported, with the Amendments.

TELEVISION ACT 1964 (ADDITIONAL PAYMENTS) ORDER 1971
6.18 p.m.
LORD DENHAM: My Lords, I beg to move that the Television Act 1964 (Additional Payments) Order 1971, a draft of which was laid before this House on February 16, be approved. I commend this Order to your Lordships because it is needed to make it possible for I.T.V. to continue to provide its service on a satisfactory financial footing. The effect of this Order will be to reduce the amount payable by the independent television companies by half so that, on current forecasts that the advertising revenues of the companies this year will be under £94 million, the effect in a full year would be to reduce the amount payable from £20 million to £10 million. My right honourable friend the Minister of Posts and Telecommunications hopes to make the Order come into effect as soon as possible.
My right honourable friend made it plain that, in conjunction with the Authority, he will have another look at the way the levy is charged. In 1963 Parliament decided that the levy should be charged on the advertising receipts of the companies, with no deduction for the expenditures of the companies, although expenditure was of course reckoned with in fixing the sliding scale provided for in the original Act and in the subsequent changes in it. In 1963, alternatives which would have related the levy more directly to profitability were rejected; but now that the financial circumstances of I.T.V. have changed so radically, we are ready to re-examine them. There is, of course, no commitment to introducing a new
1224
system. We will introduce a better system if we can find one, but whether we can find one remains to be seen. However, we are going to look for one and decide by the middle of 1972.
My Lords, meanwhile we believe that the reduction which this Order
would prescribe is necessary to make sure that I.T.V. continues to provide a first-class public service. The size of the reduction has been arrived at after close and thorough study of the prospective costs of the I.T.V. companies and their prospective revenues. There was an examination by the National Board for Prices and Incomes, which reported in October, 1970. The reference to the National Board for Prices and Incomes was announced by the previous Government in March, 1970. The terms of the reference did not allow the Board to report on the level of the levy payments, but the report proved a valuable study of the financial future of the industry. In addition to the Board's examination, the financial future of the industry has been kept under review by the Independent Television Authority, the public authority charged with oversight of the public service provided by I.T.V. In deciding what to allow, the Government had to take into account the I.T.A.'s need to increase their own rental charges in order not to fall behind with their plans for developing the network of 625-line U.H.F. stations, a development which is being carried out as an integrated exercise by the I.T.A. and B.B.C. jointly, and which brings viewers with colour sets the chance to see I.T.V. and B.B.C.1 in colour and the much greater number of viewers who are not yet changing to colour the chance to use single-standard sets with their greater technical simplicity and better standard of picture.
Next, the Government had to take into account the need to see that the industry, at a time of rising costs and stationary or declining revenue, could retain a sound financial structure yielding sufficient income to provide a first-class programme service. It is, I understand, the I.T.A.'s view that the standard of programmes in I.T.V. has not yet been affected, but that the continued atmosphere of financial stringency would, if steps had not been taken to correct it, have been bound to lead to a situation in which not enough risks were taken in seeking improvements

1225
in the programmes. In the new situation, a significant proportion of the money made free will be needed to make this possible, although the I.T.A. cannot say, and neither can I, what amount of money will be needed to do so. Taking all these factors into account, the Government concluded that the reduction provided for could be expected to last until July, 1972, the end of the fourth year of the present I.T.A. contracts.
The distribution of the relief between the different programme companies is something that I might mention here. The smallest companies in I.T.V., which pay no levy, have been as much troubled, and in some cases more troubled, by the difficult financial climate which has affected the whole industry. Directly, the reduction in the levy does nothing to help them. But, in distributing among its contractors the burden of the additional rentals which it is requiring, the Authority has provided for the smallest companies to pay less than they were paying before.
My Lords, Her Majesty's Government are satisfied that the reduction proposed in this draft Order will be fully sufficient at least until the middle of 1972. If we can find a better system to operate from then, we will. I beg to move.
Moved, That the Draft Television Act 1964 (Additional Payments) Order 1971, laid before the House on February 16, be approved.—(Lord Denham.)
6.25 p.m.
BARONESS LLEWELYN-DAVIES OF HASTOE: My Lords, the House gave certainly a qualified approval to the noble Lord's original Statement that this Order concerning the television levy would be laid before the House. I think it is fair to say that there was a general feeling of relief that the Government had "tempered the wind to the shorn lamb"—even if it was "a lame duck". We still welcome the Order: but there are a few uncertainties left, and I gave the noble Lord notice of one or two questions that I wanted to ask. One of them he has already answered. He referred to the increase in rental which the Authority is going to make to the individual corn-panics. Of course, £10 million is a very substantial sum in reduction of the levy, but I understand that the rental will be
1226
something like £3½ million. This reduces the £10 million by over one-third.
On this side of the House, we are much concerned at the way in which the levy will be distributed, so that the larger companies do not get the lion's share and the smaller companies are neglected. I understand from what the noble Lord has said that he does not really know how the reduction will be distributed between the companies, but that the rental will be made much easier for the smaller companies so that in that way they will benefit. I hope that I have understood this correctly.
LORD DENHAM: My Lords, may I intervene just to clear up that point? The reduction is distributed between the companies on the basis of their advertising revenue; but the smaller companies will benefit from a redistribution of the rental charges. These ate two separate points.
