Lords Sitting of 5 June 1972

Preamble
Reassembling after the Whitsun Recess, the House met at half past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Guildford.
The Lord Phillimore—Took the Oath.

HIS ROYAL HIGHNESS THE DUKE OF WINDSOR
2.35 p.m.
THE LORD PRIVY SEAL (EARL JELLICOE): My Lords, I beg to move:
That an humble Address be presented to Her Majesty on the death of His Royal Highness the Duke of Windsor, expressing the deep sympathy which this House extends to Her Majesty and to all members of his family on their grievous loss, and recording grateful remembrance of his devoted service to his country and to the British Empire.
My Lords, it was my duty and my honour last Wednesday to be present at the R.A.F. Station at Benson when the body of our late King was returned in a VC 10 to these shores from France. Waiting on the tarmac at Benson on that blustery May morning, I found myself thinking of that clear, cold morning some
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36 years ago when, at 2 a.m. on December 12, 1936, the destroyer H.M.S. "Fury" slid, in the Duke's words, "silently and unescorted out of Portsmouth Harbour" with the Duke on board. And when later the Reception Party gathered together in the small R.A.F. chapel at Benson for a short service, moving in the simplicity and the dignity of its understatement, and when the four young R.A.F. officers mounted the first vigil around the Duke's catafalque, I could not but reflect on that vigil kept in Westminster Hall around the catafalque of King George V by a young King—the man whom we mourn this afternoon—and by his three Royal brothers.
Such are the vicissitudes of fate. It was, I believe, the peculiar vicissitude of the Duke's fate to be born into a world of such change as the world and these islands have never before known. In 1894, the year of his birth, the stability and self-confidence of the Victorian era seemed unshakeable. The Empire was at its apogee—its commercial fortunes and its seapower virtually unchallenged. No one then could have forecast what the Duke lived to see—the two global wars, the transformation of Empire into Commonwealth, the challenges of advancing science, the complexities of societies in flux.
In so many ways the Duke was particularly attuned to this world of change. There was the endowment of his natural gifts—the rare blend of shyness and informality that gave that special charisma to the Prince of Wales. There was his

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marked physical courage—as marked in the hunting field or on the point-to-point course as it was in his often frustrated desire for closer engagement as a young officer in the First World War. It seemed to me altogether right that last Saturday's ceremony of Trooping the Colour should have been especially associated with the memory of the young officer in the Grenadiers and of the former Colonel-in-Chief of the Brigade of Guards and of the Household Cavalry.
And again, there were those gifts—looks, capacity for friendship, the ability to hold his audience—which invested with such a special quality those tours in the inter-war years which His Royal Highness made around the world and within these islands. Those travels embraced the globe, at a time when travel on the world dimension was a very different matter from what it is to-day. Those travels made the young Prince a world figure in his own right. He was in truth not only a good Ambassador for the Court of St. James; he was also a very special Ambassador for British industry and, indeed, for the entire British people.
Even in a eulogy, my Lords, we should not gild the lily. That golden Prince of Wales was no great intellectual—not all of our great Princes have been—but he was, in a pre-eminent degree, able to convey a deep sense of caring for all manner and all sorts of people, not least for younger people and especially perhaps for all those who were suffering: those exposed to the horror and squalor of the trenches, those numb under the scourge of unemployment, the poor and the poorly housed. The Prince of Wales was in a very real way a man of his times, a man with imagination and, above all, a very human person. That, my Lords, was the Prince who came to the throne over 35 years ago, greatly loved and with a love of his country and its institutions. It was not a different man who slipped away from these shores in H.M.S. "Fury" as Duke of Windsor after his brief reign.
We have all been reminded these past days of the events of the Abdication. For those of us who lived—even, in my case, in my youth—through those moving yet strange days, they still retain a special pain and a special poignancy. But it is not our task to-day to pick over past history. I myself would prefer to recall
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those events in the words of two men who stood close to them. The first are the words of the Duke himself who, in speaking of the Crown, has written:
"I valued it so deeply that I surrendered it rather than risk any impairment of its prestige."
The second are those of Sir Winston Churchill, who, so the Duke recounts in his Memoirs, recited as he took his leave of the man who had just ceased to be his Monarch the memorable lines of Andrew Marvell:
"He nothing common did or mean Upon that memorable scene."
And so it was. Given his sense of honour, given his attachment to our institutions, given too his conception of democratic Kingship, it could not have been otherwise. But we must count ourselves fortunate that our Monarchy, thus preserved, has been so singularly strengthened in the reigns of his late brother, King George VI, and of our present Queen, his niece. Whether King Edward VIII would have made a great King none of us will now ever know. Whether the Duke of Windsor was a great man some would dispute. Yet it is my certain belief that none will question the services rendered to his country by the man whom we mourn, his dedication to the constitutional path, his deep feeling for this land of ours and his quite extraordinary ability to associate himself with the day-to-day anxieties and yearnings of his fellow citizens.
My Lords, we send to-day a message to Her Majesty conveying our sorrow in her loss and our gratitude for the debt which we owe our former Prince and King. But, my Lords, I am sure that close to the centre of all our thoughts this afternoon must be the wife for love of whom King Edward gave up so great a heritage and who has repaid his devotion with equal loyalty, companionship and love. We extend to the Duchess our profound sympathy. My Lords, I beg to move.
Moved, That an humble Address be presented to Her Majesty on the death of His Royal Highness the Duke of Windsor, expressing the deep sympathy which this House extends to Her Majesty and to all members of his family on their grievous loss, and recording grateful remembrance of his devoted service to his country and to the British Empire.—(Earl Jellicoe.)
2.46 p.m.
LORD SHACKLETON: My Lords, your Lordships will be grateful to the noble Earl the Leader of the House for the words which he has used in moving this sad Motion. There is little I can add to the brief account that he has given. This is not the time to reopen old wounds. It is the time certainly to express sympathy, and the historians will no doubt now study even more closely the events that led up to the Abdication. I think there is little doubt that the Duke of Windsor—the King, as he then was—did not fully appreciate the strength of religious and other feeling on the subject of his proposed marriage; and there is little doubt also that he was deeply upset—indeed, shocked—when he found that by his actions he was endangering the Crown to which he had such great attachment and which he felt he had a duty to sustain. But equally I think it is true—and there is no doubt evidence to support this—that in handing it, as he knew he was doing, to his brother and his family he was handing it to those who, in his judgment, were perhaps more stalwart in ways than he felt himself able to be, and more willing to serve the country and the people of the country, as we all know that in the event King George VI did and his daughter, the Queen, has subsequently done.
At no time did the Duke of Windsor do anything to embarrass, to compete with, even to seek popularity at the expense of, a brother who he knew was carrying a heavy task. At the same time, his willingness to serve his country in any capacity, albeit a humble one, and to identify himself with his country, has never been in doubt. He had 35 years of happy marriage. It was perhaps one of the most devoted marriages of which we know. It was a marriage—and I have heard this from those who knew it at the beginning and from those who knew it at the end—of two people who were completely wrapped up in one another. They were perhaps too wrapped up in one another; but that was a reality which perhaps it is not given to us all to understand.
There is no doubt, as the noble Earl has said, that the Duke was a man of his times; but although he was a man of his times he was also, like many other people, in a sense out of step with those times.
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The noble Earl referred to his deep feeling for the unemployed. Some of us will recall his broadcast and the possibility of a conflict there between his constitutional duties, upon which he felt so strongly, and his deep feelings about the conditions that existed at that time of his reign. At the funeral to-day there was a mass of flowers, some very fine, some very humble. But there was one small bunch of flowers—very small indeed—on behalf of a woman living in London, her grandparents, her father and her children, and it represented the feeling that I think many people had for the "Prince Charming" they knew many years ago. It is not inconsistent that a man who loved life and gaiety—and indeed night clubs—should also be a man of strong feeling for his fellow human beings.
We on this side of the House certainly support this Motion, despite, if I may say it, the slightly elliptical wording. I wish it had directly expressed the sympathy we feel for the Duchess of Windsor; but the noble Earl himself has expressed very clearly his own feelings and the feelings of the House. This is no time to say anything which would be embarrassing or in any way upsetting to our Queen. However, I hope the noble Earl will consider sending a special message to the Duchess of Windsor, the widow of a Member of this House, expressing our personal sympathies, our affection and our gratitude to her for her devotion and for giving so much of her life to her man.
2.52 p.m.
LORD BYERS: My Lords, in the past week there have been many and well-deserved tributes paid to the Duke of Windsor both as a man and for his services to this country and to what was originally the British Empire. My colleagues and I on these Benches would wish to be associated very closely indeed with those tributes, and to specially endorse the sentiments of condolence which we as a House would wish to express in this Motion to Her Majesty the Queen and, following what was said by the Leader of the House and the Leader of the Opposition, to the Duchess of Windsor herself.
Looking back to the year 1936, I do not think many of us appreciated at that time that it was not just one man who was under severe strain but the whole concept and structure of the British

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Monarchy itself and our constitutional way of life. The dignity which the Duke displayed in September of that year and the way in which the late King George VI and the present Queen Mother responded to the challenge of that situation strengthened, rather than weakened, the Monarchy and put the nation deeply in their debt. My Lords, I beg to support the Motion.
2.53 p.m.
THE LORD ARCHBISHOP OF CANTERBURY: My Lords, our emotions to-day go deep because within them are mingled both present grief and sympathy and the memories of past tragedy. We pray for the widow who mourns for the partner of 35 years, that she may be comforted; we pray for our Queen, for great indeed is her burden at this time. She has her own grief to bear while with outgoing Christian sympathy she shares the grief of the widow and shares also the feelings of so many of her people. Our Monarch bears and shares all this with us at once, and she knows that her people support her with ceaseless loyalty and love.
When tragedy occurs in our history it is natural for us to dwell upon it and to try to assess it. What matters is that while our judgments of our tragedy are fallible we have, as Christians, the certainty that any good that is done stands and has imperishable worth. Such, I believe, have been the feelings of thousands in these last days, not least among those who have been to pay their reverence at Windsor—the sense that while wrong is wrong it is not we who are the judges; the sense that reconciliation can be a great reality; the sense that goodness stands and evokes gratitude: this sense has been deeply present. So our last thought to-day can indeed be one of thankfulness: thankfulness that things are so, and thankfulness for the great service which the Prince who has died gave to the people at home and overseas, and not least his caring heart for those in need and suffering.
SEVERAL NOBLE LORDS: Hear, hear!
On Question, Motion agreed to, nemine contradicente: the said Address to be presented to Her Majesty by the Lords with White Staves.

FOOD ADDITIVES AND HEALTH
LORD BURNTWOOD: 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 which Government organisations or Government-subsidised organisations, excluding universities, colleges and other educational institutions have the responsibility of initiating research into the toxicity and acceptable daily intake of food additives and to what extent the Government are dependent on commercial/industrial initiatives.
EARL FERRERS: My Lords, research into the toxicity and acceptable daily intake of food additives is carried out at certain food research associations which are supported by industry and for which my right honourable friend the Minister of Agriculture, Fisheries and Food gives grants-in-aid. It is incumbent upon manufacturers and users of additives to provide evidence of their need and safety. This evidence is considered by independent expert committees, in particular the Food Additives and Contaminants Committee, and the Pharmacology sub-Committee, who advise Ministers whether or not substances should be included or continue to be included on permitted lists.
LORD BURNTWOOD: My Lords, may I ask the noble Earl whether he is aware that the operative word in my Question is "initiating"? Is he further aware that there is a growing body of feeling in public life that too many hazards still exist and that there have been tragedies caused by the lack of such initiative being taken in these matters by the Government of the day? Will the noble Earl undertake to investigate the possibility that before any new additive is introduced into food for human consumption it will automatically be tested for toxicity and acceptable daily intake?
EARL FERRERS: My Lords, I am aware that the operative word is "initiating". In fact, the Government take the view that where the manufacturer or the intended user wishes to use a new substance it is up to him to provide evidence

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both of its need and of its safety in use. While I accept entirely the noble Lord's concern about additives, I could not guarantee that all new additives will be tested, because this could cost up to £30,000 for each item so tested.
LORD BURNTWOOD: My Lords, I was of course aware of the cost of investigating these additives, which is a cost I should have thought the State ought to bear. Is the noble Earl satisfied that the Government Departments concerned have a record of the maladies and diseases which have ensued because these initiatives were not taken?
EARL FERRERS: My Lords, I am fully aware that there is concern about the additives that are used; but the noble Lord will appreciate that before they are entitled to be used they have to be put on to a permitted list drawn up by my right honourable friend, and this is done only after they have passed the supervision of both Committees to which I have referred.
LORD SHACKLETON: My Lords, did the noble Earl not say in an earlier answer that some additives are not tested at all, or did I misunderstand him? Can he say whether these additives are at least considered and, if they are not tested, whether there is good reason for it? Are they known to be safe even though they are not tested?
EARL FERRERS: My Lords, before an additive is allowed to be used it has to pass the consideration of these two Committees. It may be that the Pharmacology Sub-Committee may be dissatisfied with the evidence of safety which is produced by the manufacturers. But it is incumbent upon the manufacturers to show that their product is safe. It is only if it is considered that their product from the evidence they have provided is unsafe that the product is subjected to yet further tests.
BARONESS SUMMERSKILL: My Lords, may I ask the noble Earl whether it is an offence for a manufacturer not to give this information? If it is an offence, what is the penalty?
EARL FERRERS: My Lords, the Food and Drugs Act 1955 says that it is an offence to add any substance to food so as to render the food injurious to health. It is up to the manufacturers to show that any new substance which they intend to use is not injurious to health and is safe in use.
BARONESS SUMMERSKILL: My Lords, may I know what the penalty is if the manufacturers do not give this information?
EARL FERRERS: My Lords, I cannot tell the noble Baroness offhand what the penalty is, but I will inquire and let her know.
LORD HARVEY OF PRESTBURY: My Lords, could my noble friend say what liaison takes place with the United States and other countries on these matters?
EARL FERRERS: My Lords, when considering any new product the Pharmacology Sub-Committee will take into account any evidence which is produced in another country on the new product.
LORD BURNTWOOD: My Lords, if I send the noble Earl information about a case which occurred in recent years of an additive to fruit juices for human consumption which has caused cardiac lesions will he investigate the matter and ascertain how it slipped through the net?
EARL FERRERS: My Lords, I will certainly look into the case to which the noble Lord referred, and I should be delighted to do so. I am wondering whether this is a particular substance which has now been removed from the list.
LORD SHACKLETON: My Lords, might it not have been better for it never to have got on to the list if it had been tested before?
EARL FERRERS: My Lords, the noble Lord will appreciate that evidence comes forward as time passes. It is only when new evidence comes to light that it is possible that substances may have to be removed from the list.

OMAN FIGHTING: USE OF BRITISH FORCES
3.2 p.m.
Lord BROCKWAY: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government how far British pilots, officers and naval personnel are participating in the civil war in Oman and the territory of South Yemen.
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, a number of British officers are seconded to the Sultan's Armed Forces and the Sultan of Oman's Air Force. British contract officers also serve with the Army, Air Force and Navy of the Sultanate. They take part in operations wherever they are required in the Sultanate, including operations against a rebellion in part of the South-Western province of Dhofar. There are no Britons fighting on the territory of the People's Democratic Republic of Yemen.
LORD BROCKWAY: My Lords, I should like to thank the noble Baroness, as always, for her Answer. Would she confirm the statement of the Foreign Office that seven British soldiers have been killed in these operations? While recognising that the new young ruler of Oman is more democratic, why should we be intervening in a civil war in support of a feudal régime?
BARONESS TWEEDSMUIR OF BELVELVIE: My Lords, I regret to say that three British seconded officers have been killed, three British contract officers and four members of a special air services training team. When we second personnel to the Sultan of Oman it is entirely his responsibility as to where they are used. In this case there was a rebellion within the borders.
LORD SHEPHERD: My Lords, am I to take it from the reply of the noble Baroness that where we second officers and personnel we have no control over the way in which they are used? Is that the construction that we must put on the answer of the noble Baroness?
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, the primary
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responsibility in putting down the rebellion is with the forces of the Sultanate; but we have an arrangement whereby consultation takes place concerning the employment of our personnel where it is feasible in the circumstances.
Lord SHEPHERD: My Lords, if we are to provide these services, would the Government look at the question of whether they should be given by contract officers and not by seconded officers?
Baroness TWEEDSMUIR of BELHELVIE: My Lords, the noble Lord is perfectly correct, that where contract officers are concerned they are entirely the responsibility of the Sultanate. We try to ensure that, so far as seconded officers are concerned, where possible they are not used in circumstances which would be difficult for Britain.
LORD BOOTHBY: My Lords, may I ask the noble Baroness whether these men are seconded with their own consent, or at their own request?
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, they are certainly seconded with their own consent.
LORD BROCKWAY: My Lords, may I ask the noble Baroness whether it is the case that the Government of South Yemen have now raised this matter in the Security Council of the United Nations and made the charge that British pilots have led attacks on its territory, and that a British naval force landed on the island of Socotra? Can the noble Baroness at least repudiate the latter suggestion?
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, so far as I am aware I can repudiate that latter suggestion.
LORD HARVEY OF PRESTBURY: My Lords, can my noble friend say whether compensation and pension arrangements have been satisfactorily made, or are being made, for the widows or relatives?
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, yes, so far as I am aware. I do not have the details with me, but I will write to my noble friend in answer.

EDUCATION OF ROMAN CATHOLIC CHILDREN
LORD BEAUMONT OF WHITLEY: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they are aware that some local education authorities are compelling Roman Catholic children to go to R.C. schools against the wishes of the parents and the logic of neighbourhood schools; and what advice they propose to give to local education authorities on this matter.
THE PARLIAMENTARY UNDER-SECRETARY OF STATE, DEPARTMENT OF EDUCATION AND SCIENCE (LORD BELSTEAD): My Lords, the Education Acts allow parents to exercise a choice of school within the public sector, provided that in any particular case the choice is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure. My right honourable friend is not aware of any general difficulty affecting Roman Catholic parents who do not want their children to attend Roman Catholic schools, but she will always consider any appeals from parents which may be made to her.
LORD BEAUMONT OF WHITLEY: My Lords, I am grateful for that reply. Is the noble Lord aware that there have been considerable difficulties in this matter in Staffordshire, Wolverhampton, Wallasey and Birkenhead? There appears to be a policy of sending Roman Catholic children, even against geographical and educational necessities, to Roman Catholic schools. Would the Minister therefore accept the following principle: that it is not acceptable that children should be sent to denominational schools which their parents do not wish them to be sent to unless educationally, geographically or financially the reasons are overwhelming?
LORD BELSTEAD: My Lords, I am aware that appeals come to the Department of my right honourable friend under Section 68 of the 1944 Act. The principle to which authorities must have regard in allocating pupils to schools is
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contained in Section 76 of the Act: parents have a right of choice of schools, subject to the two provisos which I gave in my original Answer. That is the principle to which the authorities mentioned by the noble Lord have regard, and that is the principle to which my right honourable friend must have regard when deciding appeals.
Baroness LEE of ASHERIDGE: My Lords, would the Minister agree, particularly against the background of the tragic situation in Ulster, that anything we can do to have children, whatever their religious background may be, educated in the same schools is good, and that we should give every possible encouragement to parents, whether they are Catholic, Jewish, Mohammedans, or whatever the religion of the home is, who want their children to be brought up in a school where all religions meet.
Lord BELSTEAD: My Lords, I agree with the noble Baroness that what she has said is in no way inconsistent with Section 76 of the Act.

BUSINESS
LORD DENHAM: My Lords, it may be convenient for your Lordships to know that dinner will be available to-night. It will also be available on Tuesday night and Thursday night of this week.
WESTMINSTER ABBEY AND SAINT MARGARET WESTMINSTER BILL [H.L.]
Read 3a, and passed, and sent to the Commons.

CONTRACTS OF EMPLOYMENT BILL [H.L.]
THE LORD CHANCELLOR (LORD HAILSHAM OF SAINT MARYLEBONE): My Lords, I beg leave to introduce a Bill to consolidate certain enactments relating to contracts of employment; and to move that the Bill be now read a first time.
Moved, That the Bill be now read 1a.—(The Lord Chancellor.)
On Question, Bill read 1a, and to be printed.

SRI LANKA REPUBLIC BILL [H.L.]
THE MINISTER OF STATE, FOREIGN AND COMMONWEALTH OFFICE: (BARONESS TWEEDSMUIR OF BELHELVIE): My Lords, I beg leave to introduce a Bill to make provision in connection with Ceylon becoming a republic within the Commonwealth under the name of Sri Lanka, and to move that the Bill be now read a first time.
Moved, That the Bill be now read la.—(Baroness Tweedsmuir of Belhelvie.)

LEGAL ADVICE AND ASSISTANCE BILL
Brought from the Commons on Monday, May 22 last, and printed (pursuant to Standing Order No. 48); read 1a.
TRADING REPRESENTATIONS (DISABLED PERSONS) AMENDMENT BILL
Brought from the Commons on Monday, May 22 last, and printed (pursuant to Standing Order No. 48); read 1a.
OVERSEAS INVESTMENT AND EXPORT GUARANTEES BILL
Brought from the Commons on Thursday, May 25 last, endorsed with the Certificate from the Speaker that the Bill is a Money Bill within the meaning of the Parliament Act 1911; Bill printed pursuant to Standing Order No. 48; read 1a.
HARBOURS, PIERS AND FERRIES (SCOTLAND) BILL
Returned from the Commons agreed to.

NATIONAL DEBT BILL [H.L.]
THE LORD CHANCELLOR: My Lords, I rise to move that this Bill be now read a second time. It is a small Consolidation Bill under the 1949 Consolidation of Enactments (Procedure) Act. It is accompanied by the usual Memorandum explaining why certain minor corrections and improvements in the law
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are desirable. The Bill will be examined by a Joint Committee in the usual way. I beg to move.
Moved, That the Bill be now read 2a.—(The Lord Chancellor.)
On Question, Bill read 2a, and referred to the Joint Committee on Consolidation Bills.

MATRIMONIAL PROCEEDINGS (POLYGAMOUS MARRIAGES) BILL
3.15 p.m.
BARONESS SUMMERSKILL: My Lords, I beg to move that this Bill be now read a second time. It will be recalled that last July I moved the Second Reading of a Bill substantially the same as the Bill before the House to-day, and on that occasion all Parties in this House gave the Bill their support. Unfortunately shortage of time prevented its passage through another place in the course of the same Session. However, I am glad to inform the House that it recently passed all its stages in another place and received its Third Reading on May 5. I should like particularly to express my appreciation of the able manner in which Mr. Neville Sandelson, Member for Hayes and Harlington, piloted the Bill through another place and to express my gratitude that when he was fortunate in the ballot he chose this Bill in order that when the time came it could have another Reading in this House. Noble Lords will know that it is now necessary to secure its passage through this House again in this Session before it can go on the Statute Book.
I do not wish to weary the House with tedious repetition, and I have no intention of reminding the House of the historical details which I thought were necessary on the last occasion. I would assure the House, however, that the provisions in the Bill to-day are the same as those approved last July, with the addition of two Amendments made in another place. These are Clause 2, which applies the same provision to Scotland, and Clause 3, which embodies a technical amendment to the Nullity of Marriage Act 1971 which codified the law of nullity. Furthermore, may I say, in order that the House may be reassured, that all the provisions in this Bill have received careful consideration by the Law Commission, who have given me the most valuable assistance in drafting.

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The immigration here of people with different religions and cultural backgrounds has focused attention on the law relating to polygamous marriage, and on the need for reform. It is over a century ago that the case of Hyde v. Hyde established the basic principle concerning polygamous marriage in English law; namely, that neither party to such a marriage is entitled to matrimonial relief. Over the years a body of law concerning polygamous marriages has developed, and it is now established that the marriage is monogamous or polygamous according to the law of the place of celebration and not the law of either party's domicile. In effect, this means that if an English man or woman goes through a polygamous marriage ceremony in a country where polygamy is lawful, he or she contracts a polygamous marriage although the marriage is not valid in England. On the other hand, if a Muslim domiciled in India or Pakistan contracts a marriage in an English register office, that is treated as a monogamous marriage. Some monogamous countries may recognise the first marriage of a polygamous union for the purposes of matrimonial relief, but in England there is no such distinction. The parties in an Eastern country may change their religion from one which permits polygamy to one which does not, and if the husband changes his domicile from a country which permits polygamy to one which does not, then matrimonial relief will be available.
The rule in Hyde v. Hyde which denies matrimonial relief to either party to a polygamous marriage applies to the proceedings set out in Clause 1(2) and includes a decree of divorce, nullity of marriage, judicial separation, presumption of death, dissolution of marriage and wilful neglect to maintain. It seems to me—and I am sure the House will agree—that the party to a polygamous marriage who suffers the greatest hardship is the wife, who is denied maintenance, and also the children. Of course, in this country we do not allow a mother and her children to starve; consequently they are supported by the taxpayer through social security. Again I should remind your Lordships that Islamic law allows the husband to divorce his wife unilaterally and extra-judicially by a declaration known as Talak and it is now established that the English courts will recognise Talak provided
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it can be proved that the divorce is effective in the country of domicile.
Of course, these problems have presented themselves to other countries which have a large number of immigrants, and they have attempted to solve them in different ways. In Australia either party to a polygamous marriage may apply for maintenance and other matrimonial relief, including divorce, in certain circumstances. New Zealand allows spouses to apply for maintenance in circumstances similar to those obtaining in Australia. I recognise that the word "polygamy" attracts the attention of legal organisations and particularly the legal organisations of various women's associations. I hope I have again made it clear that this measure will in no sense favour polygamous marriages but that the reverse will be the case. Indeed, since I introduced this measure in the last Session I have received only messages of approval and not one of dissent. I therefore once more commend this Bill to your Lordships' House and again ask for the support—the same, I hope, all-Party support—that I received on the Second Reading last year.
Moved, That the Bill be now read 2a.—(Baroness Summerskill.)
3.22 p.m.
THE LORD BISHOP OF GUILDFORD: My Lords, as a fairly new Member of your Lordships' House I have noticed that from time to time the noble Baroness, Lady Summerskill, has viewed contributions from these ecclesiastical Benches with some disenchantment. So I am glad to-day to speak in support of her Bill; and since I am married to a member of the noble Baroness's profession, a doctor (we are naturally known in my diocese as "body and soul"), she will no doubt feel that anything sensible I say comes more from medical influence than theological insight. We have the best legal authority given in your Lordships' House that the Bill does nothing to encourage polygamy. On a previous occasion the noble and learned Lord, Lord Gardiner, was good enough to warn any exuberant or inexperienced reporter that any headline suggesting that the Bill did so would be utterly false.
This Bill will be helpful, so far as is consistent with English public policy, in making family relationships validly created under a foreign system recognisable

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in this country. Further, it seems to me clearly undesirable that people should be regarded for some purposes as married and for other purposes as not married. But this is the situation with regard to polygamous marriages in England to-day, which the noble Baroness's Bill seeks to rectify. Nor, I suggest, should the interests of the British taxpayer be lost sight of. At present a man cannot be compelled by the courts to maintain his partner of a polygamous or a potentially polygamous marriage, but can leave her as a charge on social security. So this Bill, it seems to me, will in principle bring necessary substantial relief to those involved, mainly the women—few women, perhaps, but that does not excuse the exercise of Christian compassion expressed with common sense and proper legal safeguards. Moreover, I was glad to note that we have been assured on the best authority of the noble and learned Lord, Lord Simon of Glaisdale, that the Bill is workable. Therefore, I thank the noble Baroness for giving me the opportunity to pay her tribute and I beg to support this Bill.
3.24 p.m.
THE LORD CHANCELLOR (LORD HAILSHAM OF SAINT MARYLEBONE): My Lords, I think the Government view ought to come from me and I can state it very shortly indeed. The noble Baroness introduced what was, except for two minor details, an identical Bill last July, and I then gave my full support to it. I do so again to-day, but I need not on this occasion, since the previous debate is so fresh in your Lordships' memory, go to the same length as I did then in explaining my reasons for supporting it. It is in fact part of the Law Reform programme which I have in mind, for which I have again to explain that I have to rely largely on the public spirit of individual private Members. I should therefore like to thank the honourable Member of the other place who introduced it there, and the noble Baroness, for having backed it, its having received the careful support of the Law Commission, and explain that it is very much with the Government's enthusiastic backing that the Bill goes forward.
Before I conclude these very brief remarks, may I say that I think the
20
fact that the noble Baroness previously introduced the Bill—knowing as she did, because I so informed her, that it had no chance of reaching the Statute Book last Session—was an extremely valuable and probably indispensable part of the whole exercise. There was a real danger that, with a Title such as this, the Bill could have given rise to misapprehension. If it had been introduced perhaps late one day in another place it could quite easily have been lost by a mere objection. But it has been publicly ventilated and its real purposes have been fully laid out before Parliament and public opinion last July, and this was one of the ways in which it received such a smooth passage when it came before the other place this Session. Therefore, I would say not only that we are grateful to the noble Baroness for sponsoring this Bill to-day, but that she performed a very necessary public service in sponsoring it before, when she knew that so far as the last Session was concerned there was no chance of its becoming law.
May I add this last word for a particular reason? There is at least one Bill in another place at the moment which has been so blocked. That is a Bill relating to the change in the law of domicile, which I very much wish to see reach the Statute Book. One can only speculate as to the reasons behind the blocking. It is of course part of the indisputable prerogative of Members of another place to object to a Bill when it comes on late without a chance of a debated Second Reading. But I do hope that if possible the subject matter of that Bill could be properly debated here so that those who may be blocking it could realise that they were doing a real disservice to a cause which, if it were fully explained, I am sure they would wish to support. Having said that, I renew my thanks to the noble Baroness and have nothing more to say except that I wish the Bill an easy passage.
3.28 p.m.
BARONESS SUMMERSKILL: My Lords, may I thank the right reverend Prelate for his support. I can assure him that I always welcome a contribution of that kind from his Bench. The fact that he had done his homework well made me ask myself whether he had consulted his wife, and from what he tells

21
me I am sure she came into the discussions with him. May I congratulate him on having married a member of my profession. I can assure him that doctors always prove to be good wives. They may talk a lot, but when faced with action they are always reliable. May I also thank the noble and learned Lord who sits on the Woolsack for everything he said. He knows as well as I do (he has been very honest) that one cannot do this kind of thing (and I have successfully helped to pilot a number of Private Members' Bills) unless one has the powerful support of the Judiciary. Last year I sat back in this same place and purred with satisfaction when not only he gave me his support but my noble and learned friend Lord Gardiner gave me warm and powerful support, as also did the noble and learned Lord, Lord Simon of Glaisdale. I should like to tell the House that Lord Simon is upstairs on a case, but just before I spoke he sent a message down to me saying that he was thinking of us and was still with us. So this matter comes happily to a conclusion, and I think the House should feel satisfied when its contemplates the results. All the unfortunate Muslim women throughout our country who have been denied matrimonial relief for many years will now feel emancipated. That is in consequence of the wonderful support that I have had from both sides of this House, and I should like to thank your Lordships very much.
On Question, Bill read 2a, and committed to a Committee of the Whole House.

