Lords Sitting of 30 March 1971

Preamble
The House met at half past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Rochester.

POST OFFICE LOSSES
LORD SLATER: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government what proposals have been sent on to the Minister of Posts and Telecommunications by the Post Office Board to offset the losses incurred, in the providing of postal services; and what consultations have taken place with the Post Office Users' Council on any such proposals and what has been the Council's reaction.]
LORD DENHAM: None, my Lords.
LORD SLATER: My Lords, is the noble Lord aware that during the recent dispute much publicity was given to the alleged losses incurred, and would be not agree that such estimates were out of line, due to the more frequent use of the telecommunications section? Secondly, what effect had this dispute on the mechanisation of the sorting programme? Finally, is the 'noble Lord in a position to state the number of services for which the postal section of the Post Office are responsible on behalf of the general public?
LORD DENHAM: My Lords, it has been suggested that the estimated net loss to the Post Office of £27 million should be nearer £20 million because of the additional profits on the telecommunications service. As to any reduction in services provided by the Post Office, this, of course, is a matter for the Post Office; and if they come to any such conclusion they would first consult the Post Office Users' National Council and, of course, seek the approval of my right honourable friend.
LORD SLATER: My Lords, I am quite aware that the Users' Council have to be consulted in regard to the operation of the Post Office services. But would not the noble Lord agree, in view of the statement of the Minister for Posts and Telecommunications which appears in Hansard for March 15, that the Minister has had quite a number of conversations—those are his words—with the Post Office Board in regard to the operations of the Post Office?
LORD DENHAM: My Lords, my right honourable friend has had discussions with the Post Office Board, but these have been of a general character and no firm proposals have been put forward to my right honourable friend by the Board.
BARONESS LLEWELYN-DAVIES OF HASTOE: My Lords, since the Minister is able to by-pass the Board unless there is a Chairman of the Board, can the noble Lord tell us when there is any possibility of a new Chairman being appointed?
LORD DENHAM: No, my Lords, I cannot give your Lordships that information at the moment.
LORD SLATER: My Lords, is the noble Lord not aware that this is rather unfortunate? After all, the Post Office Board as set up makes provision for not only a Chairman but two Vice-Chairmen, and to date we have heard of only one Vice-Chairman, Mr. Ryland, taking the initiative and acting on behalf of the Post Office; and the second Vice-Chairman has never been heard of at all.
LORD DENHAM: My Lords, this is rather wide of the original Question, but I am sure my right honourable friend will take note of what the noble Lord, Lord Slitter, has said.

MOUNTAIN RESCUE TEAMS: INSURANCE OF MEMBERS
2.40 p.m.
LORD INGLEWOOD: My Lords, I beg 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 authorise police authorities in England and Wales to

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insure mountain rescue personnel on the same basis as now obtains in Scotland, and that such insurance premiums should attract grant equally with other police expenditure.]
THE MINISTER OF STATE, HOME OFFICE (LORD WINDLESHAM): My Lords, my right honourable friend the Home Secretary is considering this, in consultation with the local authority associations and chief officers of police.
LORD INGLEWOOD: My Lords, is not my noble friend aware that chief officers of police are anxious for something of this sort to be done? And why must England hang behind Scotland in this extremely sensible provision?
LORD WINDLESHAM: My Lords, I am not aware of what the noble Lord has said about chief officers of police in England. They are being consulted now. We feel that it would not be right to agree to expenditure from public funds without knowing what might be involved. The need for mountain rescue is, of course, far greater in Scotland than in England and Wales.
LORD INGLEWOOD: My Lords, on the contrary, is my noble friend not aware that the need for mountain rescue in Wales and parts of the North of England is very great, and that these teams, mainly young men of the very highest quality, give of their services weekend after weekend, making do with the very minimum of equipment, and that there is no charge on public funds? Surely my noble friend is prepared to meet this very small but very worthwhile request.
LORD WINDLESHAM: My Lords, as I have said, the Home Secretary is considering this matter. I agree that mountain rescue teams perform a valuable and praiseworthy service, but before entering into any commitment of this sort it is wise to consider what the practical implications and the expenditure is likely to be.
LORD SHACKLETON: My Lords, would the noble Lord find out the facts on this matter? Is he aware that he is not as well aware of the facts as the noble Lord who has just spoken? Perhaps
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when he has found out the facts, he may consider pressing the matter further and let us know when a decision is to be taken.
LORD WINDLESHAM: My Lords, I do not accept that. I should like the noble Lord to tell me where he thinks I have not given the full facts.
VISCOUNT MASSEREENE AND FERRARD: My Lords, would not my noble friend agree that there are far fewer mountains in England and Wales than in Scotland?
LORD SHACKLETON: My Lords, is the noble Lord aware that there are far more climbers in England and Wales than there are in Scotland?
LORD WINDLESHAM: My Lords, I hope that we may have an opportunity to discuss this matter again. If the noble Lord has figures about the number of mountains and climbers, I should like to hear them.
LORD SHACKLETON: My Lords, I do not want to take this matter too far, but we are asking the Government to assist. Is the noble Lord aware that his facts are not in line with those of the noble Lord who asked this Question? I will not press the Minister any further: we are only asking him to take notice of this.
LORD WINDLESHAM: My Lords, the noble Lord the Leader of the Opposition is very right not to press me any further. The only point at issue is what the noble Lord, Lord Inglewood, said about the police in England and Wales, and the information I have is that the Association of Chief Officers of Police has been asked to gather information. We have also been in touch with the Scottish Home and Health Department and asked them to give us full particulars of their scheme. I am not aware that chief officers of police have given information on these lines.
LORD WYNNE-JONES: My Lords, is not the noble Lord aware that the attitude of the Government may force the natives of Cambria to associate themselves with the natives of Wales, and to become a serious thorn in the flesh of the present Government?
LORD WINDLESHAM: My Lords, I do not think I ought to be drawn any further on this Question.
LORD HUNT: My Lords, is the noble Lord aware that I have access to the facts which he is so anxious to have, but unfortunately I cannot put them in the form of a question? However, I feel just as strongly as the other speakers on this most important question.
LORD WINDLESHAM: Yes, my Lords. If the noble Lord will write to me, or speak to me, I shall be very glad to hear from him. I hope that noble Lords will look back at the Answer I gave. My right honourable friend is considering this particular proposal.
LORD BLYTON: My Lords, is the noble Lord the Minister aware that there are climbers on both sides of this House who do not need insurance policies?

MR. HENRY FORD AND BRITISH INDUSTRIAL RELATIONS
2.46 p.m.
LORD BESWICK: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government what assurances were given to Mr. Henry Ford II on behalf of Her Majesty's Government about the future of industrial relations and economic activity in the United Kingdom.]
THE MINISTER WITHOUT PORTFOLIO (LORD DRUMALBYN): My Lords, no assurances were given to Mr. Henry Ford by Her Majesty's Government, and none was asked for.
LORD BESWICK: My Lords, I am much obliged for that non-information, and I am sorry that Her Majesty's Government were not more confident about the future of the country. Could the noble Lord say whether they called Mr. Ford's attention to the fact that in the five years up to the time that the present Administration took over, the number of days lost per thousand workers in this country was rather less than a quarter in comparison with those lost in the United States of America?
LORD DRUMALBYN: My Lords, I am sure that the House is grateful for that piece of information, but I think it would be qui4e wrong for me to divulge what was said at what was, after all, a private lunch party.
LORD BLYTON: My Lords, does not the noble Lord think that it was a bit "cheeky" for Mr. Henry Ford to come here and talk about labour relations?
LORD DRUMALBYN: My Lords, I think that Mr. Henry Ford is welcome here, and has every right to come here by reason of his considerable investment in this country and the interest which he has always taken in this country.
LORD BLYTON: My Lords, I agree, but was it not "cheek" to lecture us on labour relations when they are worse, in America?
LORD DRUMALBYN: My Lords, it is the obvious purpose of anyone who owns a product, or runs an industry which has a product of world-wide repute, to take into account what are the comparative conditions in different countries. He must do this in order to meet his commitments.
LORD GARNSWORTHY: My Lords, in view of the kind of derogatory remarks he made, was it fitting that he should have been given such generous hospitality, and at such a level?
LORD DRUMALBYN: My Lords, I think one must recognise that Mr. Ford has his own problems and is very well able to appreciate those problems, and it would not be in his interest to make derogatory remarks that had not some justification for them.
VISCOUNT HANWORTH: My Lords, would the Minister agree that there is still such a thing as free speech in this country? People are entitled to their opinions, and that is particularly so when they are not protected, as they are in the House of Lords, from making any statement which they wish to.
VISCOUNT MASSEREENE AND FERRARD: My Lords, would not my noble friend agree that the trouble at Ford's has been due, to a certain extent, to weak management, in so far as Ford's have promoted militant Communist shop

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stewards in the hope of appeasing them, when they should have sacked them? Ford's have been too easy-going.
LORD DRUMALBYN: My Lords, Mr. Henry Ford conducted a Press conference of his own, and he made it quite clear that the faults were not all on one side.
LORD BESWICK: My Lords, may I ask the noble Lord whether he is aware that, for my part, I welcome Mr. Ford's appearance in this country and I welcome his inquiries? What I am anxious about is that he gets a fair presentation of the facts, and not simply a Conservative presentation.
LORD DRUMALBYN: My Lords, I do not think that anyone on this side of the House, and not many people on the other side of the House, would accept that as a statement of fact. Mr. Ford indicated that he was drying to reach a solution which would be favourable to this country and that he was prepared to go on investing in this country, but he did draw attention to the fact that the greatest handicap in his industry in this country was a perpetual interruption of production through wildcat strikes.
VISCOUNT ADDISON: My Lords, is the noble Lord aware that Mr. Henry Ford has made a great deal more money out of this country than his company have ever put into it?
THE EARL OF ARRAN: My Lords, would not Her Majesty's Government agree that this country is not in need of advice from foreign industrialists on how to run our industrial affairs, and that we are not yet entirely subservient to the United States?
LORD DRUMALBYN: My Lords, I am sure that Mr. Henry Ford was concerned only with the running of his own concerns, his own factories.
VISCOUNT ST. DAVIDS: My Lords, was there not an easy way in which Her Majesty's Government could make quite sure that Mr. Ford's very valuable product would continue to be manufactured at a profit in this country? Since Her Majesty's Government now own, or are
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about to own, part of the car industry, would it not be possible to give him, free of charge, part of that industry, just as they are doing in the air industry?
LORD DRUMALBYN: My Lords, I think that is quite a different question, if I may say so.

TORBAY CORPORATION BILL
Read 2a, and committed to the Committee on Unopposed Bills.

BUSINESS OF THE HOUSE
THE LORD PRIVY SEAL (EARL JELLICOE): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That, until the House adjourns for the Recess at Easter, Standing Order No. 36 (Arrangement of the Order Paper) be suspended so far as is necessary to give Government business, except with the consent of the Government, precedence over other Notices and Orders of the Day, and that Standing Order No. 42 (No Two Stages of a Bill to be taken on one day) he suspended during the same period.—(Earl Jellicoe.)
On Question, Motion agreed to.

BRITISH ALUMINIUM (SALTBURN PIER) ORDER CONFIRMATION BILL
Considered on Report.

BETTING, GAMING AND LOTTERIES (AMENDMENT) BILL [H.L.]
LORD STONHAM: My Lords, I beg to move that this Bill he now read a third time.
Moved, That the Bill be now read 3a.—(Lord Stonham.)
On Question, Bill read 3a, and passed, and sent to the Commons.

CONSOLIDATED FUND (No. 2) BILL
EARL JELLICOE: My Lords, I beg to move that this Bill be now read a second time.
Moved, That the Bill be now read 2a.—((Earl Jellicoe.)
On Question, Bill read 2a: Committee negatived.
Then, Standing Order No. 42 having been suspended (pursuant to Resolution), Bill read 3a, and passed.

CONSUMER PROTECTION BILL [H.L.]
LORD DERWENT: My Lords, I beg to move that the Commons Amendment be now considered.
Moved, That the Commons Amendment be now considered.—(Lord Derwent.)
On Question, Motion agreed to.

CONSUMER PROTECTION BILL [H.L.]

  COMMONS AMENDMENT
  [References are to Bill (58) as first printed for the Commons]
  Clause 1, page 1, line 20, leave out from "he" to end of line 21 and insert "took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence".
  LORD DERWENT: My Lords, I beg to move that this House cloth agree with the Commons in their Amendment. This Amendment is little more than drafting. What it does is to provide the same defence for a trader who is prosecuted under this Bill as he already has under other consumer protection legislation, such as the Weights and Measures Act and the Trade Descriptions Act. The Amendment simply brings the wording in this Bill into line with other legislation so that the same defence is available. This defence is fully understood by the trade; it is understood by the local authorities; it is understood by the courts—there is already a certain amount of case law in this connection—and it is clearly a most sensible Amendment which improves the Bill. My Lords, I beg to move that this House doth agree with the Commons in their Amendment.
  Moved, That this House doth agree with the Commons in the said Amendment.—(Lord Derwent.)
  On Question, Motion agreed to.

COAL INDUSTRY BILL
2.54 p.m.
LORD DRUMALBYN: My Lords, I beg to move that this Bill be now read a third time.
Moved, That the Bill be now read 3a.—(Lord Drumalbyn.)
LORD DIAMOND: My Lords, I do not think that this very important and, in some respects, novel Bill ought to have its Third Reading without a word or two of discussion. My first pleasurable duty is to thank the noble Lord, Lord Drumalbyn, who has been in charge of this Bill for the Government, for his courtesy throughout our procedings. He answered every question one put to him with considerable courtesy, but with considerable lack of argument. However, I am dealing with his courtesy at the moment, and I am very grateful to him. Although I would gladly praise the noble Lord, I have nothing but criticism for the Bill and for the way that the Government have handled it.
My criticism of the Bill is based on three main causes. First, this Bill, or Clause 8 of it, will undoubtedly damage the efficient management of a basic industry and a national asset. It will have the effect of interfering with management, and with the sense of responsibility an management which we normally require of the heads of great undertakings. It will cause difficulty in recruiting, especially in recruiting those high fliers who are always the yeast in any large organisation, and who will be attracted only by a large and developing company. All these difficulties will arise and I am hound to say that every non-Party businessman, with whom I have discussed this aspect of this Bill outside Parliament, has agreed in that respect.
My second main cause of criticism is the restriction of enterprise. What this Bill will do, in short, is to remove the results of enterprise from public enterprise. All that the Coal Board has done is what any other contracting industry would do; namely, to diversify

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in the face of the sure knowledge that its management potentialities would not be fully used unless it did so; that it would have contracting business to concentrate on, and therefore would have to find allied and related business activities in order to engage fully its assets and its personnel. It has done that and it has done it well, according to Ministers in both Houses; it has done it profitably, according to the accounts; and yet it will be liable to have those profitable results of diversifying withdrawn from it.
There is also going to be an examination which is totally unnecessary, because, as the House knows, no industry can expand unless it has resources of its own or, in the case of a nationalised industry, goes to the Government and asks for further resources. Whenever the Coal Board asked for additional resources through the appropriate Ministry—and the Treasury may have been interested—it either got them or it did not. I do not want to go into detail and I want only to make it absolutely clear, as I am sure your Lordships accept, that no nationalised industry can get additional financial resources without the consent of the Government of the day. So that part of the Bill is totally unnecessary.
My third main dislike of the contents of the Bill is that totally inadequate thought—one might almost say no thought—has been given to the rights of third parties. Here we have a Bill empowering the Minister to require a business undertaking to override bargains which have been honourably undertaken. That is bad enough, but the Bill is without one word as to the position of the third parties, with whom the Coal Board may have entered into partnership arrangements, or in whom it may have taken a majority of shares or a minority of shares. This Bill gives power for that kind of overriding. I think it is a regrettable power to include in a Bill of any kind. It is setting a new pattern in commercial morality which I regret extremely. Those are the three main grounds why I criticise the Bill, or that part of the Bill to which we object.
The reason why I criticise the Government's handling of the Bill is that, clearly, what happened was that the Government
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already had on the stocks a Bill inherited from the previous Government containing provisions which they knew they would require and which will, if I am not wrong, expire to-morrow. I should be grateful if the Minister would correct me immediately if I am wrong. Apparently that is right, and under existing legislation these powers expire to-morrow. It was therefore necessary to have new provisions enacted, so as to enable these desirable benefits for miners and for the mining industry to continue as from the day after to-morrow.
Notwithstanding that there was a Bill on the stocks all ready to provide for that continuation of powers, the Government decided to withhold bringing forward that Bill and to tag on to it further provisions, totally unrelated to those powers and, in my view but not necessarily in the Government's view, damaging the Coal Board. Whether or not these further provision were damaging the Coal Board, they were totally unrelated to the provisions of the earlier Bill. There was no reason why the two Bills should have been put together, except that the Government wanted to ride on the back of the desirable Bill, the Bill which would be desired by the whole of Parliament, and get in their provisions which they knew would be strongly objected to by at least half of the Members of both Houses, at least by the official Opposition in both Houses.
Some of your Lordships may have an historical bent. In my view, no 17th century outlaw (from whom the Tory Party draws its name) could have returned from a plunderous raid with a live hostage to secure his safe passage better than this Government have secured the easy and speedy passage of the clauses damaging the coal industry on the back of clauses benefiting miners. I object to the way that these two Bills have been put together in that reprehensible way. If the Government want to legislate, they should take their courage and authority into their own hands and put clearly issues which can be separately debated and discussed.
The second reason for criticism is that the Government have been particularly authoritarian, I would almost say haughty, in their attitude to this Bill. They have taken powers which, out of the mouths of their own Ministers, are

1225
excessive in relation to what they propose to do. That is a very bad way to legislate, and a very bad precedent to set for other Governments. I view with extreme regret the fact that, when the Minister gave assurance after assurance that the Bill did not mean what it said, that the powers in the Bill would not be exercised in the way in which they could be exercised under the wording of the Bill, he was not prepared to introduce Amendments so that the powers and the intentions of the Government would coincide. I do not deny to a Government the right to legislate according to their intentions, but I think it is bad for democracy that Governments should take excessive powers into their own hands.
The third reason why I regret the Government's handling of this Bill is because of the way in which every single Amendment, no matter how modest, has been refused. These Amendments put into statutory form only what the Minister himself or his colleagues were saying in their Front Bench speeches; they were Amendments which protected the rights of third parties, and which invited a Minister not to say "No" tomorrow if he had said "Yes" yesterday. They were Amendments of no greater force or controversiality than that. It is no use the Minister saying that these Amendments were unacceptable for this reason or for that reason, because they went too far or because they did not go far enough. If the principle of the Amendment had been accepted he could have brought in his own Amendment at one stage or another of the Bill to secure that its terms coincided with the Government's wishes. So I am bound to say that one had to seek to find out why the Government were so unwilling to accept even the most modest Amendment.
Now, of course, the answer is clear. This Bill is to provide powers starting in 36 hours' time. There would be no time to discuss Amendments in another place—no time at all; quite apart from the fact that the Government are in a difficulty with their legislative programme elsewhere. So, quite clearly, this Committee stage and Report stage have been largely a farce. Those of us who have taken enormous interest in this matter and have tried to find out the whole of
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the relevant facts, have not been rewarded even by the sense that we were carrying through our proper responsibility as members of Her Majesty's Opposition.
The reason, quite clearly, is that no time was available to discuss or to accept Amendments of any kind. If the noble Lord, Lord Drumalbyn, had sought to demonstrate that there was no place in our Constitution for a Second Chamber with power to vary legislation which had been passed in another place, he could not have done it better than by the attitude which he and the Government have adopted throughout this Bill. I hope he is going to use his best endeavours to remove that impression in subsequent legislation. It is not a view I share about the function of your Lordships' House, but I am bound to say it has made a great impression on my mind and on the mind of many others.
As to the future, we shall watch developments with the greatest possible care. We do not believe that the Government will exercise the powers in this Bill to the full. They have assured us they will not; but we shall nevertheless watch most carefully to see what future developments bring. We shall use all proper and constitutional means to protect the rights of third parties, to secure the integrity of this great nationalised industry and to make sure that in all transactions the national interest comes first.
3.8 p.m.
LORD DAVIES OF LEEK: My Lords, I will not delay the House more than about two or three minutes, because we have had quite a good discussion, but I must thank my noble friend on the Front Bench for his remarks about this Bill. As one who comes from the Welsh farming and mining area, I deprecate the way in which this Bill has been shuffled through this House. I regret the dogma with which it is being pushed through hurriedly because of the 64,000 dollar point made by my noble friend: that within 36 hours the powers of the old Bill will have gone. The reason for this rush was exactly that. But in the short time I now have left, let me say that what is fundamental in the Conservative approach to this 20th century world—and some noble Lords on the