BARONESS LLEWELYN-DAVIES OF HASTOE: My Lords, I thank the noble Lord for that explanation. It removes some, at any rate, of our anxieties. That part of the Statement most welcome to the House was, I think, the reference to the fact that the reduction in the levy would be used to improve the quality of the programmes. This is what the House is particularly interested in. Of course, it is a very complicated question, indeed it is a kind of indirect question. It is quite true that the stronger financially a company is, the more money it can afford to spend on good quality programmes, on minority programmes and on news items. All these things are needed to round off fully the presentation of a company's work. The poorer a company is, the more it has to make do with poor material, repeat material and so forth.
But the commercial companies have to consider their shareholders. We are in the middle of inflation, and I think we are entitled to ask the noble Lord if he can give us a complete assurance that this large sum of money will be used to improve the quality of the programmes. So far as the whole question of the levy itself is concerned, I think it is agreed that it is not at all a satisfactory system. There are all sorts of different ways which might be used. One view is that the levy should not be on advertising revenue

1227
at all, but on profits; another is that there might be longer periods for contracts so that firms would not have to recover their enormous capital costs by requiring enormous profits at the beginning. The Pilkington Commission, as the House will remember, recommended that the Authority should be the recipient of the advertising revenue and that the companies should be left to get on with the programmes. To me, that is very much the most attractive theory; but there are many others.
We were very glad to hear that the Government are going to consider the whole system. We should like a reassurance that it will be a comprehensive review. We agree that some relief was necessary; but this particular Order is really tinkering with the whole problem. The television industry must be put on a sound financial basis; but this Order will not go very far towards doing that. It will not have escaped the notice of the House that whereas the levy has been reduced for Independent Television, the licensing charges for B.B.C. have been increased. This year the public will be contributing something like £26 million extra to broadcasting in general, either directly by fees or through the Exchequer. The public take an extremely lively interest in television and broadcasting and in where their money goes—and rightly so.
As noble Lords will have noticed, there has been a great deal in the Press for the last few weeks about London Weekend Television. I was going to talk quite a lot about that, but I was glad to see on the tape that the Television Authority has decided that the Chairman of the Board should submit plans in detail, and that the Authority will suspend its judgment in the meantime. I think that this is indeed a good thing.
Noble Lords will know that London Weekend Television is now quite different, both in its sponsors and also in its programmes, from the company which was awarded the franchise in 1968; and that it was awarded that franchise in competition with other major companies. Undoubtedly public opinion feels that this should be looked at, and we are very glad that the Authority itself has made this move. I think there was doubt about whether that company would
1228
have got the franchise in 1968 had it been known then that a newspaper proprietor was in such direct control of programmes and production personnel. Of course, my Lords, we do not want the Minister of Posts and Telecommunications to dictate to the Authority in any way, but we should like an assurance from the noble Lord that this kind of thing will be closely watched, and that Parliament will be able to discuss such matters as and when they arise.
My Lords, this industry is extremely complicated and important. It is becoming basic to our national life. Technically, it has almost no limits. We ought now to be considering satellite broadcasting and cassette television, which may revolutionise television as we know it in the fairly early future. We ought to be considering piped television; it is already with us. Now you can get television piped into your house just as you get the telephone and electricity. I think it a matter for consideration whether, in the remoter parts of the country, like Wales and Cornwall, we should have piped television; not with competition between Independent Television and the B.B.C., but with the two Authorities working together, so as to cut the cost—though I am sure that that would be unpopular with both Authorities.
I think the Government need to consider all these questions now. They were extremely ill-advised to abolish with such haste the Commission of Inquiry, proposed by the previous Administration. Even if the Government did not like the form that we proposed, I am sure that by now they must realise that some kind of long-term review is necessary. We are looking forward to the White Paper on commercial radio. The postponement of its publication is an obvious indication that the matter has proved more difficult than the Government thought it was when they looked at it from the Opposition Benches.
My Lords, this is an important, indeed a vital, industry. Even in the United States, the richest country in the world, television companies are in severe financial difficulties. Technically and financially, this is part of a world problem, and while noble Lords on this side of the House do not dissent from this Order they would like some assurance from the noble Lord that the Government are

1229
prepared to consider the whole future of broadcasting, and will not just tinker with it in a piecemeal fashion.
6.34 p.m.
BARONESS GAITSKELL: My Lords, I should like to add a very few words about this Order; but first I must declare an interest, as I am a member of the Board of Yorkshire Television. I welcome this Order and the reduction in the levy because in the present economic climate it has been very hard for such a company as Yorkshire Television to give investors a reasonable return on capital and to maintain the quality of its programmes. The public still exaggerates the profits that it thinks that television companies can make. The truth is that never again will companies be able to mint money or, to use that famous phrase, "print money". Perhaps that is a good thing.
Independent Television is now a risk business and not more privileged than other industries in the entertainment and communication business. I support my noble friend Lady Llewelyn-Davies of Hastoe who asked for a review of the finances of this industry. I think the reference to that was the most heartening thing in the speech of the Minister in the other place. It has become very urgent because ultimately the levy has not proved very satisfactory. Sometimes it helped only the richer companies; recently it did not prove helpful to London Weekend in the plight in which that company found itself. My noble friend Lady Burton of Coventry, who spoke from her great experience in I.T.V., suggested, in a most impressive speech on February 4, that the levy should go and that a tax on profit should be put in its place. Other people have suggested that a royalty should be charged for the use of the monopoly of the air.