SOUND BROADCASTING BILL
3.30 p.m.
LORD DENHAM: My Lords, I beg to move that this Report be now received.
Moved, That the Report be now received.—(Lord Denham.)
On Question, Motion agreed to.
Clause 1 [Independent Television Authority to be renamed Independent Broadcasting Authority]:
LORD BEAUMONT OF WHITLEY LORD BEAUMONT OF WHITLEY moved Amendment No. 1:
Page 1, line 15, at end insert—
("(3) In addition to the members of the
22
Authority provided for in the principal Act the Minister of Posts and Telecommunications may, if it appears to him to be necessary for the better working of this Act, appoint a second Deputy Chairman.").
The noble Lord said: My Lords, the efforts of noble Lords on the Labour Benches during the last stage of this Bill led me to revise my previously stated opinion that this Bill was so bad that it could not be amended. My opinion of the Bill as such has not altered, but I think it is up to all of us to try to make the Bill a little better. This first Amendment that I and my noble friend are putting forward deals with a minor and, it seems to me, an uncontroversial matter. Nevertheless, the Amendment has behind it a certain psychological importance which I am sure the Government will welcome, as indeed will all Members of your Lordships' House. Your Lordships will remember that it stems from an Amendment put forward at a previous stage by the Labour Front Bench, for enlarging the whole of the Authority. It was argued then—and I hold to this argument—that it is important to regard the adding of sound broadcasting as being a very special and major matter; it should not just be ingested into the Independent Television Authority as an extra chore which it is asked to take on.
One of the most interesting suggestions was that there might have to be two Deputy Chairmen and two sides of the Authority. I am not concerned to argue the necessity for that this afternoon. I do not know enough about the internal organisation of the Authority to know whether it would be a good thing or not, nor do I think anyone does, including the present members of the Independent Television Authority and including (if I may be so bold) the Government. But what I do think is that this is a possible way of running the Authority with two subdivisions, one dealing with television and one with broadcasting. If this is so, it is a pity to leave a situation in which there is only one Deputy Chairman of the Authority and where there can be no more than one Deputy Chairman. So this Amendment is designed to allow the Minister to appoint—if he thinks it desirable, and not unless—a second Deputy Chairman.
On the Committee stage of this Bill the noble Viscount, Lord Colville of Culross, said that he had not thought

23
about this possibility and that he would go away and think about it. I hope he has done so and that those who are speaking in his stead to-day will feel that this is a reasonable suggestion, because in fact it chimes in with the noble Viscount's remarks on Committee stage, when he said that to lay down in the Statute
"that there must be two Deputy Chairmen, with the inevitable problem of which one takes the chair if the Chairman is not present, and so on, could detract from the flexibility with which I would hope the Authority would be able to run its business.—[OFFICIAL REPORT; 9/5/72, col. 933.]
My Lords, I leave aside the remark about which Deputy Chairman should take the chair. If the Authority could not settle that, then it certainly could not settle any of the more major matters which will arise. Nor do I think it would be as divisive as the noble Viscount went on to say in the next column. It is possible that there are occasions when to split up an authority with different responsibilities for different sections may prove divisive, but if it is well run this does not happen; and again what I am trying to do is to ensure that it is possible that this should be done if it is necessary, but not otherwise. The noble Viscount remarked about the importance of flexibility with which, I hope, the Authority will be able to run its business. This is a serious suggestion that this may be one way of running the business. If your Lordships pass the Amendment, the Authority will have the flexibility it needs to make two divisions, if the Minister should so desire. If the Amendment is not passed there will not be that flexibility. Therefore I sincerely hope that the Government will stand by their word. I beg to move.
LORD BERNSTEIN: My Lords, before the noble Lord, Lord Denham, answers I should like to call his attention to the fact that the noble Viscount, Lord Colville of Culross, during the Committee stage of the Bill constantly mentioned the noble Lord, Lord Aylestone. It seems to me that the noble Lord, Lord Aylestone, was asked to carry out to the satisfaction of the Members of your Lordships' House all that is vague in the Bill. This would be quite a task, even for the noble Lord, Lord Aylestone. In the references to Lord Aylestone, who is a respected Chairman
24
of the I.T.A., your Lordships were not told that his term of office officially finishes this October and that he will not be around to carry out the undefined responsibilities expected of him. If the noble Lord, Lord Denham, is going to say to-day that Lord Aylestone's term of office will be extended, such a statement will be very much welcomed.
LORD LEATHERLAND: My Lords, I had not intended to speak on this Amendment and I do not know what the view of my colleagues on the Front Bench may be, but, speaking generally from the point of view of business management, I am against the possible introduction of a second Deputy Chairman. Most of my experience has been in the world of newspapers and it is notorious that the executives on a given newspaper are a loyal, harmonious and affectionate team; but that does not apply in the broadcasting and the television world. Every few months we get stories about intrigues that have been taking place against this executive or that executive. If we have a Chairman and a Deputy Chairman there can be little doubt that the Deputy Chairman's allegiance is owed directly to the Chairman, but if we have two Deputy Chairmen then there is the risk of two ganging up against one—the Chairman and one Deputy Chairman against the remaining Deputy Chairman. That would be an unhealthy state of affairs. In a regiment there are not two seconds-in-command: there is the colonel and the second-in-command, and I think the Army can teach us a great deal about the control of responsibility and management. In my opinion the introduction of a second Deputy Chairman would be unhealthy, and I shall certainly vote against it.
LORD DENHAM: My Lords, if I may deal first with the remarks made by the noble Lord, Lord Bernstein, I am afraid I am not briefed on the particular point as to when Lord Aylestone will leave the I.T.A. It is certainly not as early as October of this year, but I will pass on the noble Lord's comments to my right honourable friend. My Lords, in Committee my noble friend Lord Colville, undertook, as the noble Lord, Lord Beaumont of Whitley, said, to give consideration to an Amendment which would make it possible, if the Minister so determined at a later date, for a second

25
Deputy Chairman to be appointed. This Amendment put down by the noble Lord, Lord Beaumont, gives an opportunity to do just this. The present position is that there has to be one Deputy Chairman but there is no power to appoint a second. The aim behind the Amendment, as the noble Lord has said, is to make it possible to appoint separate Deputy Chairmen, the two being charged to take a special interest in television and radio respectively.
Her Majesty's Government have given consideration to this point, as my noble friend promised, but after thinking it over very carefully they still feel it necessary to maintain their opposition to this proposal. There is an overwhelming disadvantage in appointing a Deputy Chairman with special responsibilities for radio. The danger would be that he might become a divisive force in the organisation. For example, the officials concerned with radio might try by-passing their Director-General who would not have the same partisan interest. It is important to preserve the concept of the Board as wholly and jointly responsible for the policies of the Authority, with responsibility to the public and to Parliament for local sound broadcasting just as for television. The particular function of the Deputy Chairman, apart from carrying the ordinary responsibilities of a member of the Board, is to assist the Chairman and to deputise for him in his absence. It is essential therefore that he should interest himself in the Authority as a whole and not just in one part of it. I very much welcome the speech on these lines by the noble Lord, Lord Leatherland. I hope your Lordships will see fit not to accept this Amendment.
3.43 p.m.
LORD SHEPHERD: My Lords, the noble Lord surprises me. I accept that having two Deputy Chairmen could raise problems if there were a weak Chairman. My noble friend who speaks from the Liberal Benches had in mind the case where the Board might feel that, for the benefit of television and sound radio, for which they have responsibility, they should have a committee system. Clearly, if there were a committee system, it would be too much to expect the Chairman of the Board to act as Chairman of both committees. It may well be that the Board as a whole will feel that a committee
26
system is the right method to adopt, because television, although it is well established, still requires very careful attention and surveillance and I think that this is one of the reasons why we have been able to congratulate the noble Lord, Lord Aylestone, and the Board on their conduct of commercial television. The Authority has kept a continuous watch and interest over the whole field of television.
Noble Lords who sit an the Front Bench opposite have said throughout our debates that commercial sound radio is completely new and that it will raise many problems which do not exist in television. If we are to have some 30 to 60 stations spread over the country, if the Board are to perform their task of surveillance and give equally to sound radio the care and attention which they have given to television, then either they may need to have an enlarged Board—as I suggested in Committee—or they may feel that they ought to specialise. If they were then to specialise, it would clearly mean a form of committee system, and in that event I should have thought that the idea of a Deputy Chairman sitting as chairman of each committee would have something to be said for it.
The Amendment does not require a second Deputy Chairman to be appointed; it does not require any change at all in the present structure. But the point is that unless this Amendment is acecpted, the Board will not be able to move to the sort of basis that I have suggested—to which they might well wish to move—because under the parent act they are precluded from having more than one Deputy Chairman. I have no doubt at all that as the Board assumes its new authority with very much enlarged responsibility, we ought to give as much flexibility as possible to the Minister and in particular to the Chairman of the Authority.
My Lords, if you do not accept this amendment, then you do not give either to the Minister or to the Board any form of flexibility at all. I see no reason at all why the Government cannot accept this, except for one reason: that they do not wish to accept any Amendments on this Bill and that they do not wish this Bill to go back to another place. It may well be that the pressure of business

27
raises difficulty in the House of Commons. But that is not a justification for not agreeing to an Amendment that has considerable merit. It gives flexibility, which I believe the Authority is entitled to have, when it assumes this new responsibility over sound commercial radio. So I hope that the Minister will have another look at his brief to see whether the word "resist" has been underlined more than twice. If it has not been underlined more than twice, I should have thought he ought to accept this Amendment.
LORD AVEBURY: My Lords, I simply cannot understand the attitude of the Minister in saying to your Lordships that there is an overwhelming disadvantage to appointing a second Deputy Chairman, because that is not what the Amendment is about. It seems to have been misunderstood by the Minister just as much as by the noble Lord, Lord Leatherland. All we are saying in this Amendment is that we wish there to be power to appoint a second Deputy Chairman; not that the Independent Broadcasting Authority should be forced to do so against its better judgment or against the better judgment of the Minister who has to make the decision. As to the comparison which the noble Lord, Lord Leatherland, made with the newspapers, of course in the Companies Act there is provision for a Memorandum and Articles which are couched in the widest possible terms and if the Board of Beaverbrook Newspapers—
LORD BERNSTEIN: Or the Daily Mirror—
LORD AVEBURY: or the Daily Mirror—wish to appoint deputy chairmen then they would certainly have power to do so under their existing Memorandum and Articles, and I cannot understand why, whenever we are discussing public authorities, we should try to confine them within powers which are so much less flexible than those we give to companies incorporated under the Companies Act. Indeed, I think we are doing so in this case in saying that never at any time, unless a fresh Bill is brought before Parliament, can a second Deputy Chairman be appointed. That is what the Minister has said to the House.
My noble friend has outlined some of the advantages of his proposal so far as
28
the separate responsibilities of sound broadcasting and television are concerned, and I can see the force of that argument. But I do not think we should look at this Amendment simply in terms of those new responsibilities which are going to be assumed and say that automatically if this Amendment is adopted the position will have to be looked at in terms of sound broadcasting and television respectively. I can think of many other circumstances in which, from the commercial point of view, it would be convenient and desirable for there to be two separate Deputy Chairmen and I do not think that with the creation of a new Authority such as is contemplated under this Bill, we can say that never, for all time, can there be any argument for appointing a second Deputy Chairman. I hope, as the noble Lord, Lord Shepherd has said, that the Minister will look at the underlinings in his brief; because if this Amendment is not accepted then one must assume, as he said, that the Government have decided that they will not allow any Amendments to be accepted on this Bill at all.
LORD DENHAM: My Lords, if I may have your Lordship; permission to speak again to reply to those various points, may I say that I am sorry that I have surprised the noble Lord, Lord Shepherd—I surprised him last time, but perhaps next time it will not come as so much of a surprise. But, my Lords, the noble Lord said that members of the Board might need two Deputy Chairmen. They might work in committees. That is absolutely true. They might want to work in committees and there is nothing to stop them doing it. There is nothing to stop a member of the Board from being a chairman of a sub-committee. The point of having a Deputy Chairman in this case, as in most others, is twofold: first, to assist the Chairman, and secondly, to deputise for him in his absence. It is not to give him some other separate role, such as might be thought if this Amendment were accepted.
The noble Lord, Lord Shepherd, and the noble Lord, Lord Avebury, suggested that I was asking your Lordships to reject this Amendment purely for one reason, because we did not want any Amendments to this Bill. This is not so. There are very good reasons why one

29
should not accept this Amendment. If it were accepted the implication would be that it had merit, and in the view of Her Majesty's Government this Amendment does not have merit. We cannot simply accept an Amendment on the argument that it would do no harm. There must be some real reason for it. The noble Lord, Lord Avebury, complained about the comparison that the noble Lord, Lord Leatherland, drew with newspapers. Perhaps I can give him a comparison that will suit him better. As the noble Lord knows, the B.B.C. also run television and sound radio. They also have a Chairman, but they do not have two Vice-Chairmen. There is no more reason why the I.B.A. should have two than that the B.B.C. should have two, and the B.B.C. get on very well without two.
LORD BEAUMONT OF WHITLEY: My Lords, perhaps I may answer the various points made by the Minister. He spoke about how the committee system could be worked without a Deputy Chairman. Of course it could; and there are ways of getting round this. But the point we are making is that the inclusion of radio is not so much an addition as the setting up of a completely new body, which of course means two different responsibilities; and if the Minister should so decide, and the Authority should so recommend to the Minister, it should be able to give equal importance to both sections. The fact that this has not been done with the B.B.C. seems to me no argument for saying that it should not be considered with the I.B.A. Nor is it even to say that if the I.B.A. decided it wanted to have two sections this should necessarily apply to the B.B.C. as well. We are looking at this proposal almost entirely upon its merits. If the noble Lord is saying that the Amendment has no merit as an
Amendment, what he is in fact saying is that the Government have already made up their mind about how this Authority is going to be run, and are not allowing any flexibility to the Authority when it takes power and has to make its own decisions, and possibly decides that this would be the right thing.
The only point of any merit I found in the Minister's reply was when he spoke about the dual responsibility of the Director-General. Again I think this is a fairly unreal point, just as I think Lord Leatherland's point was unreal. We do not expect the Independent Broadcasting Authority to behave in some of the ways that the boards of some of our newspapers behave; there are better ways of running things than that. But it so happens in fact—unless I am wrong, and I am open to correction—that neither the principal Act nor the Bill we are considering mentions the Director-General at all; indeed, there is quite a possibility that there could be two Director-Generals. I am not saying that this would necessarily be a good thing, but the flexibility is there; one could have two divisions with two chief officials responsible to the Board. That, I think, probably disposes of the major part of the Minister's case.
Since it appears to me that the Government, in spite of their denials, are being very unreasonable about a purely permissive Amendment, which does not in fact enforce on them or the Authority the obligation to do anything at all but merely produces a little more flexibility, I am afraid that I must ask the House to divide.
3.55 p.m.
On Question, Whether the said Amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 51; Not-Contents, 85.

CONTENTS

Airedale, L.

Brockway, L.

Hale, L.

Amherst, E.

Buckinghamshire, E.

Henderson, L.

Amulree, L.

Burntwood, L.

Henley, L.

Archibald, L.

Carnock, L.

Jessel, L.

Arwyn, L.

Champion, L.

Llewelyn-Davies of Hastoe, Bs.

Avebury, L. [Teller.]

Diamond, L.

McLeavy, L.

Balogh, L.

Donaldson of Kingsbridge, L.

Moyle, L.

Beaumont of Whitley, L. [Teller.]

Evans of Hungershall, L.

Nunburnholme, L.

Faringdon, L.

Phillips, Bs.

Bernstein, L.

Fiske, L.

Platt, L.

Beswick, L.

Gardiner, L.

Ritchie-Calder, L.

Birk, Bs.

Garnsworthy, L.

Royle, L.

Rusholme, L.

Shinwell, L.

Wade, L.

Ruthven of Freeland, Ly.

Stocks, Bs.

Wells-Pestell, L.

Samuel, V.

Stow Hill, L.

White, Bs.

Segal, L.

Summerskill, Bs.

Wootton of Abinger, Bs.

Shackleton, L.

Taylor of Mansfield, L.

Wynne-Jones, L.

Shepherd, L.

NOT-CONTENTS

Aberdare, L.

Elliot of Harwood, Bs.

Macpherson of Drumochter, L.

Ailwyn, L.

Emmet of Amberley, Bs.

Mancroft, L.

Alexander of Tunis, E.

Ferrers, E. [Teller.]

Milverton, L.

Alport, L.

Fletcher, L.

Molson, L.

Auckland, L.

Fortescue, E.

Monck, V.

Balfour, E.

Fraser of Lonsdale, L.

Monckton of Brenchley, V.

Belhaven and Stenton, L.

Goschen, V.

Morrison, L.

Belstead, L.

Greenway, L.

Mowbray and Stourton, L. [Teller.]

Berkeley, Bs.

Grenfell, L.

Bessborough, E.

Grimston of Westbury, L.

Nugent of Guildford, L.

Bethell, L.

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

Oakshott, L.

Blackford, L.

Poltimore, L.

Bledisloe, V.

Hanworth, V.

Rankeillour, L.

Bolton, L.

Harvey of Prestbury, L.

Rathcavan, L.

Chorley, L.

Hawke, L.

Reay, L.

Clwyd, L.

Hood, V.

Reigate, L.

Colgrain, L.

Howard of Glossop, L.

Sandford, L.

Cottesloe, L.

Hurcomb, L.

Sempill, Ly.

Courtown, E.

Hylton-Foster, Bs.

Shannon, E.

Cowley, E.

Jellicoe, E. (L. Privy Seal.)

Somers, L.

Craigavon, V.

Kemsley, V.

Strathclyde, L.

Crathorne, L.

Kilmany, L.

Stratheden and Campbell, L.

Daventry, V.

Latymer, L.

Templemore, L.

de Clifford, L.

Lauderdale, E.

Trefgarne, L.

Denham, L.

Leicester, E.

Tweedsmuir of Belhelvie, Bs.

Derwent, L.

Limerick, E.

Vernon, L.

Drumalbyn, L.

Loudoun, C.

Vivian, L.

Effingham, E.

Lyell, L.

Wrottesley, L.

Elles, Bs.

MacAndrew, L.

Young, Bs.

Resolved in the negative, and Amendment disagreed to accordingly.

Clause 3 [Local Advisory committees for local sound broadcasts]:
4.2 p.m.
LORD BEAUMONT OF WHITLEY LORD BEAUMONT OF WHITLEY moved Amendment No. 2:
Page 3, line 4, leave out ("either").
The noble Lord said: My Lords, this Amendment is concerned to support two propositions which were put forward very strongly by this side in previous stages of the Bill, and which were given some support from the other side. Indeed, the Government maintained that they were in favour of both propositions. The first proposition is that the local advisory committees are extremely important bodies and should be given as much force as is compatible with the efficient running of a station by the contracting party. The second proposition is that we are all in favour of this being local radio and not regional radio. The purpose of this Amendment is to make it impossible for a member of a local
32
advisory committee to sit on a committee for another locality. If this is to be truly local radio, it seems to me almost obvious that that should be so. It is important that the people who serve on such a committee should be truly local people, with truly local interests and a knowledge of the situation in the place for which they are responsible. I can quite see that there will be a tendency to have on these committees people who are fairly safe establishment characters, and if in a region there are enough people of sufficient standing they may be asked to serve on more than one committee. That is the kind of practice that we should resist. It is in order to underline the local character of the advisory committee, and to make certain that the Authority looks around for those people who will most truly represent the people in a particular area, that this Amendment should be passed. My Lords, I beg to move.
LORD DENHAM: My Lords, at first sight this Amendment of the noble Lord, Lord Beaumont of Whitley, seemed to Her Majesty's Government to have quite

33
a lot to commend it. But, unfortunately, there are three reasons why Her Majesty's Government feel that they cannot accept it. The first reason is the general argument—and the noble Lord, Lord Beaumont, will himself appreciate this—that the new service is still very much in the hypothetical stage, and that the Authority ought to be free to devise the best advisory structure in the light of experience. I think the noble Lord will accept that argument, in view of what he said about the importance of leaving as much freedom as possible when he was speaking to the last Amendment.
LORD BEAUMONT OF WHITLEY: My Lords, I am surprised that the Government accept it.
LORD DENHAM: My Lords, the second reason is that it may be useful in the big conurbations to have some liaison on the advisory side between stations in adjoining cities, and this Amendment would of course preclude that. The third reason is that in London, where there will be two stations covering one locality, it would seem sensible to Her Majesty's Government to have only one advisory committee. I hope that the noble Lord, Lord Beaumont, will accept those reasons and will not press his Amendment.
4.8 p.m.
LORD BEAUMONT OF WHITLEY: My Lords, I really do not think that the Government's general argument ties up with the speeches on the last Amendment or with their action in the Lobby, but I see that the argument about flexibility is a fairly important one. I still think that the balance comes down on the side of this Amendment, but in the circumstances and particularly in view of the argument about London, it is not an Amendment which I am prepared to take to a Vote. Therefore, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
LORD BEAUMONT OF WHITLEY LORD BEAUMONT OF WHITLEY: moved Amendment No. 4:
Page 3, line 5, at end insert ("No members of a committee appointed under this section and section 9 of this Act shall be appointed for a term of longer than three years and no member shall be appointed for more than two consecutive terms.")
The noble Lord said: My Lords, this is another Amendment which is designed
34
to ensure that the members of these committees are really representative of the local areas which they are meant to serve. I think all of your Lordships well know the dangers of having too much continuity on committees of this kind, particularly outside London. I believe that in any body of whatever kind—except, possibly, your Lordships' House—there should be an arrangement for the circulation of members and for the definite ending of a term of office. Whenever I have had anything to do with the constitution of bodies, I have always sought to insert such a proposition. This Amendment would make certain that no member of an advisory committee would serve for more than six years at a time. That would do away with the kind of situation where there are local worthies who think that they have a prescriptive right, because they have sat on a committee for six years, to continue sitting on it until the cows come home, and who are so powerful in terms of local influence that no one wants to get rid of them. I think that not only should they be forced to be appointed for only three years, so that there is a definite, natural break—quite pertinent in the circumstances—at which they could be asked to retire, but also that there should be a definite prohibition on their sitting on the committee for more than six years.
I know that one of the arguments that the Government are going to put up is that in any case the operation of this Bill will come to an end within six years, but I still think it is important that this provision should be written into the Bill as it stands, because the Bill itself may well become the pattern of any future broadcasting Bill. It may be quoted as an authority and a precedent, and undoubtedly will be. It is no bad idea to get this written in now, even if the second half of this particular Amendment does not in fact specifically apply. My Lords, I beg to move.
LORD DENHAM: My Lords, this, again, seems a very reasonable Amendment but, again, I am afraid I am going to ask your Lordships not to accept it. I must point out that if I continually ask your Lordships not to accept Amendments moved by the noble Lord, Lord Beaumont of Whitley, it is not because I do not want any Amendments at all

35
but because I do not agree with the particular Amendments. The noble Lord, Lord Beaumont, said that I was going to use the argument that there was not much point in writing this Amendment into the Bill because the Bill will expire before the end of six years anyway. I am not going to use that argument. I quite see the noble Lord's point that if this were an acceptable Amendment it would be a good idea to write the principle into the Bill. But, again for reasons of flexibility, which again the noble Lord, Lord Beaumont, will appreciate, I ask your Lordships not to accept it.
One can see the point of wishing to ensure that councils shall not become stale, with the same members serving again and again. But local circumstances will differ, and so will the quality of local talent. There may be occasions when the I.B.A. may be very glad not to be forced to dismiss a particularly valuable member of an advisory council, as they would have to do were this Amendment passed. Moreover, there is no need to constrain the I.B.A. in this way. It will be in their interest to have the most useful advisory councils they can, and they will have every interest in seeing that these councils are satisfactorily complemented. In view of this, I hope the noble Lord will withdraw this Amendment, too.
LORD SHEPHERD: My Lords, the House will now recognise that when the noble Lord, Lord Denham, says that an Amendment is a reasonable Amendment it is the kiss of death. I really am surprised at the noble Lord. So far as your Lordships' House is concerned, we know that we have had difficulty in relation to our own Committees. We have had the position for many years that a number of notable and distinguished Members of this House who have seen serving on Committees have remained there, and that this has meant that no new, young, virile blood could be appointed to those Committees. We know the difficulties of getting rid of those distinguished noble Lords from our Committees; and, as I myself admitted as a Chief Whip who had a responsibility in this matter, I had not the courage to go to such a distinguished Member and say, "I think it is about time you left that Committee in order that we can bring someone more
36
junior and perhaps now more representative of the general view of the House". In fact the House has accepted this view, and I believe that in the case of the Offices Committee and a number of others we have now adopted a rule that Members should sit on those Committees for only a certain period of time, after which they will leave. In that way, everyone is now relieved of the embarrassment of going to a noble Lord and asking him to leave. I suspect that in the case of local authorities and of committees of this sort there will be the same problem. How do you ask a distinguished, long-serving member to leave—unless, of course, he has committed some misdemeanour, which is unlikely?
So this Amendment provides a flexibility in the operation of these committees in the sense that we shall always have a regular turnover of members, providing new faces and new views to meet and match the changing tastes and requirements within a locality. I believe that this Amendment, if it were accepted, would certainly make the position of the Board much easier in its appointments to these important committees, and it would clearly show the locality that these committees were not going to be the preserve of some group of people but would be continually changing and new interests would be seen on them. I do not believe that there is any other way of ensuring this flow of new thought, new tastes, on to committees of this sort unless there is an arbitrary break, as is suggested in the Amendment. Let us face it: if there is some distinguished, well-serving member who, after six years of service, wishes to serve again, he need only take a break. It does not even say how long the break is. It will perhaps be to the next appointment, so there will be a gap of, it may be, one year.
LORD DENHAM: Three.
LORD SHEPHERD: Not necessarily, because a person could be appointed as a consequence of the death of a member of the committee. There is no question of stating how long a person should be off such a committee. But by accepting this Amendment there is a clear break; the task of the Authority is made infinitely easier; and for the person who is asked to leave it is made infinitely more acceptable, because he or she will be leaving not as a consequence of age