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other side deprecate it, I know, from a philosophical point of view—is this dogma of socialising losses and privatising profits at every corner of enterprise where they can be found.
I want to ask two questions here. One must realise that this Bill will have a derogatory effect upon recruiting; and those of us who know mining—and most of my family have been in it, in all types of branches, from mining engineering to cutting coal at the coal face and working on the haulage—know that you cannot run a pit like a factory. Despite all the talk of mechanisation and computerisation, you must have intelligent men—men with skill, men with strength These young men are not going to come into industry if they see that it is continuously in a state of flux because it is messed about by a Labour Government, a Liberal Government or a Conservative Government every time there is a change of Government. It is time both sides of the House got down to the fact that in essential energy industries, like the coal industry, continuous recruitment is essential.
My Lords, men are no longer going to the pits. Let me tell you a true story of my own nephew. My brother rang me up the other day and said—he sneaks Welsh—"Harold, our Dai, is taking his 'A' Levels". I said, "Good: is he going to the university?" He said, "Well, he's taking Welsh, woodwork and scripture". I said, "What on earth is the good of that? He isn't going to university with Welsh, woodwork and scripture". He said, "No; he is going to be an undertaker in Aberystwyth". It is time we shook noble Lords up a hit. I point this out to let you know that some fine young men who would have taken to this industry, where there is strength, skill and the joy of intelligent coping with danger, will not come to it if we continuously mess about with it. Therefore I support what my noble friend said; and I think it was worth our spending these 15 minutes on deprecating the way in which this Third Reading and the Bill have been rolled through this House.
3.10 p.m.
LORD DRUMALBYN: My Lords, I am glad to get encouragement from somewhere. I should like to thank the noble
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Lord for his opening remarks. He has conducted the proceedings on the Bill from his side with great diligence, and I am genuinely sorry that we have not been able to meet any of his points. On the other hand, one must recognise that this Bill was very fully considered in another place; in fact it was the very fullness of its consideration in another place which meant that we were in some stricture of time when the Bill came to us, and I am grateful to the House for enabling us to get it to this stage, as indeed they undertook to do, without any undue delay.
LORD DIAMOND: My Lords, do I take it that the corollary of that is that when this House receives a Bill from another place which has not been fully considered, there will be ample opportunity for consideration and for amending it?
LORD DRUMALBYN: I accept that, but I do not mean to say that had the noble Lord's Amendments been of such a character as to improve the Bill we would not have accepted them. As he knows from reading the Bill, it is possible to ensure under the Bill that there is no lack of continuity in the power to pay benefits to redundant mine workers. An Order will be made as soon as possible and will date from March 27, so there should be no lack of continuity. We were not that pressed for time, had the Amendments of the noble Lord been acceptable, but I regret that, despite the skill of his arguments, we still found them unacceptable.
The noble Lord drew attention to those parts of the Bill with which he disagrees, and most of the disagreement arose over that group of clauses which relate to the powers conferred on the Secretary of State to call for a report on The Board's diversified activities—that is, their non-colliery activities—or such of them as he may specify, and to give directions to the Board, including directions to discontinue or restrict any of them, to alter the way in which they are organised and to dispose of any part of their undertaking or of any assets held by them. Whatever views may be held about those provisions, I think it is fair to recognise that the National Coal Board have moved a considerable way from the original purpose of the Coal Industry

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Nationalisation Act in the direction of becoming what can only be described as a massive conglomerate financed largely by public money, and it is surely not unreasonable to provide clear powers to enable the Government to review the non-colliery activities as a whole and the way in which they affect the Board's duties and the economy as a whole. It is surely right that the Government should be fully informed on a continuing basis of the direction in which the Board propose to develop their activities in future years and to ensure, if necessary by the use of powers, that the direction accords with the interests of the nation.
I do not accept that the Bill goes too far in the powers it provides. What I have said is that those powers will be used with common sense and moderation. Some noble Lords have voiced their suspicion of the Government's motives and the way in which the powers will be used. I can only say that not only will the Secretary of State be answerable to Parliament for his use of the powers conferred, but before he can give a direction to dispose of any assets or restrict or discontinue activities he will have to lay before each House of Parliament a draft Order which either House can annul. With great respect to the noble Lord, I do not think that that is an unreasonable thing to require, or that the noble Lord's strictures as to what he called "letting this part of the Pill ride on the back of a part of the Bill which was generally accepted by Parliament" are justified. It is always the case that any Department will take the opportunity of legislation which is required for any purpose to make certain that it can get other legislation which is considered desirable at the time.
My Lords, there is one point on which I must comment. The noble Lord, I thought, went rather far in saying that no thought was given to the rights of third parties and that the Secretary of State could require the Board to override bargains honourably entered into. I must make it clear that a direction under Clause 7 cannot compel the Coal Board to do anything unlawful, such as breaking a contract: so fears that the National Coal Board might be compelled to break their contracts are completely without
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foundation. All the steps the Coal Board might take under direction will be steps that they could have taken anyway if they had so decided. I fail to see why a partner of the National Coal Board should suppose that the Board would never decide to terminate their interest in some particular activity. Surely the National Coal Board should be just as free as any other business to terminate an activity which they have power to terminate.
The noble Lord might say that even though they are not terminating contracts they might terminate understandings. I fully appreciate that the Board have understandings and arrangements which are not incorporated in their contracts; but if the National Coal Board fear that some action in response to a proposed direction, say terminating a loan, would be inconsistent with understandings they have with their associates, they will then draw this to the attention of the Secretary of State under Clause 7(5), before the direction is given. The Government—and this I can assure the House—will give the most careful attention to all the representations that the Board make and their decisions will take full account of the interests of the Board and of third parties.
My Lords, I hope I have said enough on this Bill to be in a position now to ask your Lordships to give it a Third Reading, for I believe that it is right to give the Secretary of State the powers that it gives, so that the non-colliery activities of the Coal Board can be reviewed. What action will follow from that will depend entirely on the review and one cannot anticipate what it will be. I suggest to noble Lords that they are crying out before anybody is hurt. The object of this Bill is not to hurt anybody; it is to benefit the national economy.
On Question, Bill read 3a, and passed.

INDUSTRY BILL
EARL JELLICOE: My Lords, I understand that no Amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript Amendment or to speak in Committee. Therefore, unless any noble

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Lord objects, I beg to move, pursuant to Standing Order No. 43(2), that the Order of Commitment be discharged.
Moved, That the Order of Commitment be discharged.—(Earl Jellicoe.)
On Question, Motion agreed to.

LAND COMMISSION (DISSOLUTION) BILL
THE PARLIAMENTARY UNDERSECRETARY OF STATE, DEPARTMENT OF THE ENVIRONMENT (LORD SANDFORD): My Lords, I understand that no Amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript Amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move, pursuant to Standing Order No. 43(2), that the Order of Commitment be discharged.
Moved, That the Order of Commitment be discharged.—(Lord Sandford.)
On Question, Motion agreed to.

METEORITES BILL [H.L.]
3.20 p.m.
THE EARL OF CRANBROOK: My Lords, I beg to move that this Bill be now read a second time. In so doing, I must declare an interest, in so far as I am a trustee of the Natural History Museum which will be one of the three potential beneficiaries if this Bill becomes an Act. On most nights of the year, and particularly during the month of August, it is possible to see shooting stars or meteors flying through the sky; indeed, in my own part of the world, to go looking at shooting stars is one of the normal opening gambits of a courtship. These shooting stars are large or small bodies from Outer Space which, as they approach the Earth and come into its atmosphere, become incandescent with friction. The vast majority of them are burned up, but the very few which reach the Earth's surface are called meteorites.
It would seem that fragments of about thirty of these are recovered in some place or another throughout the whole world every year. So your Lordships will see that meteorites are very few in number
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compared to the very large number of shooting stars which one can see. The number which fall in Britain is very small. There were ten in the nineteenth century and there have been seven so far in this century, making an average of about one every ten years. As a meteor passes through the atmosphere, much of it is vaporised from heat. It can break into fragments, and can therefore hit the ground in one piece, or in a shower of fragments or as dust. I do not think that we need concern ourselves with the dust. The largest single body which is known to have fallen in this country weighed 56 lb. and of the largest shower a little over 100 lb. was recovered. Meteorites are thought to have originated in the breaking up of some body in the solar system very much like this Earth and of the same constituents.
Until men landed on the Moon and brought back fragments of Moon rock, meteorites were our only source of information of extra-terrestrial objects. They have therefore always been of great interest to scientists. The British Museum of Natural History has collected them from the 18th century and has by far the largest and best collection in the world. There are known to have been only about 2,500 actual strikes on the Earth from which either the entire meteorite or fragments have been recovered. Of those, the Natural History Museum has either the meteorite itself or fragments of showers of over 55 per cent. It is perhaps some measure of the importance attached to them by the world at large—which is much more than I knew about meteorites when I first started to prepare myself for this Bill—that at the end of the 1950s the Nuffield Foundation gave about £50,000 to the Museum to purchase one of the best-known private collections to add to its own.
Scientists have always been able to study the morphological features and chemical constituency of meteorites, and much has been discovered of the origin of this world and of the solar system; but of recent years it has been found that during their passage through space cosmic rays act on the meteorites forming a number of objects, some stable and some radioactive. The radioactive ones have a very short half-life; but if the meteorites can be recovered soon after their fall and

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before the radioactive constituents have become inert a great deal of valuable information can be obtained. It is therefore obvious that the sooner they are in the hands of the scientists and in a properly equipped laboratory the better; much of the information which they would otherwise give may be lost if they become a pure curiosity in the cabinet of somebody who knows little about them.
The curious fact is that in this country meteorites seem to have no legal status; and the same is true, apparently, of most parts of the world save France and the U.S.A., where they belong to the owner of the land on which they fall, and India, where they belong to the State. In 1963, a Working Group on Meteorites set up by UNESCO recommended, first, that in every country the national museum should have specimens of all meteorites which fall upon that country; and, secondly, that all member States should adopt legislation to ensure that meteorites are conserved and used in the public interest. This Bill is the result.
There are three national museums in Great Britain: the Natural History Museum, the Royal Scottish Museum and the National Museum of Wales. All three museums are united in approving of the principles which lie behind this Bill. For a long period of time during the lengthy discussions which resulted in this Bill in its present form, the Trustees of the Natural History Museum had the advantage of the advice of the noble and learned Viscount, Lord Radcliffe, who was then one of their members; and in these conditions it seemed best to follow the precedent set by treasure trove but without the necessity for an inquest. As your Lordships will be aware, treasure trove consists of objects of gold or silver which have been buried by somebody with the intention to recover them at a later date. An inquest is held to decide whether or not there was an intention to return to recover them. If the inquest decides that the find is treasure trove, the objects are the property of the Crown—they go to the appropriate museum and an appropriate reward is paid to the finder.
That was the course which the Trustees were obliged to follow in framing this Bill. We were also advised that it was unnecessary and undesirable to set out in the Bill the administrative machinery
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necessary to follow once actual ownership was decided. All meteorites would vest in the Crown once they had hit the earth and so much of the fall as is thought necessary would go to one or another of the museums and the appropriate reward would be paid to the finder.
Since, so far as we can find out, nobody at present appears to have any rights in racteorites—although I believe that there are some curious Scottish customs about which my noble friend Lord Balerno, knows more than I do—no injustice would be done to anybody if this Bill were passed in its present form. I understand that as it is worded the Crown would have no liability for any damage done by the meteorite on its way to the ground. If it passed through the house of one of your Lordships; or indeed through the head of one of your Lordships, that would be just too bad. The Crown would take possession of the meteorite after it had done its work and the heirs of the noble Lord concerned would have no redress.
If your Lordships will look at the Bill you will see that it is a very simple one; there is one operative clause. I hope that your Lordships will feel that it is important that these bodies from Outer Space should come as soon as possible into the hands of scientists and that you will approve this Bill. I beg to move.
Moved, That the Bill be now read 2a.—(The Earl of Cranbrook.)
3.30 p.m.
LORD SHACKLETON: My Lords, after that extremely interesting introduction by the noble Earl, Lord Cranbrook, I need not speak for very long. He and I have been allies for some while in matters of this kind, and it was because I have a great deal of confidence in his judgment and the scientific virtue of matters that he brings before your Lordships' House that I objected the other day when he asked the leave of the House to withdraw his Bill. It is indeed for consideration whether we ought to allow Bills to be withdrawn as lightly as that, when the House does not really know the reason for it.
But on this occasion we were told by the noble Earl:
"When I introduced it, I was under the impression that time would be found for it in another place if your Lordships were good

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enough to pass it. I have heard it is unlikely that time would be found, and in those circumstances I beg leave to withdraw it."—[OFFICIAL REPORT, 24/3/71, col. 915.]
I do not accept that—and I think that other noble Lords will agree with me—as an adequate reason. There may be good reasons not to pursue this Bill further. I make no reflection on the noble and learned Lord who sits on the Woolsack, but I feel that perhaps it might have been helpful if he had spoken earlier. I make no criticism of him, because we want to get on and my remarks, therefore, are inevitably conditional on what he may have to say to us. But it has been our experience in the past that a Bill introduced into this House is imperfect. It appears to me that this is a very simple Bill; it is a one-clause Bill. If it is as simple as it seems, and if no Amendments have to be made, it is conceivable that it might go through another place on the nod.
On the other hand, if that be not the case, there is a good deal to be said for our taking this Bill to some further stage in an attempt to get it right. This was the experience we had in connection with the Seals Bill. I will not conceal the fact that when I, in the absence of my noble friend Lord Stonham, who was ill at the time, was briefed to oppose the Bill for the Government, it became quite apparent that your Lordships wanted to go on with the Bill. Therefore I gracefully accepted the inevitable; indeed, I was sympathetic to the noble Earl in the matter which was some advantage, and we let it go through. The Government undertook—and they did so, but not very rapidly—to try to get the Bill right. In due course it was introduced again; we got it right and it was passed. It was taken to the Commons, and now it is the law of the land.
I submit, my Lords, that there is a good deal to be said for giving this Bill at least a Second Reading. Then it will be up to the noble Earl to decide, depending on the amount of support he gets, and again subject to what the noble and learned Lord the Lord Chancellor has to say, whether to continue. But even if the noble and learned Lord the Lord Chan-arguments against this Bill as it stands, and even (we have no knowledge of this: all we know is that we have been told
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there is no time for it in another place) though he may, because of his interest in law reform, have intentions of his own in the matter, there is none the less a certain stimulus to Government (I speak as someone who has felt the benefit of that stimulus when I was in Government) in giving a Bill a Second Reading.
The case for doing something has been amply made by the noble Earl. There is the simple fact that no one knows to whom meteorites belong. I do not think that even the most extreme protector of property would suggest that something that falls out of the sky on to his land automatically ought to be his. In any case, there is a need to establish some certainty in this connection. Secondly, we have been urged by a very important international body to act with other countries and to do something about it. Therefore I believe that we should. The solution seems to me to be a simple one.
There is, of course, a further argument which came out in a very interesting way from the speech of the noble Earl, Lord Cranbrook. It is that there is urgency in the matter. Most noble Lords recognise, I suppose, that there might be urgency in regard to whales, but might assume that there would be no urgency in the case of meteorites. However, the matter of the passing radioactivity acquired in the passage through space suggests that there is a need for clarity. Therefore I support the noble Earl. I hope that even if the noble and learned Lord has powerful cellor feels that this Bill is unsatisfactory, and has in mind his own intentions, if the feeling of the House is as I hope it will be we may be allowed to give this Bill a Second Reading as an indication of an intention to proceed further. In those circumstances it would not be unreasonable for the noble Earl to say that he did not propose to take the Bill any further. But I do not regard giving a Second Reading to a Bill as a useless gesture. It has proved exceedingly useful in other cases, and therefore I am very happy to support the noble Earl.
3.36 p.m.
LORD BALERNO: My Lords, may I venture to speak as it were on behalf of Scotland where the law has a different aspect, if indeed there is a law on the subject? The

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scientists of Scotland who concern themselves with these matters, both the Royal Scottish Museum and also the Grant Institute, which on occasion analyses Moon dust, are very interested in this Bill and grateful to the noble Earl, Lord Cranbrook, for bringing it forward. For these meteorites are the only extraterrestrial solid matter at present available for laboratory study. As the noble Lord, Lord Shackleton, has said, there is considerable scientific interest, as the meteorites yield information about the history of the solar system and conditions in the Earth's upper atmosphere. It is to the conditions in the Earth's upper atmosphere that I particularly wish to draw the attention of your Lordships.
This information must be, as it were, developed as quickly as possible after the arrival of the meteorite, certainly within days and preferably within hours. At present there is but one laboratory in this country—in London—which cart do this work fully and adequately. Developments in space exploration have led to a very great increase in the popular interest in meteorites and the emergence of amateur collectors and the creation of a market for specimens. This can result in important samples being lost to scientific study and to the national collections. Even if this does not happen it is likely to prevent the access of qualified scientists to the material during the critical period after a fall, while arguments and negotiation proceed.
Regarding the confusion of the law in Scotland concerning this matter, I should like to refer to the last fall of meteorites which we had in Scotland, popularly known as the "Strathmore shower". It occurred on Monday, December 3, 1917 at 1·18 p.m. The shower was remarkable in many ways, not least from the fact that there was one person who both observed and also heard it. Perhaps I may read to your Lordships an extract from the report at the time. It said:
"One of the most remarkable meteoric falls that has ever been recorded in the British Isles and certainly the most remarkable that has been recorded in Scotland. Mrs. MacLaren, while gazing up into the sky, as she frequently does, saw a ball of fire followed by a train of light rush across the sky and disappear behind a small grey cloud. Before it had time
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to emerge from the other side of the cloud, she heard the sound of a terrific explosion and saw nothing more."
That is in itself a remarkable occurrence, because one either sees or hears it. Very seldom does one and the same person happen to hear and see a meteorite.
In this case there were four major fragments of meteorite, the heaviest being 20 lb. The confusion came right from the beginning. The local constabulary, having determined that there were no enemy aircraft in the area (it being 1917), decided that they ought to take possession of the meteorites. The Chief Constable of Perthshire came into action. Unfortunately, the local constable had gone over the county boundary and had got one of the meteorites from the county of Forfarshire. Consequently there was an unseemly wrangle between the two Chief Constables as to which of them owned the meteorite. The Procurator Fiscal laid claim to the meteorites and the Chief Constable of Forfarshire acidly drew attention to the fact that the Procurator Fiscal's office was next door to the office of the Chief Constable of Perthshire.
The Royal Scottish Museum laid claim to the meteorites against the claims of the King's Remembrancer, who, representing the Exchequer, also had a claim. A little later on the British Museum put in a claim for the meteorites. Meantime, the tenants of the houses on which they had fallen decided that they had a right to them and the owners of the ground also laid claim. The confusion was never quite properly sorted out and it nearly came to a lawsuit between the tenants of a cottage where the meteorite had landed through the roof and stuck in the ceiling but had not hit the ground, and the proprietrix of the cottage who, being wealthy and able to put the tenant out of the cottage at will, retained possession and was allowed to get away with the meteorite. Eventually, two of the meteorites remained in private possession and, by adjustment, two went to museums. The confusion was very great and there was at no time any chance of getting these meteorites quickly for analysis.
What is going to happen the next time there is a fall of meteorites in Scotland? Are we to go all through this same rigmarole of not knowing to whom they