I must refer again for a moment to London Weekend Television and the takeover by Mr. Richard Murdoch, though I am glad to see that a change has been made by the Authority. It again raises the questiton of financing the independent companies. The Independent Television Authority subjected those who applied for a new contract in 1967 to a thorough examination—a jolly severe viva—asking
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why they deserved to get a contract. It did not ask merely for financial wizards; had they been required, I do not see why all boards of Independent Television companies should not be composed of advertisers themselves, by magnates from among the soap powder producers. As my noble friend Lady Burton suggested, I believe that a public corporation and a commercial one should both produce good programmes of high quality and give alternative programmes. Independent Television is lagging behind the B B.C. in the provision of ambitious programmes. I hope that the reduction in the levy will help in the production of better programmes by Independent Television, as well as help to put its finances on a sounder footing.
6.37 p.m.
LORD DENHAM: My Lords, both the noble Baroness, Lady Llewelyn-Davies of Hastoe, and also the noble Baroness, Lady Gaitskell, received this Order kindly, but had one or two points on which they wished to comment. I will endeavour to deal very shortly with one or two of the matters they raised. Lady Llewelyn-Davies had a worry, as have we all, that the quality of I.T.V. programmes should be maintained and improved. The noble Baroness felt that possibly my right honourable friend had not done his sums quite as accurately as he might have done and that £10 million, minus £3½ million rental, might leave little more than was needed to increase the quality of the programmes. I can assure the noble Baroness that my right honourable friend has gone into this matter very throughly indeed and that the figure was arrived at after taking all the considerations into account.
I would remind the noble Baroness that under the Television Act the Independent Television Authority has a duty to ensure that the quality of I.T.V. programmes is maintained at a high standard. Section 5 of the Act requires that all the programme schedules of
contractors are approved in advance by the Authority; and it has power to direct that a contractor shall include or exclude a particular item or category of items. There is a sanction, in extreme eases, that the Authority may put the contractor out of business by terminating his contract.
BARONESS LLEWELYN-DAVIES OF HASTOE: My Lords, if I may interrupt the noble Lord, may I say that we are therefore particularly glad about the action taken by the Authority regarding London Weekend Television, and I welcome what he has said.
LORD DENHAM: My Lords, I am glad to hear that from the noble Baroness; it is the second point that I was going to make. I think that both noble Baronesses were happy with the announcement by the I.T.A. as it has appeared in the evening papers. I do not think I need to go into that further.
The noble Baroness, Lady Llewelyn-Davies, expressed a little unhappiness about the ending of the idea for the Annan Committee. I would remind her that my Tight honourable friend has undertaken to go into the whole question as to whether some form of inquiry on the future of broadcasting and all that it entails is necessary, and he is keeping a close watch on this point.
The noble Baroness, Lady Gaitskell, wondered whether a more equitable method of calculating the levy could be arrived at. This is a point that has always been put forward. It is thought to be a little unfair sometimes to base it on the advertising revenue, even though the way the levy is calculated takes into account what is expected to be the relationship between the advertising revenue and the expenses that have to come out of that revenue. My right honourable friend has undertaken to look closely into this point, and on this and other points he will of course take into account what has been said by the two noble Baronesses in the House to-night.
The other worry on this is that possibly the smaller companies do not get quite such a good deal. As I say, the Authority is going to help them out, even though they do not get any relief in respect of the levy, which they do not pay, by rearranging the rents that they pay. Perhaps I may give a few figures. The Independent Television Authority is reducing rentals for three companies: that of Westward is being reduced by £25,000; of Ulster by £101,000, and of Grampian by £54,000. None of these companies pays any levy. The reduction in the levy will however make it possible for improved programmes
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to be done by the major networks. As the charge of the network programmes is based upon the advertising, the smaller companies will get these network programmes cheaper, and so they will gain in this way. I am grateful to the two noble Baronesses who have spoken for their acceptance of this Order.

THE HUMANIST TRUST
6.44 p.m.
LORD BROCKWAY LORD BROCKWAY rose to ask Her Majesty's Government on what ground the Humanist Trust has been refused registration as a charitable body. The noble Lord said: My Lords, I beg leave to ask the Unstarred Question in my name on the Order Paper. The Humanist Trust is the educational agency of the British Humanist Association. Perhaps I may say a few words in opening about the sponsoring body.
When I was a youngster, I am afraid at the beginning of this century, most secularists and rationalists concentrated their propaganda in an attack upon the Churches and in ridiculing religious beliefs. I resigned from my church at 22 years of age, but I was not attracted by the propaganda which was then being conducted. It was only when the British Humanist Association came into existence that I associated myself with the cause. This was because it urged that those who were unable to accept the theology of the Churches should show that their own ethical and moral principles found expression in social service. The very fact that they rejected supernatural intervention in the affairs of men meant an obligation for endeavour by men themselves.
From the very first the British Humanist Association became concerned about poverty in Britain; about ill-housing, the penal system, racialism, world poverty and peace. And it showed its sincerity upon these social and world issues by, while retaining its philosophy, willingly co-operating with Christians upon all these issues. It became a member of the Social Morality Council with the Catholic and Protestant Churches, and its group which was concerned about reforms in the prison system voted in

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favour of incorporation with Christian Action. I say these words in introduction because I hope that they will make clear that Humanists are more concerned with humanism in social justice and world peace than they are in criticism of theologies or philosophies with which they do not agree.