37
or particular taste but because of a statutory requirement that he or she can serve on that committee only for two periods of three years. I hope that the noble Lord will press this Amendment, because I think it is of considerable importance in relation to these committees.
LORD BERNSTEIN: My Lords, I hope that the noble Lord, Lord Denham, will reconsider what he has said. The noble Lord, Lord Shepherd, said that he was astonished. I am rather shocked. This Bill, according to the noble Viscount, Lord Colville of Culross, has been introduced because of a pledge. The Government have at different times given pledges about bringing in new blood, new people, into new areas of life in this country. This is an opportunity for them to practise what they have been preaching. No man or woman would expect to occupy a guaranteed position on a committee of this kind for more than six years. I think that would be long enough anyhow. I urge the Government to reconsider their decision.
LORD DENHAM: My Lords, may I have the leave of your Lordships to speak once more very briefly? The noble Lords, Lord Shepherd and Lord Bernstein, have eloquently pleaded for this Amendment. The noble Lord, Lord Shepherd, asked for flexibility, but flexibility is just what he will not get with this Amendment. It is quite open to the I.B.A., without this Amendment, to set a limit to the length of time people will serve on their first appointment. In fact, they are quite likely to do so. They have done so with the Television Advisory Committee. Where the noble Lord is not allowing flexibility is on this one point: if there are useful members who are doing a perfectly good job, then, if the Amendment is accepted, the Authority will have to get rid of them. The noble Lord, Lord Shepherd, says that in the case of the Committees of this House we have had to bring in new blood by stating a term of office. But there are a number of exceptions to that rule in the case of the Committees of this House, so that there will still be the continuity, there will still be the useful old Members. This we shall not be able to have on these other committees if this Amendment is accepted.
LORD SHEPHERD: I think the only exceptions were those made because of a recognition that there are certain Members of this House who sit on the Front Benches as Leaders of their Parties who needed to be part of those Committees. Outside of that, it was nothing to do with the question of service or contribution.
LORD DENHAM: The committees will have the advantage. I believe that it is not only the Party Leaders who are concerned but also the Chief Whips; and, of course, the Lord Chairman of Committees. The whole time the committees will have the advantage of a continuity which otherwise will be denied. The noble Lord, Lord Shepherd, said that in the case of the local radio advisory committees, it may be only for a year, that somebody may die or retire and you can re-appoint the good man. He quoted the example of this House; but a much more apposite example is that of the advisory committees that the B.B.C. and the I.T.A. have at present. None of them has this rule pushed upon them that there must be a gap at the end of a certain length of service; and the present system works perfectly well. Neither Lord Shepherd nor Lord Beaumont have produced good reasons why this should be done in this case and Her Majesty's Government do not see, unless a good case can be made for it (and they do not think that a good case can be made for it) that the Bill should be amended in that way.
LORD SHEPHERD: With permission, may I ask one question of the noble Lord? Is it not the purpose of these committees to ensure that the people to whom these services are being directed should be able to put their point of view; and that changing tastes need a different and changing structure of the committees? This is quite different, if I may say so, from the case of the advisory committees on television.
LORD DENHAM: The noble Lord, Lord Shepherd, knows very well that in communities you often have certain members who are willing to serve in this way; members who are good and extremely valuable and who are worth while retaining.
LORD BEAUMONT OF WHITLEY: There is a perfectly good reason for this and it is a perfectly good reason that the

39
Minister knows about. Anyone who has been involved in politics—in local government politics, in political Party politics, and even in the politics of this House—knows that there is a very good reason indeed; that there are indeed people who are willing to serve—and to serve and to serve and to serve! It takes nothing short of a stick of dynamite to get rid of them. If you go along to them and tell them that they have been working very hard and ask if it is not time that they had a rest, the answer is usually, "No, I am only 86 and I am good for another 20 years yet" This can be so in local government areas, and the smaller the area the more it is so.
The corollary, that you cannot find able people who do not belong to that particular class, is not true. I believe that in any area where such a committee is
likely to be set up there will be found people who can take on these jobs; and it will be to the advantage of the advisory committees and to the Authority themselves that there should be a regular turnover of new blood. To hear the noble Lord talking of continuity, one would think we were speaking about a single two-year term. We are talking about six years—and six years in the life of a local radio station is a long time. Therefore I do not accept what the Minister has said and, supported by the approbation of Lord Shepherd, I feel bound to ask your Lordships to record your vote on this matter.
4.25 p.m.
On Question, Whether the said Amendment (No. 4) shall be agreed to?
Their Lordships divided: Contents 53; Not-Contents, 79.

CONTENTS

Airedale, L.

Douglass of Cleveland, L.

Royle, L.

Amherst, E.

Faringdon, L.

Rusholme, L.

Archibald, L.

Fiske, L.

Ruthven of Freeland, Ly.

Arwyn, L.

Gardiner, L.

Samuel, V.

Avebury, L. [Teller.]

Garnsworthy, L.

Segal, L.

Beaumont of Whitley, L. [Teller.]

Hale, L.

Shackleton, L.

Hanworth, V.

Shepherd, L.

Bernstein, L.

Henley, L.

Shinwell. L.

Beswick, L.

Jessel, L.

Somers, L.

Birk, Bs.

Leatherland, L.

Stocks, Bs.

Blyton, L.

Llewelyn-Davies of Hastoe, Bs.

Stow Hill, L.

Boothby, L.

McLeavy, L.

Summerskill, Bs.

Brockway, L.

Maelor, L.

Taylor of Mansfield, L.

Buckinghamshire, E.

Meston, L.

Wade, L.

Carnock, L.

Moyle, L.

Wells-Pestell, L.

Champion, L.

Nunburnholme, L.

White, Bs.

Diamond, L.

Phillips, Bs.

Wootton of Abinger, Bs.

Donaldson of Kingsbridge, L.

Ritchie-Calder, L.

Wynne-Jones, L.

NOT-CONTENTS

Aberdare, L.

Derwent, L.

Kilmany, L.

Ailwyn, L.

Drumalbyn, L.

Latymer, L.

Albemarle, E.

Elles, Bs.

Lauderdale, E.

Alexander of Tunis, E.

Elliot of Harwood, Bs.

Leicester, E.

Alport, L.

Emmet of Amberley, Bs.

Limerick, E.

Auckland. L.

Ferrers, E. [Teller.]

Loudoun, C.

Balfour, E.

Fortescue, E.

Lyell, L.

Barnby, L.

Fraser of Lonsdale, L.

Macpherson of Drumochter, L

Belhaven of Stenton, L.

Goschen, V.

Mancroft, L.

Belstead, L.

Gowrie, E.

Mersey, V.

Berkeley, Bs.

Greenway, L.

Milverton, L.

Blackford, L.

Grenfell, L.

Monck, V.

Bledisloe, V.

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

Monckton of Brenchley, V.

Bolton, L.

Mowbray and Stourton, L. [Teller.]

Colgrain, L.

Grimston of Westbury, L.

Cottesloe, L.

Harvey of Prestbury, L.

Napier and Ettrick, L.

Courtown, E.

Hawke, L.

Nugent of Guildford, L.

Cowley, E.

Hood, V.

Oakshott, L.

Craigavon, V.

Howard of Glossop, L.

Orr-Ewing, L.

Crathorne, L.

Hylton-Foster, Bs.

Poltimore, L.

Daventry, V.

Ilford, L.

Rankeillour, L.

de Clifford, L.

Jellicoe, E. (L. Privy Seal.)

Reay, L.

Denham, L.

Kemsley, V.

Reigate, L.

Sandford, L.

Stratheden and Campbell, L.

Vernon, L.

Sempill, Ly.

Templemore, L.

Vivian, L.

Shannon, E.

Trefgarne, L.

Wrottesley, L.

Strathclyde, L.

Tweedsmuir of Belhelvie, Bs.

Young, Bs.

Resolved in the negative, and Amendment disagreed to accordingly.

4.32 p.m.
LORD BEAUMONT OF WHITLEY LORD BEAUMONT OF WHITLEY moved Amendment No. 5:
Page 3, line 6, leave out ("Subject to the next following subsection").
The noble Lord said: My Lords, this Amendment is designed to leave in the hands of the Independent Broadcasting Authority the right to make absolutely certain that the local advisory committees fulfil the purpose which the Bill intends them to fulfil. As your Lordships know, a certain number of members of each advisory committee is to be nominated by the local authority and if the number of eligible persons so nominated is insufficient the Authority shall appoint at least one-third of the members of each local committee from among persons so nominated. My noble friend Lord Avebury, who is more experienced in these matters, will be talking in a few minutes about what happens in a great many local authority areas where the local authority has power to nominate people to committees of this kind which carry a certain amount of prestige and indeed power. We do not think it right that the Authority should have to balance the people appointed by the local authorities with nominees of its own who have to be balanced in composition, because this means that if the local authority does not so balance its nominees in composition the Authority itself has no power to rectify the situation by producing a different balance, by selecting people quite definitely in order to represent other interests than are represented by those appointed by the local authority.
During the Committee stage proceedings (I cannot remember exactly when) the noble Viscount, Lord Colville of Culross, challenged us to find a suitable Amendment which would deal with this matter. I think that I have managed to deal with it by two rather simple Amendments which mean that appointment by the Authority is consequent on appointment by the local authority. I apologise to your Lordships for the rather muddling nomenclature but this is not a
42
very easy part of the Bill with which to deal and it was not very easy to find the right kind of Amendment. But I hope that I have sufficiently explained the purpose of the exercise. It is quite possible, not to say probable in some places, that even where a local authority nominates people of all political Parties it will nominate people to whom the political Parties represented on the Authority particularly wish to do well—aldermen, councillors, wives and husbands of councillors. As we all know very well, this is extremely common. It is almost a rule in respect of the appointment of governors and managers of schools and in the case of many other committees. It may be that in spite of the provisions of this Bill a local authority will nominate a great many such people who are on the fringe of local government. That is not the object of the Bill, or what any of us would want to see.
Yesterday, my Lords, I went to preach at a civic service for a local authority. It was an extremely interesting, even a rather moving, occasion. It was done with the full panoply of the local authority which is very proud of itself and represents a genuine and real community. The band was out; the W.V.S. members were in their uniforms, as were the Girl Guides, the Brownies, the police and everyone else who could think of a uniform to wear. There were the councillors and aldermen and the extremely charming Liberal Mayor—a lady. It was quite a procession and I, who always leap out at the sound of any kind of band, stopped before I went into the church to see the procession come by. In the portion of the street leading to the church there was not one person watching. One could only assume, however sad this may be, that the trappings of local authority does not make any impact on the local community, and that local communities feel that they are out of touch with their councils. This is a much greater problem than is touched on in the Amendment, but I hope that no one will say, as the noble Lord, Lord Leatherland, said (I am sorry that the noble Lord is not now in the Chamber) that local councils are a microcosm of

43
the community. Take any local council in the whole of England and examine it, and if you find that it is a microcosm of the community I will eat my hat—or I would if I had one. Therefore, my Lords, it is extremely important that considerable scope be given to the Authority to make certain that if local authorities do not nominate the right kind of people it can balance this by nominating younger people—people from ethnic minorities possibly; people who reflect different interests. This is a very simple Amendment and I do not see that it harms the Bill in any way. It will, I think, make a lot of difference in a number of places where local radio is set up. I beg to move.
LORD DENHAM: My Lords, it is true that in the last resort it will be the Authority, and thence the listening public, who will be the loser if an advisory committee is poorly manned. However, the Amendment is contrary to the intention of the Government which is to enable local authorities to decide who is to occupy one-third of the places on the local advisory committees—only one-third, my Lords. Subsection (4) ensures that no one with an incompatible interest may have a seat on a committee—even if nominated by the local authority—by excluding people with a financial interest in advertising. If we were to accept this Amendment and the following one, the I.B.A. would be able to say of any local authority nominee that his range of interests were inappropriate, and so would be able to refuse to appoint him. That would defeat the purpose of giving local authorities a hand in nominating the advisory committees and would be letting local authorities down. The I.B.A. has two-thirds to play with if it considers that there is not a proper balance in the list nominated by a local authority. But it is the intention of Her Majesty's Government that the local authority should have a modest say in formulating these committees. The noble Lord's Amendment would defeat this object, and I hope therefore that he will not press it.
LORD AVEBURY: My Lords, I think the noble Lord's answer is not a very satisfactory one, because what the Authority has to do under the terms of this clause is to balance its own
44
appointees, whereas the local authorities do not have any such duty laid upon them. So that if you get a local authority which, let us say, is controlled by the Tory Party nominating the whole of its one-third members from the ranks of that Party, then the Independent Broadcasting Authority cannot redress the balance with the other two-thirds by overweighting that two-thirds with members of the Labour, Liberal, Communist, or Nationalist Parties.
To make sure that there is a proper balance of representation of local interest is what I had hoped was the point of having these local committees: that one did represent all the interests in the area, and that minorities were included. As we all know, and as my noble friend has said, when you get appointments made by local authorities they tend to select from a small establishment band of people—the aldermen, the ex-councillors, the wives of aldermen and councillors; a steady army of people who serve on a number of different committees (and we already discussed this on the previous Amendment) so that they cannot possibly give adequate time and attention to them all.
When I mentioned during our discussion of this matter in Committee the flagrant bias in appointments made to the boards of school governors, the noble Viscount, Lord Colville of Culross (I am sorry to have to attack him when he is not here), said that he did not even realise that local authorities made these appointments by Statute. He said he did not think that there were many cases where local authorities made appointments to committees of this kind by Statute. He took my word for it that that was the case with school governors. If the noble Lord will condescend to look at what has happened in the case of the appointment to boards of school governors, he will see the point that we are trying to make. For example, the London Borough of Bromley go through the charade of writing round to other bodies, such as the Liberal and Labour Parties, asking whether they would like to nominate persons to serve on the boards; but however much care and trouble one takes, and however suitable the people whose names one puts forward, it is a remarkable coincidence that only people from the Tory Party ever get appointed.

45
The noble Lord, Lord Leatherland (I am sorry not to see him in his place, because he took part in our debate on this matter on the previous occasion) thinks that local authorities are simply wonderful, and says that these things do not go on in the councils with which he has been concerned in his experience in local government. I can only say that the noble Lord must have served on a particularly enlightened local authority not to have had any experience of this problem, because we can see it arising all over the place. I really do not think that, if one-third of these people are appointed by local authorities, you are being realistic if you imagine that they will treat the matter differently from what we have experienced with school governors and aldermen. Why are we taking aldermen away from local authorities under another Bill that will shortly be coming to this House? It is because over the years we have found that the system of aldermanic appointments has been flagrantly abused, and that in many cases where there is a bare majority of one Party or the other on a council, the aldermanic appointments are used to rig the control of the authority. That, of course, is a much more serious matter, because it means that the handling of local government is under the control of a Party which is not the democratically elected Party of the people in the area. But I think this could also be serious if you had a majority of people who were completely out of tune—and I am not saying that this would particularly happen in a Tory area; it could be in an area with a Liberal majority. So let us generalise and say that in either case there is the probability that these appointments will be made in certain areas entirely, or almost entirely, from the ranks of the Party which holds control.
There is the second point made by my noble friend: that even if you get the correct political balance, you will still find that these people are drawn from the ranks of the establishment; you will not get ethnic majorities represented, and you will not get the word of dissent heard in these bodies. I think it is important, if we are to get off on the right foot, that there should be a proper cross-section of the community represented on these bodies. If the noble Lord continues to say that he will not have this Amendment,
46
then I am afraid he is damaging the chances of the success of this Bill.
4.46 p.m.
LORD SHEPHERD. My Lords, the noble Lord, Lord Denham, surprises me: because he did not criticise the Amendment and he did not say that it would not achieve what the noble Lord, Lord Beaumont, had in mind. So we can take it that the Amendment would achieve the purpose which the noble Lord, Lord Beaumont, put before the House. I support this Amendment, because one sees to-day, unfortunately, local authorities nominating basically from the majority Party. Whether an authority is Labour. Conservative or Liberal, if it monopolises nominations for its own Party then clearly it cannot meet what is required in subsection (2): that appointees should represent:
"the range of tastes and interests of persons residing in the area …"
Subsection (3) states that the authority
"shall appoint at least one third of the members of each local committee from among persons so nominated"
by the local authority. So if you have, say, a local authority with a Conservative majority, but with the Conservatives in a minority in terms of total votes cast (or it may be the Labour Party), nominating the entire one-third, then clearly the interests mentioned in subsection (2) cannot be met. It is true that the situation can he balanced by the other two-thirds. But I should have thought it was of equal importance that, if there is to be this balance and recognition of "taste and interest", it should also apply to the elected members who may be nominated.
It seems to me that there is another difficulty. This may not happen quite so much in the regions, but there is a case in London where one can see a complete transformation of a local authority from Conservative to Labour in a place where in fact previously there had been no Labour members. There is an election, and suddenly the authority has only Labour members. This has happened in my particular borough of London. These members, as I understand the Bill, will have been appointed for three years. There may have been a local authority election, in which case there may have been a change. So the situation may arise

47
where one-third of the members are Conservative when the local authority is in fact Labour. How can you reconcile such a situation as reflecting, as provided in subsection (2), the tastes and interests of persons within the locality?
I think this is an important Amendment. I cannot say that Lord Denham's reply in any way satisfies the basic concern that has been expressed on this side of the House and that I genuinely think can be found on the Back Benches opposite. I myself believe—and I have heard it debated on many occasions—that the local interests are not always represented. This Amendment, as I see it. would make it possible for the two-thirds of the committee appointed by the Authority to be a broad selection and this principle should equally apply to the elected members of a local authority who have been nominated by that authority.
LORD HAWKE: My Lords, I should understand the arguments of the Opposition much better if I did not think they were assuming that this would be a public service. This is to be a paid service and it has to make money. I cannot imagine a more unlikely situation for it to make money than one in which a local authority nominates its one-third of the advisory committee from the "establishment" figures of the local political Party. The last thing in the world that the young people, including the housewives of this country, want is to hear politics on these local radio stations. They want things like music and news; they want to hear what is being sold cheaply in the shops, and so on. This is not a political thing at all. I personally believe that an advisory committee whose members are appointed by local authorities in this particular way will not be of very much use. But it will be a sort of sheet anchor for the central Authority to know that it can get advice regarding a third of the people on the committee, and I am sure that after a little time they will realise it is no use appointing elderly aldermen, or similar people, just because they happen to be local Conservatives or local Labour people. They have to appoint people who represent the ratepayers and the people who will listen to these stations. I am sure they will do that.
4.53 p.m.
LORD BEAUMONT OF WHITLEY: My Lords, I wish the noble Lord were right, but I am afraid that he is under a misapprehension as to what the local committees are going to do. I only wish they were to have the kind of powers he thinks they will have. I am afraid that under the terms of this Bill the local committees will really have no effect at all; and certainly not on the moneymaking side. This, after all, is not their function: they are there to advise on the general content and on local matters. I do not think they will make any difference one way or the other to the money-making ability of the station.
However, I see a possible area which is open to doubt, and one which, with the help of the Minister, we might perhaps explore. It is this. I should not be entirely happy if I felt that the local authority were going to appoint its one-third on a "take it or leave it" basis and the Broadcasting Authority could then balance the composition out of its remaining two-thirds. I should not regard this as ideal, but I should be prepared to see it happen; it would not be too bad. But subsection (2) says:
"Subject to the next following subsection"—
and the next following subsection is about the local authority's appointments—
"each such committee (in this section referred to as a 'local committee')—

(a) shall be so constituted, and

(b) shall consist of persons selected by reference to such qualifications, as in the opinion of the Authority would be appropriate for reflecting …"

and so on. It still seems to me that this means that the Broadcasting Authority must pay no attention to the make-up of the one-third—none whatsoever—because it must in fact appoint its people without regard to whether or not there is an imbalance.
If this is so, I think it is extremely bad, because in certain areas where there might be a monolithic appointment of one-third it would be very difficult if one could not balance it. For instance, a council with a Conservative majority might appoint all Conservatives as a third of the members. It could happen. although we hope it will not. I am arguing an extreme case—although perhaps not such an extreme case. If my argument is right, then the Broadcasting

49
Authority would still have to see that in the remaining two-thirds there was probably a majority of Tories, because that would be a Tory area and the majority of councillors would be Tories. Therefore they would have only a very few people to help to balance the situation. If I am wrong in this, and the noble Lord can say that I am wrong, or if there is any doubt in his mind, so that he would go hack and look at this matter and then, if I am right, try to find some way of putting things right, I shall be reasonably happy. I think we must find some way in which the Broadcasting Authority can correct any imbalance which may arise through the appointments of the local authority. I believe that my Amendment supplies that and thereby improves the Bill; but if there is any way round this I hope the House will give leave to the noble Lord to speak again on this matter.
LORD DENHAM: My Lords, with your Lordships' permission, I should just like to say that the noble Lord, Lord Shepherd, has really surprised me this time. According to the noble Lord's philosophy, a democratically elected local authority is not to be trusted to nominate a third of the members of these advisory bodies without the supervision of an appointed I.B.A. That may be the noble Lord's opinion, but I must say that he has surprised me.
LORD SHEPHERD: It happens.
LORD DENHAM: My Lords, in the opinion of Her Majesty's Government, the local authority should have a say in the make-up of these bodies to the very modest extent of one-third, leaving the I.B.A. to appoint the remaining two-thirds. With regard to what the noble Lord, Lord Beaumont, said—and I believe the noble Lord, Lord Avebury, also touched on this point—I am advised that the I.B.A. could, as a matter of law, take into account the one-third nominated by the local authority when appointing the other two-thirds. That is my advice. If I subsequently prove to be wrong on this point I will inform the noble Lord, Lord Beaumont, before the next stage of the Bill. In view of that assurance, I would hope that he might see fit to withdraw the Amendment.
LORD SHEPHERD: My Lords, may I ask the noble Lord one question? I hope
50
he will accept that some local authorities do abuse their position by filling up all such posts with their own Party appointees and in not providing an opportunity for the Opposition. But supposing there was a case of this kind, is it really possible that the Authority would look at an area and say: "At the last local authority election the Conservatives (shall we say?) had 51 per cent. of the votes and the Labour Party 49 per cent., and therefore we should seek to balance within our two-thirds a sufficient number of Labour local authority people in order to balance the Conservative members"? Is it really conceivable that the Authority would do that?—because unless it did so this would certainly limit the chances of any other interests being represented on the committee.
LORD DENHAM: My Lords, I hope that these people will not be appointed on a political basis but on the grounds that they represent local opinion, taking into account the kind of material that will be going out on these local radios. One wants to get the best possible advisory committees. Her Majesty's Government feel that the I.B.A.—who, after all, may be some way away, based in London—do not know the local areas and must take local advice as to who are the right people to have on these committees. They may consult other local bodies before selecting their own two-thirds, but it seems very reasonable that the local authority itself should have a say in electing a certain number. If there was seen to be a gross bias in the members of the advisory committee appointed by the local authority—it is after all only an advisory committee—this would no doubt be taken into account by the I.B.A. when considering the advice of the committee.
LORD BEAUMONT OF WHITLEY: My Lords. while I agree with the noble Lord, Lord Shepherd, I suppose that in this case a small crumb is better than no bread. I am grateful for the assurance of the noble Lord as to what the legal position is. To some of us who have read the Bill with considerable care it does not appear that this is what it says. Therefore, as well as looking at it and checking on the legal advice I hope that the noble Lord will also consider clarifying the Bill at the next stage. But on the understanding that that is the legal

51
position, and that the noble Lord will write to me if he finds it not to be so, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 8 [Special provisions as to newspaper shareholdings in relation to local sound broadcasts]:
5.1 p.m.
LORD AVEBURY LORD AVEBURY moved Amendment No. 7:
Page 11, line 13, at end insert—
("Provided that in the case of any contract under which the whole, or a substantial proportion, of the programmes consist of news or news comment, 'a substantial proportion' shall be taken to mean not less than one per cent. of the population.")
>The noble Lord said: My Lords, this Amendment arises from a discussion that we had at the Committee stage on an Amendment of the noble Lord, Lord Shepherd, which is of great importance. Discussion at the time showed that not all of your Lordships were happy about the situation with regard to the local broadcasting of news and the prescriptive right that newspapers have if they fulfil certain conditions of becoming investors in local radio stations which will disseminate the news. The solution to this, which the noble Lord, Lord Shepherd, put into his Amendment, was to abolish the prescriptive right of those newspapers to come in as shareholders. The discussion turned mainly on the situation that we shall find ourselves in with regard to London where a substantial proportion of the population served by the area will be in the readership of the Evening News and the Evening Standard. Those two newspapers would, if they so wished, be able to take up a holding in the London news station without being a part of a consortium that put in a bid in competition with other would-be contractors.
My noble friend Lord Arran thought that this was an extremely good situation. He liked the idea that the Evening News in particular would be able to have some holding in the proposed London news station. But if one is to avoid any risk that the news could be slanted in any way by reason of a holding by a newspaper in a station, another solution would be to widen the circle of the newspapers which could take part.
52
This is the object of my Amendment. I have said in my Amendment:
"'a substantial proportion' shall be taken to mean not less than one per cent. of the population".
The result would be that other newspapers, apart from the Evening News and the Evening Standard, would be able to exercise the right to take up holdings in the London news station.
I mentioned one or two possible contenders in my remarks on the Committee stage. It seemed to me and to other noble Lords at that time that the Evening News and the Evening Standard were not local newspapers at all but regional newspapers. I remarked that many people who lived far outside Greater London, in places like Seven-oaks, Ashford and Canterbury, bought one of the two London evening newspapers to read in the train on the way home. So it would be true to say that from their readership these newspapers are of a regional character, whereas newspapers such as the South London Press, which I mentioned in a previous discussion, are local newspapers circulating within their local areas and having an appeal to a readership which is roughly comparable in size with that of a London borough—say, 200,000 or 250,000. I thought that if one allowed these newspapers to participate in the local news station in London, this would very much widen the number of those investing in that station. That would ensure that no particular newspaper had an undue influence on the conduct of that station's affairs.
I hope that that solution will commend itself to the noble Lord. It is a way out of the problem that was outlined by the noble Lord, Lord Shepherd. I have no reason to assume that any of the other newspaper groups in Greater London will wish to participate; but I think that the figure of one per cent. of the population is a reasonable number to put in, and that it would enable firms to bid, if they wanted to do so, on an equal footing with the Evening Standard and the Evening News.
LORD DENHAM: My Lords, I do not think that I can accept this Amendment. I do not believe that the situation is quite as simple as the noble Lord, Lord Avebury, made out, but I may be misunderstanding him. If subsection (3)