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belong and of not making them available for scientific examination? I should have said that one of the proprietors of the land on which a meteorite had fallen wrote, saying:
"I am therefore putting all the Parliamentary machinery in motion to have the decision of the Crown authorities upset or at least modified."
It may be said that in a Court of Session case dealing with treasure trove the principle was enunciated that all ownerless objects become the property of the Crown. But that is not regarded either legally or by scientists as sufficient to warrant the immediate action which is required, and the simplest way of getting immediate action on the arrival of a meteorite is by vesting the rights of it in the Crown. This does not happen very often. The previous fall of meteorites in Scotland was in 1830. Falls do happen in the United Kingdom roughly every five years or so, but it is clear that Scotland is due for another shower of meteorites and we should like to be ready for it, with our umbrellas.
3.45 p.m.
LORD BALFOUR OF INCHRYE: My Lords, there is only one question on Second Reading which I should like to raise and perhaps the noble and learned Lord the Lord Chancellor or the noble Earl, Lord Cranbrook, will be able to answer. I agree very much with the remarks of the noble Lord the Leader of the Opposition that we ought to look at all these Bills carefully. During the course of his interesting speech, the noble Earl who introduced the Bill made the unilateral declaration that there was no liability in respect of the Crown if a meteorite fell upon one's property. I can only understand the Bill as I read it, and as I read it, it means that any meteorite which falls on any land is thereupon vested in the Crown. Hitherto, I know, it has been considered an act of God.
If this Bill is passed and the ownership rests in the Crown, at what moment does the liability for any damage begin and at what moment does it cease? If a meteorite falls on the roof of my house, surely it is then landing for the first time upon the soil of this country and in that case there should be a liability upon those who have ownership of the meteorite—
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that is, the Crown. Therefore, in passing this Bill, are we granting citizens a protection which they have not enjoyed hitherto from damage caused by meteorites?
LORD BALERNO: My Lords, before the noble Lord sits down, may I tell him that this point has already been discussed in Scotland in relation to the 1917 fall. It was then decided that so long as a meteorite was in the air it was the responsibility of the Astronomer Royal of Scotland.
LORD CONESFORD: My Lords, my noble friend Lord Balfour of Inchrye, I think, cannot establish his case. For there to be any claim against the Crown it must lie, I should have thought, either in contract or in tort. I find it hard to see what contract there could possibly be between the Crown and the man on whose property a meteorite falls; and as to any liability in tort, the Queen can do no wrong.
3.49 p.m.
THE LORD CHANCELLOR (LORD HAILSHAM OF ST. MARYLEBONE): My Lords, I rise with suitable humility to take a modest part in this fascinating struggle. I begin by reminding the noble Lord who has just sat down that neither he nor I knows anything about the laws of Scotland, where there is, so far as I know, neither contract nor tort. As the noble Lord the Leader of the Opposition reminded us, we owe the pleasure of this debate (and I think we can all be agreed that it has been a pleasure) to the fact that the noble Lord the Leader of the Opposition resisted the blandishments of my noble friend when he sought to withdraw the Bill. It is, I think, a fact, whatever inferences one draws from it, that such is the horrible state of legislation during this Session that the chances of its reaching the Statute Book this Session are absolutely negligible. I would respectfully, but without passion, suggest that probably my noble friend's judgment is right, and that having had this discussion the best course would be to withdraw the Bill. He could then discuss with my right honourable friends who are concerned with the policy of the matter some of the unresolved questions which the Bill raises and does not answer, and cannot be made to answer in exactly

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its present form, and then, perhaps, if an agreed policy can be worked out, a Bill which can reach the Statute Book could be put forward at a later stage.
I want to say relatively little about the policy of the Bill for that reason, but there are one or two things which I should like to put before your Lordships. Later on this evening, if we reach the point, the noble and learned Lord, Lord Gardiner, is going to raise an Unstarred Question about the responsibility for the law in England and Wales. I do not know what answer I shall then give him, but it will probably be a rather complicated one. One of the things I intend to say, however, is that I think the Lord Chancellor has a sort of basic responsibility to see that the law should not be a bigger ass than it has to be in the nature of events. Therefore I approach this Bill not so much from the point of view of policy, which can be hammered out, but from the point of view as to whether as a Bill it is a piece of legislation which would do us credit as legislators.
With regard to policy, I think we can probably start from a number of common assumptions. My noble friend has clearly made out the case that meteorites are of considerable interest to scientists, and it is therefore desirable that they should be made available to scientists as quickly as possible. Apparently some radioactive material has a fairly short life. What he has not sought to argue, but which is not at any rate to me so self-evident, is whether you best achieve this result by passing an Act which in principle nationalises all meteorites without compensation if they fall after a given vesting date, but not before, or whether you are more likely to get them by offering a decent price and reward for finding them.
I do not find that my noble friend's answer, which is based on assumption, is self-evident. Nor did he attempt to adduce any kind of reason to make one believe that he was right and that the contrary answer was not equally plausible. What he did was to introduce, to my mind, the misleading analogy of treasure trove. Treasure trove belongs to the Crown; that is to say, if after an inquest the treasure trove is identified, as such, and the finder does not just put it in his pocket and walk away with it. But I wonder how much treasure trove would
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actually find its way into the national museums if it were not for the compensation clauses which the Crown in fact carry out. I should think probably precious little, at any rate of the smaller items.
Treasure trove which is gold and silver is easily identifiable, because being refined it is not an object which occurs in that state in nature—at least, I believe not. A meteorite, however, except to the scientists with their Geiger counters and other powers of analysis, is not particularly identifiable from other material, at any rate if it has been some time on the earth. Moreover, one wonders whether in the case of treasure trove the same results could not be obtained by the compensation clauses without the mediaeval law and the coroner. I do not know, and I do not propose to dogmatise this afternoon.
What my noble friend really has to make out on policy is, first of all, that the scientist is more likely to get a material quickly if he passes a law and takes it, at any rate in form, without any compensation provision, or whether he is more likely to get it if he pays a decent price for it. At the moment, of course, the evidence, so far as we have it, is rather in favour of the second, because apparently the British Museum, without any powers of compulsory acquisition, have already got examples from over 55 per cent. of the 2,500 strikes that have taken place since the year dot all over the world. So that there is not, at any rate, a prima facie case that the scientist does not get the material without powers of acquisition.
What is really extraordinary about this Bill is its total absence of machinery of any kind. What, for instance, is the machinery for enforcement? In the case of whales, in which my noble friend interested himself some weeks ago, the machinery was there, although it was quite irrelevant to the law: and the machinery was all right, because there is a coastguard whose duty it is to identify a whale, or whatever it is, when it is stranded on the sea shore; and whales are easily identified when they are stranded on the sea shore because they are quite big. But this is not so in the case of meteorites. Meteorites mainly fall, if they fall at all (most of them, as my noble friend said, are consumed in

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the atmosphere and therefore are not caught by the Bill), fall as dust, which is not so easily identified. And those which do fall often break into small fragments about the size of a pebble, all of which may be interesting, but are not altogether easy to identify. There is nobody like a coastguard. I gather that in Scotland, on the happy occasion when Mrs. MacLaren saw a unique strike, when she was able to see and hear at the same time, the local Dogberry went and possessed himself of the meteorite. But this cannot ordinarily be expected to happen. I do not know what the law of trespass is in Scotland; I gather that they do not have such a thing. But in England there is a law of trespass, and this Bill does not provide any power of entry at all.
The Queen's property may be landed in somebody's field, but nobody can go and get it unless the farmer agrees. So what is the sense of that as a piece of legislation? Either it must be nationalised, with power to acquire possession, or it must not. The mere vesting of property does not take away the power of the farmer to close his gate against the local Dogberry when he tries to possess it, if he can find it, on behalf of the Queen. What will be the penalty for a suppression of information if one of these objects falls on one's land? No penalty is provided: we are not bound to give the information. Of course, meteorites do not come down like eggs with date stamps on them, and one has to admit that once the half-life of the radioactive materials disappeared, it would be remarkably difficult to discern a thing the size of a pebble which had fallen just before vesting date from a thing which has fallen just after vesting date, because it is not stamped with a date on it.
We must remember that the Earth (so far as I am aware) is about 20,000 million years old. It follows, then, that for the next 20,000 million years most of the meteoritic material at present on the Earth anywhere has fallen before vesting date, and I suppose that that is probably true of all meteoritic material at present existing in the British Isles. And even after 20,000 million years the odds would be exactly the same, even assuming the number of strikes does not vary. Once
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one of these small objects gets into the black market—because I think what my noble friend is postulating is that there is a black market, or there is likely to be a black market, in these things, to the detriment of natural science—I should like to know how you can ascertain whether it fell before the vesting date. No doubt there are very sophisticated scientific techniques; but I am not sure what they are, or what my noble friend proposes to do about it if it is on the black market.
Then there is the very interesting question of compensation, which my noble friend Lord Balfour of Inchrye raised—I think properly. It is quite clear that this Bill provides for no compensation, and to that extent I agree with my noble friend Lord Conesford. One wonders whether it ought to do so. If a meteorite falls on your house (if a meteorite falls on your wheelbarrow it would not be caught by the Bill, and I wonder whether that is something which should be tightened up) and damages it, it can cause a considerable amount of damage. Most meteorites are very small, but the one which fell in Siberia at some unascertained date did more damage than a thermo-nuclear bomb. It devastated about 20 square miles of territory by its impact and then disappeared completely. It must have popped off into the sea somewhere, or disappeared into a thousand fragments. If a meteorite falls on the ground, shatters, breaks your greenhouse and knocks down your house after it has become the Queen's property, and the Queen is thereupon enabled, through her faithful Ministers, to recover the fragments, but to pay no compensation for the damage, one wonders whether justice has been done.
I am raising these points for this reason. When a Bill is short—as, mercifully, this one is—everyone says that it is a simple little Bill. This is a simple little Bill, but is it not too simple? Should there be machinery for enforcement? Ought we to think about the question of entry or compensation, identification and black market? It seems to me that we probably should do so. But, my Lords, is it all that urgent? A meteorite falls every five years in this country, and there may be trouble about the half-life of the radioactive material if somebody puts it on the black market instead of offering it to the British

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Museum. I should have thought that was very unlikely to happen. But if it is worth legislating about in this particular form, ought we not to get it right? I think that probably we should do so.
These, therefore, are not drafting questions, but are basically matters of policy: whether you ought to legislate in this way, and if you want to do so, what enforcement machinery are you going to couple to the Bill. I should have thought, with great respect to my noble friend, recognising that the material is of scientific interest, and that one's object should be to sec that it joins, if not one of his pet museums, at least a university, that perhaps we could talk about the policies involved. Of course it is possible that we may get a shower on this House tomorrow. One of the glorious uncertainties of this matter is that one does not quite know when it is going to happen. My hope and belief is that we shall not get one before next Session. I have no hostility to my noble friend's general assumptions, but perhaps the best course would be, as this Bill cannot in any case get on to the Statute Book, to talk it out with some of my right honourable friends who know more about meteorites than I do.
4.5 p.m.
THE EARL OF CRANBROOK: My Lords, I begin my reply with some diffidence in being forced into criticising my noble and learned friend who sits on the Woolsack, who complains that my Bill is too simple. I would ask him, simple though it is, to read once again through its only clause, because he referred at quite considerable length to the difficulty in telling the difference between meteorites which fell on the Earth some 20 million years ago (and I think it might be 250 million years ago), but as I read it they are not included in the Bill, which refers to:
"… meteorite which after the date of the coming"—.
THE LORD CHANCELLOR: My Lords, if my noble friend will forgive me, this was exactly the point I was making. If a meteorite gets on to the black market, unless you use some fairly sophisticated techniques you do not know what you are buying—whether it is one which was vested in the Crown or one which fell in the reign of King Edward I.
THE EARL OF CRANBROOK: My Lords, I apologise for not having understood what the noble and learned Lord said, and I much regret that I have not caught him out. I also regret that I could not have made myself clear in what I said earlier this afternoon. I had written down and intended to say that of course compensation would be payable, and I had intended to say that compensation would be payable exactly as in treasure trove which, although it is technically paid by the Crown, is in fact paid by the Museum to which the gold or silver object goes; and in many cases museums have had to have grants, national art collection funds, and the like, to pay for it.
I cannot resist correcting my noble and learned friend when he talked about the meteorite which vanished in the middle of Russia. I understand on the very best authority that it made such an enormous hole that it is assumed to have been a minor comet and not a meteorite. No meteoritic remains were found around it.
The point which the noble and learned Lord has made is trenchant, and not being a lawyer I am quite incapable of replying to him. All I can tell your Lordships is that when this Bill appeared in its first form it had all the things for which the noble and learned Lord is now asking, and we were advised on the very best authority—or second best authority, apparently—that it would be better to have it in this form than to try to lay down in black and white the things which we undoubtedly intended to do; that is, to pay compensation in relation to the market value of these things to the finder—and we would have been in some difficulty in knowing whether it was to be the finder, the owner or the police constable—for giving us the material.
I must confess that I should much prefer your Lordships to give this Bill a Second Reading as a symbol of the fact that your Lordships approve the principle. If your Lordships are good enough to do that, we shall of course be unable to go further with it, unless the Department of my noble and learned friend produces such Amendments as they would wish me to move during the course of this Session. But we should establish the principle that your Lordships feel that this is a right and proper thing to do, and after a period of time we can perhaps bring in a Bill, after consultation with

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my noble and learned friend, of which he would approve.
On Question, Bill read 2a, and committed to a Committee of the Whole House.

POWERS OF ATTORNEY BILL
LORD DIPLOCK: My Lords, I beg to move that this Bill be now read a third time.
Moved, That the Bill be now read 3a.—(Lord Diplock.)
On Question, Bill read 3a, with the Amendments, and passed, and returned to the Commons.

CRIMINAL DAMAGE BILL [H.L.]
4.10 p.m.
THE LORD CHANCELLOR: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)
On Question, Motion agreed to.
House in Committee accordingly.
[The EARL OF LISTOWEL in the Chair.]
Clauses 1 and 2 agreed to.
Clause 3 [Possessing anything with intent to destroy or damage property]:
LORD AIREDALE LORD AIREDALE moved Amendment No. 1:
Page 2, line 5, leave out ("without lawful excuse").
The noble Lord said: Perhaps it would be permissible to discuss this Amendment and the next one together because they undoubtedly hang together. This is an Amendment to Clause 3 which deals with possessing anything with intent to damage property. The two Amendments are concerned with the position of the words "without lawful excuse" in the clause. As the clause is at present drafted, the words "without lawful excuse" come immediately before the words which denote possession and convey the impression that unlawful possession is a necessary ingredient of this Offence. But I do not believe that this is so; I believe that this offence is intended
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to be parallel with the offence of possessing housebreaking implements, and in the case of that offence it matters not whether the housebreaking implement is lawfully or not lawfully in one's possession; if one has it in one's possession with the intention of using it for housebreaking one commits an offence. Likewise, I should have imagined the purpose of this clause is that the offence is committed provided that there is the unlawful intention to use the instrument to do damage, irrespective of whether or not the instrument is lawfully or unlawfully in the possession of the person who is intending to use it.
That is the purpose of these two Amendments taken together. If the words "without lawful excuse" are placed in the position I suggest—after the word "intending"—it is made quite clear that it matters not whether or not the person is lawfully or not in possession. It is made quite clear that the offence is the intention of using it unlawfully to do damage. I beg to move.
THE LORD CHANCELLOR: I tried very hard to make out whether the noble Lord is right or wrong in his Amendment. He is probably right, and therefore I propose to accept it.
On Question, Amendment agreed to.
LORD AIREDALE LORD AIREDALE: I beg to move Amendment No. 2.
Amendment moved—
Page 2, line 6, after ("intending") insert ("without lawful excuse").—(Lord Airedale.)
On Question, Amendment agreed to.
Clause 3, as amended, agreed to.
Clause 4 [Punishment of offences]:
4.14 p.m.
LORD GARDINER LORD GARDINER moved Amendment No. 3:
Page 2, line 20, leave out ("ten") and insert ("seven").
The noble and learned Lord said: I beg to move the Amendment standing in my name and that of my noble friend Lady Scrota. Paragraph 66 of the Report of the Law Commission recommended, in cases tried on indictment, for the simple offence and for offences of threatening in possession, imprisonment for ten years; for the simple offence

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where destruction or damage is caused by fire, imprisonment for life; and for the aggravated offence—that is to say, where there is danger to life—imprisonment for life. I have not put down any Amendment with regard to imprisonment for life. It seems to me that if a man deliberately sets fire to a house in which he knows there are men, women and children asleep, this is so near murder that it would not be very logical to have any different maximum penalty.
However, I suggested on Second Reading of this Bill that the penalty for the simple offence, where there is no fire used and no danger to life, ought to be seven years and not ten. I pointed out that the Law Commission in the working paper which they sent out originally recommended seven years, and did so for this reason. They looked carefully to see what sentences had been imposed for malicious damage and arson in the previous five years. They found that in an average year there were about 18,500 cases, of which about 18,000 were determined in the magistrates' courts—with a maximum penalty of six months' imprisonment—so that one is concerned only with the 500 serious cases which are tried on indictment. They found that those were variously disposed of by absolute discharge, conditional discharge, a mental health order under the 1959 Act, probation, a fine, detention centre, or borstal training; and that the only cases which received a sentence of imprisonment numbered about 170, out of the 18,500 a year. They then looked to see in each year in how many of these cases—which, it will be remembered, include not only ordinary malicious damage, the simple cases, but also all the arson cases and all the danger to life cases—a sentence of more than seven years had been imposed. They found that, on average, there were only five a year—pretty obviously cases where there had been either arson or danger to life.
When I took up this point on the Second Reading of the Bill I explained that in their final Report the Law Commission came to the conclusion that the penalty ought to be ten years rather than seven, and they gave only one reason. They said that the majority of the commentators on their Report had suggested something of that kind. Usually in their Reports the I aw Commission say to
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whom they send their working paper for comments, but in this case they have mentioned only the names of those who have commented: 13 individuals, all men and all lawyers, and some 12 organisations, including, I think, two in Australia and the Parliamentary draftsman in Northern Ireland. I raised this question on Second Reading so that one might find out to whom their communications were actually sent. It appears, from an Answer last night or this morning to a Question which I put down within, I think, 48 hours of the Second Reading, that the Law Commission's working papers went altogether to 105 different individuals and organisations—some of them libraries—so that people might read them and comment. It is natural enough—is it not?—that if a document is sent out to people saying: "This is what we are suggesting. Have you any comments?", the people who agree with what you are suggesting do not reply, and it is only those who object who do reply. In this case it seems that something like a dozen objected out of about 105 who were consulted.
On the Second Reading the only grounds for this penalty of ten years given by the noble and learned Lord the Lord Chancellor were, first, that I had been a member of a Government which had made the maximum penalty under the Theft Act ten years, and the damage might be worse than the theft. No doubt all these things are a matter of opinion. I should have thought that to steal something from someone intending permanently to deprive him of it is morally worse than merely damaging it. Secondly, if, as we saw last week, people can on one occasion steal half-a-million pounds we probably do need to have in reserve power for a fairly long sentence. Then the noble and learned Lord said: "After all, this might include blowing up a nuclear power station". Perhaps he had overlooked the fact that under Section 2 of the Explosive Substances Act 1883, which this Bill is leaving as it stands, it is an offence if one:
"unlawfully and maliciously causes by any explosive substance an explosion of a nature likely to endanger life or to cause serious injury to property",
and the maximum penalty which is left standing is imprisonment for life.
What encouraged me about what was said by my noble friend (he is, if I may say so, in one sense my noble friend, but I

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suppose I should say, "the noble and learned Lord") was his remark that the Government had not intended to increase the, penalties for these offences. May I say at once that I and my noble friend have no intention of decreasing the penalties. So really we come back to this, which is a question of fact: is ten years, rather than seven, increasing the penalties, or would seven years be decreasing them? Of course the Government are the only people who know what are the cases referred to in the Criminal Statistics. The Law Commission has taken them from the published Criminal Statistics—the number of convictions, the nature of the sentences, how many were over seven years, and so forth. Again with a view to ascertaining the facts, within (I think) 48 hours of the Second Reading I put down a question to find out whether, of this handful of cases, there was any case, which was not either an arson case or a danger to life case, that had resulted in a sentence of more than seven years. In the OFFICIAL REPORT of yesterday (col. 1206) the Answer came through to the effect that in all those five years the Government cannot find one single case, which was not an arson case or a danger to life case, in which any sentence of more than seven years has been imposed. Having regard to what the noble and learned Lord said on Second Reading as to the Government not intending to increase the penalties by this Bill, naturally we very much hope that the Government will be able to accept this Amendment. I beg to move.
4.23 p.m.
VISCOUNT MASSEREENE AND FERRARD: May I just say one thing? I hope it is not a case of fools intervening where angels fear to tread, but the noble and learned Lord, Lord Gardiner, made one point that I was not quite happy about. He quite rightly said that his Government had introduced the Theft Bill which became an Act in 1968, which provides the maximum penalty of ten years for theft. But the noble and learned Lord went on to say that in his opinion if a man—a burglar, presumably—deprives somebody of his goods, that is a worse offence than if he does malicious damage to some goods or property.
What is the situation? Take the case or two men, one of whom steals some
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works of art while the other does such great malicious damage to those works of art that he completely destroys them and they are lost to posterity. It may be argued logically that the burglar who stole those works of art has not destroyed them, and that one day they may be restored to legal ownership and be saved for posterity, but that in the case of the man who has destroyed the works of art they are lost for all time. Therefore, I should have thought the man who destroyed the works of art ought to be subject to a similar sentence. The maximum sentence is hardly ever used, presumably. As I believe the noble and learned Lord said, it would probably be imposed in less than 5 per cent. of the cases, at the most. Surely both men should be subject to the same maximum penalty. Perhaps I am quite wrong, but it seems to me, as a layman, that there is some point in my argument.
LORD DONALDSON OF KINGS-BRIDGE: May I support my noble and learned friend, and indeed go a shade further? He said that provided the Bill did not increase the penalty, he was not trying to decrease it. I wish to go on record as saying that wherever I see a penalty of more than seven years I am in favour of decreasing it, and in our Second Reading debate I asked the noble and learned Lord who sits on the Woolsack a specific question about this point. I asked him, in so far as the Royal Commission were advised by some of the people who gave them advice to feint the term at ten years, rather than seven years, whether they gave any reason in favour of one figure rather than the other. The noble and learned Lord replied by calling me one or two perfectly good-tempered names, such as an "addict" and so on, for which I bear him no ill-will, but he did not answer the question.
It is in fact an extremely serious question. Is there any point in sending a man to prison for ten years? There is certainly a point in sending a man to prison for a long time. What is a long time? We cannot have a debate on that to-day, but my own view is that wherever you get the opportunity, without appearing to be unduly weak with criminals, to reduce sentences from the very long, you should take it. The alternative is that which the Law Commission has taken in the second type of offence—a life sentence.