It was in this spirit that in 1967 the Humanist Association established the Humanist Trust to carry on educational work. The Trust sought registration as a charity, because this would mean that its income would be exempt from taxation and could thus be fully used for its objects. The Deed was submitted to the Department of Education and Science. The Department proposed amendments. The Humanist Trust accepted all these amendments. The Deed was endorsed by the Department and the Trust was approved as a charity and registered.
There has never been any suggestion that the Humanist Trust has departed from the terms of the Deed which was so endorsed. But on April 27, 1970, the legal branch of the Department wrote that the Secretary of State had under consideration whether the Trust should continue to be registered. Objection was apparently to the wording of the Deed, which had been accepted by the Department, authorising the application of capital and investment—and I quote:
"for the advancement of the education of the public"—
I leave out words which were left out in the letter from the Department—
"with respect to the ideas and principles known as 'humanism'. That is to say, the moral and social development of the community free from theostic or dogmatic belief and doctrines."
The submission of the Department was that the real purpose of such education was the promulgation of humanism, and not charity. The Trust was informed on January 14 last that it had been removed from the register.
I want to raise one incidental administrative point. The withdrawal of the registration was made under Section 4(3) of the Charities Act 1960. This was stated in the letters from the Department of Education and Science on April 27, 1970, and November 4, 1970. This section—Section 4(3)—would seem to provide only for cases in which a charity has ceased to exist or operate, or has
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made a change in its purpose or trust. None of these grounds applies to the Humanist Trust which, under this section, was nevertheless withdrawn from registration.
But, my Lords, I want to do much more than raise that administrative point—important as it is. I recognise that there is an issue of great importance involved. It is this: should a body be registered as a charity and be exempt from taxation because its educational work springs from a particular philosophy or from particular principles? I suggest that this should depend on the character of the educational work which is carried out. If it is informative, objective, reasoned, whatever its inspiration, it should be of value to correct judgments on the issues with which it deals. I repeat, there has been no suggestion that the Humanist Trust has gone beyond its obligations in the Deed which was endorsed by the Department. Its education has been for the moral and social development of the community. When the Deed says it shall be,
"free from theostic or dogmatic belief and doctrines"
it is, surely, recognised to-day that contributions can be made to a moral code, and to social welfare, irrespective of philosophic or theological views.
There is also an issue of justice here. Religious bodies are accepted as registered charities without any restriction whatsoever. The teaching of religion is itself accepted as a ground for registration as a charity. The Anglican, Nonconformist, and Catholic Churches all enjoy this privilege. Special privileges were made to include the Catholic Church. May I assure the House that I am not speaking in opposition to the rights which are enjoyed by the Churches.
A NOBLE LORD: Why not?
LORD BROCKWAY: If I may indulge in a personal note, there was a time when I declined to go to church services. I have revised that attitude, not only because of a reverence for the ethical teachings and the life of Christ as it has been recorded, but because of the great moral contribution which the Churches are making in the world to-day on racialism and on apartheid in Southern

1235
Africa Because of that I am glad to be with them. Perhaps I may just add this personal note: many of us who are in the Humanist Association are not atheists; we are agnostics. We have spiritual experiences which present knowledge cannot explain but which seem to us inadequately interpreted in the theology of the Churches. But that does not mean that we are not influenced by some sense of creative purpose. Forgive me for that personal departure. I wish to urge that in our present pluralist society, when the Churches have not exclusive authority in the expression of moral codes, social welfare and human values, it cannot be maintained that they should have an exclusive status as charities serving the community. As this debate will indicate, many members of the Churches do not claim that privilege.
I have spoken so far of the Humanist Trust. It is the first victim of the policy which the Department of Education and Science have now inaugurated. The Department are at present in discussion with other organisations as to whether the same practice should not apply. I am raising the issue to-night not only in the interests of the Humanist Association but because one does not want to see other educational activities of a valuable kind affected. For example, another organisation is the Rationalist Press Association, which publishes the works of the British Humanist Association.
Finally, my Lords, I would make the point that the time has come for a review of the whole subject of the registration of charities. When the Humanist Trust asked the Department of Education and Science for a definition of a charity which could be registered they declined to give that definition. There are four broad classifications for registration as a charity: first, religion; secondly, the relief of poverty; thirdly, education, and fourthly, general public profit. But apart from those headings there is no definition whatsoever. I suggest that it is time that the law was clarified and defined. At present there are the most absurd anomalies. Funds for the assistance to the dependants of the murdered policemen at Shepherds Bush were excluded from the benefits of a charity because the names of the individual victims were recorded. The
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Charity Commissioners declined to accept Toc H as a charity because one of its aims was "to promote the welfare of the Armed Forces". The Charity Commissioners insisted on the substitution of the word "efficiency" for "welfare". One would have thought welfare was nearer charity, but the Charity Commissioners insisted on its deletion because it implied service to a section of the community rather than to the community as a whole.
The Law Commission is considering law reform, and I address myself now particularly to the noble and learned Lord the Lord Chancellor, who I appreciate is on the Woolsack. The Humanist Trust suggested to the Secretary of the Law Commission that the law on charities should be included in its consideration. The Secretary replied that the law of charities is not in its current programme, but:
"… it will be borne in mind when the Commission next comes to think about the selection of further subjects for us to study".
I hope that the noble and learned Lord the Lord Chancellor, that members of the Commission who are in this House and that Her Majesty's Government will urge the Law Commission speedily to make an examination of, and recommendation on, this issue.