53
is amended in this way it will not give the smaller newspapers a right to participate; it will still be necessary for proof to be made under subsection (4) that a materially adverse effect is likely to be made on them by the local radio station. The only difference is that if a newspaper gains its right or opportunity under subsection (3) that it will be for the Authority to prove that that newspaper was not adversely affected, whereas if it gains it under subsection (4) it will be for the newspaper to prove that it was adversely affected. The Amendment of the noble Lord may possibly bring 11 or 12 London newspapers into the area envisaged for this news station and it would put on the Authority the onus of proving to themselves that every one of these newspapers was not going to be adversely affected. Her Majesty's Government think it very much better for the Authority to have the onus of proof in the smaller number of cases; and the smaller newspapers, who are the borderline cases anyway (and it is by no means certain, even with the Amendment of the noble Lord, that they will get any different treatment) will have to make their own case.
On Question, Amendment negatived.
5.9 p.m.
LORD BERNSTEIN LORD BERNSTEIN moved Amendment No. 8:
After Clause 8, insert the following new clause:
Provision as to programme contractor's share-holding in local newspaper
" . Where under the provisions of section 8 above the Authority has made arrangements for enabling the proprietor of a newspaper to acquire a shareholding in a programme contractor the Authority shall satisfy themselves that arrangements have also been made for enabling the programme contractor to acquire a shareholding in such a newspaper; and where appropriate provisions of section 8 above shall apply to this section."
The noble Lord said: My Lords, I beg to move the Amendment standing in my name. But before I do that I should like to have the indulgence of your Lordships' House to make a personal statement. First, I should like to apologise to your Lordships that, owing to illness, I was absent during the Committee stage of the Bill. I was present at the Second Reading when the noble Viscount, Lord Colville of Culross, presented the Bill. He declared that he had had a defunct
54
interest in Independent Television which he had now disposed of.
Other noble Lords have also declared their interests. I should like to declare that I have a far from defunct financial interest in Independent Television. Also, to save your Lordships' time at some later date—and maybe irresponsible comment—I should report that when in 1961 I was asked to present my views on sound broadcasting to the Committee on Broadcasting, known as the Pilkington Committee, I made a number of observations relating to the B.B.C. radio services, for which I have, as for their television services, the greatest respect. I said that I thought sound broadcasting in this country should be run by non-profit making organisations which if they wished should take advertising. I also said, and I quote:
"I believe that no company or corporation should be allowed to have a financial interest in both sound and television. If, however, commercial radio is permitted and if other television contractors arc allowed to apply then we reserve the right to enter the field."
I said that in 1961. Now, 11 years later I declare my possible interest in sound broadcasting. The only acceptable reason, to me, for an alternative to the B.B.C. in sound broadcasting, is that it would give the opportunity of alternative employment to people who cannot get a job with the B.B.C. or who cannot get their talent, whether it be vocal or writing, accepted by the B.B.C. for broadcasting. But to provide an alternative source of broadcasting for this purpose does not necessarily mean, as was pointed out during Second Reading, that the alternative service should be provided by profit-making companies. There is a strong body of opinion, both here and in the other place, which supports this view.
With the overwhelming vote for the Government which your Lordships' House generally manages to get—though not, as some of your Lordships may remember, on the Second Reading—I accept that this Bill will go through. However, 1976 is not far away, and the time of discussion in the run up to that critical year in British broadcasting is already well begun. So that the point I am making is not an academic one.
Now for the Amendment. I hope to avoid, in moving this Amendment, repeating anything that has been said

55
previously on Second Reading or at the Committee stage. I move this Amendment because I believe in the equity of what is being proposed. The reason given for allowing newspapers to have a statutory right is that advertising on local radio stations—I repeat "local"—could affect their revenue and profit. Everybody, I think, is agreed that it would be very sad if newspapers in this country were not financially viable and politically free. Some cynics might ask why, if everybody thinks that, is this Sound Broadcasting Bill being introduced. We know that it is being introduced to fulfil an Election pledge. I presume not a pledge to the owners of newspapers.
It is difficult to take some statements about newspapers that were made in your Lordships' House too seriously. We heard from the noble Lord, Lord Thomson, that there is expected to be little profit from sound broadcasting. I think he also said that newspapers—his newspapers—would be financially affected and, therefore, his editors would apply for participation in stations where they published. It suggests to me that somebody wants, for a change, "the worst of two worlds". Let us take the case of a local or national newspaper which asks for and secures a 20 per cent. participation in a radio station, granted by the I.B.A. because it is thought that sound radio is likely to have—and I quote from the Bill—a
"materially adverse effect on the financial position of the newspaper involved."
Then consider, say, that by a freak of our economy the newspaper, having got a share in a radio station, finds its newspaper profits increasing—without benefits of dividends from the radio station—and that the radio station is also profitable. I think nobody will care much about that situation.
Let us, however, consider another situation—that the radio station loses money, while the newspaper which demanded a share shows increased profits from newspaper operations. Would it not be right for the shareholders in the radio station to have a participation in that newspaper? Would it not be equitable? It seems to me that if radio stations were granted an option in their participating newspaper it would not be unfair to the
56
radio station, the newspaper, or to the public. This arrangement would, of course, be subject to the I.B.A. who would have to approve such transactions.
In the other place at the Committee stage there were divided views on the pre-emptory rights of newspapers to participate, but when the Bill went back to the other place the Whips were put on and the newspapers were given their rights, statutory rights, to participate. So be it. But in return for that statutory right, surely the radio stations should have some reciprocal rights. I hope that the Government will feel that it is not only an equitable Amendment but also one worth making. I hope that the noble Lord, Lord Denham, will make this exception to his refusal of every Amendment so far moved to-day. I beg to move.
LORD DENHAM: My Lords, in spite of the plea by the noble Lord, Lord Bernstein, I am afraid that I am not going to advise your Lordships to accept this Amendment. This is contrary to the whole thinking behind Clause 8. The purpose of allowing newspapers to acquire shareholdings in local radio companies is to recognise that the development of this new medium may have some effect on the advertising revenue of local newspapers. The Government consider that some fears expressed by local newspapers are exaggerated and it is not intended, nor will Clause 8 have the effect, of featherbedding local newspapers, nor will it give them an automatic right to compensation. There are the important qualifications contained in the Bill, especially Clause 9(1) which is the public interest clause.
Clause 8 gives the newspaper the opportunity of sharing in the risks and sharing in the fruits—if there be any—of these new ventures. The other way round the story is quite different. Radio companies will be new' ventures and nobody who does not fancy the pre-existing competition will be under any obligation to take on a radio contract. People who wish to become radio contractors will know what is in the legislation and will go into the business with their eyes open. There is no reason why newspapers should let them join in their businesses, and so, my Lords, I cannot recommend adoption of this new clause.
BARONESS PHILLIPS: My Lords, I think the Minister will accept that this is a very good example of how you cannot legislate for one part of an industry. We know all too well that transport became a very complicated affair immediately one legislated to deal with different parts at different times and hived off one as opposed to another. Here we are talking about the communications industry—that was the phrase given to it, I believe, by the Minister in the other place. There is no doubt that the fortunes of the newspapers and the local broadcasting stations are closely intertwined, and I think the phrase used by the noble Lord, "the material effect on the newspapers involved" is a very real one. They have been invited to share the risks and the profits. There is no guarantee that it works the other way round. There is no more certainty in one media than in another. I should have thought that this is perfectly reasonable. There is no compulsion; you are simply giving the opportunity which should be a link in an industry that is made up of many forms of communication, not merely the one.
LORD BERNSTEIN: My Lords, I know that the Library is filled with people ready to vote. I therefore beg leave to withdraw this Amendment.
Amendment, by leave, withdrawn.
5.20 p.m.
LORD BERNSTEIN LORD BERNSTEIN moved Amendment No. 9:
After Clause 9, insert the following new clause:
Applications for programme contracts to be considered in public
" . Any application for a programme contract for the provision of local sound broadcasts shall be considered in public by the Authority."
The noble Lord said: My Lords, if I were sure that the Library was empty I should have more heart in moving this Amendment. I move the Amendment because I believe that the public and the people who work in communications—television, radio or newspapers—have a right to know what applicants have applied for a licence and what they propose to do when they get it. They can be questioned by the I.B.A.—not by lawyers or politicians—in public as to their bona fides, their qualifications for
58
carrying out their promises, and to ensure that the promises are in the best interests of radio and not only of profit. In Committee stage here and in the other place it has been said that this is not possible. I beg to suggest that it is possible. The arguments put forward in Committee by my noble friend Lord Avebury were good. It is true that they were shouted down, but I think he had a good case. There may be areas where it would be advisable for the I.B.A. to ask some questions in private. I accept that. It might be embarrassing to announce in public proposed staff changes from one company to another, or from the B.B.C. to a private company. In other words, the details of an applicant's finances, and to some extent details of the personnel who would operate the station and who might' be still employed by others, would be discussed only in private. The basic application should be in public; the probe in depth could be done privately.
I do not wish to comment on the arguments against public hearings put forward in Committee by the noble Viscount, Lord Colville of Culross. For what it is worth, my experience suggests that the noble Viscount is wrong in the basis for his argument. In Canada, public hearings for applicants for a new station or for a change of ownership or control of a station have worked successfully, as I know from my own experiences. Public hearings in this country could in fact, as has been proved in Canada, simplify the work of the I.B.A., although it would not, and must not, take away from them the final responsibility for decisions. Neither would it mean that they would have to give their reasons for a decision. It may not be called "open justice", but it is I think in the mood of the day, because completely closed hearings, however well planned, are just not "on" with most people in this day and age. Public hearings would have the effect of letting the public know that, within the wisdom of the I.B.A., justice was being done.
Another benefit has been mentioned by Mr. Phillip Whitehead in the other place. It is that public hearings would stop wildly inflated claims being made by applicants, even if those claims were made in all sincerity. He added that if a potentially lucrative public asset may

59
be given to one group and not to another the least that can be done is to make sure that the submissions on which the I.B.A. decisions are based should be made public by having the hearings in public. It has been said that public hearings would make more work for the I.B.A. Well, we know that the I.B.A. is not to be allowed a Deputy Chairman, but I think it will have to give time to this problem.
Who is given the right to broadcast, what the I.B.A. promise to broadcast, in competition with the B.B.C., is also important. If the I.B.A. has not the time to do its investigations properly, then perhaps another authority, or a separate part of the Authority, should be set up to deal with applications. The television company in which I am involved has had its licence twice renewed, and I think that all those working in my company would have liked the opportunity to have their case for a renewal given at a public hearing. I am not suggesting that the past I.T.A. hearings were hole-in-the-corner—far from it. But only the members of the Authority were present, and we would have wished that the serious questions put to us and the serious discussions that followed could have been heard in public, and perhaps reported. I hope that the Government will accept this Amendment which I am sure will be welcomed by all those who work in the media of radio or television. I beg to move.
5.24 p.m.
LORD DENHAM: My Lords, I do not necessarily have the confidence that the noble Lord, Lord Bernstein, has in the number of Peers who are waiting in the Library. All I would say to him is that we seem to have possibly one or two more on this side of the House who are listening to the debate than there are on the noble Lord's side. So perhaps I can be confident in that. On the face of it, this Amendment has attractions. Everybody wants the best qualified people to be appointed to be contractors. It can be said that the Authority has nothing to hide, so why should it not deliberate in public? After all, the United States' Federal Communications Commission has public hearings into the granting of licences there. But there is in fact no real parallel between the United States
60
picture and that in the United Kingdom. The F.C.C. is mainly a dispenser for the Government of licences to use frequencies and is only secondarily concerned with the quality of broadcasting. So far as that goes, concern is mainly negative: to prevent undesirable programmes from being broadcast, not to promote high quality broadcasting.
The proposal in the Amendment would not in the opinion of Her Majesty's Government achieve the results intended. The Authority would not award contracts simply on the basis of written applications. It will have to make up its own mind about the credibility of proposals put to it and, perhaps even more important, about the ability and intention of the would-be contractors to carry out those promises. The Authority would be embarrassed if it had to ventilate in public its own opinions about the personalities of those seeking a contract. I do not think that the noble Lord's Amendment—we have given it very serious consideration—would help, and I hope that he will feel able to withdraw it.
LORD BEAUMONT OF WHITLEY: My Lords, it is always a pleasure to listen to the Party in favour of open government; it really is! These are the same old arguments which are always produced about doing anything in front of the people. The noble Lord, Lord Denham, has just been accusing noble Lords on this side of the House, of both Parties, of their distrust of the British public in terms of what a local authority may do. I do not think that any harm could come from the open hearing of applications of this kind, and a very great deal of good could come from it. We all know that one is not always able to justify a final decision on just words that have been said in a particular interview. But if these hearings are open to the public, then the public also will be able to make up their minds about other factors.
There are some disadvantages. No doubt it would cause some embarrassment for people. But we are not here to save people from embarrassment; we are here, surely, to try to make certain that when this local commercial broadcasting takes place, as I fear that it will, the very best people obtain the contracts;

61
that they are seen to be the best people, and that publicly they are to be held to be accountable for what they have said they will do. I cannot think of any better way of ensuring this than by accepting the Amendment of the noble Lord, Lord Bernstein.
BARONESS PHILLIPS: My Lords, I should like to support my noble friend on this Amendment. The Minister replied on a rather different point. He mentioned the United States in connection with a rather different matter. My noble friend made the point—quite a valid point—that in Canada this does happen; and I believe that if the noble Lord checks he will find that it happens in other countries, too. This is one of the things on which we pride ourselves in this country. I have so frequently said to people that there is a channel of appeal, for everything in this country—or almost everything; there are very few exceptions—in the way of hearings is held in public. The fact that the public do not always attend is not the point.
The noble Lord the Minister suggested that it would be embarrassing for the I.B.A. to have to make its deliberations known in public. But surely he will agree, if he takes the analogy of the magistrates' court, that their proceedings are held very much in public and everything is listened to. The deliberations of the bench, however, take place in a private room, and the findings are then brought back to and made known in the court. Surely something of this kind could happen in this case. We are not going to ask the I.B.A. actually to think aloud in front of the public, but the fact that we are going to have to listen to the broadcasts—and, indeed, will not be able to avoid listening, as I understand it—means that this is something which is going to influence the public. When they twiddle the dial they will have to listen to these stations because they will not receive anything else. So it seems to me vitally important that the public should have some assurance that the people who put forward these claims are going to live up to them, and that it should be possible to ensure that they do.
5.29 p.m.
LORD WAKEFIELD OF KENDAL: My Lords, would not the noble Baroness agree, as my noble friend has said, that
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some embarrassment could indeed be caused? It is quite clear, I should have thought, that confidential information of a financial nature, perhaps from banks and so on, ought to be made available to those who must decide; and quite a lot of that kind of confidential information, important as it is, is not such that it can really be made public. It might nevertheless be very necessary in the making of a correct decision. It could well be that on the face of evidence or information in public it might appear that "A" should receive a contract, but in the light of perhaps financial or other information which is of a confidential nature it might be "B" who, if full information were available, should be given the contract. Therefore it seems to me that we are more likely to get the best people if information, financial or otherwise, which can only be given in confidence is not and cannot be disclosed to the public. Therefore, as my noble friend has said, I think it would be somewhat embarrassing if the hearing were to be in public.
LORD DENHAM: My Lords, if I may have your Lordships' permission to speak again, the important thing to bear in mind in regard to this point is that the I.B.A. should be enabled to choose the best company available to provide the best programme for the purpose. I very much doubt whether a public discussion would achieve this end. I think the I.B.A. deliberating in private is far more likely to succeed. It is possible that if the discussions are in public the public Will then know exactly what the programme company has contracted to do; but this is surely taken care of in Clause 10, which I think we shall be discussing with the next Amendment. It is not with watchdog motives—seeing that the company that is chosen is doing its job properly—but with the object of getting the best possible company to provide the best possible programme, that the Government feel it would be wrong to accept this Amendment.
LORD BERNSTEIN: My Lords, the suggestion made by the noble Lord, Lord Denham, was that the I.B.A. would deliberate in public, but if Hansard has reported me correctly your Lordships will see to-morrow that I never said any such thing. I suggested that submissions

63
should be made in public and the decisions should be made in private. The noble Lord then referred to the F.C.C. in America. Legislation in America has been referred to before. The last time was during the passage of the Industrial Relations Bill, when some noble Lords on the other side of the House did not agree with what we said would happen. I am not suggesting that we should follow the American pattern in this any more than in industrial relations. I suggested we should consider what is happening in Canada.
I did not suggest that there should be public discussion but that the submissions should be in public. If the noble Lord, Lord Denham, will be good enough
to read the minutes of the Committee on Nationalised Industry, and in particular those of the sub-committee dealing with television, he will find that there has been a great deal of discussion, even with the Minister himself just a few days ago on this point of public hearings. This question also arose on the Committee stage of the Bill in another place. If there is some difficulty in regard to my Amendment may I suggest that the Government should reconsider their decision. If they do not agree I shall ask your Lordships to divide on this Amendment.
5.35 p.m.
On Question, Whether the said Amendment (No. 9) shall be agreed to?
Their Lordships divided: Contents, 43; Not-Contents, 69.

CONTENTS

Archibald, L.

Douglass of Cleveland, L.

Royle, L.

Arwyn, L.

Faringdon, L.

Rusholme, L.

Avebury, L.

Gardiner, L.

Samuel, V.

Beaumont of Whitley, L.

Garnsworthy, L.

Segal, L.

Bernstein, L. [Teller.]

Granville of Eye, L.

Shepherd, L.

Beswick, L.

Hale, L.

Shinwell, L.

Blyton, L.

Henderson, L.

Southwark, Bp.

Brockway, L.

Leatherland, L.

Stocks, Bs.

Buckinghamshire, E.

Llewelyn-Davies of Hastoe, Bs.

Stow Hill, L.

Carnock, L.

Taylor of Mansfield, L

Champion, L.

McLeavy, L.

Wells-Pestell, L.

Chorley, L.

Ogmore, L.

White, Bs.

Diamond, L.

Phillips, Bs. [Teller.]

Winterbottom, L.

Donaldson of Kingsbridge, L.

Platt, L.

Wynne-Jones, L.

Douglas of Barloch, L.

Ritchie-Calder, L.

NOT-CONTENTS

Aberdare, L.

Emmet of Amberley, Bs.

Monckton of Brenchley, V.

Ailwyn, L.

Ferrers, E. [Teller]

Mowbray and Stourton, L.

Albemarle, E.

Fortescue, E.

Napier and Ettrick, L.

Alexander of Tunis, E.

Gainford, L.

Oakshott, L.

Auckland, L.

Garner, L.

Orr-Ewing, L.

Balfour, E.

Gowrie, E.

Poltimore, L.

Beauchamp, E.

Greenway, L.

Rankeillour, L.

Belhaven and Stenton, L.

Grenfell, L.

Reay, L.

Belstead, L.

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

Reigate, L.

Berkeley, Bs.

Rhyl, L.

Bledisloe, V.

Hawke, L.

Ruthven of Freeland, Ly.

Bolton, L.

Hood, V.

Sandford, L.

Bridgeman, V.

Howard of Glossop, L.

Sempill, Ly.

Carrington, L.

Hylton-Foster, Bs.

Stratheden and Campbell, L.

Courtown, E.

Kemsley, V.

Templemore, L.

Craigavon, V.

Kilmany, L.

Trefgarne, L.

Daventry, V,

Kinnoull, E.

Tweedsmuir, L.

Davidson, V.

Latymer, L.

Tweedsmuir of Belhelvie, Bs.

de Clifford, L.

Lauderdale, L.

Vernon, L.

Denham, L.

Leicester, E.

Vivian, L.

Derwent, L.

Limerick, E.

Wakefield of Kendal, L.

Drumalbyn, L.

Lyell, L.

Young, Bs. [Teller.]

Elliot of Harwood, Bs.

Milverton, L.

Resolved in the negative, and Amendment disagreed to accordingly.

5.42 p.m.
LORD BEAUMONT OF WHITLEY LORD BEAUMONT OF WHITLEY moved Amendment No. 10:
Page 13, line 37, at end insert—
("(3) The Authority shall include all the information referred to in subsection (1) above in their report of the year in which local sound broadcasts provided by the contractor under the contract in question have begun to be transmitted by the Authority.")
The noble Lord said: My Lords, with the permission of the House and the permission of the noble Lord, Lord Shepherd, and the noble Baroness, Lady Phillips—which I have already got—we might perhaps consider Amendments Nos. 10 and 11 together. The arguments on these two Amendments were gone into in quite considerable detail in the previous stage of the Bill and I do not propose myself to detain your Lordships for long.
It is common ground between all sides of the House that the material parts of the application, the information to which this applies, should be made public in that it should be available to anyone who wishes to go and get it. We are not entirely clear as to whether the person who gets the information can publish it. If he can—and the noble Viscount, Lord Colville, talked rather darkly of copyright problems—that is a step forward. We would welcome information about this because it might mean that the local newspaper would feel that it ought to publish these matters. But since we are drafting the Bill in such a way that the local newspaper has an interest in the local station, it is perhaps as well that we should not entirely leave it to the local Press, and therefore we are seeking to lay an obligation on the Authority actually to publish this information, information which we are all agreed should be available.
My Lords, in my Amendment I have sought to make it as easy as possible for the Government—for which I am sure that they will thank me.
A NOBLE LORD: As usual.
LORD BEAUMONT OF WHITLEY: As usual. The Independent Broadcasting Authority must, under the Bill, publish an annual report. I would merely ask that for the report appearing immediately after the station has started broadcasting—and that is common ground between us—subsection (2), I think it is, still stays in, and that the Authority should as a
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matter of course publish, probably as an appendix to its report, this information for all the stations to which it has granted licences in that particular year or for which it has established contracts in that particular year.
As I say, the desirability of this information being available is not at issue. All we are talking about is how it shall be produced so that the public shall most easily be able to get at it. Although I would prefer the Amendment of the noble Lord, Lord Shepherd, I would suggest that if the Government will not meet his point they might at least meet mine because it involves no other special publication but merely an extra section for an annual report that is going to be produced anyway. My Lords, I beg to move.
THE DEPUTY CHAIRMAN or COMMITTEES (LORD MAYBRAY-KING): My Lords, I understand that your Lordships wish to discuss with this Amendment the next one on the Marshalled List.
LORD DENHAM: My Lords, if the noble Baroness is going to discuss her Amendment with this one, would it not be better for her to speak before I do?
LORD SHEPHERD: My Lords, I have been trying to save time and therefore did not rise to move Amendment No. 11. I am quite willing to respond to the noble Lord's suggestion that we discuss these two together but I was merely trying to save the time of the House and to hear the response of the noble Lord, Lord Denham, who has been so extraordinarily eloquent in his rejection of previous Amendments. I thought that this might be an occasion when he would change the rule. I do not intend to speak now, but I will listen with the greatest of care and if I feel I need to respond shall do so.
5.47 p.m.
LORD DENHAM: My Lords, I hope that the noble Lord will find himself so convinced with what I have to say that he will not need to respond. I am grateful to the noble Lord, Lord Beaumont of Whitley, for explaining his Amendment and I will give the Government's attitude to Lord Shepherd's Amendment at the same time as to that of the noble Lord, Lord Beaumont of Whitley. As

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the noble Lord, Lord Beaumont, said, under the Bill as drafted anyone can obtain this information from the Authority on request. There does not seem to the Government to be much reason for making the information available to anyone who is not sufficiently interested to ask the Authority for it. However, the Authority is always at liberty to publish it in its annual report and the Minister can direct them to, if it should seem to him to be necessary. But, my Lords, we do not feel that this requirement should be written into the Bill.
The noble Lord, Lord Beaumont, referred to what my noble friend Lord Colville said about the possibility that a newspaper might be precluded from publishing information it had obtained about a contractor's proposals in his application for a contract because the copyright might be vested in the contractor and the newspaper might not be allowed to publish the information. I have looked into this point and I am advised that if the newspaper publishes the words of the application for purposes of criticism or review, the newspaper would have a good defence for an action of breach of copyright under Section 6 of the Copyright Act 1956 which deals with general exceptions from copyright protection. That is the best advice that Her Majesty's Government can get.
LORD BEAUMONT OF WHITLEY: I wonder whether I may ask a question for clarification here? I am not particularly well versed in copyright law, but am I not right in saying that that section applies only to extracts and that if you actually copied out the whole application it would not apply? Is that so or not?
LORD DENHAM: I cannot answer the noble Lord, Lord Beaumont, straight away, but I hope I may be able to before long. The general objections to this particular Amendment (and I am dealing first with Lord Beaumont's Amendment) are really twofold. First, there is the question of sheer scale. The contracts are quite lengthy documents. If the Authority entered into 20 contracts a year the Annual Report would have to be greatly enlarged. Yet in the nature of things most of the terms of the contract would be common to all contractors, and to the disinterested utterly dull. For this reason the Amendment would mean a waste of
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public money. The Amendment also seeks to import a new and unnecessary element of rigidity into what should be a matter of discretion and judgment; that is, what is best to include in the Annual Report to enlighten readers on those matters of the greatest interest and concern to them. The Minister's power to direct what shall be in the Annual Report is, in our opinion enough for the protection in this case.
If I may now go on to the Amendment in the name of the noble Lord, Lord Shepherd and the noble Baroness, Lady Phillips, Clause 10, as the noble Lord knows, was introduced during the passage of the Bill through another place in response to a widely voiced feeling that there ought to be some way in which the public could judge whether a programme contractor was matching his performance to the promises on the basis of which he had been awarded the contract. It was hoped that the new clause might make a programme contractor more careful about what he put in his prospectus to the Authority if he knew that one day the prospectus might be made public. In addition, it seemed probable that the I.B.A. might find its authority strengthened if in certain circumstances it could look to public support for any action that it might deem it necessary to take against a programme contractor. The Amendment now proposed would not, so far as one can see, add anything to these objectives. The Authority's new duty, if the Amendment were passed, would be to publish some part only of the contract, which subsection (1) already requires the Authority to make available in toto to anyone who asks for it.
There is one other point. The actual detailed requirements that might be decided between the Authority and the contracting company probably would not figure in the contract at all. Almost certainly the stipulations in the contract would be the general stipulations that appear both in the parent Act and in this Bill. The information that can be demanded under Clause 10(1)(c) is not information from the contract but information that was provided by the contractor when applying for the contract. So far as this is concerned, I think that the particular wording of the noble Lord's Amendment probably would not achieve the purpose he had in mind. It could