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And that, in my opinion, is something that should not be lightly given without a good many changes, which this is not the moment to discuss.
I should like to ask the noble and learned Lord whether he can give some logical reason for sentencing a man who burns down a house to either ten years or seven years' imprisonment. I do not think I need elaborate on the problems here. It is quite obvious that it will not protect society any longer if you are going to let him out as soon as he is well; it is quite obvious that such a sentence does him nothing but harm after a certain period; it is quite obvious that it does not deter him from doing the same thing again—he would hardly have time. I should like to hear the reasons for this from the noble and learned Lord, and I also wish to have my views on record.
4.28 p.m.
THE LORD CHANCELLOR: I do not think that at this juncture I can enter into the whole problem of sentencing policy with the noble Lord who has just spoken. Obviously there is no fundamental value in seven rather than ten, or ten rather than seven, or in fourteen rather than ten; or in five rather than seven. It is a question of judgment and degree. What happens to the man after he is sentenced is a question of penal treatment, and it may be that at some time your Lordships will wish to debate the whole question of penal treatment and sentencing policy. They are both important and interesting subjects. But I do not think I can give any answer to conform with this specification or a logical reason for one thing rather than another, because in essence it is a matter of judgment and degree, and must remain a matter of judgment and degree, depending upon the particular circumstances of the case.
I would also remind the noble Lord that any sentence over three years is in a sense an indeterminate sentence, because, quite apart from good conduct, there is the possibility of parole, the I whole purpose of which was to give a man who had been sentenced to a long period of imprisonment a chance—independently of the question of good conduct in gaol, and good conduct marks—to get out before that sentence was fully served. So in essence there is no diff
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erence in principle between life imprisonment and ten years: in both cases the man can get out after the Parole Board has had an opportunity to look at his case, if it considers it a suitable one for parole.
I come back to the question of the Amendment. It is of course a perfectly friendly argument between the noble and learned Lord, Lord Gardiner, and myself. He does not accuse me of wishing to impose a sentencing policy which is unduly harsh; nor do I wish to accuse him of imposing a sentencing policy which is unduly permissive. It seems to me that we are at ore about that, and therefore I can say quite simply and dispassionately why my right honourable friend who is responsible for this Bill, after I had consulted him about the Amendment of which the noble and learned Lord in effect gave notice at Second Reading, did not feel that he was able to go all the way with the noble and learned Lord.
I think the noble and learned Lord was perhaps a little cavalier in his treatment of his own responsibility, and the responsibility of the Government of the Party opposite, for imposing ten years as the standard maximum penalty for theft on indictment, and I do not think he has got out of the dilemma he is in by trying to draw a moral difference between malicious damage and theft. I do not know whether it is possible to draw moral differences in principle, and do not know that if I did I should draw any conclusion from my argumentation. The difference between destroying the "Queen Elizabeth", for instance, and stealing £450,000 seems to me to be morally indistinguishable. On the other hand, many cases of theft are worse than malicious damage, I have no doubt, and many cases of malicious damage are worse than theft. The view which the Law Commission formed, to which my right honourable friend adheres, is that they are so nearly alike in principle as offences against property that it is better to have the same standard penalty for both as a maximum, and my own judgment, for what it is worth, is that that is entirely right.
The second point which the noble and learned Lord raised was about the actual sentences for criminal damage. I think he rather overstated the effect of my

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Answer in yesterday's Hansard which was to the effect that out of 27 cases to which he had referred in his Question, 21 related to arson, and particulars of the other six were not readily available but they were not for arson. I cannot say whether they involved danger to life or not. I must say that viewing theft and viewing malicious damage as two offences with serious social consequences, which are unhappily all too rife at the present time, I cannot really see that a £450,000 robbery—assuming that it was done without violence; it was of course done with violence on the occasion we all have in mind—if it had been simple theft, is greatly different in moral principle or social damage from the offence of opening the cocks of a nuclear sub-marine and sending it to the bottom of the Atlantic. They are both serious crimes against property. Although, of course, the noble and learned Lord is perfectly right in saying that the Explosive Substances Act would cover the use of an explosive—at least a conventional explosive; I do not know whether it would cover the other kind—on a nuclear power station, I am not sure that that really disposes of the question. There are other more sophisticated ways of destroying a nuclear power station than using conventional explosives on it, and to do it without damaging or endangering life.
The fact is that there is this difference between theft and malicious damage: that theft on the whole can only be committed on reasonably portable property. I think the recent Theft Act abolishes the absolute necessity for asportation. In the old days it used to be an essential ingredient of the offence. I took pride in the fact that a member of my Chambers once prosecuted a man for stealing a steam roller, which you would think is a very difficult thing to do, and he prosecuted him to conviction. On the whole, immovable property, to which this Bill applies, is apt to be much more valuable than portable property, though this is of course a generalisation, like everything else one says on these occasions. I personally should have thought that they were sufficiently like as offences to bear the same standard penalty.
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The only other thing I should like to say is something which perhaps bears indirectly on what the noble Lord, Lord Donaldson, was saying. I think there is a difficult philosophical question which nobody has really explored between the maximum sentence which you impose for an offence in your Statute and the actual maximum which in practice the courts will wish to impose upon it; because in practice, as I think my noble friend behind me said, the courts do not, or only on the rarest occasions, impose the maximum sentence, whatever it is. To use, I hope, not an unseemly or facetious analogy, when one went to school one was always put in for an examination paper on which the maximum mark was 100 or alpha plus; nobody got 100 or alpha plus but they got very close; and the reason was that you always wanted a theoretical maximum which was slightly above the actual maximum you acquired in practice.
This is the argument in reverse, because what you are dealing with here is penalties, and speaking for myself I am quite satisfied—although this is a perfectly friendly argument and one does not want to get excited about it—that my right honourable friend has been right to stick to ten years. The only thing I would add is that the Law Commission, having originally proposed seven years were persuaded to go to ten, not only because of the numbers but because of the immense weight of those who had advised in that direction. They included, among others, the Lord Chief Justice, the Bar Council and the Law Society. One of the reasons they gave—although I have not endeavoured (and I do not go back on it) to use it as a weapon against the noble and learned Lord and his Party—was that a decrease, and it would be a decrease, might be widely misunderstood as indicating a soft attitude to serious offences. This is not the policy of the present Government, and I am glad to agree that it is not the policy of the Party opposite. In fact ten years is the mean between penalties of fourteen years and seven years, which were the high penalties imposed by the 1861 Act, and with respect I would advise the Committee to resist the Amendment.
BARONESS SEROTA: Like the noble Earl, Lord Cranbrook, I felt some diffidence about intervening in this discussion

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between two such noble and learned Lords, and especially on a Bill which emanates from the Law Commission, for whose excellent work I have such admiration. But I am encouraged to do so in relation to this Amendment for two reasons. In the first place, I think that penalties are not a matter only for lawyers when Parliament is consolidating an important branch of the criminal law; and in the second place because having read the Report of the Law Commission, both the Working Paper and its final Report, it seemed that they themselves were very uncertain about the level of penalties. I would agree with the noble and learned Lord that this is very much a matter of personal judgment, but when he suggests that the House might like at some future date to discuss penal treatment and sentencing policy—and I agree that this is not the occasion for it—he will surely recall that this happened as recently as last December when we debated the situation in our overcrowded prisons for six hours, and again in February on a Motion of the right reverend Prelate the Bishop of Durham when we debated for another five hours the effect of long-term sentences both for prisons and prisoners and the grave problems this presents to prison staff. I recall very well the forthright words of the noble Lord, Lord Windlesham, on this matter, when we were all in agreement about the problems which the growing numbers of long-term prisoners presented for our prison system.
There is one point on which the noble and learned Lord might be able to enlighten me. In the very admirable and most impressive list which we received in answer to my noble and learned friend's Question about the individuals and organisations consulted by the Law Commission, there is one very notable omission. The one organisation that has a duty to advise the Home Secretary on the treatment of offenders and the development of our penal system is his Advisory Council on the Penal System. In the appendix to the Report of the Law Commission the Advisory Council on the Penal System appears, and against it, in brackets, there is the special word "consulted". But it does not appear against bodies to which the Paper was actually sent. I wondered whether the noble and learned Lord could tell me if I am right in assuming from this rather
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strange position that the Advisory Council on the Penal System was consulted not on the Working Paper as a whole, which would include the level of the penalties, but only on those aspects of the Working Paper and the purpose of the Bill which related to the compensation provisions arising out of the Widgery Committee's Report?
THE LORD CHANCELLOR: The noble Baroness would be justified in assuming it, but I cannot give her an authoritative answer. I will seek to ascertain one, and let her know.
BARONESS SEROTA: I am grateful for that assurance, because I feel that this is the major body that should have been consulted to give a view on the whole Paper, including penalties, because they are directly concerned with developments that affect the penal system. I do not want to repeat all the arguments that have been so excellently presented by my noble and learned friend Lord Gardiner on this matter, but I must confess that I do not find this case proved, in a situation where the Law Commission were themselves not certain. The sentence in paragraph 15 of their Report reads as follows:
"This we think should be the destroying or damaging of property belonging to another, and for this offence we consider that on the basis of the statistics a maximum penalty of ten years' imprisonment is probably right."
My noble and learned friend Lord Gardiner has already commented on the statistical evidence that the noble and learned Lord the Lord Chancellor has given him in reply to his Written Question. I hope that the Committee will support my noble and learned friend in this Amendment. I accept that it is a matter of judgment, but having studied the Law Commission's Report and the figures we now have I certainly agree that we should now legislate for a penalty of seven years rather than ten.
LORD CONESFORD: I share with noble Lords on both sides of the Committee a great respect for the views of the Law Commission. I am sorry that I missed a short part of the speech of the noble and learned Lord, Lord Gardiner, and it may be that he dealt with paragraph 64 of the Commission's Report and the sentence I am about to quote, but I think it is important to read what was the final statement on this subject by the Law Commission themselves. Whatever their

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earlier doubts were, they did finally, in paragraph 64, make this statement:
"The majority of our commentators thought this too low "—
that was the seven years—
"and, on reflection, we agree that a maximum penalty of ten years' imprisonment, which is the same as for theft and for obtaining property by deception under the Theft Act 1968, is appropriate."
Their final view was that the sentence the Government have put in the Bill was the appropriate sentence. In those circumstances, I do not think that we should attach undue weight to their earlier doubts, which have been cited in the speeches that have been made. The evil of malicious damage against which we are seeking to protect ourselves can be quite as bad as any theft, and I think there are very sound reasons for the final conclusion of the Commission themselves. For those reasons, I very much hope that the Government will be supported.
LORD GARDINER: If I may speak again, I hope I have made it plain that it is no object of my Amendment that any lower sentences should be passed for offences of this kind than have been passed in the past. If there were any evidence that it would have that effect, I would ask leave to withdraw the Amendment. As the noble and learned Lord the Lord Chancellor has told us that it is not the Government's intention that the Bill in its present form should increase the present level of sentences, may I ask him whether, if I ask leave to withdraw the Amendment, he would be prepared before the next stage of the Bill to consult his right honourable friend again? I ask that for two reasons: first of all, it would enable the obtaining of an answer to the point which my noble friend Lady Scrota has raised as to what exactly was the part of the Advisory Committee in this matter. I gather we cannot know that this afternoon. Secondly, it is my strong impression—I may be wrong—that since the Question was put down for Written Answer on March 18 and the Answer did not arrive until, I think, last night, right to the last moment, and long after the noble and learned Lord discussed the matter with his right honourable friend, the Home Office were still desperately
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trying to find any case of this class which in those five years had received a higher sentence than seven years. If that is right, it remains the fact that this Bill imposes a higher sentence than any that has yet been awarded for this class of offence. If I am right in thinking that the noble and learned Lord discussed this matter with his right honourable friend before those facts were known, I would ask him whether, if I withdrew the Amendment, he would discuss it again with his right honourable friend before the next stage of the Bill.
THE LORD CHANCELLOR: On one part of the noble and learned Lord's speech I can give an answer straight away. On the point raised by the noble Baroness, Lady Scrota, I can now tell her, since I have been rapidly served by my advisers, that the Advisory Council on the Penal System were consulted on the Paper as a whole. As regards the main point of the noble and learned Lord, I will at his request certainly discuss it again with my right honourable friend, without any commitment at all, because we did discuss it before and we came to a conclusion.
LORD GARDINER: I ask leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 4 agreed to.
Clauses 5 to 9 agreed to.
Clause 10 [Interpretation]:
4.48 p.m.
THE EARL OF CRANBROOK THE EARL OF CRANBROOK moved Amendment No. 4:
Page 5, leave out lines 25 and 26.
The noble Earl said: There are three Amendments standing in the names of the noble Lords, Lord Henley and Lord Hurcomb, and myself, and they are closely related. The first two would leave all plants growing wild to be considered as property; the third one trees only. Since the first and greater includes the third, it may be for the convenience of your Lordships if I deal first with trees alone.
The principal Act of 1861 made it an offence to destroy any tree or sapling or shrub wheresoever growing of the value of 1s. and upwards. For some reason

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the Law Commission excluded from its definition of property the foliage and the like of trees growing wild. There is no definition of trees growing wild, and I am assuming that a self-sown tree, which has not been deliberately planted, is growing wild. However, I should be grateful if the noble and learned Lord could tell us what "growing wild" does mean. Is a hedgerow, which is regularly trimmed by the occupier, growing wild or not? For the last fortnight I have locked every day at a hedgerow in my village which is closely trimmed, and which is now partially covered with blackthorn blossom. If that hedge were free for anybody to pick, and if every casual passerby picked the twigs on which those flowers grow, the hedge would be completely ruined.
The 1961 Act provided penalties for causing damage to fences, or to plants used for the food of livestock. But is a field of natural grasses, which is harrowed, rolled, limed and manured in order to increase its productivity as a grazing field or as a meadow for hay, "growing wild"? And can anybody tread it down or drive his motor car over it without doing any wrong?
So far as trees are concerned, I do not believe that the Law Commission can have realised that both trees which have been deliberately planted and trees which have grown by being self-sown are of increasing importance to the forester, and both can equally be ruined as potential timber trees if the foliage of their leading shoots is removed. As your Lordships know, new plantations are started by planting seedling trees which have been brought on or grown up in a nursery, and when an old plantation is felled it can be replaced in the same way. But increasingly in this country foresters are relying on the seedlings which spring from seeds shed by the parent trees before they are felled to replace them. This natural regeneration has for long been the practice on the Continent, where there are very few rabbits; but before myxomatosis arrived that could not be done in this country, because the rabbits ate the young seedlings as soon as they appeared. It is only in recent years that this practice of using natural regeneration has been adopted, and it is of very considerable importance.
I should have thought that naturally grown trees, as well as artificially grown trees, should be regarded as property. I took this point up with the noble Lord, Lord Taylor of Gryfe, who is Chairman of the Forestry Commission, and he told me that they have consulted with the Law Commission. I quote his letter:
"The Law Commission took the view that trees deliberately left to regenerate naturally for a particular purpose would probably not be regarded as wild, although it is clear that the question of whether a tree is growing wild or not might on occasions entail some nicely balanced judgments of the courts."
I do not think that is good enough for the forester who will have to rely on natural regeneration for replacements.
When we come to herbaceous plants, I readily accept that the position is not so clear-cut. What we all agree on is that we need some protection from vandalism against flowers and the like, which give us all so much pleasure; and that beauty in the countryside is the property of the population at large and not just of the landowner on whose land it happens to be found. Most owners are very conscious of that fact, and they allow people to enjoy the daffodils, the bluebells or the fritillaries which are found on their land. But what is needed is something to protect the plants, which might well disappear, against the first-comers so that the second and subsequent comers can see them all in all their natural beauty. Where plants of that sort are found we can tell people, "Please do not pick the plants". But if the law now states, quite deliberately and specifically, that these plants can be damaged with impunity, then I do not see how they can be protected.
The noble and learned Lord suggested that this was a case for a special conservation Bill to be introduced by some conservation bodies. A Bill of that nature would of course give absolute protection to rarities, such as plants growing on some Scottish mountain, which are realty in danger only from the botanist who picks them for his herbarium or for his garden and are not susceptible to attacks by vandals. I cannot see how we can protect the plants which are not rare but are beautiful by reason of their very commonness and abundance unless some Amendment such as we are discussing is included in this Bill.
A conservation Bill would obviously give a right to the Nature Conservancy to authorise people to take plants under licence, but it would not be possible to use that sledgehammer to crack the nut of these common and beautiful plants which I want to see protected. It seems very much better to leave their protection under the control of the owner of the land on which they grow; and if, as will inevitably happen in practically every case, he takes no steps to protect against the casual picker of a flower or of a blackberry, then I think he will have the protection of Clause 5(2)(a), as he most certainly would in my village. After all it is de minimis, and I think that the lover who picks a posy of Tragopogon pratense to give to his mistress would certainly not be prosecuted; and even if he were, I should have thought that no court would inflict a penalty. I hope that the noble and learned Lord may be able to look on flowers in a rather different light as a result of what I have said. I beg to move.
4.57 p.m.
LORD HURCOMB: I added my name to the Amendments put down by my noble friend Lord Cranbrook, because I am very much influenced by the same considerations that he has brought to your Lordships' attention. But I should like for a moment to cover rather wider ground. With the very greatest respect to the law, it seems to me that we may be asking too much of the lawyers. However learned and distinguished they may be, and however lucid and logical they may be in their use of language, we cannot expect them to produce a coherent policy for the conservation of our flora and fauna without the Government themselves or Parliament laying down the lines of policy which they want to be followed in these matters. Your Lordships' House is perpetually being brought up against these problems in some legal form or another, and in the past, speaking for the moment from the point of view of conservationists, we have found it possible to make progress only piecemeal.
Mainly with the support given by your Lordships' House, we now have what I regard as a fairly satisfactory legislative framework for the protection of birds. But many other elements of the fauna
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need protection, and therefore we have been forced to introduce private Members' Bills for particular species—one day deer, the next day the seal, the next day the otter or the badger. But we do not yet have a proper legislative framework for the adequate protection and conservation of our flora and fauna as a whole and though it may be impossible or difficult, or even wrong, to try to deal with wild flowers in the present Bill, I cannot but share the noble Earl's feelings that it is necessary without delay to find some means of protecting the common flowers of the countryside.
I agree with him that the very rare plants are mainly the victims of the professional botanist or the over-zealous amateur gardener. But take a flower that is probably familiar to all your Lordships—the fritillary, which is very beautiful, very interesting and rather curious. When I was a boy, I could have found in the Home Counties probably a hundred sites where that flower could be seen. I doubt whether to-day one could find a dozen. Anyone who lives in London and wants to see even such flowers as cowslips or primroses in abundant bloom, will be very hard put to it unless he trespasses along some railway embankment or very remote piece of waste ground.
It seems to me that it is now the business of the Secretary of State for the Environment to produce a coherent, well-thought-out means of protecting both the rarities and the common elements in our flora and fauna, and not to put Parliament in the position of having to deal with it piecemeal—as I say, one day with seals, the next day with birds, the next day with wild flowers. Let us try to aim at something comprehensive. If I may again say so, with the greatest respect to the law, it seems to me unreasonable to expect the lawyers to deal with it by trying to rationalise the existing law, framed when the whole problem was entirely different; when the attitude of the public was entirely different; when the risks to which all these creatures or plants are exposed were entirely different. We shall not get very far on those lines.
May I conclude by saying one other thing? This point was argued in connection with both animals and plants not very long ago, in connection with the Theft Bill, and on that occasion, if I remember aright, it was declared that