Meanwhile, my Lords, I ask the Government and the Department of Education and Science to reconsider their decision in the case of the Humanist Trust. I think I have indicated that it was not justified and that it is not fair in relation to other charities. Recognition of a charity in the climate of present thinking should not depend on either traditional theology or challenging philosophies, but on the value of the education and service provided to the knowledge and inspiration of our developing society.
7.5 p.m.
LORD BEAUMONT OF WHITLEY: My Lords, I rise to add very briefly to the last major point made by the noble Lord, Lord Brockway, on the whole question of the registration of charities. We have heard from him some examples of the difficulties that are now caused by the vague, but yet narrow—a most unfortunate combination—definition of "charity" now applicable. There are of

1237
course others. One does not have to be against the public school system to wonder why for many purposes public schools, although most of them were founded as charities, are now charities. There is the very difficult situation of more and more charities who find they cannot seriously do their job unless they are at the same time advocating some change in the law, because they are trying to help the condition of people which often can be helped only by some change in the law. Your Lordships will have been aware of the many things which have come before Parliament, indeed before this House, in the last year or two and which have been started by charities, registered as such but which, within the actual terms of the Charity Commissioners, have been behaving improperly.
There is the question of more and more interesting but diverse bodies. There is the body "Release", which almost all of your Lordships will have read about recently. They were in trouble as a result of the postal strike, and now, having got some money, they have not yet managed to be registered as a charity. Their correspondence with the Charity Commissioners has been marked by a vagueness and an unwillingness to explain why they should not be registered, a fact which not only they but their legal advisers and I find extraordinary. I am not casting any slurs on the Charity Commissioners themselves. What I am suggesting is that they are having an extremely difficult job to do within their present terms of reference.
We are moving into a society now where bodies are becoming less and less pigeon-holed. It becomes more and more impossible to say that such-and-such a body is just a charity for the relief of the poor; often it is much else besides. I should have thought that this was a moment when the Department of Education and Science should be thinking of widening the whole terms of charities, rather than narrowing them. I would ask (I do not expect an answer to-night, because I have not given notice of this point) that the Government should look at the possibility of examining the whole concept of charities again, the whole business of classification, and the registration and relief of charities. Indeed, some of your Lordships may think the subject big enough, as it involves many thousands of bodies and many millions of pounds,
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for it to be discussed as a whole by your Lordships one Wednesday or other convenient day.
7.8 p.m.
THE LORD BISHOP OF LONDON: My Lords, in the earlier part of his speech the noble Lord, Lord Brockway, spoke in such a moving way about his own relationships with other faiths that it makes it almost unnecessary for me to say what I was going to say. However, I felt it was important that it should be said from these Benches that we should not ourselves seek to deny or restrict to any others the freedom to hold opinions, a freedom which we are grateful that we possess. Nor should we wish to stifle free and fair discussion of current religious beliefs and practices. In a recent publication of the Schools Council, called An Approach Through Religious Education, I found a phrase to which I should be very happy to subscribe completely:
"It is inevitable and proper that the conflict between Christian and Humanist, and within Christian theology, should be reflected in any discusion of the content and method of religious education".
That, I believe, is right and wise and Christian; and I hope that, whatever else may lie behind this very difficult, technical question of charitable trusts, it will not be thought that the right to hold opinions and to express them in a proper, balanced manner is in any way to be frowned upon, but that it is very much to be encouraged.
7.10 p.m.
BARONESS PHILLIPS: My Lords, I shall intervene only briefly. I should like to thank the noble Lord, Lord Brockway, for introducing this Question this evening because it gives us an opportunity to air this subject. He has put his case so eloquently that I would not presume in any way to say other than that I am in deep sympathy with the facts that he has presented here. But I must at once declare an interest in that I am the sponsor of a small Trust which was set up five years ago to give information and advice to housewives in relation to consumer affairs. Unlike the Humanist Trust, we have not even got on the Register to enable us to be put off. We have twice made application to the Charity Commissioners and we have been rejected, the reasons for the rejection appearing

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to be that the aims and objects are outside the field of charity.
Perhaps I may quote from one of the letters sent by the Charity Commissioners:
"The purpose prescribed by Clause 4 of the Trust Deed … appears to be the establishment of what might be described as a consumers' association. This is something outside the field of charity. It would not be sufficient to suggest that this is a purpose beneficial to the community, and so comes within the fourth division of charity in Lord Macnaghten's classification in Pemsel's case. To come within that division, a purpose must be beneficial in a way which the law regards as charitable; and to do this it must be within the spirit and intendment' of the preamble to the Statute 43, Elizabeth I, the Charitable Uses Act 1601."
My Lords, 1601, 60 years before the Great Fire; and this is the Act that is quoted to us!
Being a simple soul I sought enlightenment from the Charities Act 1960 for a definition of "charity". I have the Oxford Dictionary definition of "charity" as "liberal in giving to the poor "—I hasten to say with a small "1". But within the Charities Act we find the definition of charity is:
"A charity or institution, corporate or not, which is established for charitable purposes and is subject to the control of the High Court in exercise of the Court's jurisdiction".
This did not seem to take me very far, so I then examined the Charities Digest to see what the charities already listed had in common. As one might imagine, many of these were concerned with the welfare of the handicapped and old people, and there was a curious division of charities for women and charities for ladies. I hope I shall come under one of those if I ever need to collect a charity. About 31 were concerned with the welfare of animals, and then there was a whole section dealing with the family. I was particularly interested to see one—the Institute of Marital Studies, which seemed to suggest that one could give advice on marriage and be charitable, whereas to give advice on housewifery was not charitable, though I recall that many of the separations that come before me in the domestic court are the result of mismanagement of the housekeeping rather than deeper causes.