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probably be amended, if it were acceptable, to cover the same sort of information as visualised in Clause 10(1)(c). But Her Majesty's Government feel that this is unnecessary, and also that there are other objections in addition to the ones I have already mentioned.
First of all, the act of publication in the locality might pose some difficulties if the local newspaper declined to publish. At least one provincial newspaper refuses to publish anything about its local B.B.C. station. Secondly, it is difficult to believe that many members of the public would bother to retain the information for the day when the broadcasts started. As the noble Lord, Lord Shepherd, will realise, the information that can be obtained under Clause 10(1)(c) can be obtained only after the broadcasts are on the air. Under the noble Lord's Amendment the information would have to be made public straight away. Thirdly, there would need to be precautions taken (how this would be done I do not know; it would be very difficult indeed) against premature disclosure of this information, which might help possibly the B.B.C. or possibly even a local newspaper to get in first on some new idea which the local commercial station had in mind. For these reasons I hope that neither the noble Lord, Lord Beaumont, nor the noble Lord, Lord Shepherd, will press his Amendment.
5.56 p.m.
LORD SHEPHERD: My Lords, I have listened with great care to what the noble Lord has said. I must say that I thought the contract would include such details as to what one might call the character of the service that is to be provided. I should have thought the contract would include requirements as to the period that is permissible for advertising, because there, in the end, the general charges and the profitability of the company are involved. I should have thought that many other aspects of the character of the programme would be in the contract. As I see Clause 10, the copy of the contract and the statement of the number of applicants can be made available before the service goes into operation. It is only subsection (1)(c), which is the copy of the contractor's application, that has to be withheld from the general public until the station is actually broadcasting. Therefore, I drafted my Amendment No.
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11 so that the general public within the locality would have a knowledge as to the sort of service to be provided before the service came into operation and would be able to compare performance with the contract.
In some ways I am more inclined to favour Lord Beaumont's Amendment, No. 10, in that it is much easier to include this material in the report of the Authority. But I doubt whether the report of the Authority is going to be widely circulated in any of the localities. Therefore, the Amendment would not meet the view that was strongly held in Committee, that the public within the locality should be informed, since these are services the Government say are being provided for the benefit of a locality. This material is unlikely to be available. So I must say that, in the end, I prefer my own Amendment, because it is directed towards the people that I think most of us had in mind when we discussed this in Committee.
The only thing I would say before making up my mind about dividing on Amendment 11 is that much depends on what the noble Lord has been able to find out in the meantime on the supplementary question that was put by the noble Lord, Lord Beaumont. If I may say so, it seemed to me strange that the noble Lord, Lord Denham, was resting one of his defences upon a description of the Copyright Act, and when the obvious question was put, "Did it apply whether the contract was shown in part or in whole?", he was unable to reply. But if he could give an affirmative answer, that if the contract in whole was published in a newspaper that newspaper would not be liable to be sued, then I should myself be willing to rest upon the newspaper's publishing that material without fear of being sued. If the noble Lord cannot give that assurance, then I think I ought to proceed with Amendment No. 11, because that would mean that if the newspaper were to produce this material with the permission of the Authority there could be no question of anyone's being sued for any purpose. I rest now in the hands of the noble Lord, Lord Denham. I am prepared to continue talking while he reads the message he has got, but if he is ready to give a reply I will sit down, and I am certain the House will be very willing to listen

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to him. I hope he does not ask me to go on talking.
LORD BERNSTEIN: My Lords, may I say something on the copyright question before the noble Lord, Lord Denham, replies? There can be no copyright problem if you ask people who submit applications to give their right to publish. The noble Lord, Lord Denham, said that a newspaper might refuse to publish; but why not publish on radio? Newspapers are not the only media available. There will be the new radio stations and the I.B.A. can publish what they like. As regards the cost of the report, may I point out that in this Bill we are talking about spending not pence but millions of pounds. I hope that the noble Lord, Lord Denham, will give us the name of the newspaper which refused to publish the B.B.C.'s programmes, so that we can be sure that the I.B.A. do not allow it to participate in the radio.
LORD DENHAM: My Lords, with your Lordships' permission, I should like to reply to the points made. May I first say to the noble Lord, Lord Bernstein, that I do not think it would be proper for me to give from this Despatch Box the information for which he has asked.
LORD SHEPHERD: My Lords, why not? The noble Lord has sought to rest his case on this allegation, and I think he ought to substantiate or withdraw it.
LORD DENHAM: My Lords, the noble Lord, Lord Shepherd, may think that. I shall certainly be only too pleased to give him the information privately, but I do not think it would be right to give it here.
LORD SHEPHERD: The noble Lord should not use it.
LORD BERNSTEIN: My Lords, can the noble Lord give that information to the I.B.A.?
LORD DENHAM: My Lords, I shall consider that suggestion later. I am advised that certain aspects mentioned by the noble Lord, Lord Shepherd, which he assumed would be in the contract, would probably not be in the contract. I do not know what form of contract the I.B.A. will use, but the forms of contract
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used by the television companies about which I have been able to find out have not included the detailed information which the noble Lord, Lord Shepherd, wants to be made available. It has been the practice for many matters—for example, hours and content—to be subject to day-to-day negotiation between the I.T.A. and the contracting company. The I.B.A. have the right to be told in advance what the contracting company will broadcast.
LORD AVEBURY: My Lords, the noble Lord said in his last speech that one of the objections to my noble friend's Amendment is the enormous volume of detailed information in these contracts, which would make them unsuitable for publication in the annual report. Now he is saying that none of the details is in the contracts.
LORD DENHAM: My Lords, there is detailed information and detailed information. I was referring in my last speech only to the detailed information which the noble Lord wants. There is a great deal of detail in a contract, but it would not do either the noble Lord, Lord Avebury, or the noble Lord, Lord Shepherd, any good, for the purpose they have in mind, if all of these vast contracts with their small print, which have no relevance to the question under discussion, had to be included in the annual report.
I can now tell the noble Lord, Lord Beaumont of Whitley, a little more. My advice is that, bearing in mind the size and nature of a contract, it is not likely that any newspaper would wish to publish the whole contract of a programme contractor. I am advised that if it did so it is doubtful whether the defence of fair dealing would be held to apply. However, bearing in mind that the contract would be available to any member of the public in any event, and that no damage could be held to accrue to the copyright holder by reason of such publication, it is difficult to know either why proceedings should be taken by a copyright holder in respect of such publication, or what remedy, if any, could be awarded to the copyright holder. In practice, the publication of those parts of a contract which a newspaper considered had news value would not be a breach of copyright. That is the best advice that I have at the moment.
LORD BEAUMONT OF WHITLEY: My Lords, we are not getting very far. Under the guise of sweet reasonableness the Government have this evening rejected a number of Amendments which have all been constructive and reasonable, and I, for one, think that that is a very great pity. But I see that there are slight drawbacks both to my Amendment, in that it is not aimed at the people we want it to be aimed at, and to the Amendment of the noble Lord, Lord Shepherd, in that there is some important information which would be published under my Amendment but which would not be published under his. I do not know what the noble Lord intends to do about his Amendment but, in view of the small crumb of comfort which we have had from the detailed interpretation of the Copyright Act, and the fact that we have been reassured that papers will be able to publish the important parts of a contract if they so wish—and I, for one, sincerely hope that they will so wish—I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 13 [Short title, citation, interpretation, extent and commencement]:
6.7 p.m.
BARONESS PHILLIPS BARONESS PHILLIPS moved Amendment No. 12:
Page 15, line 8, leave out from ("operation") to end of line 10, and insert ("on 30th July 1976.").
The noble Baroness said: My Lords, my noble friend Lord Shepherd made it clear on Second Reading that we on this side of the House dislike this Bill for various reasons, and I now propose to apply the test which the Minister has himself applied to Amendments. He has several times asked: Has this Amendment any merit? I now ask him: Has this Bill any merit? My own answer would be, No. Perhaps we, can see whether the Government have been able to answer some of the questions asked during the Committee stage and again to-day.
We have been told that this Bill is concerned with local broadcasting, but we have seen very clearly that the costs of operating radio stations such as those to be set up under this Bill are such that the broadcasting cannot be local in
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character; it must be regional. The noble Lord, Lord Orr-Ewing, said that this exercise is being shaded towards regional broadcasting rather than towards local broadcasting. The Minister has not denied that. Indeed, he has referred this evening to the conurbations, and we all know that conurbations are regions and not localities.
LORD DENHAM: My Lords, when I referred to conurbations I talked of the possibility of there being two closely adjoining local radio stations; not one enormous station covering a whole conurbation.
BARONESS PHILLIPS: My Lords, so far as I recall what was said—and I shall check it by Hansard in the morning—the noble Lord was at the time talking about London. I always think of London as a conurbation, though it may of course be a locality.
LORD DENHAM: My Lords, to set the record straight, may I say that this matter arose when we were discussing whether there should be one local committee or two? What I said was that it was quite possible that in a conurbation you might want two local radio stations which were not very far apart to have the same advisory committee advising them both, with members taken from each area.
BARONESS PHILLIPS: My Lords, I take the noble Lord's point, but I still adhere to what I said originally. Nothing I have heard throughout the whole discussion on this Bill convinces me that we shall get local broadcasting stations. I return to that aspect of the matter. My Lords, we have heard about the question of an alternative choice. I was discussing this with an Australian yesterday and I said, "Do you have more than one local radio station in some of your cities?" He said, "Good heavens, yes! In Brisbane we have ten stations. Each one of them churns out 'pop' music by the hour, interspersed with syndicated news from a central agency ". What kind of alternative choice is that? Perhaps the Minister will say that that is not what we are going to get; but indeed we are not to know what we are going to get because we are not even to have the opportunity to hear the contractors asking for their contracts.

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Then, on the question of demand, so far there has been no evidence produced by the Government that there is a demand for local commercial broadcasting. I well recall, during a discussion on the pirate radio Bill, when the noble Lord the Minister was on this side of the House, that Lord Sorensen was foolish enough to ask, "What demand is there for pirate radio stations?" When, on the following day, he found his room practically filled with letters he knew there was in fact a demand. Throughout the passage of this Bill we have asked. "What demand is there?" I have not received one letter. I should be interested to know how many the Government have received on this matter. I do not believe that there is a demand.
My Lords, we come to the real reason for this Bill; that is, that during the Election the Party now in government made a firm promise that they would introduce commercial broadcasting stations. I think it was my noble friend Lord Sainsbury who used this lovely phrase of the Government, that with their "perverted sense of priorities" they are trying to push this measure through when there are other much more urgent things which need attention. We all know that the B.B.C. Charter and the I.T.A. Act come to an end in 1976, and there must be a major review of both media before new plans are put into effect. If this Amendment were accepted—and I hope it will commend itself to the noble Lord the Minister—it would let the Government "off the hook". The pledge would be honoured, and there would be time to think and plan—to plan the outline of one of our major communication industries, which affects us all. So what I am asking the noble Lord the Minister is this. Let honour be satisfied so far as the Government arc concerned, and let common sense be served so far as the community is concerned. My Lords, I beg to move.
LORD DENHAM: My Lords, as your Lordships will have gathered this is a completely wrecking Amendment, and the only way in which I could really reply is to make a new Second Reading speech, with which I do not intend to weary your Lordships. The best criticism the noble Baroness could bring in support of this Amendment was that by passing this Bill
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we would be fulfilling an Election pledge. I personally do not in the very least regard that as a criticism. Then the noble Baroness said that she would let the Conservative Party "off the hook", because by accepting this Amendment and making the Bill an absolute nonsense, and putting a nonsense on to the Statute Book, we should be honouring our Election pledge. If that is the noble Baroness's view and the view of the Party opposite as to how one should honour one's Election pledges, I hope the country at large will take note of it. I hope your Lordships will also refuse this wrecking Amendment.
LORD SHEPHERD: My Lords, the noble Lord, Lord Denham, no longer surprises me, but I do take exception to his criticism that this is a wrecking Amendment. It is nothing of the sort. With the Amendment it is possible for this Bill to become operative—true, for a very short time, but it will give the country and all those who are interested an opportunity to consider whether there is a real, genuine need for commercial sound radio or whether the resources, which are limited, particularly as regards wave-lengths, could not be devoted to much more constructive purposes, whether under the B.B.C. or under some other authority. I made it clear on Second Reading that we on this side of the House do not believe in restricting the opportunities of the people of this country in regard to listening to any form of radio; and, if I may say so to my noble friend, if the people wish to listen to "pop" music—and I must admit that from time to time I listen to "pop" music—so be it. But I think the country is entitled, as there will need to be before 1976, to a full review of all sound radio and television, and for these matters to be considered before new legislation is produced.
My Lords, it seems to me that the Government are proceeding at this pace in order to preclude the Commission, when it is set up, as I presume it must be set up, from looking at this matter in a proper perspective. What will the Commission be seeing? They will be seeing that Parliament has recently passed an Act to permit local commercial sound radio; but they will have no time to see whether these services are in fact effective, whether in fact they reach the high standards that

77
the noble Lord, Lord Denham, believes they will reach, because to the best of my knowledge these broadcasting stations are unlikely to come into service until late 1973, or possibly 1974. Certainly it will be even later than that before the country as a whole will be able to have a taste of what local sound radio is about. So, my Lords, the Commission will not have an opportunity to take a subjective view of the general performance of, and the sort of reception that the general public give to, this new service. As I said on Second Reading, it seems to me that the Government are acting to preclude the Commission from taking a clear view as to the importance of sound radio, whether it be commercial or otherwise.
Is it not a fact, too, that the Government, in their haste to get this Bill through, have not really made up their mind whether it is to be regional radio or whether it is to be local radio? Other than the announcement of the first five stations, which all represent big conurbations, there is no indication to those who are particularly concerned that these stations should be local that they will in fact, in the main, be local. So the Government themselves, in their haste, have no really clear view as to what sort of structure of service is likely to be forthcoming. Certainly the noble Lord, Lord Denham, apart from expressions of belief and faith, has not, apart from the five conurbations, been able to put forward any firm view as to what sort of size of area or locality the other stations will be directed. I agree with my noble friend Lady Phillips, and also my noble friend Lord Sainsbury: I think that the Government base their haste on fulfilling an Election pledge. To whom the Election pledge was given I do not know, but none of us will deny that there have been interested commercial financial organisations which are very keen indeed that sound commercial radio should be set up—and, my Lords, for one purpose and one purpose only. The noble Lord, Lord Denham, cannot deny that its purpose in being set up is not for the provision of a service to the community, but as a means of making profit. The noble Lord, Lord Denham, made it quite clear in Committee, in the discussion on one of our last Amendments, that these specially-privileged organisations, having
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got a contract by which profit can be made so long as they provided a proper service, should be able to believe that they can retain that right, that privilege, for an indefinite period and that their position will in no way be jeopardised by other organisations or other companies coming in to seek to provide a service and even to participate in the "jam". This is the general view of the Government.
I can quite understand the noble Lord reacting in the rather brittle way that he did over the matter of Election pledges, for it is true that this was in the Conservative Manifesto; but the case my noble friends made was on the question of priorities. Have we not to-day a situation of roaring inflation in land prices and house prices?—prices which the Government pledged to hold so that the general public, the ordinary young people, should have the opportunity of buying their own houses. As the noble Lord, Lord Denham, knows, that land and those houses are now out of the reach of most young people, certainly of young people who have to earn a living. That is one Election pledge on which, if it had been fulfilled, we on this side would applaud the noble Lord, Lord Denham. Was not the cost of living to be cut "at a stroke"? But the cost of living has risen; and I now understand from the newspapers and radio that Mr. Prior has said to the farmers that if they are greedy and prices go up they will price themselves out of the market. It is not much comfort for the electorate to know that beef which has been a staple dish, a Sunday joint, is now being priced beyond the reach of the vast majority of people in this country. The noble Lord may eat it on Sunday, but the vast majority of the people of this country, the working-class people, cannot afford beef at the week-end.
The Government, represented by the noble Lord, Lord Denham, and his colleagues on those Benches, were elected on this one point. So when we talk about priorities it seems to me that we know the Government for what they are. These pledges are of no consequence at all. They will be "fudged" one way or another close to the Election. The Election pledge that really matters so far as the noble Lord, Lord Denham, is concerned, is a pledge which apparently must have been given to some interested parties that they

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should be able to make a profit out of a rare and short-supply national asset.
I believe that the country is entitled to a breathing space in this matter. I believe that the country is entitled to see its general services reviewed by an impartial Committee and that this will have to be done before the new legislation is produced to Parliament in 1976. I did not vote on the Second Reading. If I had done so then I must say to my Liberal friends that I fear that I should have had the deep horror (the memory of which would have kept me awake at nights for the rest of my life) of voting with noble Lords opposite. I am a great constitutionalist. I do not think it is for this House to reject a Bill which has been passed in another place. But this Amendment
would at least give the House of Commons an opportunity of looking again at this Bill. If the House of Commons then were to agree (as in their wisdom I believe they would) we should ensure that when local commercial sound radio were set up it would be as a consequence of a full review by an impartial body; that Parliament should have made a judgment as a consequence of that review. If we are then to have commercial sound radio I am certain we are likely to get a better choice than what will be produced as a result of this Bill.
6.25 p.m.
On Question, Whether the said Amendment (No. 12) shall be agreed to?
Their Lordships divided: Contents, 35; Not-Contents, 59.

CONTENTS

Arwyn, L.

Gardiner, L.

Royle, L.

Avebury, L.

Garnsworthy, L. [Teller.]

Rusholme, L.

Beaumont of Whitley, L.

Granville of Eye, L.

Shepherd, L.

Bernstein, L.

Hale, L.

Shinwell, L.

Beswick, L.

Henderson, L.

Stocks, Bs.

Blyton, L.

Henley, L.

Stow Hill, L.

Carnock, L.

Leatherland, L.

Taylor of Mansfield, L.

Champion, L.

Llewelyn-Davies of Hastoe, Bs.

Wells-Pestell, L.

Crook, L.

Ogmore, L.

White, Bs.

Diamond, L.

Peddie, L.

Winterbottom, L.

Donaldson of Kingsbridge, L.

Phillips, Bs. [Teller.]

Wynne-Jones, L.

Faringdon, L.

Platt, L.

NOT-CONTENTS

Aberdare, L.

Elliot of Harwood, Bs.

Oakshott, L.

Ailwyn, L.

Emmet of Amberley, Bs.

Orr-Ewing, L.

Alexander of Tunis, E.

Ferrers, L.

Poltimore, L.

Balfour, E.

Fortescue, E.

Rankeillour, L.

Beauchamp, E.

Gainford, L.

Reay, L.

Beaumont, L.

Gowrie, E.

Reigate, L.

Belstead, L.

Greenway, L.

Rhyl, L.

Berkeley, Bs.

Grimston of Westbury, L.

Ruthven of Freeland, Ly.

Bledisloe, V.

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

Sandford, L.

Bolton, L.

Sempill, Ly.

Bridgeman, V.

Hawke, L.

Southwark, Bp.

Brougham and Vaux, L.

Hood, V.

Terrington, L.

Camoys, L.

Howard of Glossop, L.

Trefgarne, L.

Cowley, E.

Hylton-Foster, Bs.

Tweedsmuir, L.

Craigavon, V.

Jellicoe, E. (L. Privy Seal.)

Tweedsmuir of Belhelvie, Bs

Daventry, V.

Kemsley, V.

Vernon, L.

Davidson, V.

Lauderdale, E.

Vivian, L.

de Clifford, L.

Lyell, L.

Wakefield of Kendal, I.

Denham, L.

Monckton of Brenchley, V.

Young, Bs. [Teller.]

Drumalbyn, L.

Mowbray and Stourton, L. [Teller.]

Elles, Bs.

Resolved in the negative, and Amendment disagreed to accordingly.

SALMON AND FRESHWATER FISHERIES BILL
6.32 p.m.
LORD GAINFORD: My Lords, on behalf of my noble and learned friend Lord Dilhorne, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resole itself into Committee.—(Lord Gainford.)
On Question, Motion agreed to.
House in Committee accordingly.
[BARONESS EMMET OF AMBERLEY in the Chair]
Clause 1 [Prohibition of fishing with certain implements]:
VISCOUNT DILHORNE VISCOUNT DILHORNE moved Amendment No. 1:
Page 1, line 14, leave out from ("setline") to end of line 15.
The noble and learned Viscount said: I am grateful to my noble friend Lord Gainford for moving that the House be now in Committee. I apologise for not being present, but things took a swifter course than I anticipated. I thought that the noble Lord, Lord Shepherd, would perhaps have taken up a little more time. I beg to move Amendment No. I and, if it be for the convenience of the Committee, to discuss at the same time Amendment No. 2. These are really drafting Amendments. I indicated on Second Reading that it would be proposed to insert the definition of "set-line" and "crossline" in the definition clause of the Act of 1923, and that is what these Amendments do.
On Question, Amendment agreed to.
VISCOUNT DILHORNE: I beg to move Amendment No. 2.
Amendment moved—
Page 2, line 7, at end insert—
("( ) In section 1(3) (definitions) at the end there shall be added the following paragraphs:—

(c) "crossline" means a fishing line reaching from bank to bank across water and having attached to it one or more lures or baited hooks;

(d) "setline" means a fishing line left unattended in water and having attached to it one or more lures or baited hooks.")— (Viscount Dilhorne.)

On Question, Amendment agreed to.
VISCOUNT DILHORNE: Amendment No. 3 corrects a small omission in the Bill as it stands. The words, "or a tailer" should be inserted after the word "gaff "and that is what this Amendment proposes to do in line 10. I beg to move.
Amendment moved—
Page 2, line 10, after ("gaff") insert ("or a tailer").—(Viscount Dilhorne.)
On Question, Amendment agreed to.
Clause 1, as amended, agreed to.
Clause 2, agreed to.
Clause 3 [Close season and close time for salmon and brown or migratory trout]:
VISCOUNT DILHORNE VISCOUNT DILHORNE moved Amendment No. 4:
Page 3, line 31, after ("the") insert ("close").
The noble and learned Viscount said: This is a drafting Amendment, and at the same time I can speak to Amendment No. 6. When one looks at what is proposed to be inserted in the Bill it is quite clear that in line 31 the words:
"so that the season is not less than 242 days"
means the close season. But when that Amendment is made in the Act of 1923 there is room for doubt, and to remove that doubt I propose that the word "close" should be inserted before "season".
On Question, Amendment agreed to.
LORD BOLTON LORD BOLTON moved Amendment No. 5:
Page 3, line 32, leave out subsection (5).
The noble Lord said: With the permission of the Committee, I will speak for my noble friend Lord Nugent of Guildford who, unfortunately, cannot be present. I would preface my remarks—I am sorry for the length of the Amendment—by saying that my noble friend is President of the Association of River Authorities. I should like to say, on his behalf and on my own, that the Association are deeply grateful to the noble and learned Viscount, Lord Dilhorne, and to Mr. Wingfield Digby in another place, for bringing this Bill forward. We arc also grateful to the Ministry of Agriculture, Fisheries and Food for their very valuable work.
There is one matter on which the Association have failed to carry their views; that is the provision about the sale of salmon and trout to which the noble and learned Viscount, Lord Dilhorne, referred during the Second Reading debate. Under the present law rodsmen are forbidden to sell their catch during the close season for netting which begins at the beginning of September, rodsmen being permitted to fish on to a later date. The prohibition on the sale of rod-caught fish is solely to discourage the sale of unlawfully caught fish, were a market to be available. The river authorities have spent a great deal of time, labour and public money on restocking our salmon and trout rivers. There have been many problems, caused not least by the inroads made by high seas fisheries. In addition the authorities suffer very heavily from the activities of illegal netsmen, peripatetic poisoners and the like. They are highly organised like the gang supported "by the Lancashire River Authority and the famous, or infamous Bridport gang which was so highly organised that it had a number of vans with false number plates, walkie-talkie apparatus and inflatable dinghies with outboard motors; and they served a very ready market in hotels and boarding-houses. In Ireland, both in the Republic and also in Ulster, the answer has been to prohibit sales of game fish except through registered dealers—
VISCOUNT DILHORNE: May I interrupt the noble Lord? Is he speaking to both the Amendments in Lord Nugent's name? They are both different. Or is he speaking only to the Amendment to leave out subsection (5), which is a narrower Amendment? I was hoping to hear what reasons would be advanced for leaving out that subsection.
LORD BOLTON: I beg your Lordships' pardon. I discussed the matter with my noble friend Lord Ferrers and we thought that the two Amendments could be taken together. Have I your Lordships' permission to do that?
VISCOUNT DILHORNE: I personally have no objection to two Amendments being taken together by the noble Lord, but he might have indicated that that was what he intended to do, and then I should not have interrupted him. I hope
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that we shall have an argument confined to the Amendment which has been called.
LORD BOLTON: In Ireland, both in the Republic and in Northern Ireland, the answer has been to prohibit sales of game fish except to the registered dealers, and the Association of River Authorities, in common with other bodies, as mentioned by the noble and learned Viscount, Lord Dilhorne, again in his Second Reading speech, strongly support the recommendation of the Bledisloe Committee that a licensing scheme should be brought in this country. While recognising Parliamentary pressure, it is difficult to accept that the Bill should provide for two of the matters linked together in the Bledisloe Report; namely, more flexible arrangements for the control of close season and the abolition of the ban on the selling of rod-caught fish, which Omits the vital third factor that there would be no licensing. The result would be nothing less than a poacher's charter. As for administration and enforcement, the river authorities see no difficulties in operating a registration scheme themselves.
A number of the factors which I have mentioned have been taken into account in drafting my noble friend Lord Nugent's clause. It allows for flexibility in application, including any necessary tie-up with Scottish legislation and time for further consideration of detail. It avoids the necessity for further legislation covering England and Wales, while preserving the right of Parliamentary scrutiny. It would be disastrous to the conservation of our fish stocks, to go back to the noble Viscount's remarks, without the saving clause of licensing, if the abolition of the sale of rod-caught fish after the end of the next season were permitted to lapse. It is very easy to catch fish illegally, to make false hook marks in their mouths and to sell them as rod-caught fish. There is no doubt that this would be done on a very large scale if we did not have the protection of a licence for the retail of salmon. I beg to move.
6.43 p.m.
EARL FERRERS: My noble friend Lord Bolton has spoken to both these Amendments together—which I am bound to say I thought he indicated at the beginning—and he has explained that

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their purpose is, in short, to put some kind of a brake on the poaching of fish. I should like to assure him at the outset that the Government fully share his concern about the activities of those gangs of people who poison rivers, net fish and subsequently dispose of their catches at great personal profit. They are breaking the law. It was for this reason that we welcomed the strengthening of the law against them, both in regard to the increased penalties and through the greater enforcement powers which are given under the Bill. But the suggestion that their activities could be further curbed if dealers in salmon and trout were licensed is not a new one—it was made way back in 1938—and successive Governments have given a lot of thought to how this could be achieved. Since the Bledisloe Committee reported 10 years ago the Ministry of Agriculture, Fisheries and Food have consulted with many interested parties, including those who would have to be licensed, and with their colleagues in Northern Ireland and Scotland on this matter.
The object of these two Amendments is really to deter poaching by licensing those who subsequently deal in the fish. I am bound to say that on first acquaintance this would have a great deal to be said for it. It can be argued that if we cannot stop poaching, the next best thing is to deter the poacher from disposing of his illegally caught fish. But we ought to consider carefully what is the extent of the problem, what licensing of dealers means and what is likely to be the effect of control of this sort upon the better conservation of the stocks of fish which we have. It is difficult to say how serious poaching is. We all know that a great deal has been done by the illegal gangs. But, of course, very few cases of poaching ever finally end up in the courts. A year or two ago, the Ministry tried with the aid of river authorities, to assess the extent of this by reference to what one might call circumstantial or hearsay evidence, and the results showed that some highly organised gangs, to which my noble friend referred, were at work. Unfortunately, it did not quantify exactly what the problem was.
What would be the effects of licensing if this were to be introduced? I think it is fair to say that our scientists, and most of those engaged in fishery management,
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believe that the present number of fish that escape to spawn is more than adequate to preserve stocks. Therefore, licensing is not justifiable in the interests of conservation. It follows that the main reasons for the introduction of a system of licensing would be to ensure that the law is observed and that more fish are available to those who are legitimately entitled to catch them.
If we were to undertake licensing we should have to consider exactly what it would mean. I understand that there are in the region of 7,600 wet fish shops in England and Wales alone. All those who wish to sell salmon and trout—and that. I suggest, means the great majority of those people—would have to be licensed. So would the wholesalers. Moreover, licensing alone would be useless. Records would have to be kept by the shopkeepers, and they would have to be open to inspection. Hotel keepers and restaurant proprietors who buy and sell fish would also have to keep records; and these, too, would have to be inspected. A licensing system for dealers alone would clearly be ineffective, and it would not strike at the traffic between hotels and poachers.
Northern Ireland introduced a measure in 1966 to try to control the disposal of salmon after they were caught, and their scheme has not stopped poaching: at best, it can be said to have kept it in check. But it is clear from their experience that anything less than their system would be a waste of time. I think we should not delude ourselves that we can solve the problem merely by licensing fishmongers. The Irish arrangements take up nine long sections of the Fisheries Act (Northern Ireland) 1966; and, even so, that had to be amended in 1968.
One of the objections that I would put forward—while recognising the problem that my noble friend Lord Nugent's Amendment is trying to cure, and particularly Amendment No. 8—is that all the regulation and organisation of this licensing system is to be done by the Minister. I suggest that this would be imposing not far too great a duty on the Minister, but certainly far too great a Parliamentary responsibility, in so far as, I have said, the Northern Ireland provisions have taken up nine sections.
There are many technical reasons why these Amendments would not find favour as at present drafted, but I would remind