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wild creatures, tamed or untamed, should be regarded as property; but that, although they were property, they could not be regarded as stolen unless they were plucked for reward or sale. If I remember aright, the noble and learned Viscount, Lord Dilhorne, took very strong exception to introducing that conception; nevertheless, it went into the Bill.
But it was argued then, again if I remember aright, by Lord Stonham, on behalf of the Home Office, that by making wild creatures property we were giving them a degree of protection which they otherwise would not have. I remember asking at the time whether wild creatures included all the invertebrates, and where the property in a butterfly vested if it flew from one side of a hedge to another. I do not think I received very satisfactory answers to those questions, which may have been rather frivolous. But now, when we come to plants, it is argued that it does not matter, that they need not be anybody's property; and I think we are asked to accept the view that, though they will not be anybody's property, they will not be at any greater risk. That is why I support the Amendment, but I am very ready to be told, for the reasons I suggested just now, that this is not the way to do it; and what we want is at least a proper Wild Plants Protection Bill produced by the Minister for the Environment without any further delay.
VISCOUNT MASSEREENE AND FERRARD: I have some sympathy with the Amendment moved by my noble friend behind me, but not 100 per cent. sympathy. We have certainly come a long way since 1820, when a Bill came before your Lordships' House to abolish capital punishment for cutting down a tree. The then Lord Chancellor, who I think was Lord Eldon, rose majestically from the Woolsack and said, "But, my Lords, it may be that the whole country will be deforested "—or words to that effect. As I read this Bill (I have just glanced at it; I am afraid that I have not read it very thoroughly) it appears to me that whereas a boy could come into my orchard and steal a cherry and would then be subject to a maximum penalty of ten years, that same boy (he would then have to be a grown man) could go into my park and cut down an oak tree worth
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£100, provided that it was a wild tree (though how you define a wild tree, I do not know) and merely be admonished. Or he might cut down ten oak trees, which would be worth £1,000. It seems that there is something wrong here. Presumably, under the law of trespass, he would be trespassing if he came into my park, and therefore I could prosecute him for trespass. But the point is that under the law of trespass he would merely be admonished or have to pay a small fine, even though he would be doing damage.
I am rather at sea here, but I quite agree that one does not want to prevent the public from blackberrying or from picking mushrooms. This is the last thing I should want to do. But it rather worries me, as I say, that somebody might come on to one's land and actually cut down perhaps a walnut tree, which is far more valuable than an oak tree provided it is suitable for veneer. It may be worth £600, £700 or £800. I should really like the noble and learned Lord the Lord Chancellor to explain that my fears are quite groundless, because I am rather worried about this.
5.7 p.m.
THE LORD CHANCELLOR: My noble friend is a landowner in Scotland rather than in England.
VISCOUNT MASSEREENE AND FERRARD: Both.
THE LORD CHANCELLOR: Perhaps both. So far as the Scottish law is concerned, I am not fully armed; but without going into the difference between trespass and criminal liability I think I can relieve him a little more—almost completely—as to his anxieties about the provisions of this Bill. The first thing I should like to do is to discuss what this Bill does unamended, and then what the Amendment would do.
If my noble friend turns to Clause 10, he will see that, for the purposes of criminal damage, the Bill excludes from the expression "property" mushrooms growing wild and flowers, fruit or foliage of a plant growing wild; and thereafter provides that the word "mushroom" includes any fungus and the word "plant" any tree. That means that if I cut down my noble friend's oak tree I am committing damage, because it has a trunk as well as foliage. At least, if it

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were the kind of oak tree which is worth £100, as he postulated, it would have a trunk; and I must not damage the trunk of a tree because it would be property. So I think he can be completely satisfied about groves of oaks so far as the Bill covers English properties. What would happen in Scotland I would not venture to say.
Coming back to the question of nature conservation (I am rather working back along the line of speakers), I have a great deal of sympathy with the noble Lord, Lord Hurcomb, in what he says about nature conservation; but I do not think that conservationists are necessarily benefiting their cause by trying to use a Criminal Damage Bill for the purpose of protecting either rare or common plants. I think they are far more likely to make themselves unpopular with the inhabitants of the countryside, if they will forgive my saying so. If my noble friend Lord Cranbrook visits Switzerland from time to time (I hope he does, because it is a lovely country) he will notice that they have exactly the same kind of problem with the extraordinarily beautiful flora there. They do it, I think he will find, by two means in particular. One is that they have particular territories which they call Naturschützgebiet, which is, roughly speaking, "a place of outstanding natural beauty" and there you cannot pick any flower, under penalties. On all the main places where the more beautiful flora grow they have pictures of the flora which are protected, with a description of them. They are absolutely protected and it is a crime against the State to pick them. You get the beautiful little flower silene acaulis, for instance, some the androsaces and some of the less beautiful edelweiss (or leontopodium alpestre). They are protected, and that, I think, is the only way in which it can be done.
I do not think it can be done by means of a Bill the purpose of which is to consolidate and improve the law of the protection of property, public and private, from malicious damage—criminal damage as we have come to call it. If you tried to use a property Bill for this purpose I think it would have two undesirable results. In the first place, I do not think you would protect effectively plants growing on
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common land as distinct from land belonging to the Nature Conservancy or something like that. Secondly, I do not think landowners would be in the least interested—many of them, farmers or whoever had a right to the property—in enforcing an Act about precisely the kind of plant that you want most to protect. It would be an unusual farmer who was particularly concerned about the fritillary, a flower referred to by the noble Lord. The way to protect that is to let it be known that it is protected and to try to enforce protection by the enforcement machinery. Do not leave it to the private landowner.
The second of the two objections of my noble friend, Lord Cranbrook, to whose speech I now return, was not conservation qua conservation; in the latter part of his remarks he was concerned with the conservation aspect put forward by the noble Lord, Lord Hurcomb. In the earlier part of his remarks he was concerned with the rights of landowners, quite rightly, because this Bill is one for the protection of the rights of landowners. May I deploy the case against him on that footing?—a different case with a different set of arguments. Long before the land of this country—I am talking about England and Wales, all the time—was inclosed, the people of the villages picked wild flowers, blackberries and mushrooms. Many of them went out into the woods and picked the foliage of trees in May—what is called "maying", and so on. The effect of my noble friend's Amendment, however well intentioned, would be, I believe, that for the first time in our long history this would become a criminal offence, punishable by six months on summary conviction, or ten years—if it is ten years—on indictment. That absolutely revolts my own social conscience. I am as much against vandalism or malicious damage and for the protection of private property as he is; but the idea that in 1971 an offence of this kind should be created, for the first time, in an Act for the protection of private property against malicious damage, shocks me to the core. I am sorry to say that, but it does. I do not think we could get it through another place, even if we passed it here, and certainly it does not have the support of the Government.

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My noble friend posed a number of relatively difficult questions, some more difficult than others. What is wild is not a question of the law but a question of fact. If it is cultivated it is not wild. Without prejudging any case which might come into the courts about his own blackthorn hedge, I would suspect from what he says about it that it was considerably cultivated. Similarly, the ordinary farmers' lands, the grasses, are cultivated—they are rolled; harrowed, covered with fertiliser and cultivated. Under the old law, which we are now changing, a device of the farmer, if he had a lot of mushrooms in his fields, was to cast a little mushroom spawn on his meadows and pretend that what came up was cultivated mushrooms. This was an extremely effective way to prevent the taking of wild mushrooms, because wild mushrooms have never been protected against damage and I do not think they should be, even if they are rather rare fungi, even if they are the sacred fungi referred to absurdly by Mr. Allegro in his ridiculous book. I do not think they should be protected in that way.
I hope I have made it clear that the Bill as unamended protects landowners from having plants dug up. You cannot dig up primroses or cowslips, but you can pick them without committing a crime. Equally with trees, you can pick the foliage, or even the wild sloes if you like sloe gin, but you cannot destroy the trunk or dig up the tree if that is the method of destruction you prefer. I think that is about right myself, and I do not want to alter it very much. If you get this rather difficult problem of natural regeneration which my noble friend quite rightly raised, a number of rather difficult borderline cases—questions of fact and degree very largely—may arise. It might be difficult to determine in an individual case what amount of attention or management had to be lavished on a natural copse before its trees ceased to be growing wild, but I am told that in practice this is unlikely to be a serious problem. The answer must depend on the intention of the person preserving the plants and the degree of attention given, and this may be safely left to the courts to decide. I should have thought—this is a personal opinion—that where the situation is one in which the owner postu
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lates a deliberate method of arboriculture, whereby natural regeneration is relied upon as the method by which the wood renewed itself, the courts would decide that this was not growing wild within the sense of the Act. I do not feel absolutely confident of that opinion, but for what it is worth I think it is slightly the better opinion of the two.
My Lords, I turn to the effect of the Amendments which my noble friend has proposed. The first two, which go together, would make picking blackberries, wild flowers, wild strawberries, elderberries, nuts or sloes a crime. So a botanist who goes out and makes his little hortis siccus would be committing a crime. The other Amendment is limited to trees, but I hope I have given the Committee enough argument to show that while I have a good deal of sympathy with both the points of view which have been put forward—both the conservationist's point of view and the more limited point of view that landowners are entitled to protection against vandals—I would not go the length of these Amendments. Therefore, I would advise the Committee against them.
THE EARL OF CRANBROOK: After what the noble and learned Lord has said about the first two Amendments, I feel bound, if the two noble Lords whose names are down with mine agree, to withdraw the first two Amendments. The third Amendment I think is of importance. The noble and learned Lord has not altogether satisfied me. He says himself that there are likely to be some doubts. I cannot see that the public would suffer in any way if trees were included as property whether self-sown or planted, and I should not like to withdraw the third Amendment.
LORD HENLEY: With regard to the first two Amendments which are also in my name, I think I agree with the noble Earl that perhaps it would be reasonable to ask leave to withdraw these. Nevertheless I hope that the noble and learned Lord the Lord Chancellor will take very special note of the words of the extremely distinguished naturalist, the noble Lord, Lord Hurcomb. It is all very well for the noble and learned Lord to say that he does not want in this Bill to bring in something that was not there

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before. Nevertheless, with the Theft Act and with this Bill, the Government have left a very serious gap.
The noble and learned Lord said on Second Reading that he thought it would be useful to consult the Department for the Environment and consider a method for devising some sort of statute to deal with this matter. I feel that this is up to the Government. The noble Lord, Lord Hurcomb, made this point very well. This is a state of affairs created by the Government and I hope very much that they will look to it. I quite agree that one does not want to have a state of affairs in which people cannot go picking blackberries or mushrooms, and so on, which they have always been able to do. But now we are living in a world in which, if we do not exercise some restraint, by law or otherwise, none of these things will be left. I think the Government have not quite faced up to this in the arguments that they have used in opposing the Amendments. Nevertheless, I agree that it might be sensible to ask leave to withdraw these two Amendments.
THE MARQUESS OF SALISBURY: May I say a word or two about the third Amendment? I have listened with great interest to what the noble and learned Lord has said about the first two. I think that it is probably true that this is not the proper Bill by which to achieve this particular objective, although it is something which badly needs doing. But when you come to the third Amendment, this is not merely a matter of a number of wild trees; they are a crop. Natural regeneration has become one of the main systems of renewing the woodlands of this country, and many landowners use it. I do not think that these trees should be put into the same category as the others. If the noble Earl, Lord Cranbrook, wanted to go to a Division on that matter I should certainly support him.
Amendment, by leave, withdrawn.
5.22 p.m.
THE EARL OF CRANBROOK THE EARL OF CRANBROOK: I beg to move Amendment No. 6.
Amendment moved—
Page 5, line 28, leave out ("or tree").—(The Earl of Cranbrook.)
THE LORD CHANCELLOR: I hope that here I have not been more confused than usual. I think that there are some difficult border-line cases. If my noble friend will withdraw this Amendment I shall certainly consult with my right honourable friend as to whether those cases can be dealt with. In answer to the noble Marquess, I am quite sure in my own mind that if the trees can fairly be described as a crop then they are within the Bill already and the Amendment is unnecessary. Doubts may arise in marginal cases as to whether the trees are being treated as a crop. Where you cultivate trees you are already within the Bill—and rightly so.
THE MARQUESS OF SALISBURY: With all deference to the noble and learned Lord, they are not cultivated; they are trees which are allowed to grow and yet they are in fact a crop. They are a way of renewing your woodlands. If the noble and learned Lord will tell me exactly where in the Bill they are protected then we should all be absolutely satisfied.
THE LORD CHANCELLOR: I sought to do this previously. I recognise at once that since the disappearance, or perhaps the diminution, of the rabbit, natural regeneration has been a perfectly legitimate method in forestry of renewing trees. If the noble Marquess asks me where in the Bill this method is protected, I have already stated as my opinion that where trees are treated as a crop and natural regeneration is the method used for renewing the crop then they are not growing wild within the meaning of Clause 10. When I expressed that opinion I added the rider that I thought it was the true view—and I was advised that it was—but that any lawyer who advised that that was the only possible view would have a fool for his client. On the other hand, I have promised that if my noble friend will withdraw the Amendment at this stage I will see whether before Report anyone can devise a form of words to bring natural regeneration within the terms of the Bill more explicitly, if that is thought to be required. I recognise what the noble Marquess has said. It is a crop, and this is a legitimate method of husbandry. It ought to be protected in a Bill protecting property. If at this stage my noble friend will be satisfied with this

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assurance I will do my best to consult my right honourable friend before the next stage.
THE EARL OF CRANBROOK: I shall be grateful if my noble and learned friend would do that and I should be happy to withdraw the Amendment. But I would ask him to remember that in defining trees which naturally regenerate themselves as a crop, in a very large number of cases one does not know until after a considerable period of time whether there will be enough to make the crop required. That means that the law must be ready to protect rather more than would ultimately be the final crop; because you cannot know this until trees have reached a certain stage of maturity; and if they are damaged before then they would be no use at all. If my noble and learned friend would bear that in mind I will withdraw the Amendment and hope for better luck at the Report stage.
Amendment, by leave, withdrawn.
Clause 10 agreed to.
Remaining clauses agreed to.
Schedule [Repeals]:
THE LORD CHANCELLOR: I think that I can quite honestly say that this is a purely technical Amendment of no real interest to anybody. Its effect is to repeal a reference to the Malicious Damage Act, 1861, in the Magistrates' Courts Act, 1952, and the reason why it is put in at this stage is that it was overlooked when the Bill was drafted. I beg to move.
Amendment moved—
Page 8, line 39, column 3, at beginning insert ("Section 127(1)").—(The Lord Chancellor.)
On Question, Amendment agreed to.
Schedule, as amended, agreed to.
House resumed:—Bill reported with Amendments.

THE LAW: MINISTERIAL RESPONSIBILITY
5.30 p.m.
LORD GARDINER LORD GARDINER rose to ask Her Majesty's Government which Minister is, or which Ministers are, responsible for the state of all, or a part or parts, and, if so, which part or parts, of the law of
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England and Wales. The noble and learned Lord said: My Lords, I take it that the object of putting down an Unstarred Question is to enable some words of explanation to be made of the Question which is asked and to enable whoever is replying for the Government to give more than a sentence or two in answer where the subject does not really justify a whole afternoon's debate. If that is so, I hope it may be thought that the Question I have put down is a proper one. I believe it to be an important one.
We have in the last five or six years, as your Lordships know, made very considerable progress in the reform of our law and legal system; and in those spheres for which the noble and learned Lord the Lord Chancellor is responsible, this Government are continuing to do so. But I believe that the subject of the Question which I have put down is likely, in the years ahead, to prove a considerable barrier to further advances in other fields unless we can clear up this particular matter.
If one asked the question, "Who is responsible for our law?" there is no answer, in the sense that it is written down anywhere in the Constitution. But it is, I think, usually thought that the Lord Chancellor is responsible for our civil law and that the Home Secretary is responsible for the criminal law. I remember, when even more ignorant than I am now, and when a young junior barrister, finding something in the criminal law which seemed to me to be a great injustice. I wrote to the Lord Chancellor about it. He sent me back a very polite reply, thanking me for my letter and saying that this was obviously a matter for the Home Secretary. So I wrote to the Home Secretary, and I got back a very polite reply thanking me for my letter and saying that this was obviously a matter for the Lord Chancellor. My Lords, it was Professor Keeton who observed that somewhere between the Lord Chancellor's Office and the Home Office is a large hole where projects for the reform of our criminal law lie deeply interred.
In 1962–63 an Estimates Committee, for the first time since the war, looked into the affairs of the Home Office and tried to find out who was responsible for what. The Home Secretary pleaded guilty to being responsible for the

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criminal law, and the Estimates Committee had a few caustic remarks to make as to how badly he was doing it. They asked him, for example, about the Profane Oaths Act 1745, under which anyone uttering a profane oath in public could be fined—one shilling in the case of a common soldier and five shillings in the case of a gentleman. The Committee inquired whether the Home Secretary had thought it still useful to have this Act on the Statute Book; why he had done nothing about it. The Committee were told that he had not had time to get round to it.
Then the Committee inquired whether our matrimonial law, being civil, was not the responsibility of the Lord Chancellor and they were told, "Yes it is." "Why, then," they asked, "is it the Home Secretary who decides whether the Government are going to make any grant, and if so how much, to the National Marriage Guidance Council?" The Committee could not get any very clear answer about that, except that it was on the principle that nobody else had asked for it and that the Home Office was the rag-bag Department. Then they said in their Report at paragraph 38:
"The Home Office provided a memorandum, setting out the functions of the Home Office, the Lord Chancellor's Office and the Law Officers' Department in the field of the administration of justice. It appeared to Your Committee that, while there clearly should be the closest possible co-operation between the three Departments, in some instances the division of functions appears to be illogical. For instance, in criminal courts the Lord Chancellor is responsible for the administration and appointment of officers, while the Home Secretary deals with procedure …In the magistrates' courts the Home Secretary deals with administration and appointment of officers, while the Lord Chancellor deals with procedure …"
And, my Lords, as I know well enough, the officials of the two Departments are constantly on the telephone to one another saying, "Is this yours, or is it ours?"
The Committee conclude by saying:
"Your Committee have not been able, within the scope of the present enquiry, to carry out an investigation into the Lord Chancellor's Office. Despite this, they feel that the present division of responsibilities may cause difficulties in the administration of the law, as well as in the reform of the criminal law, to which they have already referred … They recommend that the Home Office and
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the Treasury, in consultation with the Lord Chancellor's Office, should take immediate steps to reorganise the present division of responsibilities between those Departments concerned with the administration of the criminal law, with a view to rationalising its administration and rendering more effective the methods of bringing the criminal law up to date."
I should like to ask the noble and learned Lord the Lord Chancellor to say when he replies whether that recommendation was ever carried out: whether the meeting with the Treasury took place and, if so, what reorganisation there was; or whether I would be right in guessing that the two Permanent Secretaries simply got together and said, "Well, the Estimates Committee won't get round to us again for a good many years so we can forget about all that".
My Lords, the Home Secretary has recently woken up to the fact that there are now anomalies in our matrimonial law before the justices, and the reason for that is that, with the new Divorce Reform Act, we have, of course, two people—as usual—the Lord Chancellor, responsible for what I might call our matrimonial law in the High Court and the Home Secretary in the justices' courts. Finding these anomalies, he has appointed, hurriedly, a special Committee, of which the Chairman of the Law Commission, Sir Leslie Scarman, is to be Chairman, to deal with that. In a leading article in the New Law Journal of January 21 they say:
"… we would not question the main proposition in the Home Office statement—that as between the matrimonial jurisdiction of magistrates' courts and that of the divorce courts there are serious anomalies. But the greatest anomaly of all it would perhaps be too much to expect the Home Office to mention: so we will do it for them. It is that whereas when the matrimonial law, or of course other areas of the law, administered by the High Court and the county courts need to be reviewed, the initiative comes from or at any rate falls under the aegis of the Lord Chancellor, the present law reform initiative—merely because it happens to involve the matrimonial law administered by the magistrates' courts—originates with the Home Secretary. Given that he has taken that initiative (and he might of course not have done so at all) the underlying dichotomy of authority is especially remarkable precisely because 'harmonisation' is the object of the law reforming exercise concerned.
"We recall reading in Lord Haldane's Autobiography how he used to spend agonising hours trying to make up his mind about what ought to be done about the chaotic jurisdictions of the Lord Chancellor's Department