With the two noble Lords who have spoken, I feel that the time has come for a new look at the laws of charity. One may ask, who are the poor? I should like
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to describe a group that I think is poor and not one that is commonly accepted as being in need of sympathy. These are the young people I work with; a young couple in a new town, with two or three small children, just outside the big city. Their transport is costly, their mortgage or their rent is high, the children are at their most expensive, the young husband does not earn very much and with our present incremental scales he is not likely to earn a high salary until he is getting to the point when he probably will not need the money quite so much. Are these folk not poor, my Lords? In the sense of an Act of 1601 they did not in fact exist, but I would suggest that they are poor if you set them against the present economic conditions.
All we have sought to do is to try to help them with their housewifery and yet this is not deemed charitable. We are in a curious situation while seeking registration—rather like the trade union of which I heard once: you could not become a member of the union unless you were working and you could not work unless you were a member of the union. I always wondered how you broke through the deadlock. We are in a similar situation: we are a charity without any property, we are never likely to get any property or any money until we become registered as a charity, nor are we going to be able to get any money from Trust funds.
My Lords, the poor will always be with us; they will always be different. Let us at least look again at this law to see whether we cannot move away from the great rigidity in which we find ourselves at this present time.
7.16 p.m.
LORD PLATT: My Lords, in view of the speeches which we have just heard I think I also can be very brief. The noble Lord, Lord Brockway, has most admirably expressed the views, feelings, beliefs and ideals of the Humanists, and although I do not belong to any Humanist body or association or group I have always considered myself a Humanist and I have tried to live to its ideals. The only criticism I would make of what the noble Lord said is that perhaps he was a little too apologetic for the Humanists, because I think to-day they embrace quite a large section of the population. How large, it

1241
is of course impossible to say, because on the few occasions when I have allowed myself to burst into print on the subject of atheism I have usually been sternly criticised for my views in the relevant newspapers and warmly praised by a shoal of letters which I have received at home. So it is rather difficult to know quite how strong our position is.
I prepared some notes of a speech which was to be in two parts. The first part I have already given; the second part was only to be used if there was any kind of attack. But I think that the debate has been on such a very high level that it would be completely out of place for your Lordships to know what was in my notes for the second part of my speech.
7.19 p.m.
LORD SOPER: My Lords, may I first ask the indulgence of the House, because I have an important engagement that will require me to leave in a very few minutes. But I should like to join the ecumenical movement which has already been active in your Lordships' House this afternoon. After the ultra montanism of my noble friend Lady Phillips, the Anglicanism, of course, of my ecclesiastical friend from London, I should now like to add the weight of Noncomformity to the general tribute that we pay, or we should pay, to the Humanist movement in general and to voice our general perturbation at what seems to us an injustice in the withdrawal of the status to which I believe they are richly entitled.
I am encouraged to make a brief continent on the reasons for which I would like to call myself a Humanist—perhaps a Humanist-plus: "All this, and Heaven too!" I am quite sure that the difference between the Humanist and the Christian is not that one is in contradistinction to the other but that the emphasis of the Humanist is upon the ethical principles of personal and social life, whereas I feel that we Christians have been far too much preoccupied with metaphysics, very often to our own discredit, and certainly not always to our own edification or unity.
It appears to me that in this particular reference to the Humanist practice there is at least lying behind what has happened the assumption that Christian charities have a monopoly of that love, in the
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proper meaning of the word, and that there is something suspect perhaps about education when it is not carried out on theistic lines and principles. If indeed the word "charity" means "love", how can one better express one's love of one's fellow creature than by endeavouring to raise him by education from illiteracy to knowledge? And why should we be afraid of it, particularly when in the actions and activities of the Humanist Trust there is such evidence of the practice of the Christian ethic, even if it is separated from the enunciation of the metaphysical Christian truth?
For that reason, I will add my brevity to the admirable brevity of those who have spoken and say that I hope that close attention will be paid to the gravamen of the charge which was so splendidly and, I thought, movingly put by my noble friend Lord Brockway: that here is a question which must be answered; here are issues which must be faced; here is a question with regard to the whole constitution of what is to be regarded as a charity that is in urgent need of clarification. But, above all, here is need for the magnanimous expression of a truth which surely belongs to a civilised community; that search for truth, and its propagation, even as percolated through those with imperfect knowledge of it, and is itself a charity, should be recognised as such, and should be so cherished.
7.22 p.m.
LORD O'HAGAN: My Lords, I have no idea what the noble Lord, Lord Belstead, is going to say, but if he says he can give no answer at all to this Question because it is a matter for the Charity Commissioners, constitutionally he may be right, because the Charity Commissioners are a sort of semi-independent republic, not answerable to Parliament, and from whose decision the only possible appeal, so I have been told, is to the courts. It may be that the Department of Education and Science are now equally privileged, in which case we shall all have been wasting our time. But I hope the noble Lord will not be as negative as that, for the whole field of charity is attracting rapidly increasing public scrutiny, as has been evidenced by the comments from all quarters of the House to-night. The Government should be aware of this, because they will

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have to do something about it, sooner or later.