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my noble friend Lord Bolton that during the Third Reading of this Bill in another place its sponsor said that it was a non controversial Bill. The introduction of these Amendments would make it highly controversial. The only time when this Bill could be considered again in another place would be on June 16, which is the last date for Private Members' Bills; and if a controversial Bill of this nature were before the other place I suggest that it would almost certainly fall by the wayside, with all the good provisions that it contained. If your Lordships wish provision to be made for licensing arrangements in respect of salmon and trout dealers, this could possibly and more suitably be the subject of a separate Bill which would provide a better opportunity for the comprehensive examination of a soundly-balanced measure.
I would also draw to the attention of my noble friend the fact that the game and poaching laws are currently under examination by the Law Commission, and the Commission have also been asked to include within their review the licensing of salmon and trout dealers. I suggest that it would be better to await the Report of the Law Commission and thereafter, if necessary, introduce a separate measure, rather than try to incorporate this particular system in the manner suggested in the Amendments, because, as I have indicated, they leave far too much to the regulations which the Minister would have to make.
6.53 p.m.
VISCOUNT DILHORNE: We are now discussing two Amendments together. The first is of very minor importance but the second is of much more substance. If I may say so, I hope that the Committee will reject the first Amendment. Under the law as it stands at present, a person who catches a salmon lawfully with rod and line is prohibited from selling it during the close season. It seems rather anomalous that that should be so, and by Clause 3(5) that situation is put right, so that if the clause is left in its present form a person who lawfully catches a fish on rod and line can lawfully sell it. The Amendment moved by my noble friend, Lord Bolton, is intended to secure that that shall not take place because of his fear that by putting hooks in the mouth of a salmon which has been caught
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in other ways it may be possible to make it appear that the fish has been caught on rod and line. I agree that that may be a risk but I think it is not a very serious one, and it is one that is well worth running. I do not think many people will bother about that, so I hope the Committee will reject the Amendment.
Now I come to the other Amendment which is long and of considerable substance. It is one with which, as I indicated in my Second Reading speech, I have considerable sympathy. I must say I cannot regard this as a highly controversial Amendment except in the sense that it will no doubt be opposed by the Government—we have had that made perfectly clear this afternoon—and also by those who are profiting by the illegal catching and poaching of salmon. It is a curious co-ordination of parties which is opposing this Amendment. I cannot believe that there is really any controversy about it in other quarters. I enjoy catching salmon on rod and line, and I suppose to that extent I am an interested party. But the purpose behind this Amendment is not to increase the opportunities for catching fish on rod and line but for conservation, and frankly I was absolutely astonished to hear the noble Earl who is speaking for the Government say that their scientists and advisers were satisfied that the fish that escaped to spawn were sufficient to prevent stocks from diminishing. I cannot accept that for one moment; nor do I believe that people who fish with rod and line, whether in Scotland or in England, and have done so for years, will accept it either.
I have fished both in England and in Scotland for many years when opportunity offered and I can testify that on some of the major rivers in Scotland and England the stocks of salmon have been diminishing seriously over the last ten years. It is easy for those who spend their time on the rivers—not only the rods but the ghillies and others—to form a very reliable opinion, and I am sure there will be few of those who will contradict me when I say that not only have stocks suffered in the last few years but they are still diminishing, and the situation is now so serious that it demands no complacency or smugness when approaching it. If something is not done, and done pretty quickly, to reverse the trend,

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then we need not worry about salmon preservation because there will not be any salmon to preserve.
I say in all seriousness that in my belief the situation is very different from that which the noble Earl, Lord Ferrers, described. One contribution that can be made to conservation is to do something to stop illegal fishing and poaching and to make it less profitable than it is. We have heard a lot in recent days about the price of £1 per lb. for beef. I cannot help thinking that the price of salmon, illegally caught, must be pretty near that figure at the present 'time, even though it may be less than what would be paid for salmon at a fishmonger's. Unless and until something is done to deter the poacher and inhibit the ready market he has now for poached fish and fish illegally taken, I do not myself think that we shall see a great improvement resulting from the additional powers, good though they are, contained in this Bill. I think one will have to come to the stage when the receipt, whether by a fishmonger or an hotel or restaurant proprietor, of fish which can be proved to have been illegally taken, in circumstances where one can infer that the person who has bought the fish knows that it has been illegally taken or poached, should be made a criminal offence. I believe that would go some way towards deterring this illegal trade. But that is not what this Amendment proposes. All this Amendment proposes is the licensing of certain people, together with the keeping of records.
At this hour I do not want to go into all the technical objections, but I would say to the noble Lord, Lord Bolton, that I think this is a valiant attempt to put forward a scheme. However, I do not believe that it will really work. He has left far more than I should like to see left to regulatory-making powers. I hope the noble Lord will not press his Amendment, because, as the noble Earl, Lord Ferrers said, there can be only one day for a Private Member's Bill in another place, and if there is any controversy on this Bill—and in the face of the Government's attitude one must accept that it would arouse great controversy on the part of the Government, even if there would not be very much elsewhere—this Bill will be lost. I am sure that the noble Lord, Lord Bolton would not like that to happen, but I am equally sure that
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my noble friend Lord Nugent of Guildford would like, as I should like, to see something done to prevent and deter this illegal trade. Perhaps in another Session we may have another Private Member's Bill containing a proper code with proper sanctions which will do something to that end. I ask the noble Lord not to press either of these Amendments for inclusion in this Bill.
VISCOUNT BLEDISLOE: I hope that the noble Lord will not press the Amendment. My Committee reported a very long time ago and this Bill, although it goes only a small way towards implementing their recommendations, goes some way. There has always been a difficulty in getting any Government, of whatever persuasion, to bring in legislation to implement our Report which, although I say so, I think has universal approval. It has always been said that there was no Government time to implement a Report of this kind, which meant legislating. Now we are told by my noble friend Earl Ferrers that if this Amendment is pressed this Bill is almost certain to be lost in another place. I hope for those reasons that the Amendment will not be pressed.
LORD HURCOMB: On this particular Amendment I felt convinced by what the noble Earl, Lord Ferrers, said, that it would be wise to have this difficult matter of licensing looked into a good deal further and more carefully than it is possible to do at this stage of the Bill. On the other hand, I am bound to support the noble and learned Viscount when he said be was amazed at the apparent complacency which the Ministers responsible are adopting on the issue as to whether the stocks of salmon, not only in the rivers of this country but in Europe altogether, are being sadly diminished by a variety of causes which are fairly familiar. I should be amazed if the Secretary of State for the Environment, who at this very moment or tomorrow may be talking about this matter to the world conference in Stockholm, is taking the view that the salmon are not a gravely endangered species.
LORD BOLTON: I am most grateful to the noble and learned Viscount for the remarks that he has made. With great diffidence I differ from him on the minor point because to allow the sale

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of rod-caught fish after the end of the netting season is going to lead to a great deal of poaching in rivers in two particular areas: North-West Cumberland and Devonshire. The knowledge that they could not sell their fish is a sacrifice that rod fishermen have put up with extremely cheerfully over the years. Practically every rod fisherman has realised the cogency of the argument for not selling at that time. I accept, and am grateful for the comments of the noble and learned Viscount on the second Amendment. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 3, as amended, agreed to.
Clause 4 [Close season for freshwater fish and rainbow trout]:
7.3 p.m.
VISCOUNT DILHORNE: I beg to move Amendment No. 6:
Amendment moved—
Page 3, line 40, after ("the") insert ("close").—(Viscount Dilhorne.)
THE DEPUTY CHAIRMAN OF COMMITTEES (BARONESS EMMET OF AMBERLEY): The Question is that Amendment No. 6, "Page 3, line 40, after ('the') insert ('close')", be agreed to. As many as are of that opinion will say, "Content; to the contrary, "Not-Content".
LORD BESWICK: Not-Content.
VISCOUNT DILHORNE: I have spoken to this Amendment already. When we were dealing with Amendment No. 4 I also spoke to this Amendment. If the noble Lord, Lord Beswick, wants me to repeat what I said I will endeavour to do so.
LORD BESWICK: No, I do not wish the noble Viscount to repeat what he said, but I expect someone if they are "Content", to express that sentiment.
EARL FERRERS: I did express it but evidently not loud enough.
THE DEPUTY CHAIRMAN OF COMMITTEES: I will put the Question again. The Question is that Amendment No. 6 be accepted. As many as are of that opinion will say, "Content"; to the
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contrary, "Not-Content". The "Contents" have it.
On Question, Amendment agreed to.
VISCOUNT DILHORNE: I beg to move Amendment No. 7, which corrects a printing omission.
Amendment moved—
Page 4, line 16, at beginning insert ("to").—(Viscount Dilhorne.)
On Question, Amendment agreed to.
On Question, Whether Clause 4, as amended, shall stand part of the Bill?
VISCOUNT BLEDISLOE: Your Lordships may like to know a little of the history behind this matter of the close season for coarse fish. Evidence was given before my Commission by a splendid gentleman, whose name I have forgotten but who appeared for the National Federation of Anglers. He said that his Federation demanded that there should be a close season for coarse fish. His reasons were that members of the Federation were just as sporting as the salmon men and trout fishermen, and if they had a close season so ought the coarse fishermen.
He was cross-examined by the scientific people who said that a close season was necessary only to preserve stock. To that, the splendid gentleman rather reluctantly agreed. The scientific experts then said, "Why do you want a close season for coarse fish? Your members always throw their fish back into the river. They are kept in keep nets and there is a competition." The spendid gentleman said, "Good heavens! If any of my members kept a fish he would be turned out of the Association at once and would never be allowed to fish again." The scientific experts then said that there was no reason for a close season for coarse fish, and the spendid gentleman turned to me and asked me whether he could ask a question. I said that it was not usual for witnesses to ask the chairman a question, but that I would do my best to answer it. He said, "Mr. Chairman, would you kick a pregnant woman in the stomach?" I replied that it was not a problem that I had had to deal with before, but that I thought the answer was, "No". He said, "I agree with you. That is why we want a close season for coarse fish."
THE DEPUTY CHAIRMAN OF COMMITTEES: Amendment No. 8 has been moved—
VISCOUNT DILHORNE: With great respect, it has not been moved. It cannot be moved before the time for it to come on. It was spoken to with the other Amendment but it has not been moved.
THE DEPUTY CHAIRMAN OF COMMITTEES: It has been discussed. Amendment No. 8 is not moved.
Clause 4, as amended, agreed to.
Clause 5 [Miscellaneous amendments as to byelaws]:
VISCOUNT DILHORNE: I beg to move Amendment No. 9. On further consideration it was found that subsection (4) as it stood was entirely superfluous.
Amendment moved—
Page 5, line 9, leave out subsection (4).—(Viscount Dilhorne.)
On Question, Amendment agreed to.
Clause 5, as amended, agreed to.
Clause 6 [Licences to fish]:
7.8 p.m.
LORD TREFGARNE LORD TREFGARNE moved Amendment No. 10:
Page 6, line 2, at end insert: —
("(10) Provided that no person under the age of 14 years shall require a licence to fish with rod and line anywhere in the United Kingdom.").
The noble Lord said: In rising to move my Amendment I am conscious that I did not speak at the Second Reading of this Bill and that my Amendment does not strike at the heart of any of the principles enshrined in the Bill. However, I will do my best to move my Amendment as shortly as possible. When your Lordships were of tender years some of you, as I did, probably fished in local rivers, reservoirs or lakes. Perhaps like me you had absolutely no success and never caught a single thing. It occurs to me that young persons, as described in my Amendment, might well be exempted from the requirement to hold a fishing licence as provided for in this clause. There is no greater reason for my Amendment than that we should exempt young people from a Bill that
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has a considerable number of detailed administrative and what some people might think bureaucratic provisions. I therefore beg to move.
VISCOUNT DILHORNE: While I have sympathy with the noble Lord's objective, I hope that he will not press this Amendment to a Division. I suppose that all of us are sympathetic to boys fishing—most of us have fished and probably the ladies have as well—with or without licences, legally or illegally. We will not go into that. Why should the age be fixed at fourteen? Why, in a Bill dealing with conservation, make an exempted class all over the country? To do that would make the task of the enforcement of legal fishing extremely difficult. Indeed, if the water bailiff finds a boy fishing how is he to know whether or not the boy is under fourteen if he says he is? Some of us look younger and some older than we are. Is the boy to carry his birth certificate with him? I do not know. These are some of the problems and this would open a rather wide loophole if it were made a general application.
I can offer this amount of consolation: under the Bill as it stands, river authorities, who will be acquainted with the needs in their particular areas, can exempt from liability to pay licence duty or provide for reduced licence duties for certain categories of persons. I understand that some river authorities, maybe in due course all of them, are seriously considering applying exemptions or reduced duties to certain categories of persons which may include the young, and may include those who are a little older than 14, and may include the old. I think it would be much better to leave it to the river authorities who know the needs and the situation in their areas to do what they think is right rather than for us in this conservation Bill to make a general rule for every part of the country that persons under 14 can fish without a licence. I hope that noble Lords, realising that river authorities have power to meet this objection will not press this Amendment which will take this power out of their hands.
LORD TREFGARNE: One of the risks in putting down an Amendment to a Bill handled by a former Lord Chancellor is that one's Amendments tend to

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get shot down in flames. I quite see the objections to my Amendment and I beg leave to withdraw it.
Amendment, by leave, withdrawn.
Clause 6 agreed to.
Clauses 7 to 9 agreed to.
Clause 10 [Restriction on the introduction of fish into inland waters]:
VISCOUNT DILHORNE VISCOUNT DILHORNE moved Amendment No. 11:
Page 8, line 1, at end insert ("or spawn of fish").
The noble and learned Viscount said: I can speak to Amendment No. 11 and Amendment No. 12 at the same time. This Amendment improves the Bill. Under the Bill as it stands it is illegal to introduce fish into an inland water. Some people would argue that spawn is not fish, and it is therefore thought desirable to make it clear that you cannot introduce either fish or spawn into a river without the consent of the river authorities. I beg to move Amendment No. 11.
On Question, Amendment agreed to.
VISCOUNT DILHORNE: I beg to move Amendment No. 12.
Amendment moved—
Page 8, line 2, after ("fish") insert ("or spawn of fish").—(Viscount Dilhorne.)
On Question, Amendment agreed to.
Clause 10, as amended, agreed to.
Clause 11 [Powers of entry, search, seizure and arrest]:
VISCOUNT DILHORNE VISCOUNT DILHORNE moved Amendment No. 13:
Page 8, line 9, leave out ("search and')
The noble and learned Viscount said: I beg to move this Amendment which is to leave out two words that are entirely superfluous. Under the Bill as it stands, you can "search and examine" and the words "search and" add nothing to "examine". I beg to move.
On Question, Amendment agreed to.
VISCOUNT DILHORNE VISCOUNT DILHORNE moved Amendment No. 14:
Page 8, line 15, leave out ("such") and insert ("any such instrument, bait or")
The noble and learned Viscount said: As the Bill stands at present, an authorised person can "examine any instrument or bait", or any container used for fish, but it is not clear that he can open the cover of a fishing rod or similar container to examine the instrument contained therein which might be of an illegal character. The Amendment will remove that doubt. I beg to move.
On Question, Amendment agreed to.
Clause 11, as amended, agreed to.
Clause 12 [Provision for trial of offenders and penalties for offences]:
7.17 p.m.
VISCOUNT DILHORNE VISCOUNT DILHORNE moved Amendment No. 15:
Page 10, line 2, after first ("in") insert ("or in connection with ")
The noble and learned Viscount said: This is a more important Amendment. At the present time, it is possible to confiscate or order forfeiture of a vessel or vehicle used in the actual commission of an offence. I should think it very seldom that in the actual commission of an offence a motor car or other vehicle is used. It does not sound a very apt instrument for poaching or illegally taking fish. It is used to take people to where they are going to poach, so it is thought that it will avoid doubt and possible further litigation, and make it quite clear that if a gang of poachers use a vehicle to get them to the scene of their illegal operations they run the risk of the vehicle being forfeited if it is used, as it would be in those circumstances, "in connection with" the offence. I beg to move.
On Question, Amendment agreed to.
Clause 12, as amended, agreed to.
Clause 13 agreed to.
Clause 14 [Supplemental]:
VISCOUNT DILHORNE VISCOUNT DILHORNE moved Amendment No. 16:
Page 11, line 34, at end insert:
("( ) Expressions used in the 1923 Act and this Act have the same meanings in this Act as they have in that Act.")
The noble and learned Viscount said: This Amendment is intended merely to avoid the repetition in this Bill of all

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the definitions contained in the 1923 Act. I beg to move.
On Question, Amendment agreed to.
Clause 14, as amended, agreed to.
Remaining clauses agreed to.
Schedule 1 [Provisions with respect to licences]:
VISCOUNT DILHORNE VISCOUNT DILHORNE moved Amendment No. 17:
Page 13, line 46, leave out ("is") and insert ("and address are").
The noble and learned Viscount said: I can speak to this Amendment and Nos. 19, 22, 23 and 24 together. They are all to provide for the situation that on the licence, in addition to the name, there shall be inserted the address of the holder of the licence. There are, I believe, in some parts of the country people living in communities with the same surname and often with the same Christian name, and it is therefore desirable that in order to be able to identify the licence holder the address should be inserted. I beg to move Amendment No. 17.
On Question, Amendment agreed to.
7.20 p.m.
VISCOUNT DILHORNE VISCOUNT DILHORNE had given notice of his intention to move Amendment No. 18:
Page 14, line 4, leave out from ("name") to end of line 5 and insert ("and address are so entered on the licence and he is not the holder of another licence to use in that area an instrument of the same description as that to which the former licence relates").
The noble and learned Viscount said: I am not moving this Amendment for the reason that I propose to put it down in different language and, I hope, improved drafting on Report.
VISCOUNT DILHORNE: I beg to move.
Amendment moved—
Page 14, line 6, after ("name") insert ("and address").—(Viscount Dilhorne.)
On Question, Amendment agreed to.
VISCOUNT DILHORNE VISCOUNT DILHORNE moved Amendment No. 20:
Page 14, line 11, leave out ("by a licensee or his agent").
The noble and learned Viscount said: This provides that an entry on a licence,
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whether made by a river authority or by a licensee, should be dated; and the effect of this first Amendment, page 14, line 11, is to extend to all entries the present requirement for the insertion of the date by the deletion of the words "by a licensee or his agent" which currently limits its application. I can also speak to the Amendment to page 14, line 13, at the same time. The effect of that is to reinstate these words in the latter part of the paragraph which deals with the procedure when a licensee or his agent makes the entry. I beg to move.
On Question, Amendment agreed to.
VISCOUNT DILHORNE: I beg to move Amendment No. 21.
Amendment moved—
Page 14, line 13, leave out ("the entry") and insert ("an entry by a licensee or his agent").—(Viscount Dilhorne.)
On Question, Amendment agreed to.
VISCOUNT DILHORNE: I beg to move Amendment No. 22.
Amendment moved—
Page 14, line 14, after ("name") insert ("and address").—(Viscount Dilhorne.)
On Question, Amendment agreed to.
VISCOUNT DILHORNE: I beg to move.
Amendment moved—
Page 14, line 16, after ("name") insert and address ")—(Viscount Dilhorne.)
On Question, Amendment agreed to.
VISCOUNT DILHORNE: I beg to move Amendment No. 24.
Amendment moved—
Page 14, line 18, leave out from ("where") to end and insert ("a name and address are inserted in substitution for a name and address ").—(Viscount Dilhorne.)
On Question, Amendment agreed to.
VISCOUNT DILHORNE: This is to correct a printing error: The reference should be to subsection (7) and not (6). I beg to move.
Amendment moved—
Page 14, line 31, leave out ("6") and insert ("7").—(Viscount Dilhorne.)
On Question, Amendment agreed to.
Schedule 1, as amended, agreed to.
Schedule 2 agreed to.
Schedule 3 [Repeals]:
VISCOUNT DILHORNE VISCOUNT DILHORNE moved Amendment No. 28:
Page 18, leave out line 10.
The noble and learned Viscount said: This is a provision which we on second thoughts felt it desirable to retain. It is a provision of the 1923 Act and it is now considered desirable to retain it for that provision enables articles seized as liable for forfeiture, such as fish, to be disposed of. If it were not for the power contained in the 1923 Act I do not quite know what one would do with the fish, but it would be bound to go bad and that would be very unpleasant. So this will enable the authorities, if they get something which is perishable, to dispose of it as they have been able to do since 1923. I beg to move.
On Question, Amendment agreed to.
VISCOUNT DILHORNE VISCOUNT DILHORNE moved Amendment No. 29:
Page 18, column 3, leave out line 28 and insert ("in section 1 the words 'and elver fisheries' and the words 'or elver fisheries'.
Section 2.")
The noble and learned Viscount said: This Amendment is the last Amendment to this Bill at this stage. The effect of it is to retain those provisions of the 1935 Act which allow for modification by Orders under Part IV of the requirements of the 1923 Act in relation to freshwater and eel fisheries. The references to elver fisheries are no longer necessary because Clause 14(2) of the Bill makes it clear that references to eels include references to elvers, and on that note I beg to move.
On Question, Amendment agreed to.
Schedule 3, as amended, agreed to.
House resumed: Bill reported, with the Amendments.

CIVIL EVIDENCE BILL
7.27 p.m.
LORD DIPLOCK: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Diplock.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD CHAMPION in the Chair.]
Clause 1 agreed to.
Clause 2 [Rules of court with respect to expert reports and oral expert evidence]:
LORD GARDINER LORD GARDINER moved Amendment No. 1:
Page 2, line 29, after the first ("matters") insert ("in personal injury cases").
The noble and learned Lord said: I beg to move the Amendment standing in my name. These three Amendments are all related to the same point and can all be discussed on the first Amendment. I do not suppose for a moment that the Amendments are properly drafted. What they are intended to do is to prefer the view of the minority of the Lew Reform Committee to that of the majority on the only point on which they differed. I have no doubt the wording can be improved and if the Committee were to accept the views I am putting forward no doubt the Government would do some redrafting at a later stage.
I do not consider the point which I have raised as being a point of great importance, but I have thought it right, for the reasons I indicated on the Second Reading of the Bill, to put down these Amendments really as a matter of courtesy to the Bar Council and the Law Society, both of whom have strongly dissented from the Majority Report on this point and believe that the proposals made would be unworkable and would increase the cost of litigation. As will be apparent, I have done nothing to drum up any support for my Amendment, and if it becomes clear to me that it does not appeal to the Committee I shall not ask the Committee to divide on it, but I thought that the view of the united profession should at least be heard.
The noble and learned Lord the Lord Chancellor made a very good point on the Second Reading of the Bill when he said that, after all, all this does is to give power to the Rule Committee to make rules; and it is of course true that if they do that and it turns out that the profession are right and that it is unworkable and it increases the cost of litigation the Rule Committee can revoke the rules. Then the noble and learned Lord went on to make two other points which, if I may respectfully say so, I did not think were quite so good. First he said, "Of course, the practitioners of the Rule Committee might convert the others," and he said that both the Bar Council and the Law Society are heavily represented on it as are other types of lawyers. Then as to the judges he said
"they know at least as much about preparing cases as do the eminent members of the Bar Council and the Law Society".—[OFFICIAL REPORT, 15/5/72, col. 1228.]
The reasons why I cannot agree with those views are, first, that I spent some years on the Rule Committee so I know how they work, and it always seemed to me to be a strangely composed committee because the people who really know about the everyday practice and procedure of the courts on interlocutory matters are the Masters, who spend their whole time giving decisions on interlocutory matters, and junior counsel and solicitors and also solicitors' clerks.
The view which I have just expressed is not an idiosyncratic view. Some years ago, as the noble and learned Lord the Lord Chancellor knows, there was a Committee on the Practice and Procedure of the Supreme Court. I shall not forget it because it sat for five years and I personally attended 330 meetings of that Committee. In paragraph 132 of their second interim report they said this:
"Our main difficulty in regard to the existing Rule Committee is that Her Majesty's judges have not, generally speaking, a close knowledge of the Rules"—
this was a unanimous recommendation from the Committee, including a number of judges—
"or their working, nor can they properly be expected to devote their time and attention to an examination of the working of the Rules and their relationship it seems to us that the existing Committee, although impressive in point of distinction is somewhat far removed from the work-a-day affairs and the administration of the Rules."
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Then they said:
"It seemed obvious to us that the persons who are by far the best acquainted with the working of the Rules are the Masters, or their equivalent, rather than the judges …"
They unanimously recommended that the Rule Committee should be swept away and replaced by a rules and administration committee consisting of a Chancery Master, a King's Bench Master, a divorce registrar and nominees of the Bar Council and Law Society, chosen with regard to their practical experience of the working of the Rules.
Now that was 20 years ago. Nothing was done because of the natural hesitation of successive Lord Chancellors to carry out something to which the judges were known to be opposed. The noble and learned Lord the Lord Chancellor said that both the Bar Council and the Law Society are heavily represented on the present Rule Committee. I have their names here and they consist of eight judges, two barristers, one of whom is a Queen's Counsel and the other a junior counsel, and two solicitors. So I think there is very little prospect that those on the Rule Committee will be able to stand up to the view of the judges. While I have the highest regard for Her Majesty's judges I am bound to say that I share the view of the Evershed Committee, of which I was a member, on this particular point. Of course they have been junior counsel once but I think it is about a quarter of a century since the noble and learned Lord, Lord Pearson, and I were junior counsel attending a summons before a Master.
Here we have a united profession, and I do not remember a similar case in the past where there was a committee which decided the exact opposite to the united practising profession on a practical point. And both the Bar Council and the Law Society have not stopped at that. They then came out with a subsequent memorandum, again saying the same thing.
What the Minority Report pointed out—and those concerned were of course practising lawyers—was that before then this proposal for the compulsory disclossure and exchange of experts' reports (other than medical reports in personal injury cases) had been opposed by the General Council of the Bar, the Law Society and another body with considerable experience of the practice of litigation—the British Insurance Association,

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insurance companies being concerned where the defendant is insured.
The majority view was supported by (but only by) the British Medical Association and the Royal College of Obstetricians and Gynæcologists. I am sure they are great experts in their own field, but their field is not exactly the practical side of litigation. Therefore while there is a Majority Report which says that certain alterations in procedure and the law will result in reducing the cost of litigation, where you have a united profession saying that it will do the exact opposite I felt that on the Committee stage of the Bill their voice should at least be heard. Indeed, the minority say "We do not suggest that opposition by the two legal professional bodies which together represent the legal profession as a whole, is a sufficient reason in itself for rejecting the proposal. We do, however, suggest that the fact of such opposition should be made clear to all those who have to consider whether the proposal should be implemented. "It was because, for the reasons I ventured to give on Second Reading of the Bill, there did not seem to be sufficient general agreement in the other Chamber that I thought it should be dealt with here. I think I am reported as saying, and if I did say this it was wrong, that this was tried before the Restrictive Practices Court and abandoned.
There are the three Rules. One provides that in motor accident cases in the absence of a contrary Order the oral expert evidence of an engineer which is sure to be called on account of his skill or knowledge with regard to motor vehicles, is not receivable unless the report has been disclosed; and the Report says, in paragraph 7,
"This provision, as is pointed out in paragraph 54 of the Majority Report, was introduced to meet a special case and its result has been that this kind of expert evidence is now very rarely called."
Then there are patent actions, in which there is a somewhat similar procedure to that in the Restrictive Practices Court, by Order 53A, Rule 21, of the Rules of the Supreme Court. The procedure was however soon found to be impracticable and was discontinued. It has been used in restrictive practices cases, and indeed still is, and all the reports
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are exchanged before trial. The Minority Report says, in paragraph 8,
"It involves much expenditure of time and money before trial. Each witness has in effect to provide two proofs of evidence, one of which will be sufficient for the other side and the other of which will provide supplementary information covering points on which the witness may be open to attack in cross-examination, what his explanation would be if attacked, which might be brought out in re-examination, and what should be put to the other side in cross-examination. The settling of these two proofs involves protracted consultations and consequent expense. But the matter does not end there. When the proofs are received from the other side they all have to be examined and further conferences are required for settling supplementary proofs, elaborating on the material which is required in cross-examination, et cetera. Finally, when the opposite side's supplementary proof is received, further consultations are held to consider them. All this is enormously expensive and time-consuming.
"So far as experts are concerned, these are, in the Restrictive Practices Court, usually economists. The exchange of their proofs does not save any time at all. Their proofs, as compared with those of witnesses of fact, are often relatively short, or their final evidence will usually depend on the degree to which witnesses of fact have survived evidence-in-chief and cross-examination. When they do go into the witness box they are examined in chief at great length and their cross-examination is also very lengthy. Here, too, however, there are of necessity the same lengthy conferences for the purposes of settling proofs, additional material and supplementary proofs."
My Lords, in the Second Reading debate the noble and learned Lord, Lord Diplock, said he did not see what the difference was between medical evidence in personal injury cases and other expert evidence generally. But in their Memorandum the Bar Council and the Law Society raised this point. So far as expenses are concerned, judges really do not know about this, and the Bar Council or even junior counsel do not know much. The only people who really know about the cost of litigation, and what increases costs and what reduces costs, are the solicitors. And as here the one side says that it will save costs but the other side says it will greatly increase costs, I should have thought the view of the Law Society ought really to be taken into account. What they say here is:
"… the difference of view between the majority of the Committee and those who oppose the compulsory pre-trial exchange of experts' reports arises as a result of a misunderstanding of the function of an expert and his report. It is submitted that the function of an expert falls into two parts: first, his

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initial investigation and report; and only secondly, the evidence which he may thereafter give before a Court. It is necessary to stress that in the great majority of cases an expert is not merely requested to give his opinion and to write a report from assumed facts put before him by those representing the party instructing him. Much more often than not he is asked at the outset to investigate the case from his expert view-point to come to conclusions of fact, and upon both these conclusions and possibly other facts given to him to write a report upon the whole matter.
"Save in one field, only in exceptional cases is there no dispute on the facts, with the result that the only issue is one of expert opinion. The one field, where the present practice of the exchange of reports highlights the principal point, is that of medical evidence. Generally speaking, there is only one 'fact' upon which a doctor is asked to give his opinion when giving a report. This 'fact' is the patient's own mind and body and in the great majority of cases there is no dispute about this 'fact' although there may be a difference of view as to the medical inference to be drawn from the 'fact'."
Then they point out that in the case of other than experts the report usually sets out:

"(1) the facts that he is asked to assume;

(2) the facts, which he has been able to ascertain in the course of his investigations;

(3) the sources of information, both factual and expert, that were available to him and of which he made use;

(4) the inferences which he thinks it proper to draw from the combination of assumed and investigated facts; and

(5) his opinion on all those facts and inferences."