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and the Home Office—and that was of course in the far less complex conditions that prevailed at the beginning of this century. But even he would have been a bit shaken had he foreseen this latest manifestation of chaos. He would have been surprised too, we suspect, by the extent of present apparent unawareness of a situation that appeared to him to have such disastrous implications."
If I may put the point now from quite another point of view, I get, I suppose inevitably, a very large number of letters from universities, law societies, groups of magistrates and other legal bodies, saying, "Now that you have nothing to do, on what day this year or next will you come and talk to us?" Of course, noblesse oblige, I cannot say, "No day this year or next." So my Lords—Oxford, Cambridge, Leeds, Durham, Chelmsford, Brunnel, Birmingham, and to-morrow Sheffield; and so on. I always leave time for questions, and I always say that the questions need not be confined to whatever it is that I have been talking about. There is no doubt at all what is the most common question which I have been asked in all parts of the country by law students at the present time. It is, "Ought we not to have a Ministry of Justice?" My Lords, "Justice", the all-Party organisation of lawyers, recently had a one-day conference entirely on, "Ought we not to have a Ministry of Justice?".
There is an article in the New Law Journal of February 11 headed, "Do we need a Ministry of Justice?" I am always asked, "Is it not a fact that every other Western democracy, including all our own old Dominions, has a Ministry of Justice?" And I say, "In the United States it is called the Justice Department, but I agree that in every other Western democracy, and in all our old Dominions there is a Ministry of Justice." Then they say, "If that is right it cannot be—can it?—as one or two lawyers say, that if we had a Ministry of Justice we should be halfway to a Police State?" I say, "No, I cannot say that I see any signs of a Police State in Denmark, New Zealand, or in the other Western democracies." But I do say that on balance, while I have no strong views about it, I think that I am against a Ministry of Justice, because although our system has grown up pragmatically there is a good deal to be said for the man who appoints judges being a different man
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from the man who controls the police and prisons, and is perhaps also responsible for prosecutions.
Then always comes the question to which I have no answer. In every other Western democracy is there not always one Minister who is responsible for the state of the law? Who is responsible for the slate of the law in this country? To this question, I can only say, "I do not know." Because really nobody knows. If it were a fact that the Lord Chancellor is responsible for our civil law and the Home Secretary for our criminal law, it might not be so bad; but the truth is that nothing is laid down, and nobody really knows. The only objection I have heard to having one Minister responsible for the state of the law is that this would not be practicable; because, taking, for example, a Housing Bill, surely the Minister of Housing must be responsible for housing policy. And all the statutory instruments of different Government Departments must be the responsibility of their Ministers. How therefore, could one Minister be responsible for the extent of our whole law?
I think that there are two answers to that. I remember that when I was on the Lord Chancellor's Committee on the Practice and Procedure of the Supreme Court, of which the late Lord Evershed was Chairman, we discovered that this was the only civilised country in the world in which a person who went to law in the High Court did not know in advance on which date his case was going to be heard. We were told by English lawyers that this was impossible. But we found that in Scotland there had only been two cases in five years on which litigants had not had their cases heard on the fixed date. We could not believe that something which had been found to be possible and practicable in every Western democracy was impossible in England. That, I think, is the first answer to the question, because in every other Western democracy there is a Minister who is responsible for the state of the law.
Secondly, it is said that housing policy must be decided by the Minister of Housing. In some countries the first draft of a Housing Bill will be prepared by the lawyers in the Ministry of Housing but cannot be introduced until it has been approved by the Ministry of Justice.

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Some countries, like France, go farther and a Bill has to be approved not only by the Ministry of Justice but also by the Conseil d'État.
Who is responsible for what part of the law is a thing at which I naturally looked very closely in the recent Government White Paper on the Reorganisation of Central Government. It says that Parliament can do anything but here we are not really in the ordinary Parliamentary sphere. At one time we used to suffer from an excess of Royal privilege. Now I think we suffer from an excess of Prime Ministerial privilege. What Minister does what is the jealously guarded right of the Prime Minister. My complaint is that no thought is ever given to this. We indulge in grandiose reorganisations of Government Departments, or of the machinery of Government, but do we ever think about who is to be responsible for the law? The only reference I can see to this in the White Paper is the statement that the new Ministry of Trade and Industry are going to be responsible for companies. Nothing else seems to have been considered.
Who, for example, is responsible for the state of our law on adoption? It might be said that it would be the Lord Chancellor, because it is civil law. But anyone who has occasion to go into this will tell us that, although theoretically it may be so, the Home Secretary says that this has to do with children, and he is the man who has the Children's Department. So our law of adoption, though it affects grown-ups even more than it affects the children, is his affair. Now the position according to the White Paper is that as child care is the responsibility of the Home Secretary in England, it will be transferred to the Secretary of State for Social Services when the main provisions of the 1970 Act come into force on January 1 next.
That may sound as though our law on adoption has now moved from being the responsibility of the Home Secretary to be that of the Secretary of State for Social Services. But the Act goes on to say:
"The Secretary of State for Wales will assume similar responsibility in Wales."
I know that there is a separate law for Scotland, but so far there is only one law for England and Wales. Who is now responsible for the law of adoption in
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England and Wales? This is the sort of question which I am sure the noble and learned Lord on the Woolsack will answer, when he comes to reply to my Question, because it is a specific one; and we should know for what parts of our law Ministers really are or are not responsible.
The matter does not rest there, even with this Ministry. There are other Departments which have always appropriated to themselves responsibility for certain branches of the law. In the past, before we had the Law Commission, it may well have been that this did more good than harm. Then, when nobody else was interested in law reform, if we had a Government Department which took a fatherly interest in a particular branch of the law, that might be a good thing. But what is happening to-day is that while we are going ahead very well in those branches of the law for which the noble and learned Lord the Lord Chancellor is responsible, this is not happening in these other fields.
Take, for example, the Board of Trade, now the Department of Trade and Industry. The Board of Trade appears to be very jealous of the Lord Chancellor and the Law Commission. "That is ours. Hands off!", seems to be their attitude; but they do not do the job themselves. We badly need another Companies Act. I do not know when we are going to get it. That is the Board of Trade's responsibility.
I was on the Lord Chancellor's Committee in January, 1957—fourteen years ago—when we pointed out the many different ways in which our law of insurance was over-weighted in favour of insurance companies and against the insurer, and while we said that it was not for us to determine whether legislation was desirable, we set out what were the practical provisions which could be introduced into the law to remedy this and said that no legal difficulty would arise in their application. That was fourteen years ago. Nothing has happened. The Board of Trade say that they are responsible for insurance law.
They also say that they are responsible for bankruptcy law. What is the situation about bankruptcy law? Fourteen years ago, we had a Committee on Bankruptcy Law—the Blagden Committee—which came out with a good

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Report in July, 1957, with 50 recommendations about how to bring our bankruptcy law up to date. Nothing has happened. And I am sure that the Board of Trade would take umbrage if the noble and learned Lord the Lord Chancellor were to start talking about bankruptcy law, because they would say that that is their affair. They were asked recently whether they proposed to consider whether our bankruptcy law is all right and they said, "No; we have no need to do that. We have the Blagden Committee Report". But fourteen years have already gone by and, as I have said, nothing has happened.
The position in copyright is rather more obscure, but it appears from an Answer given in the other place that
"problems arising from the use of copyright material are studied by the National Council for Educational Technology, and others are to be discussed soon at a meeting"—
in the Department of the Secretary of State for Education and Science—
"with representatives of the British Copyright Council."—[OFFICIAL REPORT, Commons, 5/3/71; cot. 540.]
It is not perhaps surprising therefore that an honourable Member in the other place put down a Question to the Secretary of State for Education and Science about our copyright law. And the Answer he received was:
"Amendments to the law on copyright would be a matter for my right honourable friend, the Secretary of State for Trade and Industry."
Then, my Lords, there is the sale of goods. We were always going to have a further Sale of Goods Act. It does not in fact happen. We all know what the position has been about guarantees, and so forth. It is now some time since the Board of Trade had a report from the Law Commission on exemption clauses. Nothing has happened.
Another branch of the law for which the Board of Trade are responsible is our hall-marking laws. I think I referred to this in a debate a little time ago, and I will not go through it again. But what it comes to is that a Committee which sat in 1856 found that they were in an appalling mess, dating back to about the 14th century, absolutely incomprehensible, and really must be brought up to date. There was another Select Committee in 1879 which said exactly the same thing. Then the noble and learned
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Lord, Lord Denning, in the case of Westwood v. Cann in 1952, said:
"I would observe that in 1856 and in 1879 the Select Committee said that the law as to hall-marking was uncertain owing to the number of Statutes in which it was to be found, and they expressed the opinion that the consolidation and amendment of the law should be carried out without further delay. Now, 73 years later, in 1952, I may perhaps be permitted to express the same opinion."
What happened? Nothing happened, except that in 1959 another departmental committee, under the chairmanship of Sir Leonard Stone, took another look at hall-marking and reached what was by now hardly an original conclusion:
"that the numerous Statutes which touch upon hall-marking, the protection of the public against the flood of adulteration in its purchases of wrought gold and wrought silver, are so confused and obsolete as to be incapable of being patched up by amendment so as to form a workable and enforceable code."
That Committee recommended the substitution of a consolidated statute in place of the existing confusion. Nothing has happened. It is now 114 years since the date of the first Committee. This is the responsibility of the Board of Trade. Something is in the wind, but this is simply because our EFTA partners said to us: "Would it not be a good idea if we all had the same hall-mark laws? These are ours. What are yours?" And ours are so confused that the Board of Trade do not tell them. So they are now, I believe, rushing around in circles; but this has gone on for 114 years.
One wants some general responsibility for the state of our law as a whole. Our insurance law is part of the law of contract. So of course is the sale of goods. Who then is in charge of our law of contract as a whole? The Law Commission Act, which Parliament passed, said in Section 3:
"It shall be the duty of each of the Commissions "—
your Lordships will remember that there is a Law Commission for England and Wales, and the other is referred to in the Act of the Scottish Commission—
"to take and keep under review all the law with which they are respectively concerned"—
that is, the whole of the law of England and Wales—
"with a view to its systematic development and reform, including in particular the codification of such law, the elimination of anomalies, the repeal of obsolete and

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unnecessary enactments, the reduction of the number of separate enactments, and generally the simplification and modernisation of the law."
Under that Act they submit their programmes first to the Government, who can disallow, but cannot say what they are to do. Then, when they make their Report, it does not matter whether it is in the field of criminal law or the civil law, every Report goes to the Lord Chancellor. I do not understand how that state of things and Parliament's clear intention can have survived into an era in which there are still other Government Departments which say: "Hands off. This is our perquisite." The noble Earl Lord Jellicoe, in this House on March 18 of this year—I apologise for not having given him notice of this but it is a relatively small point—said at col. 557 of the OFFICIAL REPORT:
"In reply to that supplementary question, I would also underline that Her Majesty's Government are engaged at present on a systematic review of all the functions of Government."
If one of the functions of Government concerns who is responsible for the state of our law, I hope that that may be included.
My Lords, before sitting down, I want to mention one or two small points. I have not, of course, referred to Scotland. As is not infrequently the case, Scotland is in a much happier position, because the Secretary of State for Scotland is the Minister of Law, the Minister for Crime, the Minister of Housing and everything else. So they are in a very happy position.
Secondly, the noble and learned Lord the Lord Chancellor will no doubt agree that the person who is responsible for the Parliamentary draftsmen—and I believe that in the future a great deal will depend on this—is the First Lord of the Treasury who, because he is also the Prime Minister, and therefore has one or two other things to do, and does not know much about Parliamentary drafting, anyhow, is not, I should have thought, the most suitable head. There is a great shortage of Parliamentary draftsmen, whichever Party is in office. It is mainly because their natural head, I should have thought, was the Lord Chancellor. They really need somebody to take an interest in
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them and to see that their numbers are expanded. In Canada fairly recently they were having difficulties with a shortage of Parliamentary draftsmen, and a very able young Federal Minister of Justice, Mr. Turner, acted on it at once. He got three of the universities to include Parliamentary drafting in the law school. We are not the only people having these difficulties.
I wish the noble and learned Lord well in his reply, because I must frankly say that, although I know something about the law, having spent some time in it, when I am asked, as I frequently am, what Minister or Ministers are responsible for our law or for the different parts of our law, I have to say that I do not know the answer. This is the first time in legal history, so far as I know, that anybody will have been told. One assumes that the noble and learned Lord will tell us. Nobody will be more pleased than I if he can tell us that in the course of the review which the noble Earl, Lord Jellicoe, said that the Government were making into the functions of Government, it had been decided that in future the Lord Chancellor should have responsibility for the whole of our law.
5.58 p.m.
LORD STOW HILL: My Lords, I should like shortly to intervene in this debate. I am sure all your Lordships will agree with me in saying how much we enjoyed the speech of my noble and learned friend Lord Gardiner. While it was delightful to listen to, I thought it a little difficult to follow. But I did the best I could to try to resolve his propositions into categories, and it seemed to me that they came rather to this. First, he said—and he gave a number of examples which seemed to bear out what he said—that the division of responsibility was allocated as between different Departments of State on a rather illogical basis in some cases: because he dealt with comparatively few of the myriad responsibilities which are imposed upon different Government Departments. So far as that part of his argument goes, I should have thought that possibly your Lordships might draw the conclusion that he had established that it would be a good idea if there were some process of reallocation on a rather more logical basis in the limited number of cases to which he referred.

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Then I tried to resolve into a single proposition what seemed to me to be the burden of the second part of his speech, which he coupled particularly with the name of the Board of Trade, as it used to be called. He gave examples, which seemed very convincing, that the Board of Trade had not taken adequate steps to implement a number of recommendations which went back, I think he said, so far as 114 years. If I may use Mark Antony's phrase:
"If it were so it were a grievous fault,"
and the President of the Board of Trade would have in another place "grievously answered it" at the hands of very angry honourable Members of the other place. I have no doubt that he has from time to time felt the animus of their resentment because of his shortcomings, to which my noble and learned friend referred.
Having followed the preliminaries upon which he based his conclusions, I go to the conclusions, the first of which was this: we ought to have a Minister who is responsible for the state of the law in general. May I spend one moment examining that? I personally do not accept that proposition. It seems to me that at the outset one should say to oneself: "What exactly did my noble and learned friend mean by the expression, the state of the law ' "? If he means the state of the law as it is in effect described in Section 3 of the Law Commissions Act 1965, which my noble and learned friend read out, clearly that is the responsibility of the noble and learned Lord the Lord Chancellor. Posterity will gratefully associate with the name of my noble and learned friend Lord Gardiner the 1965 Act, under which the two Law Commissions were set up. All in this House would recognise that under the direction of the previous occupant of the Woolsack, and the present occupant, they have done the most valuable work; they have taken many tremendous strides towards the achievement of the objective which is described in Section 3 of the Law Commissions Act, 1965. In that sense I accept at once not only that a single Minister; namely, the noble and learned Lord the Lord Chancellor should be, but I would add that he is by the express will of Parliament as enunciated in the Act of 1965, in terms made responsible for that aspect of the state of law. I am sure that the whole House will join
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with me in saying that we feel deeply grateful both to the present occupant and to the previous occupant of the Woolsack for what they have done in that respect.
I personally feel some hesitation in going beyond that in saying that a single Minister should be responsible for the state of the law in general. If I correctly caught the proposition as it fell from the lips of my noble and learned friend it was to this effect: every Departmental Minister when he proposes to place a measure, I suppose before Cabinet first and then, if he secures Cabinet approval, before Parliament afterwards, should go first to this Minister and ask his permission and approval for the measure which the Departmental Minister in question proposes to place before Cabinet. I can only say that that would be extremely inconvenient.
It is a public interest that the law should be clear, accessible, tidy, logical and comprehensible. It is an even more important public interest that Parliament, and Ministers in charge of departments, should be seen to be capable of dealing quickly and effectively with the successive problems which arise in the administration of the affairs of a great country like this one. Anything which put a clog upon the speedy and effective action of Departmental Ministers would be a mater of regret. Is there a need for it? If a Minister is dilatory he will soon find criticism of himself in another place, in this House and in the Press. He will be goaded to action. If he proposes for legislation a measure which cannot be justified it is unlikely that he will get it approved by Cabinet, and get members of the Cabinet to accept the collective responsibility which they do for all measures proposed to Parliament.
The noble and learned Lord on the Woolsack in the course of our earlier debate, in a very brief intervention, said that he would be able to assure my noble and learned friend that in a general sense it was the responsibility of the Lord Chancellor to see that the law does not make an ass of itself—I think that was the phrase that he used. He will no doubt explain, with his usual clarity, to your Lordships, exactly how far he meant to go. I wondered whether he meant to go further than preventing the law making an ass of itself in the sense implied under Section 3 of the Law Commissions Act. It would be very hard on

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the noble and learned Lord the Lord Chancellor if another Departmental Minister, via the Cabinet, introduced to Parliament a measure which was plainly nonsense, that the unfortunate Lord Chancellor should be regarded as being under some personal responsibility for that nonsense. I apprehended that the noble and learned Lord on the Woolsack did not mean to go quite so far as to say that he would be prepared to assume a responsibility of that sort. He no doubt shares that responsibility as a distinguished and influential member of the Cabinet, as all occupants of the Woolsack are. But surely he cannot be expected to be responsible in a particular personal sense for any nonsense which is perpetrated by a Departmental Minister which he succeeds in getting through Cabinet.
Therefore I would, with respect, ask the House not to accept the advice of my noble and learned friend that some particular Minister should be responsible for the form of the law in general, if by that my noble and learned friend means, as I think he does, to include the contents of the law, the way in which the law is framed in order to meet up to the particular problem to which it is directed. I should have thought that there was no real case for that, and that it would be a clog on the swiftness and effectiveness of government and Parliament which would not bring any corresponding advantage, having regard to the fact that Parliament's will is now being so effectively brought into action through the provisions of Section 3 of the Law Commissions Act 1965.
My noble and learned friend concluded his argument by submitting that it would be of advantage if the office of Parliamentary Counsel, instead of being under the direction of the Prime Minister, were placed under the direction of the Lord Chancellor. If I may respectfully say so, I would rather doubt it. Examples sometimes are of help in formulating arguments. I should like to take for that purpose as an example the Finance Acts. Perhaps this afternoon is a particularly appropriate time to mention that, especially on the part of one who does not yet know what the Budget has brought forth. I would imagine that the practice of this Administration is probably very similar
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to the practice of the previous Administrations in this respect.
The Chancellor of the Exchequer surely must be responsible, and have an immediate and direct responsibility, for the clauses of the Finance Bill that he introduces after he has introduced his Budget. Normally those clauses contain a number of anti-evasion provisions. A question which Parliament wishes to have answered with regard to each of those clauses is whether they are necessary, whether they are obscure and, because of their obscurity, whether they are oppressive; whether they entrench too violently upon what we regard as the traditional freedoms of action in this country. He will go, so far as any experience that I have had is concerned, for advice on that point to the Law Officers of the Crown, and will certainly expect that they will assist him when he presents his Bill to the other place in justifying any particular clause with regard to which a question of that sort may be raised.
The Law Officers work extremely closely with Parliamentary Counsel in that context. I should have thought that if one takes that Bill as an example it would be very inconvenient if the Law Officers of the Crown had, as it were, to ask the permission of the Lord Chancellor to use the services of Parliamentary Counsel; if they likewise had to ask permission before they could approach the Law Officers; and if the Chancellor of the Exchequer equally had to go to the Lord Chancellor and say, "May I please employ Parliamentary Counsel to draft my clauses? This is the form which they are to take and I hope you approve". I should have thought that that was a very inconvenient arrangement.
I should like to conclude my observations by putting forward one or two general propositions. It seems to me that my noble and learned friend did not give adequate place in our democratic arrangements to the functions of the Law Officers of the Crown, and in particular the Attorney General. The Attorney General is the principal legal adviser to the Government; he is the senior legal adviser. If the Government wish to know what are their responsibilities, for example, under the Simonstown Agreement it is the Law