A good number of your Lordships have obviously tried, as I have, to find out what charity is and what charitable purposes are. I got as far as the noble Baroness, Lady Phillips; I reached the Preamble to the Act of Charitable Uses 1601, and this seems to be the fountain head of the subject. What she did not say was that it has been repealed, although it is still used as the basis of the law on charities. That Preamble contains a 17th century shopping list of what was then decided to be charitable, and all other purposes have since been tacked on by analogy through case law. So we have got a rather untidy and confused situation.
I am not asking for a close, compact definition of charity: that is obviously impossible to achieve, however desirable it might be. On the other hand, the present situation does produce some most extraordinary anomalies, and I would add two more, if I may. I understand that one charitable trust has been set up for the promotion of chess playing among the boys and youths of Plymouth; while, on the other hand, a Minister in the last Government has told me that polytheistic religions or religions which encourage ancestor worship would be very unlikely to be accepted as charities; and that, I believe, is the view of the Charity Commission.
As for the poor humanists, they appear to have been tried in a way that Stalin would have aproved of, in camera, and punished for obeying the law. One wonders when the purge of charities is going to stop. I hope the noble Lord, Lord Brockway, will forgive me if I tamper with Shakespeare and say to him:
"Age cannot wither him, nor custom stale His infinite variety."
Once again he has raised a very important subject and done a service to this House and the country. His Question illustrates what many people are beginning to feel are the inadequacies of the position of charities in this country. For example, what the Charity Commission regards as political activity, as the noble Lord said, appears to be quite grotesque.
Whatever the noble Lord, Lord Belstead, has to say to your Lordships
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about the peculiar behaviour of his Department, I hope he has noticed the number and the wide interests of those who have spoken in your Lordships' House to-night. Unless the noble Lord can put this very unfortunate business right, he will be piling up yet more evidence for the repeal of the Charities Act 1960 and the introduction of radical and rational legislation. I know that charities in this country are comparatively well treated, both by law and by the Inland Revenue, at least if one looks at the situation in Europe or North America. But there is muddle and uncertainty, and charities and the general public have a right to know where they stand.
7.28 p.m.
THE PARLIAMENTARY UNDERSECRETARY OF STATE, DEPARTMENT OF EDUCATION AND SCIENCE (LORD BELSTEAD): My Lords, I have listened with interest and sympathy to the speeches which have been made on Lord Brockway's Unstarred Question this evening, and I certainly respect the concern which the noble Lord has expressed to the House. I think that Topsy has really nothing upon the ingenuity of the way in which your Lordships are able to transform the fairly specific terms of an Unstarred Question into a general debate, and if I am unable this evening to answer in detail each of the questions which have been put in this debate, I hope that you will acquit me of any discourtesy and rather attribute to me the desire to follow carefully the brief which must reply to this most serious Question which the noble Lord has raised this evening.
At the risk of covering familiar ground, it might be of assistance to this debate if I follow the course of events in this matter. The first approach for registration of the Trust was made on June 20, 1966. After correspondence between the Department of Education and Science and the Humanist Trust, solicitors submitted to the Department on February 3, 1967, the draft of a Trust Deed. The Deed was executed and formally submitted for registration on July 4, and the Trust was entered on the Register on July 24, 1967.
Then on November 13, 1969, the Department was asked by the Inland Revenue to reconsider the question as to

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whether the Trust Deed declared charitable purposes. After reviewing the position, the Department decided that the Deed did not declare charitable purposes. On April 24, 1970, a letter was sent to the Association—the noble Lord, Lord Brockway referred to April 27; it was April 24—saying that the Secretary of State would be prepared to consider any representations made to him. The Association replied on May 22 protesting at the decision, and on June 2, 1970, the Department admitted that a mistake had been made in entering the Trust on the Register. On July 27 the Association wrote informing the Department that they were proposing to take advice. The Department waited for three months more, and on November 4 last wrote asking whether the Association had further representations to make, and, no reply having been received, two months later, on January 6 of this year, the Trust was removed from the Register.
LORD O'HAGAN: My Lords, may I interrupt the noble Lord, if he has finished the catalogue of events? Are we to understand that the Inland Revenue is the arbiter of what is, or what is not, a charity?
LORD BELSTEAD: No, my Lords. As a result of a case which involved a will, the Inland Revenue drew the attention of the Department of Education and Science to this Trust Deed.
I very much regret the circumstances of this matter. The Humanist Trust had applied, negotiated, agreed to amendments and was finally entered on the Register, and I accept the noble Lord's concern to express disquiet at this course of events. But what is less certain is the suitability of this as a subject for Parliamentary debate. The Humanist Association was entered on the Register of Charities under Section 4(2) of the Charities Act 1960. Removal from the register is in pursuance of Section 4(3), which provides that the Secretary of State shall remove from the register any institution which no longer appears to the Secretary of State to be a charity. The noble Lord specifically asked about Section 4(3) which provides for the removal of—and these are the first words of the subsection:
"any institution which no longer appears to the Secretary of State to be a charity."
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It would seem to me that this could refer to the Humanist Trust. This is precisely the point which could arise in regard to the right of appeal to the High Court which is provided by Section 5(3) of the 1960 Act.
LORD BROCKWAY: My Lords, I do not want to interrupt the Minister, but does he not appreciate that to ask the Humanist Trust to go through all the proceedings of the court to the highest stage would be appallingly costly, and to make that the only alternative for a voluntary organisation seems a little unjust?