And they say, as indeed the minority Report did, that it is impossible for a master to tell. The Majority Report itself had not favoured the automatic exchange of reports of other experts and what the Minority Report said in paragraph 17 was that:
"The basic test proposed for determining whether disclosure should or should not be ordered is set out in paragraph 30."
That is, paragraph 30 of the Majority Report.
"Reports which may be expected to be based upon facts which are agreed or can be ascertained with reasonable certainty by the expert himself by the exercise of his own powers of observation or are within his general professional knowledge or experience as consisting in matters"—
and here they quote the Majority Report—
"which are within the common knowledge of the profession by reason of their having been published in books or professional journals or which have been observed by the expert
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himself in the course of his professional studies or practice are to be, in general, compulsorily disclosable."
Then the Minority Report says:
"Thus it is clear that, in order to determine whether the whole or any part of a report should be the subject of compulsory disclosure, the Master or, on circuit, the district registrar, will have to ask himself a number of questions:—
Is it expected to be based on agreed facts?
Is it expected to be based on facts ascertainable by the expert himself with reasonable certainty by the exercise of his own powers of observation?
Is it expected to be based on facts which are common knowledge by reason of having been published in professional books or journals?
Is it expected to be based on facts observed in the past by the expert in the course of his professional studies or practice?
Is it expected to be based on a version of facts in dispute supplied by the instructing party?"
They conclude by saying, in paragraph 19:
"We are at a loss to understand how a Master, or registrar, can possibly reach a conclusion upon such matters. He will not have the report before him nor will he know by whom it is going to be made. For a Master to say, 'I expect that the report when made, and by whomsoever it is made, will or will not be based on agreed facts, or facts ascertainable with reasonable certainty by the expert himself by the exercise of his own powers of observation, or on facts which have been published in professional books or journals, or on facts observed in the past by the expert', can be no more than uninformed crystal gazing."
And they think it equally difficult even if the Master had the report before him because of course the party who is applying for the order will not have seen the report and so he cannot tell the Master what is in it. They end by saying:
"We do not think it right to lengthen this note by commenting on the detailed procedure proposed in the report. As we regard the basic test as unsound and impracticable it follows that we regard the complex procedure designed to put into effect as equally unsound and unworkable."
Well, as I have said, I do not desire to take up more time in what is, of course, a small Committee, but I thought it only courteous to the Bar Council and the Law Society who have expressed this very strong view on what is a pure matter of practice, and how it will actually turn out, and whether it will save time or save cost, or whether, as the united practising professions say—this is judging from the

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experience we have had in the Restrictive Trade Practices Court where it does not matter so much because very big issues are involved and whole industries are concerned, but the incidence of increased cost is much less important. They say that in other ordinary cases this is not only not going to save costs but it is going considerably to increase costs. I felt that was a view which should at least be considered when this Bill is before the House. I beg to move.
7.47 p.m.
LORD HALE: In asking your Lordships' indulgence I am perhaps indulging in a work of supererogation because I have already received so much kindness that it would seem almost too impugn your generosity. But your Lordships may require some explanation for the appearance in a learned debate of this kind of a village solicitor unclad even in the decorum of a current practising certificate. The explanation has of course already been given by the noble and learned Lord, Lord Gardiner, who says that this is a solicitor's job. While I have great admiration for this Report and the Bill, for the clarity with which it is expressed, for the motives which prompt it and for the reasons put forward by the noble and learned Lord, Lord Diplock, in moving it, there are problems which I do not think have been fully contemplated.
When I speak of experts I shall not be speaking in terms of the definition in the Report which is a wide and generous one, but shall be speaking more of professional witnesses—and I would quote the French President of Assize who said. "Members of the jury, Professor Noir has said 'white' and Dr. Blanc has said 'black' and therefore you can at once make one constatation that they do not agree. You may follow with a deduction that one of them is in error, but do not be deceived by the simplicity of this into overlooking the possibility, or perhaps the probability, that both of them are in error."
My own experience is long distant; it was in the Workmen's Compensation Acts, and some free and frank remarks made on Second Reading by the noble and learned Lord who normally sits on the Woolsack about the integrity of evidence might well recall the days of the Workmen's Compensation Acts. Of
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course we had many settled cases, but invariably the trade union doctor testified for the man and invariably the employers' doctor testified for the employer, when we had the invention of all kinds of explanations for disease. The dreadful disease, miner's nystagmus, on first happening resulted from employment and on second happening was due not to the new employment but to the old attack. Someone then invented that idiosyncratic personal attribute, which was not capable of being diagnosed, not capable of any etiology but meant that the man was predisposed to it and it had nothing to do with the employers at all. Those cases Edwards v. Penrheiceber and Connor v. Cadzow Colliery were imprinted on my heart as long as I had one.
The Law Society in their Memorandum have raised one new and I think important point. They say, if you want to deal with these things why not deal with pleadings and the rules about pleadings? Many years ago when I was acting in running-down cases one used to say that the defendant was driving on the wrong side of the road at an excessive speed without giving any warning of approach, without brakes or without applying his brakes, and without using any precautions whereby an accident could be avoided. The defence used to reply in kind with a blanket denial of everything: "If we have not specifically denied it then we deny it now." That there has been no substantial alteration is shown by the Law Society Memorandum, who say that too many people get away now with a general denial.
I believe there is great value in the use of disclosure of engineers' certificates, and indeed I believe it may have increasing value because the increasing complexity of these matters makes it extremely difficult to anticipate what may be said in evidence. In my days I used to go along to a Heath Robinson garage where there was a skilled mechanic who was reputed to be able to dismantle a Bentley with one hand and put it together with the other without dislodging a nut, who was usually cloaked in four layers of oil and who would come across, wipe the oil off the back of his hands and write a speedy certificate on something which looked remarkably like a wardrobe. Nowadays I read that the reply from the professional expert comes

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back: "I have examined this little bit of painted metal against fluorescent screens with infra-red rays; I have examined it under the electron and stereoscopic microscope; I sent it to the Soclay nuclear centre for analysis and examination by gamma spectrometry". It might well be that the gamma spectrometry would impress the Master in Chambers rather more than it would impress anyone who had heard the evidence in the case where that method was exposed by British scientists.
There is a great deal of advantage in having a clear idea of what a case is going to be about. But what happens? The solicitor is put in the position that he has virtually to draft the report. All this information has been gained by correspondence. Friendly experts go along and have a look at it; they are asked, "Tell me, frankly, what you say". All of it is privileged from disclosure—all of it should remain privileged from disclosure, until you have a whole series of statements to be embodied in a formal report to be put before the registrar. It is placing an immense responsibility on the solicitor to say that he must suggest to the expert the sort of thing that should be there—I do not mean the answers, but he has to postulate all the necessary questions.
There might very well emerge methods of disclosing facts which should not be disclosed, methods which are deliberately used. In the case of Bartolomeo Vanzetti the district attorney asked the ballistics expert if the gun could fire the shot in question, and the ballistics expert said it could fire any shot of that calibre. The district attorney said, "The question is, could this one have fired it?"; and they evolved the form of words, "It is consistent with being fired by that revolver". That evidence stood until Vanzetti was condemned to death. You can frame your evidence. If you are preparing a report you can frame it. Can you say, in a machine case, "I went to the works, and I said to him, 'That is the second accident you have had with that machine already, and I told you about it last time I was here'"? Can one include these things as hearsay? The solicitor may be criticised either way.
I wanted to say one word about one point in the report and about which I feel as strongly as it is possible to feel
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within the limits of a maiden speech. That is the reference to malingering—a special procedure for the malingerer. First of all, I want to say, quite frankly, that I am not sure what the term means, nor does any dictionary seem sure. It has a military or naval connotation. In my particular recollection it has relevance to a young man a month or two older than myself who went out with starry eyes and great courage to endure the most dreadful human circumstances that civilised beings have ever been called upon to endure. He broke up, and his burdens were taken away by the firing squad. That was "malingering".
What does it mean now? I say in absolute sincerity to the noble and learned Lord that in 23 years of membership for Oldham I have never come across it. We have had what I call "skrimshankers"—chaps who draw benefit and spend it on the racecourse. In relation to illness, may I quote a case which arose many years ago of a young lady, badly bruised, shocked and with contusion of the brain. Suddenly she began to lose weight and she refused food; she seemed to gain strength actually, but was losing weight and gradually appeared to be starving to death. She took to her bed and then it was found that not only had she refused food but food was hidden all over the room, concealed to try to convey the impression that she had eaten it. That was malingering, if you like—it was virtually an attempted suicide—until we called in another dietetic expert who said, with real joy, "This is a classic specimen of anorexia". Noble Lords will find it described in the medical encyclopædia now: etiology, shock, emotional or traumatic shock, prognosis virtually impossible, may be cured by affection or considerate treatment, maybe spontaneous remission, maybe death.
At the hospital at Sutton they had a wing which was called "For workshy". It was a bad word to choose. It was perhaps used only colloquially. But of course you do not send workshy people for medical or even psychiatric cure. They were men who had been broken down. One of them, I remember, had been wounded in the war and had carried on a very difficult task under very great strain. I respectfully suggest to the noble Lord that he really should wonder whether it is right to make an

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exception in favour of insurance companies. I do not know how you find and detect a malingerer. I do not know what tests you apply—taking the man by surprise and testing his nervous reactions when he is not looking, or taking notes on a tape machine, or conducting a secret investigation. It does not sound a very pleasant process. But surely the man is entitled to know.
What does the solicitor do when the registrar has refused to grant a certificate because the man is alleged to be malingering? Does he say to the man, "You are accused of malingering". He must. Does he send him home under that intimation? Does he leave him there, getting worse and worse as he awaits the trial? Is this something worth while, reversing the normal procedure and, if I may say so with great respect, to some extent standing the law on its head? Because were he accused of the crime of obtaining money from the insurance company he would have all the particulars furnished to him, but here he is accused in a civil action and is deprived of any information of the offence he is accused of. I ask for these matters to be considered I apologise if I have exceeded my time; I hope I have not. I am grateful to your Lordships for listening to me and grateful for the privilege of being here and being able to participate in the debate with the noble and learned Lords who have shown so much courtesy and consideration in relation to these remarks.
8.0 p.m.
LORD STOW HILL: My Lords, one of the most valued privileges of membership of this House is being called upon from time to time, in your Lordships' name, to bid welcome to a new Member and to thank him for his contribution when he makes a maiden speech, and that is a privilege which I exercise with extreme pleasure at this moment. We are discussing expert witnesses, and I can speak as an expert witness, in every sense qualified within the definition contained in the Law Report Committee's Report, when I say that we shall all greatly benefit and derive enjoyment and advantage from the companionship of my noble friend in our circle over the years. I speak as an expert witness because for many, many years, day in and perhaps
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I might say night out, I sat side by side with my noble friend, and the noble and learned Lord sat opposite him. I think that qualifies both of us as expert witnesses to say that his speeches will add greatly to our debates. They will enliven them and enrich them, as did his maiden contribution to-day, and I, for one—and I am sure all of your Lordships also—shall be very glad to see him with us and to hear him as time goes by.
We are discussing the question whether there should be a power to order the preliminary disclosure of some—and I emphasise the word "some"—experts' reports; those experts' reports which come within the very narrow limits of the definition which is contained on page 15 of the Law Reform Committee's Seventeenth Report, part of which has already been read out to your Lordships by my noble and learned friend Lord Gardiner. I think that definition is so important that I should not be trespassing unduly on your Lordships' time if I just reminded you once more of precisely what it was that the Law Reform Committee was recommending. It was recommending disclosure of reports which came within the following description:
"(a) is appropriate in cases where the expert's report may be expected to be based upon facts which are either agreed or can be ascertained with reasonable certainty by the expert himself by the exercise of his own powers of observation or are within his general professional knowledge or experience".
The report, in order to qualify for compulsory preliminary disclosure, has to pass within those narrow gates. The Law Reform Committee went on to exclude
"cases where the expert's report may be expected to be based to any material extent upon a version of facts in dispute between the parties which has been supplied to him by the party on whose behalf he has been instructed."
With great respect, I once again, when we are discussing this matter which is of importance, call attention to and dwell upon that distinction. Where you have a report which is a report on facts which the expert knows well—they are recorded, there cannot be much dispute about them—that is the sort of report which the Committee thought should be disclosed. Where you have a report which depends upon facts not yet ascertained, facts which are in dispute, facts which in due course will be examined

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and elucidated at the hearing of the case, then that report, based on facts which are uncertain in that sense, is, in the view of the Committee, not suitable to be ordered to be disclosed before the hearing of the case.
I listened to my noble and learned friend Lord Gardiner. I heard his strictures of the Rule Committee. We are not discussing an Amendment about the composition of the Rule Committee. It may well be—I do not know—that there could be improvements in the structure of the Rule Committee, but that is not before this Committee of the House at all. The Rule Committee is an entirely different matter. What we are discussing is the simple question: should that limited category of reports be made subject to a power to order preliminary disclosures? In my submission, the answer to that should be, Yes.
My noble and learned friend Lord Gardiner made some statements which rather surprised me. One statement—and I hope that I do not report him inaccurately—was that learned judges do not know what causes or increases costs in the preparation of litigation. It may well be that if somebody asked my noble and learned friend Lord Diplock to prepare a bill of costs in statutory form, he would find some difficulty about it. I do not suppose he has done it. He has probably seen dozens and dozens of them. So, no doubt, have the other six judges who constituted the majority of the Law Reform Committee. To say that they do not know what causes costs in litigation is to say something which, to me, is altogether astonishing. In this country we follow what I think is such a very sensible procedure: we appoint judges from the Bar. Now some judges are to be appointed from practising members of the solicitors' profession. But we limit our appointment of judges to persons who, for years and years, have had their noses rubbed into the angles of the actual conduct of proceedings. We watch them as they progress in their profession—when I say "we" I am arrogating to myself a function which I do not possess, but the noble and learned Lord does this, as have his predecessors, and I am sure that they will agree with me. They watch their character, their prowess as advocates and their general experience; and their common sense and their broad wisdom are considered.
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In due course, when they have reached the appropriate stage, the question is determined as to whether they can be recommended to Her Majesty as suitable appointees to the Bench.
To treat persons of that sort as persons who are novices, tyros, in the matter of What causes expense in litigation, seems to me really miles away from reality. I just cannot accept it. In many countries on the Continent they appoint judges from a special school for judges, which I have always thought a great mistake. I have always thought that our own system is infinitely better, because you appoint people who know what they are talking about, who know the problems which actually confront practitioners and the sort of points which have to be looked out for from the Bench.
I go further and say this. It may well be—and I certainly would not take it upon myself to deny it for a second—that the Law Society and the Bar Council are perfectly right in saying that if reports are ordered to be disclosed in advance, that, in the cases in which it is ordered, will occasion more expense. I certainly would not take it upon myself to contradict the view of either of those two bodies which have such great experience. One of the points of my noble and learned friend Lord Gardiner with which I agreed was when he said that courtesy requires that we should give most careful consideration to their views. I have done so and I have examined both Reports most carefully. I have certainly pondered upon them, and I am certain that every other noble and learned and noble Lord who has taken part in this debate will have pondered them equally. But the sort of reports which will qualify for preliminary disclosure, in terms of the definition in the Law Reform Committee's Report, are generally—not always—and very frequently reports in weighty matters. If one is talking about the report of a chemist, the report of an economist, the report of an accountant, the report of a physicist or something of that sort, then one is probably concerned with some litigation which involves a considerable amount of money, and if some more expense is occasioned in litigation of that sort then so be it, provided that there is a compensating advantage.
I personally am very much impressed by the fact that six judges, with their

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experience, think that this is a proper course. I am impressed by that consideration for this reason. Learned judges who have tried cases are uniquely qualified to tell the Committee what is the help that they expect from counsel; and if they have found that counsel perhaps have not been able to give them quite the degree of help that they would have hoped for when counsel has been suddenly confronted with a complicated report and with the duty of cross-examining on that report without having previously considered it or knowing its contents, then it seems to me that we ought to give great weight to that view of the judges. They, and they only, are able to speak of the help that they want from counsel, and perhaps to hint that possibly that help is not always forthcoming under the existing system. That carries very great weight with me. They are very much better qualified to express views on that topic than are practising members of the Bar.
Then, does it provide a compensating advantage for extra expense caused if reports have to be disclosed beforehand? I should have thought, "Almost certainly, yes". One way in which it compensates is that it enables the judge, I should have thought—and I imagine that that is the view that they formed themselves—to be more confident in concluding that he has reached the right answer in the litigation that is before him. That is one point. On the pure matter of £.s.d. I should have thought also that there was a compensating advantage because if counsel has already had his mind directed to the relevant points in the reports before the court he can go straight to those points and can confine his cross-examination to those points; he can be sure that he is ready with the necessary questions to test the reports on those points; and a great deal of judicial and public time, I should have thought, was in consequence likely to be saved.
Your Lordships may have divined from what I have said that I personally do not feel able to agree with the view of my noble and learned friend. I personally feel very strongly convinced, much more than when I first studied this Bill and when I spoke on Second Reading, that the view of the majority is right.
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When I spoke on Second Reading I spoke somewhat hesitatingly. I have since given it much more careful consideration, and have again re-read the material with great care. Having done so, speaking for myself, I very much hope that the noble and learned Lord, Lord Diplock, will adhere to the view of the majority of the Law Reform Committee in the recommendations that he makes to this Committee as to the way it should vote.
8.18 p.m.
LORD PEARSON: I wish to be quite brief because I am well aware that several noble and learned Lords wish to address the Committee, but I think I ought to say a few words to explain the point of view of the majority of the Law Reform Committee, who made this recommendation, among others. I am happy to say that we were of one mind on all other points, but on this one point there was a difference of opinion. I would of course be the first to say that it is an admirable thing that the point of view of the minority has been so ably and fully put before your Lordships' Committee. It is very right and proper that the view of the minority, supported by the opinion of the Bar Council and the Law Society, should be fully considered. But in spite of that I am not able to agree with them.
The way in which I would approach the question is this. We have had experience for quite a number of years of the advantages of the parties' medical reports in personal injury cases being exchanged with a view to an agreed medical report being produced if possible. I can remember the time when there were no such agreed medical reports and no provisions for exchange. I can even remember the days of workmen's compensation, when it was expected that the two medical experts would be called on the two sides and would disagree on almost everything; and it has been to me a very pleasant surprise to find what a very great change has been made by the now well recognised routine—almost routine, but on a purely voluntary basis hitherto—of medical reports being exchanged. The result has been that in a great many cases an agreed medical report has been produced; and even when it is not possible for the medical experts to agree on all aspects of a case they can very often agree on a substantial

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part of it, and only a comparatively small part is left to form part of the oral medical evidence on both sides.
The advantages of the practice now proposed to be made into a more fully formalised procedure are several. First, there is the advantage that in many cases the practice of exchanging medical reports facilitates the settlement of cases, with all the advantages which that brings; and even if the whole case is not settled it may be possible for the parties to agree that a certain sum shall be awarded to the plaintiff if he is successful on the issue of liability. Secondly, the effect of this now well-recognised practice is that a great deal of time is saved at the trial, and the saving of time means a saving of costs. Thirdly, it is of great benefit to the experts themselves in that they will not have to attend court for long periods. It is very difficult to know exactly when a particular case will come on to be heard—the case in front may last much longer than expected—and in the old days the medical experts, doctors on both sides, had to hang around the courts for a very long period when they might, one thinks, more profitably have been attending to those who needed their professional ministrations.
That is the third advantage; but the fourth advantage, and the one which I should like to stress, as my noble and learned friend Lord Stow Hill has stressed, is the advantage to the administration of justice by the courts. My noble friend has said, very rightly, that sitting on the Bench one feels much more confidence if there has been a preliminary disclosure of medical reports, so that the medical witnesses, when called, and those learned counsel who have to conduct the examination and cross-examination of them, are well aware of what are the real points in issue, and therefore what are the points to which they ought to direct their evidence and any preliminary researches in preparation for the case. I emphatically believe that the administration of justice can be conducted much more efficiently if there has been preliminary disclosure of the expert reports on the two sides in the medical field, because that is the field in which we have ample experience.
As noble Lords will have appreciated, so far there is no dispute that this well-recognised practice of exchanging medical reports ought to be continued and ought
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now to be reinforced by some compulsory powers if the Rule Committee decide that that is desirable and necessary. The only dispute, then, is this—and it is a comparatively small point. Should there be the possibility of extending this system, already well proved with regard to the reports of medical experts, to other expert reports? One is bound to ask, "Why not?" Why should one not seek to obtain similar advantages in other fields? It is important to observe that the provisions which the noble and learned Lord, Lord Gardiner, seeks by this Amendment to remove from the Bill are provisions of a very moderate character. They empower the Rule Committee to make such rules as the Rule Committee see fit to make. I may perhaps be forgiven for mentioning that I was a member of the Rule Committee for a considerable number of years, and I did not realise at that time that there was anything wrong with the Rule Committee's composition. Perhaps one ought to have seen further. At any rate, this will have to be considered by the Rule Committee. They will have a pretty free hand because the Act does not lay down much in regard to procedure.
There are in the actual Report a number of suggestions as to what the procedure might be. We thought it right to go into some detail in order to see as best we could whether some workable procedure could be devised. But those mere suggestions made in the Report as to what the detailed procedure might be will in no way bind the Rule Committee. We hope that our suggestions will be of some use, but it will be entirely for the Rule Committee to make up their own minds as to how these things should be worked. I should have thought, after that if the Rule Committee do make rules they will be rules which empower the Court to make orders. The Court will not be required to make orders; there will simply be a power. Of course the power will be exercised in those cases which seem to the learned Master (usually it will be a Master) to be suitable cases. All that has been said on this side may supply very important and strong reasons for not making the order in a number of particular cases. It must depend on the particular case.
Why I am wholly unable to adhere to the Amendments that have been proposed

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is because I think the possibility should be kept open; there ought to be the power. As this system has worked so well in one sphere, there ought to be power to extend it, in suitable cases, to other spheres where other experts are concerned: architects, surveyors, valuers, and all kinds of experts. Surely there must be a number of cases in which such experts, if they exchange reports, will be able to reach the same kind of agreed report as now very frequently one finds the medical experts are able to produce. On that basis, that this is a very moderate provision enabling useful experiments to be made—with, I would say, a very good chance of success in a considerable number of cases—I would urge that this present clause be left unaltered and that the Committee do not accept the Amendments proposed.
8.23 p.m.
THE LORD CHANCELLOR: I do not wish in any way to curtail this debate, but I thought it would be convenient if, speaking from the Government Front Bench, I indicated the line that I hope the noble and learned Lord on the Cross-Benches who is in charge of this Bill, which is a Private Member's Bill, might take in relation to the Amendment proposed by the noble and learned Lord, Lord Gardiner. Before I do so I should like to join with every word that the noble and learned Lord, Lord Stow Hill, has said about the maiden speech—an unusual maiden speech, if I may be permitted to say so—from the noble Lord, Lord Hale. The truth is that we all have known him for many years and regard him as an old friend. The noble Lord, Lord Stow Hill, of course is a member of his Party and I am not; but I can assure him that the warmth of feeling expressed from the Opposition Front Bench is fully shared on this side. He will be welcome as often as he comes, and we shall be greatly encouraged and improved by the content of his speeches. I hope that, as it was a slightly unusual speech, he will allow me—though it is perhaps not in accordance with convention—to answer some of the arguments he advanced, but it would be an added courtesy if I referred to some of his remarks as I go along.
I think it is important that we understand exactly what we are talking about.
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This has been rather an esoteric discussion, if noble Lords will allow me to say so, between members of a profession who rather tend to assume a knowledge on the part of lay members of the Committee which they may not necessarily have. May I try to put the thing in my own language? Of course the courts very often have to deal with pure questions of fact. Were certain words spoken? Was a certain document executed by the person whose signature it appears to bear? Was somebody present at a conversation or not? In that case, you are dealing with an issue of fact as to which expert evidence is not required and as to which the ordinary practitioner can make up his own mind with confidence both about the line he wishes to take in cross-examination and about the evidence which he may wish to call in rebuttal. The learned judge, when he hears it, with the experience of a lifetime behind him, as the noble Lord, Lord Stow Hill, reminded us, can apply his mind to the question of fact (and with a jury trying the case the jury can apply their minds in the same way) using ordinary common sense.
But litigation is not always, and perhaps not often, as simple as that. You get a large number of questions in dispute which are matters of opinion as to which the lawyer as such cannot offer a useful view of his own. They can be questions of medical expertise; and the noble and learned Lord who has just spoken gave a number of other examples of matters known best to architects, physicists, accountants, valuers. Almost every expert profession is at some time called upon to give testimony as to a complicated technical question within its own special knowledge. Of course the lawyer is not as familiar as the expert with that field, yet the judge or the jury have to make up their minds as to which is right.
I can only speak from my own practical experience. It is difficult, if you do not know in advance what the expert is going to say on the other side, either to take your own line or to know what line to take in cross-examination or what evidence to call in rebuttal. In practice you have an expert of your own sitting behind you, hastily whispering or writing notes telling you why the other man is wrong, and all the time you are uneasily