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Officers of the Crown whom they consult. It is the opinion of the Law Officers of the Crown that has been published in particular in relation to the Simonstown Agreement. Should that advice turn out to be mistaken, it is the credit of the Law Officers of the Crown, and nobody else's, which in consequence is impaired.
It is in this democracy of ours of vital import that any legislation we pass should not unduly infringe upon the traditional liberties of the subject. Any Departmental Minister who introduces legislation with regard to which that reproach might be made will be very wise if, before he does so, he asks the opinion of the Law Officers of the Crown. In due course, when he gets before the other place, he almost certainly will want their help; and they are, I should have thought, regarded as being under a very special personal responsibility to ensure that legislation does not infringe in that particular respect.
The Attorney General for some forty years has never been a member of the Cabinet. Why? Because I should have thought it was considered essential in regard to any Attorney General—and I see in front of me a very distinguished former Attorney General, the noble and learned Viscount, Lord Dilhorne; I hope he agrees with me—to say that he could not possibly accept a seat in the Cabinet as Attorney General in circumstances in which it might be suspected against him that he possibly had been influenced by his colleagues in the Cabinet. Anybody who walks into the Law Officers' Department is, as a very first experience, I think, confronted with the question whether he has fully read and considered the Campbell case, and whether he will be certain to take the lessons of that case very fully to heart.
Therefore it seems to me that we have at present, without a Minister of Justice (and I cannot think what he would do in our Constitution), without a particular Minister acting as a kind of back-seat driver, and being expected to breathe down the neck of any Departmental Minister, what is in principle a satisfactory division of responsibility. The content of any Bill must be a matter for the Departmental Minister concerned. Whether it offends against basic civil liberties considerations must be a very
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special responsibility of the Law Officers. Whether it is obscure and, because of its obscurity, oppressive is again for the Attorney General and the Solicitor General.
We have all observed the very hard work, for example, of the present Solicitor General on the Industrial Relations Bill, about which, no doubt, in this House there will be acute conflicts of opinion expressed in a very short time. When the statute is on the Statute Book and the question arises whether the arrangement, because of the multiplicity of statutes, has become illogical; when the task is undertaken of making them simpler, more intelligible, more accessible, then we are directly within the scope of that very admirable Section 3 of the Law Commissions Act 1965. And the Law Commissions work directly under the jurisdiction of the Lord Chancellor.
My Lords, we have worked out that sort of balance after many centuries of experience. I am not particularly influenced when I listen to arguments of the kind to which we have listened about the experience of other democracies. Over the last sixty or seventy years this great democracy of ours has lived through strains that have led to the undoing of democracies in many other countries; and I should have thought we were very fortunate in having achieved the balance which we at present have.
VISCOUNT DILHORNE: My Lords, I have listened with interest to the noble and learned Lord, Lord Gardiner, and to the noble and learned Lord, Lord Stow Hill. I must join with Lord Gardiner—
LORD CHORLEY: My Lords, is the noble and learned Viscount asking a question or making a speech?
VISCOUNT DILHORNE: I am sorry, my Lords. I was going to make a speech. I have not seen a list, but I will certainly wait.
THE LORD CHANCELLOR: My Lords, I think that anybody who wants to is allowed to make a speech on an Unstarred Question. I speak subject to the better opinion of the noble Lord the Deputy Leader.
VISCOUNT DILHORNE: My Lords, I was not aware there was usually a list of speakers on an Unstarred Question.
LORD LLOYD OF HAMPSTEAD: My Lords, I am perfectly content that the noble and learned Viscount, Lord Dilhorne, should speak before me if he is anxious to do so, and I make way for him. I always listen with the utmost pleasure, if I may say so, to everything that falls from the noble and learned Viscount.
VISCOUNT DILHORNE: My Lords, I should not like to take the place of the noble Lord. As a matter of fact, I was not aware that there was a list, and that was no doubt my fault. I do not want to precede the noble Lord. If the noble Lord, and the noble Lord, Lord Chorley, have their names down on a list, as I see they have—I have just been handed a list—I think I had better speak after they have spoken.
6.16 p.m.
LORD LLOYD OF HAMPSTEAD: My Lords, I share the gratitude expressed by my noble friend Lord Stow Hill to the noble and learned Lord, Lord Gardiner, both for bringing this important issue before us this afternoon and also for the fascinating and eloquent way in which he introduced it. I also enjoyed greatly the extremely eloquent speech that has been made by my noble friend Lord Stow Hill, although I am bound to say I detected in it a slight tinge, at least, of complacency. I greatly admired the skill with which my noble and learned friend Lord Gardiner had framed his Question on this matter, which certainly reflects his remarkable skill, acquired at the Bar, of framing interrogatories. It is perhaps fortunate that in your Lordships' House such Questions do not have to be answered on Oath, in view of the peculiar difficulty of answering this Question, as Lord Gardiner has himself acknowledged.
It is a matter of some importance, surely, that we have not in our system any single Minister who has responsibility for the law in general. What we have in fact is what has sometimes been called a troika, and one which is not always, unfortunately, in step. We have the noble and learned Lord the Lord Chancellor, we have the Home Office, and we have the individual Departments. The hope that we had for some rationalisation of our law reform by the introduction of the Law Commissions Act 1965,
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far from resolving this question, has to a considerable degree served to underline the continuing nature of the problem.
I entirely agree with the view of my noble and learned friend Lord Gardiner that it is unwise to discuss this question in the context of a Ministry of Justice, because, as has been pointed out by Mr. V. Jackson, in his admirable book, The Machinery of Justice, that expression inevitably has a sinister sound to many English ears, and however little basis there may be for that, it seems unwise that we should try, if we feel some change is necessary, to do it in this particular form. It is exceedingly difficult to dispel the idea that in some way a Ministry of Justice is going to control the Judiciary, control the law, in an undesirable way which is antithetic to liberty. As none of us, of course, desires to produce that result, it is far better if we refrain from talking about a Ministry of Justice.
What I am sure we all wish to ensure is that the impetus for law reform and its unification is not lost because so many aspects of this problem are split up between a multitude of different Departments with relatively little intercommunication and no common responsibility. Of course, in this connection much needs to be said—my noble and learned friend Lord Gardiner has referred to the matter, and referred to it very cogently—about the role of the Home Office. My own inclination would be to say that, however anomalous it may be, so far as criminal law and penology are concerned there is an immense accumulation of experience and knowledge residing in that Department.
If I may say so, I think that on the whole it would be wise to leave that aspect of the law in their (I think) relatively safe hands, because successive Home Secretaries in recent years have tended to show a progressive view towards penology; and that even if one were contemplating some sort of general transfer of overall responsibility to the Lord Chancellor, or whatever Minister it might be, it would be better on the whole to treat the criminal law and penology as a separate sphere. A good deal could be done, and needs to be done, to define responsibilities more carefully. It may well be, of course, that in answer to this

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Question the noble and learned Lord who now sits on the Woolsack may be able to clear up these doubts and uncertainties which successive expert committees have suggested exist in this terra incognita between the Lord Chancellor's Department and the Home Office.
So far as other spheres of law reform are concerned, I think it is important to bear in mind that when one is dealing with individual departments one has two kinds of law to consider: there is legislation which departments produce which is of a purely departmental kind, which does not really have a law reform aspect and which is not really concerned with the law in general. For instance, if one takes as an example the Department of Trade and Industry, under the last Government there was passed the Films Act 1970. That was purely departmental legislation, and I should not think that in the ordinary way any Minister concerned with the overall development of the law would be much concerned with that kind of legislation.
On the other hand, legislation dealing with companies is a matter of the greatest importance to the general structure of our laws, and it is in this sort of field that it seems immensely important that we should have some Minister bearing an overall responsibility both for giving impetus to that kind of legislation and then ensuring that it is technically sound and properly integrated into the body of our law.
If I may say so, there seemed to me to be one deficiency in the argument of my noble friend Lord Stow Hill when he suggested that legislation of this kind could be produced by the relevant department and that it could be left to the Law Commission to clear up the mess afterwards, if there was a mess. Surely prevention is better than cure. What we really want is to be able to ensure, so far as humanly possible, that complex legislation of this kind is not thrown on the Statute Book in any sort of higgledy-piggledy order but that before it gets on the Statute Book it is carefully "vetted"—If I may use that word—by some Minister in the Department with an overall responsibility for the general structure of the law.
I do not want to speak at great length on this matter because it is only an
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Unstarred Question, as my noble and learned friend Lord Gardiner emphasised, and is not an occasion which calls for elaborate speeches. But in conclusion, I should like to emphasise this one point. It seems to me that one of the useful lessons that we can learn from the Ministries of Justice of many other countries is that such a Ministry contains a section which is concerned with the overall supervision of legislation that is passed through other departments. This does not necessarily mean, therefore, that the Ministry of Justice or the Lord Chancellor or whoever is exercising this function in, for instance, the sphere of company law, would necessarily concern himself with all the minutiae of that legislation from a departmental point of view. It may well be that the Department of Trade and Industry would play an important role in that matter. What one would like to see, however, is a very close liaison with the Minister in overall charge of legislation, and if such a Minister were the Lord Chancellor this would be singularly fitting in view of the development of the Law Commission, which is the body appropriate for considering reform.
In this context one might mention that when company legislation was proposed during the last Parliament the Law Commission was, I believe I am right in saying (and I shall be corrected if I am wrong), very largely by-passed over this legislation. Surely this underlines the unsatisfactory nature of the situation. Where you have the general law of companies being developed by new legislation you have a body like the Law Commission whose task is to see that overall the law develops in an appropriate way. If the Minister to whom the Law Commission are responsible—namely, the Lord Chancellor—had an overall supervision of all reforming legislation, he could ensure that, despite the departmental interest, legislation of that kind could be referred to the Law Commission, who would have an adequate opportunity to consider it; and if the Lord Chancellor had within his Department a section which was concerned with the form of the legislation and ensuring that it was properly integrated in the law as a whole, we should be making some substantial progress.

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The fact is that our law, as we all know, is in an extraordinarily repulsive form. Anybody who sits, as I have the misfortune to do, on the Consolidation Committee and sees the form of legislation that comes before one and sees the strenuous attempts which are made to try to reduce this unwieldy bulk into some sort of satisfactory shape, realises that we shall never get abreast of this problem unless we try to cope with the legislation adequately before it becomes law instead of just sitting back in a complacent way and saying, "Well, never mind in what form it comes on to the Statute Book, we have this nice little body of five Law Commissioners; they can tidy it all up afterwards". The fact of the matter is that they are so enormously involved in trying to tidy up the past troubles that it will take centuries before they get round to the further mess which we are busily creating by this extremely unsystematic process.
Therefore I would urge, despite the eloquence of my noble friend Lord Stow Hill, that there is a vital problem here. It may be that the Lord Chancellor who, if one may say so without disrespect, is the "Lord High Everything" in our Constitution, may be exceedingly unwilling to accept any further duties, and this may create considerable departmental problems. It may well be that there would need to be some considerable expansion of his Department. But whatever the appropriate machinery may be, it seems to me, with all respect, that there is a serious gap in our legislative process here, and one which we can tackle only if we apply ourselves in the way that my noble and learned friend Lord Gardiner said, with his immense wealth of experience behind him—that is, in a very determined way to try to restructure the whole process.
6.30 p.m.
VISCOUNT DILHORNE: My Lords, the noble Lord, Lord Chorley, has kindly said that I may precede him, because I am in some difficulty later on. I am very grateful to him. I am grateful, too, to have the opportunity of following the noble Lord, Lord Lloyd of Hampstead, having heard his argument, because I should like to answer him about one matter. I was a Law Officer from 1951 to 1962 and then for a short time Lord
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Chancellor. If he thinks that there is not a great deal of trouble taken, not just by the Department but by other members of the Government, in relation to the terms of any Bill, I can assure him that he is entirely mistaken. It is true that a Department may be responsible for the preparation of a Bill; they will have Parliamentary counsel allotted to them; but before the Bill is ever presented to Parliament, to either House, it certainly will have been considered by the Law Officers and the Lord Chancellor, and by others as well. I, for one, should think it would be a very retrograde step if the lengthy process of preparing a Bill had to be even further prolonged by submission of that Bill to the Law Commission before its introduction to Parliament. I think it would not work and it really is not tolerable.
There is here a distinction between law reform, which means reform of the existing law, and the improvement of our process of making new law. The Law Commission is primarily concerned, I should have thought, with the reform of our existing law. I would question one part of the speech of the noble and learned Lord, Lord Stow Hill, when he seemed to suggest that the process of law reform had only really started under the present Lord Chancellor and his predecessor.
LORD STOW HILL: My Lords, I hope the noble and learned Viscount will not think that for a moment. Of course I did not mean to imply that, and if any words I used might seem to carry that connotation they are at once, and unreservedly, withdrawn.
VISCOUNT DILHORNE: My Lords, I am grateful to the noble Lord. One did not have very much time to do it, but Lord Kilmuir did manage to bring about—without a Law Commission, it is true—a great deal of law reform, and I think all Lord Chancellors have endeavoured to get what they could through the Parliamentary machine in the time at their disposal.
I agreed with many of the criticisms—who could fail to?—uttered by the noble and learned Lord, Lord Gardiner, and I may add one or two. I will come to those. His main proposition, as I saw it, was that Parliamentary counsel should

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be taken away from the Treasury and put under the Lord Chancellor. I agree with the noble Lord, Lord Stow Hill; I cannot see any advantage being gained by that at all. It does not, I think, matter under whose control they are. What does matter is how they do their job. And, of course, they are lent to different Departments as different Bills are produced. I think that works very well. It is very difficult to get good Parliamentary counsel—it may be that some more care and attention must be paid to that point—but I see no reason for transferring Parliamentary counsel to the Lord Chancellor's Department. I agree with the noble Lord, Lord Stow Hill, that that would be a retrograde step.
But there is a real problem here, and I think the House should be grateful to the noble and learned Lord, Lord Gardiner, for drawing attention to it. There is a great deal of lack of definition of the functions of various Departments, and there is also lack of some co-ordination between different Departments with regard to, not making new law, but considering the existing law. The noble and learned Lord, as Lord Chancellor, as indeed I had, had first-hand experience of the difficulties of knowing exactly where the Lord Chancellor's functions ended and the Home Secretary's began. Although in my time Lord Chancellors were responsible for the appointment of magistrates, I found, to my surprise, that the Home Office was exercising powers of selection of which magistrates should sit in juvenile courts, and I had a very considerable battle with the Home Office at that time, pointing out to them that it was quite wrong for them to appoint any magistrate to sit in any courts; that clearly was part of the Lord Chancellor's function.
I think there is a great deal to be said for the Home Office and the Lord Chancellor getting together to try to clarify the position. It would be a great mistake to have anything more of a Ministry of Justice than the Lord Chancellor's Department now is. It would be a great pity to have a Lord Chancellor's Department in any way responsible for prosecutions or matters of that sort. I do not mind the Home Office being responsible for criminal law, but I do think that when you get outside
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that field, in so far as that law does not fall within a broad province, say of the Ministry of Trade, legislation in relation to children, or industrial legislation, it ought to be for the Lord Chancellor to exercise the same sort of eye over it as he does over matrimonial legislation. I do not myself want to see powers in relation to a particular field taken away from a Department.
I think it is quite right that the Department of Trade should have responsibility for the Companies Act; it is quite right that pressure should be put upon them to pay attention to that, and to the bankruptcy laws and other such matters. But where I think a real difficulty arises is, for instance, where there is an investigation under a Companies Act, which may take a long time, with a disclosure at the end that there is good ground for supposing that there has been criminal conduct on the part of some of those involved. So much time has by then elapsed that it really becomes impossible to institute a prosecution. We in this country would not tolerate the institution of prosecution for a serious offence many years after the offence has been committed, but we are fast approaching a state when prosecutions are not instituted because of the delay that has occurred on account of the protracted investigations conducted by the Department of Trade. To find the answer to a problem of that sort there should be more co-ordination between the Departments, an endeavour to find a machinery whereby that delay can be short-circuited and avoided.
I would say—and I agree with the noble Lord here—that there are two defects under the present system. The first is that the line is not clear between the different Departments' responsibilities, and, secondly, even where it is clear, sometimes the responsibility of one Department reacts adversely upon the responsibility of another. What is needed is a committee, a small Cabinet committee if you like, to co-ordinate these matters and tackle these problems. I should not like to see the Lord Chancellor have a greater responsibility for the law than he now has. I think he has just about as much as any single man can shoulder properly. But what I should like to see, and this I am sure will happen while the noble and learned Lord, Lord Gardiner, is here, is continual stimulation

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of those Departments which have particular preserves and which perhaps have not been so active in the past as they might have been and as I hope they will be in the future.
6.39 p.m.
LORD CHORLEY: My Lords, I hope that the noble and learned Lord who has just resumed his seat will forgive me if I do not follow him in his interesting argument. I would like to cross swords with him over several of the points he has made, but time is getting rather short. It would really be to attempt to paint the lily to try to make a long speech in support of what my noble and learned friend Lord Gardiner has said in his comprehensive and admirable speech.
In a rapidly changing society, such as has existed in country since, I suppose, the Industrial Revolution, law reformers have to run very fast in order to keep up with the present situation; and if they do not run very fast indeed it appears very often, both to the general public and indeed to more progressive lawyers, that the law is at a standstill. Recently we have been running pretty fast, and under my noble and learned friend Lord Gardiner there was a quite exceptional burst of speed, of a kind which has not been seen since the middle years of the last century when, under a remarkable series of Lord Chancellors—Lord Brougham, Lord Westbury, and Lord Selborne, to mention only three—a remarkable number of projects were carried through to a successful conclusion. I suppose that those three were all radical politicians, although it is true to say that Lord Selborne started life as a Conservative (a Tory in those days) Member of another place, and after that moved well to the left. It is a little late to hope that the present noble and learned Lord, his successor, will move in that direction politically, although I must say that I have considerable hopes of him as a law reformer. So far, he has been living up to my hopes and expectations.
My noble and learned friend Lord Gardiner has reminded us how, by setting up the Law Commission, he has enabled very great improvements into the existing state of the law to be made. One could say quite a lot about that. He did not go on to remind us how, with the noble Lord, Lord Beeching and his Royal
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Commission, and the extraordinarily expeditious way in which he managed to get a Bill through Parliament, he completely refashioned the court system in the country, thereby emulating Lord Selborne's remarkable achievement at the centre in the 1860s and 1870s. That in itself, which the noble and learned Lord on the Woolsack is helping to carry through, is an achievement of which the importance has hardly yet come home to the general public. These are events which a law reformer who has been disappointed, like myself, in the earlier part of his career can well acclaim as being quite remarkable.
There is one other area which so far has not been covered, and it is a difficult area to describe. Although the noble and learned Lord managed to carry through that difficult task, it is at the centre (as was the case with Lord Selborne's difficulties, though it lies rather in Whitehall than in the Strand) that another problem arises: the problem of supervising and co-ordinating the internal work of the law itself, and the building up of the law and the law administration at the centre. It is to that, of course, that the noble and learned Lord has addressed his remarks this evening. In a way it is possibly a more intractable problem than the others to which I have referred.
There is one obvious part of this to which the noble and learned Lord directed a good deal of his attention—and it has been referred to by subsequent speakers. That is the problem of the relationship between the Lord Chancellor's Department and the Home Office. When my noble and learned friend Lord Gardiner was sitting on the Woolsack I thought he was extraordinarily careful to observe the protocol as between the Lord Chancellor and the Secretary of State at the Home Office. Now that he is free, he obviously can take up this matter. It is not the only matter which he has taken up in his speech this evening, because he has covered a very wide field, but it is at the heart of this problem, and I should like to devote the main part of my speech to it.
The point is that the Home Office is a police Department as well as a Justice Department, and I think that is wrong. A Department which is responsible for the police ought not also to be responsible in any way for the administration of