LORD BELSTEAD: My Lords, indeed I do. The alternative, as the noble Lord is asking this evening, is that the law on charities should be altered. Several other noble Lords are asking for this also. I am not the Minister who should reply to such a weighty question. For that reason, I am glad to welcome my noble and learned friend on the Woolsack here this evening. The trustees have not seen fit to bring an appeal and the noble Lord, Lord Brockway, has partly explained why. But the time for appeal is none the less still current. The Secretary of State is in a judicial position both to enter and to remove charities whose purposes are wholly or mainly her concern. Thus, I put it to your Lordships, so that you may understand, I must not this evening go into the position of the Trust, bearing in mind that the right of appeal against this decision, whatever our private feelings may be, is still current.
I would say to the noble Lord, Lord Beaumont of Whitley, and to the noble Lord, Lord O'Hagan, that neither the Department of Education and Science, nor, I believe, the Charity Commissioners, have the power to widen the intake of charities. The questions here at issue are matters of law, and the Department's functions are purely judicial; there is no room for political or administrative discretion, and an appeal lies to the High Court from a decision. For these reasons, the suitability of Parliamentary debate on the correctness of the Department's decision really is open to question this evening. Indeed, I would draw the attention of your Lordships to the situation of trusts which are the responsibility

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of the Charity Commissioners. Such trusts outnumber others upon the register in a ratio of about 2 to 1, yet the Charity Commissioners' decision cannot be called into account to Parliament because there is no ministerial responsibility, although here again there lies a right of appeal.
May we be clear in regard to the words of the noble Lord, Lord Brockway, when he opened this debate—to which I listened with the greatest sympathy and attention—to the noble Lord's closing remarks, and those of the noble Baroness, Lady Phillips, in referring to a repeal of the law relating to charities. I repeat that this is something to which I am not competent to reply this evening, and that is why I am extremely glad that my noble and learned friend on the Woolsack is with us. It is open to my noble and learned friend to speak at the end of this debate if he so wishes.
I put these matters in no abrasive manner, but to try to explain why it seems to me so essential that, on behalf of my right honourable friend, I should reply to this question by frankly and carefully following the advice which I receive. This is a judicial matter, and I believe that this House would be the first place to disapprove of a layman's opinion, however sympathetically it may be offered. However, the noble Lord, Lord Brockway, has clearly advanced his concern as to the reasons for this decision, and this is the subject of the Question.
The noble Lord has asked why it is that the Humanist Association, wishing to go about its work in the same way as many other institutions, some of which are charities, is now removed from the register. The answer lies, I think, in the second and third paragraphs of the Department's letter, to which the noble Lord and I have both referred, of April 24, 1970. In it these words appear:
"The Trust is regulated by a deed dated 26 June 1967, Clause 4 of which authorises the application of capital and income 'for the advancement of the education of the public with respect to the ideas and principles known as humanism; that is to say, the moral and social development of the community free from theistic or dogmatic beliefs and doctrines'."
The letter continues:
"In the context the word 'education' appears not to be used in the sense in which it would be legally charitable. The real purpose
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is plainly the promulgation of humanism as defined in the clause. Such promulgation is not charitable, and cannot be made so by describing it as education."
LORD BROCKWAY: My Lords, does the Minister not remember that I quoted exactly those passages? What I asked was: is it not the case that the Department of Education and Science accepted the Deed containing those words, endorsed them and registered the trust as a charity? Although the Humanist Trust acted within those terms—there is no suggestion that it has not done so—it has now been refused recognition as a charitable organisation. Are not those the facts? The Department cannot get out of it.
LORD BELSTEAD: My Lords, I am grateful to the noble Lord for refreshing our memories. It is precisely for that reason that I have given the noble Lord an unqualified apology for what has occurred in the Department. It is also why I have repeated those words, because I now wish, finally, to take up the point. Section 2(2) of the 1960 Act provides that the Secretary of State shall act in relation to charities whose purposes are wholly or mainly her concern. As I have already sought to explain, Section 4(2) and (3) lay a duty that the Secretary of State shall enter on the register any institution with charitable purposes, and shall remove any institution with purposes which do not appear charitable.
The difficulty arises in this way. When the 1960 Act was passing through all its stages neither House could arrive at a statutory definition of "charitable purposes", and the question whether any institution is so established has to be determined in the light of the principles laid down in decisions of the courts. A trust for the advancement of education which is for the public benefit is recognised by the law as charitable, but the precise conception of "education" is uncertain. The courts have regarded the spread of doctrine as falling outside the scope of education and not as charitable in law—unless, of course, it can be brought within one of the other categories of charity. In this light, the noble Lord, Lord Brockway, may very well disagree with the decision transmitted in the letter of April 24. Indeed, he spoke eloquently in saying that the touchstone ought to be the character of education which was

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being offered. But the solution for this disagreement lies in an appeal to the High Court, and the case must be argued by counsel, and not here on the Floor of the House.
I am advised that Section 5(1) of the 1960 Act provides expressly that, except for the purpose of rectification in such a case, registration as a charity is conclusive evidence that the institution concerned is a charity. The Act also provides for the situation where an institution has been wrongly placed on the register. There is no question, therefore, of any retrospective nature in this decision. My Lords, eight months elapsed from the time the initial letter of warning was sent to the Trust, and also six months from the time the Trust informed the Department that it was taking advice up to the date of removal from the Register. A right of appeal still exists. I hope that any further action which the Trustees may have considered will at least he facilitated by the considerable information I have sought to lay before your Lordships this evening.