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justice. If it is, then people begin to distrust, and that is a bad thing. I think that has happened time after time, both in the past and in recent years. The job of the police is an essentially different one from that of the courts, and it clearly is not possible to bridge the gap. Efforts that are made very valiantly at the Home Office are mistaken in principle, and I think that in the end they do not have at all a good effect on the community. That is one of the reasons why Home Secretary after Home Secretary, with the best will in the world (and I entirely endorse what has been said about recent Home Secretaries; they have been wise, liberal-minded men, almost every one of them) has got himself involved in extremely difficult situations, both legally and politically.
The trouble arises historically. Before the police system of this country was organised—and that is a very recent event in the history of our country, going back only to the beginning of the last century—the Executive relied upon the justices of the peace as the main police organisation in the country. Justices of the peace were appointed in the Middle Ages by the King really as local police officers, and their job was to take up the scallywags and put them in the stocks, or deal with them in other ways. If the scallywags' activities were very serious and amounted to felonies, they were kept by the justices until the Red Judge came round, and he, with the assistance of a jury, tried them.
If anybody has any doubt that until very recently justices of the peace were really disguised police officers, let him read about Peterloo, or almost any of the disturbances in the eighteenth or early nineteenth century, in which the people always looked to the magistrates. There was not a police constable available to do the job, and the local magistrate in South Lancashire, at the time of Peterloo, was the man on the spot who brought in the militia. It is a pity that the noble and learned Lord, Lord Devlin, does not come and help us on these occasions, because he published a series of very interesting lectures in which he describes the evolution of the justices of the peace from a police officer into a judge—something that could not really happen until an effective police force had been organised.
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Until very recently the magistrates' courts were called police courts, and it has been very difficult to eliminate that phrase. When I was a young barrister, and when my noble and learned friend was a young barrister, one went to a police court and not to a magistrates' court. We have been gradually able to get rid of that expression, but it typifies the reaction of the ordinary man in the street to the justice of the peace: that he was a disguised policeman. The policeman took you up and brought you before the magistrate; and the magistrate dealt with you on the spot—and very seldom found you were not guilty of the offence with which you were charged. That was all wrong, and it established a sort of heritage which a number of admirable Lord Chancellors—particularly, if I may say so, my noble and learned friend—have tried to change by giving the position of the justice of the peace a very different sort of standing in the community, establishing training and education for justices, and a much more rigorous selection of them. This has already produced a rather different outlook among the general public to the magistrates and the magistrates' courts at the present time.
But it will not be possible to get rid of all the old attitudes until the criminal justice side of the Home Office work is removed, whether to the Lord Chancellor's Department or to a Ministry of Justice. My noble and learned friend Lord Lloyd of Hampstead made quite a good point when he said that the Home Office has dealt with the punishment side, the police side, very well. But that is where the demarcation line comes. I am not proposing to take away responsibility for prisons, and so on, from the Home Office, but I am proposing to take away those parts where the overlap takes place. It is perfectly clear from what the noble and learned Viscount, Lord Dilhorne, my noble and learned friend Lord Gardiner, and most others who know about the Home Office have said, that there are very real difficulties there.
It seems to me that it is time this whole problem was properly looked into by somebody like the noble Lord, Lord Beeching, who can bring tremendous administrative knowledge to it, assisted perhaps by a small number of retired civil servants and a judge. As my noble and learned friend Lord Gardiner has

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pointed out, the problem is not peculiar to the position between the Lord Chancellor and the Home Office, but extends into other Departments. The Employment Department has a large area where essentially judicial work is being done, and from time to time questions are raised, both in another place and here, as to how it is being done.
There ought to be (and here I think that my noble and learned friend Lord Gardiner is absolutely right) some overriding supervising authority which keeps its fingers on the pulse of the administration of justice. It is time that, instead of having a debate every now and then about one or other of these problems, or, as we have done to-night, a short, rather limited debate on the general situation, a small working party was set up. I do not think that we necessarily want a Ministry of Justice, although I have always been in favour of one. It was interesting to note that the Chairman of the Law Commission, in his recent lectures on the work of the Commission, himself said that he was being driven to the conclusion that a Ministry of Justice, or something of that nature, was the only really satisfactory solution to the problems with which he had been struggling over the past few years.
So, my Lords, it seems to me that the time has now been reached when this matter should be scientifically investigated, in the same way as the general courts system was investigated by Lord Beeching and his Royal Commission. I hope that, as a result of this debate and as a result of the continuous pressure of my noble and learned friend Lord Gardiner, the Government will eventually do something of the sort and see to it that this very obvious sore spot in the legal administration of this country is healed.
6.53 p.m.
THE LORD CHANCELLOR: My Lords, I thought when I entered this Chamber this afternoon that I knew what I was going to say in answer to this debate. But after listening to one fascinating speech after another, exploring different corridors in the labyrinth, I am quite sure now that I do not know what I am going to say in answer to this debate. The speech of the noble and
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learned Lord, Lord Gardiner, was indeed a fascinating one. I have heard it often said by those who have experience of such things, that poachers make excellent gamekeepers. But this was an extraordinary example of a gamekeeper turned poacher. I have been Lord Chancellor for rather under a year. He was Lord Chancellor for seven years and, lo and behold! out of the cupboard he drew all the skeletons that had been there for the last century, including the wretched old hallmarking legislation on which I had to advise professionally last year. It so shocked me when I did so, that I wrote—I forget whether it was to the Lord Chancellor of the day or to his colleague in the Board of Trade, as I should more properly have done—to tell him how awful it was, and I received a temporising reply. I hope very much that this Government, with their new initiative and skill in legislative policy, will, before the end of this year even, have cleared up the hallmarking problem. At any rate, I am not without hopes of it, even though it is outside my own Department.
But the truth of the, matter, if I may pursue the gamekeeper analogy for a little, is that I was entirely mollified by the noble and learned Lord, not only by the kind things he said about me in my rather modest capacity, but also because, having turned poacher, he ultimately came to the conclusion that all shooting parties should be presided over by the gamekeeper alone. Indeed, at one time I thought that the gamekeeper himself should be the gun at every butt, banging down the pheasants as they flew overhead, but I do not think that is altogether right. I must now make a rather prim and proper remark about the Prime Minister being responsible for the machinery of Government, as the noble and learned Lord very well knows. I must not, therefore, transgress upon my right honourable friend's preserves—if that is the right phrase—nor must I breach the various conventions about my departmental friends' responsibilities.
But I should like to start, even at this late hour, by philosophising a little, because if you really want to get a clear answer to this question, I think you must ask yourself what you mean by "law". The question is: what Minister is responsible for law in England and Wales? I

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think you really have to ask yourself, first of all, what you mean by "law". Of course some of the earlier jurisprudence writers had rather crude and simplified ideas, such as the Command of the Sovereign and so forth. But the fact is that it means different things to different people and, above all, different things to the same people in different contexts. The first answer that I propose is that law is policy: past policy embodied in Statutes, present policy when it is viewed primarily as administration, future policy when it is concerned with projects which are not yet the law but which you want to make the law. From that point of view, of course, the Lord Chancellor cannot be responsible for the state of the law at any one time, nor can any other one Minister.
On the other hand, it can mean—and this is the second meaning to which I would draw the attention of the House—that series of rules which the courts apply in order to determine disputes between subject and subject, or between subject and the Crown or the local authority. It is that sense of law with which I think the Lord Chancellor is particularly concerned, and with which I think the noble and learned Lord who introduced this subject is particularly concerned. When I said much earlier in the afternoon, in a slightly facetious mood, that one of the Lord Chancellor's functions was to stop the law being a bigger ass than it otherwise would be, I meant law in that second sense. I would agree with the noble and learned Lord, Lord Gardiner, that there is a kind of residuary responsibility in the Lord Chancellor of the day—quite apart from the questions of policy involved—to look at proposed legislation, or actual legislation, or rules of law, to see whether, as applied in the courts to disputes between parties or between a party and authority, they make any kind of practical sense. I would go the whole way with the noble and learned Lord in that kind of theorising about the Lord Chancellor's function.
But in answer to the noble Lord, Lord Lloyd of Hampstead, I would say that this is not a purely departmental function of the Lord Chancellor. The defect, I thought, in his critique of the noble Lord, Lord Stow Hill, was that he overlooked almost entirely the working of the Cabinet and Committee system inside
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the Government. One is always supposed not to talk about these things, but I think that what I am about to say is sufficiently well known for it not really to breach any kind of rule to that effect. Almost every Government has two committees: one is called the Home Affairs Committee, which discusses proposed legislation from the point of view of policy; and the other is the Legislation Committee, which discusses the validity of legislation from the point of view of nuts and bolts. Certainly as regards the latter, I think almost every recent Government has put the Lord Chancellor on it. He could not fulfil that task alone. All the Departments concerned with the particular kind of legislation—and there are usually nine or ten round the table—in fact participate, and participate very fully; but I always think that the Lord Chancellor's main function on such a committee is to look at legislation from that point of view. Obviously, a great number of nonsenses get by, but on the whole a great number are caught in the net of scrutiny either by the Departments or by the Lord Chancellor's Department itself.
But it is not possible, I think, to go on to say that it follows from that that the Lord Chancellor ought to be responsible for law as such. Let me take a very simple example which has not been mentioned in the debate: the law of landlord and tenant. I think this is as good an example as any other of what you cannot do and what you ought not to try to do. From one point of view, from the point of view of the second definition that I proposed, the law of landlord and tenant is right up the street of the courts, and therefore very much at the heart of the thoughts of the Lord Chancellor's Office about law. It is the bread and butter of the county courts; it is the foundation of agricultural holdings. Leasehold reform is a hot political subject, and in the higher reaches it is a subject of extraordinary and complex learning about which both academic and practising lawyers make their names and produce books of about 2,000 pages long.
It is well within the function of the Law Commission, because the Law Commission is currently trying to reduce this enormous jungle to at any rate a fairly well cultivated forest. In the meantime,

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nobody, I think, could suggest, or could sensibly suggest, that the Lord Chancellor should suddenly take over responsibility for the law of landlord and tenant. It is the heart of social policy—the security of tenants; the state of repairs; the provision of houses. It cannot be dissociated from social policy: it must be the responsibility of what was the Ministry of Housing and is now part of the Department of the Environment. There is no other way of handling it.
Obviously, a Lord Chancellor who is worth his salt is going to insist on being consulted about a reform of the Rent Acts or an extension of the fair rents legislation or security of tenure, either in agriculture or in housing, or in the renewal of leases in the case of business premises. All these things must come within the purview of a Lord Chancellor who takes an active interest in law reform or social policy. But it cannot, in the nature of things, be his Departmental responsibility.
I go further than that. What was mentioned was companies. Now company law, again, is just such a subject. It is right up the Lord Chancellor's street from one point of view. There is a court called the Companies Court, which is part of the Chancery Division. The birth, the life, the relationship between the parts of a company are lawyers' law of the most complex and professional kind. But it is also part of the economic policy of the country; and I do not think for a moment that my Department should take over from the Board of Trade (or, as it now is, the Department of Trade and Industry) responsibility for the Companies Act. I do not think it would make any other kind of sense.
One noble Lord who spoke pointed out that the same kind of consideration applies to the Finance Act itself, and to fiscal law. Quite obviously, an enormous part of the Bar and of the solicitors' profession revolves around tax provisions, which have no doubt been changed this afternoon while we were innocently discussing forests. Fiscal law is some of the most technical law we have, but nobody could take it away from the Treasury; it is part of the economic policy of the country. And, viewed as policy, it is no good suggesting that the Lord Chancellor should occupy all the
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butts in the shoot and should call himself the Minister of Law, or something of that kind.
Of course, this does not in the least make nonsense of what the noble and learned Lord, Lord Gardiner, was saying, because there are, I think, a number of very considerable problems about the demarcation of various Departments; but I think by far the most serious and by far the most complex are those which relate to the relationship between the Lord Chancellor and the Home Office, between the Lord Chancellor and the Attorney and Solicitor General and between the Home Office and the Department of Trade and Industry in relation to company frauds—that kind of thing. I do not want to give a definite answer to-night about that; I think it is something which has not yet been solved.
But I should like to put up a number of propositions. The first is that prosecutions are for the prosecuting authorities alone, culminating in the Attorney General and responsibility to Parliament; that only the Attorney General should be responsible for prosecutions at the highest level; and that in deciding issues relating to them he should be immune from political pressure, whether that comes from the Home Office, from the Lord Chancellor, from the Prime Minister of the day or from anyone else.
I think one noble Lord referred to the Campbell case, in which my father, when he was in Opposition, played quite a distinguished part. But the prosecuting side ought to be hived off from other responsibilities. At this late hour, I do not want to go into the question of a Ministry of Justice. The trouble is that a Ministry of Justice means different things to different people. But if a Ministry of Justice means, as it does in some countries, that the same Ministerial body should be responsible for prosecuting and for penal treatment and for the administration of the courts, I am against it. That I am quite clear about; and I would stick to our method of treatment.
The second proposition I would put up is that penal treatment ought to be something for the Home Office and not for the Lord Chancellor or the Attorney General. I would go much further, as a matter of fact, than the present law actually goes, because although a trial judge can very

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often be asked usefully to give his recollection of a case some years after the case has been tried, and very often can give some very useful guidance, I really do not think he can know at the time he passes sentence what ultimately ought to become of a man. The important thing he has got to do is to make up his mind, first of all whether he is to give a custodial sentence at all—this seems to me the fundamental question of principle—and, secondly, if he is going to give a custodial sentence, what length it should be. But it does not mean in the least that that is what really ought to happen to the man. Penal treatment ought to be a matter, I think, for the Home Office, and for the Home Office alone, and in that field the Home Secretary should be as immune from interference as other people.
Thirdly, the management of the civil courts, their staff, their judiciary, their accommodation, their procedural law and all questions of law not bespoken in the sense I have meant hitherto by the administrative Departments arc, I think, matters very much for the Lord Chancellor; and the Courts Bill which is now before Parliament will bring both that and to some extent the constitution and management of the criminal courts and their judiciary much more closely in relation to the Lord Chancellor's Department than they have been hitherto. I think we may indeed get a little more sense and a little less delay when that has been done. But that of course raises the question of the future. And, quite obviously, when the Lord Chancellor's Department has digested the Courts Bill and reduced the machinery to working order after it has been implemented, a question must arise for decision as to the future of the magistrates' courts. I think that is probably fairly high on the agenda. There is not a Government policy at the moment on the subject, but it is obvious that the Government will have to take decisions.
There will be a demand for it to be a function of central Government, and if it is a function of central Government there will be a discussion whether it should be under the Lord Chancellor or the Home Office; and there will also be a demand that it should be left with the new units of local government. The
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only certain thing is that local government reform, when it comes, will necessitate decisions of one sort or another because, as the present units of local government are being altered fundamentally by the proposals we were discussing yesterday, the magistrates' courts cannot be left as they are. I have had in the last few days strong opinions in each one of three quite separate senses expressed by different people. It is something which this House will have to consider and about which the Government will have to make a decision.
One argument which carries some weight with me is the limited civil jurisdiction of magistrates' courts. I noticed that the noble and learned Lord referred to the matrimonial jurisdiction. I regard this as a not altogether happy feature of our law at the present time. Again, no Government has as yet defined their answer to it, but I do not regard the present system as a happy one. There are historical and logical reasons why divorce should be under one Ministerial hat, and the matrimonial jurisdiction of the summary jurisdiction courts under another, but I do not think the situation in which we have trial of these cases in the magistrates' courts is a happy one. My own prejudice is in favour of family courts, properly presided over by a county court judge but with lay members. But here we are talking in the realm of future policy, on which no Minister is entitled to speak with authority.
The noble and learned Viscount, Lord Dilhorne, raised another very important question—the length of time it takes to try a fraud case at the Old Bailey. He said that this country would never tolerate many years' delay between the commission of an offence and the trial of it. My recollection—I stand subject to correction—is that in the Bloom case 10 years elapsed between the facts which were the subject of the prosecution and arraignment at the Old Bailey. In my opinion, a situation such as that is wholly unacceptable.
What is not so clear is whether the delay is due to the allocation of Ministerial responsibility, as the noble and learned Lord, Lord Gardiner thought, to the Board of Trade, or whether it was

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due to the complicated process itself and to the actual constitution of our criminal law. My own belief is that there is a great deal in the view that the delay in company frauds can be traced, at least in part, to the complication of our rules of evidence and to the fact that once the investigation takes place under the Companies Act the Department of Trade have more or less got to start again and bring a prosecution in the ordinary way through the prosecuting authorities. That, again, is, so to speak, on the agenda; we cannot decide it to-night. Obviously, if a change were made it would involve a considerable change in the make-up of both Departments primarily concerned. The only thing that is certain is that it would not be the Lord Chancellor's Department in either event.
Then there is the great question to which a number of noble Lords have adverted; that is, the line of demarcation between the Home Secretary and the Lord Chancellor about responsibility for criminal law itself. I do not find this an easy question and I do not think it is one about which I can be entirely frank with the House. I must have my own mental reservations about what I say. Obviously, it is a question which disturbs Lord Chancellors. The noble Lord, Lord Gardiner, was Lord Chancellor for seven years and he put up with the status quo. I do not know how long I shall be Lord Chancellor—maybe I shall have to put up with the status quo, too. Anyway we neither of us can reproach the other if it is not absolutely perfect. The only thing which I think I can say at this juncture is that I do not think it is demonstrated that the relative lack of coherence about our criminal law and procedure is due to the division of responsibility between the Home Office and the Lord Chancellor. If you remember the awful agony we went through in the House of Commons in the last Parliament over majority jury verdicts, when it was entirely clear that that was a Bill brought forward by the Home Secretary of the day, I think you begin to see that really the great barrier to criminal law reform in this country is the immense conservatism of the British public and of the House of Commons—and particularly of the lawyers in the House of Commons—
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whenever it involves tinkering with our judicial institutions. The change to majority verdicts was minimal and it has gone through without a hitch after it was enacted, but if you had seen my honourable and learned friends in the other place agonising their consciences, turning first in one direction and then three months later in the other, and the tremendous expression that this was subverting our fundamental liberties, you would see how difficult it was.
LORD AIREDALE: My Lords, the agony was not confined to the other place, I can assure you.
THE LORD CHANCELLOR: The noble Lord is better informed about this than I at that particular epoch of time. If you want, for instance, to reduce the period of time which it takes to try a long fraud or company fraud, I do not believe Parliament is ever going to do that until it has faced the question of what sort of tribunal you want to try that kind of offence. I do not think it is going to do it on the present system at all. I do not think it is a question of Departmental responsibility; it is a question of facing some rather hard decisions about procedural law in the criminal courts. Whether the Lord Chancellor could do better at it than the Home Secretary, I do not venture to say. Some Home Secretaries are better at this sort of thing than some Lord Chancellors. But I think that, basically, it is a question of persuading the British public that something needs to be done.
These are almost my last words because I have already taken up too much time of the House. The point is that law reform in this sense, in the field of the criminal law, will involve questions of policy and not questions of departmental responsibility alone. I believe that we have the best system of law in the world in one sense, or in two or three senses. In the first place we have an absolutely incorruptible Judiciary independent of politics, and a profession with very high standards of professional honour. In the second place, however much we may complain about the law's delays—and many of these complaints are only too well founded—the law's delays in this country are infinitely less

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serious than in almost any other, whether they pursue the Continental or the American system.
But when it comes to looking at the jungle of legislation, of legal rules and procedural rules with which we are saddled particularly in the field of criminal law, which is probably the least reformed of all, I would accept the description of it given, I think, by the noble Lord, Lord Stow Hill, who said that it is presented in a repulsive form. In that field I am sure that what needs to be done is for the public to take an interest in it and to face some rather difficult and possibly rather radical decisions about criminal law and procedure. I do not think it will be done by taking the responsibility away from the Home Secretary and giving it to the Lord Chancellor or vice versa, or by reallocation between the Board of Trade and the police. I think it will be done by making people realise that we have to take criminal law reform rather seriously.
My Lords, I am afraid that I have taken a long time. I should like again to thank the noble Lords who have taken part in the debate, though I am sure that I have not given a conclusive answer to many problems.

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

Mr. Speaker King's Retirement Act,

Consolidated Fund (No. 2) Act,

Consumer Protection Act,

Coal Industry Act,

Trent and Lincolnshire Water Act,

Ipswich Dock Act,

Tees-side Corporation (General Powers) Act,

Cumberland River Authority Act,

Tees-sick, Corporation Act,

British Waterways Act,

Essex County Council Act.