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aware—at least I have been in my own experience—that if the two experts had only got together in advance and discussed the matter, a great number of the points at issue would turn out to be mere misunderstandings, and the whole question would eventually resolve itself into one or two perfectly simple, definable questions as to which the court would ultimately have to make up its mind.
What the noble and learned Lord, Lord Gardiner, is arguing for is to make both sides fight in the dark as to what the other side is going to say in matters requiring technical knowledge. This of course makes advocacy much more exciting, and perhaps it puts the skilful advocate, as was the noble and learned Lord in his days as an advocate, at a great advantage over the unskilful advocate. But it also puts the judge in a difficult position. It means that the cross-examination is less effective; it means endless time wasted on unnecessary disputation about matters which could have been resolved if the parties had played their cards face upwards, and no doubt in the end the judge has less material available on which to arrive at a shrewd and correct conclusion.
In passing, I must say, with the noble Lord, Lord Stow Hill, and against the noble and learned Lord, Lord Gardiner, that although I am necessarily, in my present position, as keen as anybody on reducing litigation costs, I am even more keen on getting a correct result, because in the end the standing of the profession and of the Judiciary depends on not making mistakes and getting the right result rather than on the saving of a few pounds and getting a cheap and quick one—although, as I say, I am eager for the latter. Like the noble and learned Lord and like Lord Hale, I can well remember the workmen's compensation cases. One of my earliest tasks was to cross-examine no less a person than the father of the noble Viscount, Lord Eccles, when the issue was whether or not a hernia existed—something which could have been ascertained by inspection and of course would never have been disputed if the present practice had been in operation.
But for donkey's years now in medical cases the parties have been compelled, more or less, to play the game with the cards face upwards; and the modest proposal of the majority of the Committee is
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that the system which has proved successful in medical cases can be extended, if the Rule Committee can devise a way in which it can be suitably extended. And if I am asked why, I hope that I have said enough, from the commonsense point of view of the ordinary practitioner, to be able to reply rather boldly to the noble and learned Lord, and to the Bar Council, and to the Law Society (whose views I normally respect very much): "Why on earth not, if the object is to find out the truth, to save time in needless points of unnecessary dispute and to enable counsel to know in advance—in a very highly technical matter of which he has no personal skill—how to conduct his case and arrive at the real issue in order to present it effectively to the court?"
Why on earth not? Why not give the Rule Committee that power? Of course I do not complain that the noble and learned Lord has put down this Amendment. He has, perfectly correctly, prayed in aid the view that the Bar Council and the Law Society are entitled to be heard in your Lordships' House. If I may say so, no one is better qualified to put forward their point of view than he is; and as usual he put it forward extremely well. But at the end of the day I am bound to say that there was one thing he was not entitled to say; that is, that there is a united profession. It is of course true that the Bar Council and the Law Society both, by a majority, take the same attitude, which is not always the case. But the profession is not united about this subject. Of the Committee whose Report we are seeking to implement, two of the five practising members of the profession were on the side of the six judges so that the others had a majority of only one out of the practising members in the Committee.
I must say, frankly, that I agree with the criticism by the noble and learned Lord, Lord Stow Hill, of the noble and learned Lord's strictures on the Rule Committee. I agree with the noble and learned Lord, Lord Stow Hill, that this is, strictly speaking irrelevant to the present dispute because the Committee is well able to make up its mind on the merits of the argument without considering the composition of the Rule Committee. It remains true that the recommendations

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in the Evershed Committee's Report to which the noble and learned Lord referred, about the composition of the Rule Committee, were put forward as long ago as 1951. The noble and learned Lord, Lord Gardiner, managed to sit on the Woolsack for a very long time, with great distinction, and he never thought it right to change the composition of the Rule Committee. To bring forward now that the Rule Committee is improperly constituted, when the point is any way irrelevant to the question under discussion, is, I should have thought, an ignoratio elenchi of the worst possible kind.
The truth is, of course, that the practising profession is represented on the Rule Committee. There are two barristers and two solicitors: that is four. It is true that the judges are in a majority, especially if you consider the Lord Chancellor a judge, which he is; although in the case of the noble and learned Lord, Lord Gardiner, and also in my own case, we came straight from the Bar and have more than a little recollection of our experience as advocates behind us. But the judges are in touch with the Masters of the Supreme Court. They do not gang up, like a sort of closed caucus, on the Rule Committee to vote against the members of the practising profession. The matter is threshed out in the Committee and nobody tries to "steamroller" anybody else.
In the last resort what the Rule Committee does is to try to make up its mind as to what is practicable and what is desirable. In this particular matter I should have thought that the judges had something rather useful to say. There is no doubt that the practising members of the profession—I tried to make this point on Second Reading—get great excitement out of playing their case with their cards pressed closely to their chests so that no one can see their hands. But judges know what it is like to try a case, and to have to try a case conducted in that way must be very difficult. I think it significant that the judges who have that expertise all want the majority view to be put into effect.
That brings me to the second speech which was, I fancy, made in support of the Amendment, though I was not quite
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sure; namely, the speech of the noble Lord, Lord Hale. It was not of course a matter of coincidence that a number of his examples were medical examples. There was the case of anorexia to which he referred, and he referred to experience of miners' nystagnus. Also there were his remarks about malingering. But the fact of the matter is that, except in the case of malingering, the proposed practice is already operated and has been for donkey's years; and the only question is whether a successful practice of this kind should be extended to other kinds of expert testimony. It was not, I think, without relevance that in the one example which the noble Lord gave from outside his experience of non-medical testimony—namely, the Vanzetti case (although it was a criminal case and therefore outside the scope of the present discussion)—if the ballistics experts had been able to agree their reports in advance I wonder whether that damaging piece of testimony, which was really inconclusive, would ever have been given at all. I should have thought that if there were a case against the Amendment and for the Majority Report it could be the Vanzetti case translated into civil terms.
That leaves me at the end completely convinced that we must go ahead with the Majority Report. I would very strongly urge the noble and learned Lord, who proposed the Amendment so well, to decide on reflection that it is not worth taking it to a Division, because his view has now been thoroughly aired. I must say that if it were taken to a Division I would strongly recommend, with the noble and learned Lord, Lord Stow Hill, that the Committee reject the Amendment.
8.39 p.m.
LORD SIMON OF GLAISDALE: Before speaking to these Amendments I hope that I may be allowed to be associated with what was said so finely by the noble and learned Lord, Lord Stow Hill, and the noble and learned Lord, the Lord Chancellor, about the speech of the noble Lord, Lord Hale. Because, like them, I was a colleague of Lord Hale in another place and was constantly entranced by his eloquence, his wit and his generosity of spirit. It is a great privilege to be able again to follow him in debate. I venture to intrude in this debate because I think that, of all

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your Lordships, I am the one who has most recently been concerned with trials at first instance. Also I was for many years a member of the Bar Council. My second spell was under the chairmanship of the noble and learned Lord, Lord Gardiner, and I think I could be acquitted of any lack of sympathy with the views of the practising profession. Nevertheless, I am entirely convinced that the view of the majority of the Committee, the measure proposed in the Bill, is right, and that the measure proposed in these Amendments is misconceived.
It is not only my own view that I venture to put forward. It is not only the view of the majority of the Law Reform Committee; it is not only the unanimous view of the Winn Committee. It is also the view expressed at one time by the noble and learned Lord himself, because, as he reminded us, he was a member of the Evershed Committee; and on this matter they were unanimous. They were dealing, as he put it, with pure questions of practice. This is what the noble and learned Lord himself said in signing that Report. I am quoting from paragraphs 289 and 290 of the Final Report, where they say:
"A party is apt to rely on his expert's evidence as producing an element of surprise. This often leads to a waste of time and does not assist the Court in coming to an accurate decision as to the facts. The element of surprise is no doubt good tactics under the Rules as they exist at present and on the principles generally adopted today in contesting cases. In our view this element of surprise does not conduce to decisions in accordance with the true facts. The more this element is eliminated, the more correct is likely to he the judgment of the Court. It is, therefore, eminently desirable that each party should know what is the expert evidence to be called for the other side."
And they go on to make the recommendation that the Bill implements. They also, in the following paragraph, refer to the saving of time and money in the proposal. I find myself entirely in agreement with what is there said.
I desire to add only two things. The first is that this Amendment does not merely preserve a status quo; it does not merely stand in the way of a valuable reform: it is actually retrogressive. The first Amendment would limit the exchange of reports to personal injury cases. It would therefore prevent it in a field in which it has been found to be very valuable; namely, in infant cases, where
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there is constantly a dispute about the medical evidence relating to the child. Since 1967 there has been a Practice Direction stipulating for the exchange of medical reports in those cases. It is really quite fantastic to say that the proposal is unworkable when it has been found to work now over a period of five years.
The second and third Amendments limit the expert evidence which must be disclosed before trial to medical evidence. But since 1968 there has been a Practice Direction that in Admiralty cases expert reports must be disclosed before trial. That has caused no sort of difficulty, but has worked perfectly well. Yet if the Amendments are carried that, too, will have to be abandoned. If these things can be done by Practice Direction, there is, in my respectful submission, every advantage in having them scrutinised by the Rule Committee and for them to receive statutory force in that way. I therefore hope that the noble and learned Lord will withdraw his Amendment. If he does not, I must say that I shall feel bound to vote against it.
8.45 p.m.
LORD DIPLOCK: I should like to associate myself with the congratulations to the noble Lord, Lord Hale, upon his maiden speech in this House. Those who have previously congratulated him have had the privilege of hearing him before: for me, it was a novel privilege, and I hope that it will frequently be repeated. I should also like to thank those noble Lords who have spoken on this Amendment. Those who have spoken against it have, I think, said pretty nearly all that needs to be said. I am however, grateful to my noble and learned friend Lord Gardiner for having aired the minority view and the view of the Law Society and the barristers. However, I hope that after this debate he will not continue to press the Amendment.
The Amendment accepts the principle that it is right that medical reports should be exchanged in personal injury cases, but says that in no other circumstances whatever and in no other kind of case should there be power to exchange reports of any other kind of expert. So I ask myself: what is so special about medical reports? The only answer I can find is that barristers and solicitors have grown used to exchanging them now for thirty years, and that practice has proved

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useful. In nine out of ten personal injury cases at least that practice is followed voluntarily, and followed, I venture to think, because if the parties put their cards on the table it has been found to reduce costs and the length of litigation, and moreover—and very important indeed—is conducive to the just settlement of cases.
The same argument which is now being addressed against the exchange of reports of other kinds of witnesses would have been advanced thirty years ago against the order to exchange medical reports. We should have been told about the expense, the delay and the necessary conferences over the settlement of the medical report. Why should this expense be involved? Experts such as surveyors, dealing with dilapidations or the state of buildings, engineers dealing with machinery, chemists, valuers, all equally satisfy the criteria referred to by my noble and learned friend Lord Stow Hill and suggested in the Majority Report as being the appropriate criteria. When I was trying cases I saw dozens of these reports, because when an expert witness of that kind was called I asked whether he had a report, and if he had I asked him to show it to me, because it saved my taking a great many notes.
The suggestion that it is more difficult to produce that kind of report than it is to produce a medical report baffles my imagination. The trouble is that lawyers as a profession, bold though some of them may be—and my noble and learned friend Lord Gardiner is one—in reforming the substantive law, the moment that there is some suggestion that there should be the slightest change in the way in which they practise their mystery or their craft, are the most timorous of creatures on God's earth. I believe—indeed I have no doubt—that the fears of the Law Society and the Bar Council on this very slight change in the way they practise their mystery will prove unjustified. But if this Amendment is carried it will be quite impossible to prove whether those fears were justified or not. On the other hand, if this Amendment is rejected and their fears, contrary to my confident belief, prove to have some shadow of foundation, the Rule Committee either will not extend the power to compel exchange of other reports
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or can modify or revoke the rules in the light of experience. I invite this House to give them a chance, and I hope that my noble and learned friend will not press his Amendment.
LORD GARDINER: It is obvious that my Amendments do not appeal to the Committee and I do not propose to continue the discussion any further. I am grateful to the House for the consideration which has been given to them. I have achieved my object, in that the Bar Council and the Law Society will now know that careful consideration has been given to their views in this House. There is the additional advantage in that it has led to a maiden speech from my noble friend, Lord Hale. It was, if I may say so, a great pleasure to me to hear him. I am only sorry that his maiden speech was not made in a fuller House, but I hope that very soon a fuller House than this will hear him again. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 2 agreed to.
Clauses 3 to 6 agreed to.
House resumed: Bill reported without Amendment; Report received.

DEFECTIVE PREMISES BILL
8.55 p.m.
LORD STOW HILL: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Stow Hill.)
On Question, Motion agreed to.
House in Committee accordingly.
[THE EARL OF LISTOWELL in the Chair.]
Clause 1 [Duty to build dwellings properly]:
THE EARL OF KINNOULL THE EARL OF KINNOULL moved Amendment No. 1:
Page 1, line 5, leave out ("taking on") and insert ("undertaking").
The noble Earl said: I beg to move this Amendment. This small but important Bill seems destined either to be considered with extreme rapidity in another

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place or at an extremely late hour in this House; and I am sorry that this should have occurred. The purpose of this Amendment, together with the other 13 Amendments under my name, is to clarify Clause 1 which is causing some concern among a number of people and professional bodies because of its obscurity. My purpose to-night is to ask the noble and learned Lord, Lord Stow Hill, to consider whether certain alterations should be made in the drafting of the clause, not to alter its purpose but to assist the layman to interpret the clause when it reaches the Statute Book. In considering the Bill, we have of course the advantage of knowing the purpose of all the clauses following the very excellent Report of the Law Commission on the receipt of the Bill. The question on this Amendment which exercises the minds of the Law Society, I believe, and the Royal Institute of Chartered Surveyors, of which I must declare membership, is whether the purpose set out in the Law Commission's Report will be interpreted in the Bill as at present drafted, or whether the purpose in future will be frustrated because of long and fruitless litigation owing to obscurity in the drafting of the Bill.
I am sure that the Committee will agree that Clause 1 represents an important change in the law of property. It will obviously affect the owners, builders, contractors, sub-contractors, architects, surveyors and a whole host of people connected with property. The old caveat emptor principle, where purchasers of property had no redress on vendors unless it was clearly spelt out in the contract, is being changed. Vendors of new dwellings or of converted dwellings—one assumes that that would be flats in old converted houses—from now on will have a statutory duty to purchasers and no doubt this will be covered by insurance policies. I believe that this change will affect a great many properties, and particularly houses being converted. I noticed that the noble and learned Lord, Lord Stow Hill, mentioned that Victorian mansions and Elizabethan manors will not come within this clause. I would suggest to him that with the modern trend of converting properties into flats, these large old houses may very well be affected.
In moving Amendment No. 1, I should also like to speak to Amendments Nos.
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4, 10, 12 and 13. This Amendment is simply to substitute for the expression "taking on work" that of "undertaking work". Criticism has been made of the expression, "taking on work". In the first place, I understand that the phrase is new to legislation and possesses no legal definition. In the second place, there is some doubt as to exactly what it means. Does it mean assuming responsibility for work and will it include work which is done by the owners themselves? Could it include persons who have only a tenuous connection with the provision of the dwelling? In this connection one has in mind estate agents and even building society valuers. Lastly, I should like to try, if I may, to convince the noble Lard, Lord Stow Hill, by drawing his attention to the fact that on page 24 of the Law Commission's Report the word "undertaking" appears rather than the expression "take on".
LORD STOW HILL: May I at the outset express my gratitude to the noble Earl for directing attention to this point and say to him perfectly frankly that when I first saw the expression "taking on" I did not like it. I wondered what it meant and I considered whether some change could be made. If I may say so, the matter has been most closely studied and alternative forms of words have been tried and considered by the Law Commission, by Parliamentary Counsel and, if I may say so very modestly, I have also tried very hard to find some phrase which would be more precise in this particular context.
The result of those endeavours has led back to the use of the expression "taken on", and I will explain why. Before I do that may I correct a wrong impression that some language which I used on Second Reading may have produced; namely, my reference to Victorian mansions and Elizabethan manors. The Law Commission formed the view that the principle, Caveat emptor, should not be interfered with in general but only in the limited category of cases which are referred to in Clause 1; namely, cases where fresh dwellings are provided. The provision of new dwellings can be brought about either by building them from scratch, or, if one looks at the words in line 7, "by the conversion or enlargement of a building". I accept that if you

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convert a Victorian mansion into a completely different dwelling, or perform a similar process on an Elizabethan manor, learned judges might well conclude on that language (and it would be within the intention of those who produced the Bill) that a conversion of such a manor or Elizabethan house might result in the provision of a new dwelling within the meaning of Clause 1. I hope that that has dispelled any misconception which I may have created.
May I try to answer the question which I posed as to why the word "undertaking" will be hardly suitable? The word "undertaking" seems to connote at first sight the notion of assuming a contractual obligation. To begin with, the clause is wider than that. It would cover the case of a person who builds his own house for his own residence. It could be said that he undertook the building of a house; but if you use a word like "undertake", which certainly has the ring of accepting a contractual obligation, it was thought—and I subscribe to that thought—that dubiety would be introduced into the clause and it would be more difficult for learned judges to construe its ambit. It was that consideration which, after mature experimenting, led back to the phrase "taking on work". A number of providers in a general sense are included: the builder, the developer who engages the builder to build a house, the local authority who engages labour to construct houses, the surveyor, the architect. All those persons can be said, so it is submitted to the Committee, in a broad sense to take on some part of the work which results in the provision of that house. I should be repeating myself if I said that we have found it extraordinarily difficult to light upon any expression which more effectively comprehends what is intended to be comprehended, than the expression we have used.
I do not know how far that explanation has carried conviction, but I hope that the noble Earl will accept that the matter has been thought out, though we have not found a better phrase. I submit that, for the reasons I have given, the phrase "undertaking" which he seeks to substitute also does not answer the question. I hope that, with that explanation, he will feel able to decide not to press his Amendment.
THE EARL OF KINNOULL: I am grateful to the noble Lord for his sympathy towards the clause. I am very willing to withdraw this Amendment.
Amendment, by leave, withdrawn.
9.5 p.m.
THE EARL OF KINNOULL THE EARL OF KINNOULL moved Amendment No. 2:
Page 1, line 6, leave out ("provision") and insert ("design or construction").
The noble Earl said: This is the second Amendment which tries to limit the category of persons involved in Clause 1. The Amendment is to leave out "provision" and insert "design or construction". As I understood the Law Commission's Report, they specifically stated that the category of people involved in Clause 1 was, as the noble Lord, Lord Stow Hill, stated, those who were owners, builders, sub-contractors and so on. I submit that the word "provision" as it reads in this clause could possibly go beyond the category that was intended by the Law Commission. I hope that is sufficient explanation, but if the noble Lord wishes me to explain further I am willing to do so.
LORD STOW HILL: I hope that the noble Earl will not think I am puffed up with conceit over the language that we have chosen. I respectfully submit that the word "provision" is the right one. One has to read the word "provision" together with the words in the brackets, "(whether the dwelling is provided …)". That links up with the word "provision". The subsection reads:
"… provision of a dwelling (whether the dwelling is provided by the erection or by the conversion or enlargement of a building …)".
I submit that the connotation of those words makes it clear that what you are contemplating is the bringing into physical existence of a dwelling. The noble Earl, in the speech that he made on the previous Amendment, asked the question whether, for example, a building society valuer would be included. As the Committee knows well, the test that the court applies is what is the connotation of the language used in its ordinary English sense? I submit in answer to his question that you could not in any sense when you take the ordinary English meaning of the word "provision", especially reading it together with the words in the brackets, say that the valuer who advises

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a building society provides the house. He does not perform the same work in relation to the bringing into being of that house as, for example, the architect who designs it, who prepares the plan which is to result in its appearing as it ultimately appears, or the surveyor or the builder. All those people in a real sense provide the house. I would submit that the limit is pretty clearly drawn in a way which would exclude the case which the noble Earl gave.
I hope therefore that the noble Earl may feel satisfied with that answer. Again it is difficult to find the right language. Those who prepared the Bill tried very hard to find language more precise in its outline, but again they failed, and I hope that your Lordships will feel, on reflection, that the concept is sufficiently clearly expressed in the word "provision", whether the dwelling is provided by erection or by the conversion or enlargement of an existing building. That is the answer which I would respectfully offer to the noble Earl.
THE EARL OF KINNOULL: Before withdrawing the Amendment may I ask the noble Lord one question? If a property is defective and is sold by the vendor to the purchaser—and one assumes the surveyor has been involved on behalf of the vendor—he has a duty, I believe, under this clause. He has admitted in advising his client, the vendor, that this property is defective. When the building society valuer is instructed by the building society he has to answer questions not only to do with the value but to do with the construction of the property. Surely his responsibility is very close to that of a surveyor on behalf of the vendor?
LORD STOW HILL: I would answer the question by putting another to the noble Earl. He poses the case of the person who values the house. He may value it either on the instructions of a building society or on the instructions of the vendor, the purchaser and a number of people concerned in the transaction which results in the passing of the property in the house from the vendor to the purchaser. At what stage could it be said—if one adopts the ordinary English meaning of the language—that the valuer, in giving his advice, in any sense at all provides the house? He
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gives advice about it which is, as it were, entirely outside the function of bringing into physical being that house. He simply expresses an opinion that it is worth £x or £xx—it means very many thousands of pounds in the context of the present day—but you could not say of a valuer, by whomsoever in that context he is instructed, that he in any sense—the English language being used in its prima facie connotation—takes part in the provision of the house.
THE EARL OF KINNOULL: Obviously I am satisfied with the noble Lord's kind explanation, but there is one final point I should like to put. Am I right in saying that the surveyor on behalf of the vendor would be included under this word "provision"? Is that correct?
LORD STOW HILL: A surveyor might well take part in the provision. He goes into the house and he says. "You cannot sell this house with the floor in that condition", or, "The staircase is shaky and might lead to a disaster. I advise you strongly to have that staircase changed".
Again I am speaking off the cuff. This is the sort of thing which the courts would have to investigate and I cannot bind them; learned judges have to form their own independent view. But I do not think it could be said of a vendor's valuer who performs that actual function of going into the house and recommending that before the sale takes place certain changes must or ought to be made in the structure of the house, that in so doing he takes part in the provision of the house.
THE. EARL OF KINNOULL: I am grateful to the noble Lord for that explanation and I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
THE DEPUTY CHAIRMAN of COMMITTEES: Before I call Amendment No. 3 I should point out to the Committee that if this Amendment is agreed to I cannot call Amendments Nos. 4, 5 and 6.
9.14 p.m.
THE EARL OF KINNOULL THE EARL OF KINNOULL moved Amendment No. 3:
Page 1, line 14, leave out from ("that") to ("the") in line 16 and insert ("as regards the work which he undertakes").
The noble Earl said: The purpose of Amendment No. 3, as indeed of Amendments Nos. 5 and 6, is again to try to

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clarify what is considered by some to be slightly woolly drafting of this section of the clause. The question one naturally asks is: Why was it necessary to include in this clause phrases such as:
"to see that the work … is done in a workmanlike or, as the case may be, professional manner, with proper materials".
I submit to the Committee and to the noble Lord that Amendment No. 3, which simply reads "as regards the work which he undertakes" so that the dwelling will be fit for habitation, covers entirely the words at present drafted in the Bill. I hope that that is sufficient explanation to the noble Lord. The purpose of the Amendment is simply to try to clarify the wording.
Perhaps I might quickly explain, it this is not acceptable, that Amendment No. 5 would cut out 11 words describing "workmanlike" with one simple word, "properly". I again suggest to the noble Lord that that would seem acceptable. Finally, Amendment No. 6, if Amendment No. 3 cannot be accepted, would cut out the words "proper materials". It has been suggested that the expression here in the Bill is indeed in the wrong place in any case: it should appear after "workmanlike" and not after "professional manner". I hope that that explanation is understandable to the noble Lord.
9.16 p.m.
LORD STOW HILL: I would say in answer to the noble Earl that there are two possible approaches here, of which one has been adopted by those who framed the Bill. One could use a word of rather general import such as "properly". One could use that and perhaps link it together with the words "fit for human habitation" and leave it at that. The alternative approach is to say to oneself: "We are considering here, first, builders, people who actually put the house together physically. Secondly, we are considering a range of professional persons. Thirdly, we want to sec what is the end result of their work." It is this latter approach which on reflection those who framed the Bill thought it was appropriate to adopt.
May I give an example as to why that approach was adopted? Supposing you get a builder who builds a house
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but uses material which could not be described as "proper material"; it is defective material in the sense that proper material would stand up for fifty years, whereas the material he uses is much less solid in quality. It will stand up for five, six, seven or eight years, and then it may well be that damp will come through and the wall will begin no crack, so that expense will be necessary and all the rest of it. If he has used that material the house is perfectly fit for habitation. He may have done his work in a work-manlike manner; the second-rate material is put together in a workmanlike manner. He is not a professional, so one does not have to consider the words "in a professional way" in respect to him. But this is the kind of situation which those who framed the Bill thought it necessary to avoid.
That being so, it seemed that the necessary conclusion of that way of thinking was that one should spell out what was required of those whose work together contributed to the provision of the house. Those who build it, the builders, must do it in a "workmanlike" way. The noble Earl said that that expression has given rise to doubt. I should have thought it is a word which is not infrequently found in the context of contracts, Statutes and decided cases, and that ordinarily, while language is often, in its very nature, ambiguous, that is a reasonably clear concept. Equally I would say the same with regard to the word "professional". When talking about the work of an architect one knows what that means. He can do his work in a had, slipshod fashion, and if he does so he is not doing it in a professional way.
I have already referred to the words "proper materials" and I hope I have also laid the foundation for the use of the words "fit for habitation". At least the building must be that. The materials may be first-class; the work may be highly professional and the work workmanlike in the extreme. But if the end result is something which a person cannot be expected to live in, again we say that those whose individual contributions produced the house which is not fit to live in have committed a breach of the duty created by Clause 1. I hope that, with that explanation, the noble Earl

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will feel that the choice that was made, of spelling out the obligation rather more fully than he does in his Amendment, was the right choice to make.
THE EARL OF KINNOULL: I am most grateful for that explanation. I wonder whether the noble Lord would address his mind quite briefly to the question as to whether the words "with proper material" should appear after "workmanlike". I think that might be better, and perhaps the noble Lord would consider it.
LORD STOW HILL: I see the argument and I should like to consider it. I quite understand the point raised by the noble Earl.
THE EARL OF KINNOULL: I am most grateful to the noble Lord, and I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
9.22 p.m.
THE EARL OF KINNOULL THE EARL OF KINNOULL moved Amendment No. 7:
Page 1, line 16, after ("be") insert ("reasonably").
The noble Earl said: The noble Lord, Lord Stow Hill, has just mentioned the expression "fit for habitation". In the Bill this expression is not given any definition. No doubt it is difficult to agree upon a precise definition, but I would submit that some guidance should be given both to the courts and to litigants as to the definition of the words, 'fit for habitation". I am suggesting in this Amendment that the word "reasonably" should be included. It is a small point, but I hope that it may be considered. I presume that the standard of fitness as defined in the Housing Act would be regarded as too low in the context of this Bill. Since I drafted the word "reasonably", it has been suggested that the expression "safe for habitation" rather than "fit for habitation" would be more applicable to this Bill because it would give a protection against injury rather than fitness for habitation. It is protection against injury in particular which this clause deals with. I beg to move.
LORD STOW HILL: So far as the words "safe for habitation" are concerned I think I may say that it was quite consciously the intention of those who framed the Bill that something more
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should be required than simply making the building safe. It has to be fit. The noble Earl now suggests that one should preface that with the word "reasonably". It is difficult to predicate precisely what the result will be. What is a house that is "reasonably fit for habitation"? If it is shockingly draughty, if it is gloomy in the extreme, if it shakes to bits when you walk across the floor, but if the rain comes through only in three or four places, instead of in two dozen places, I suppose one could argue—it depends on the circumstances—that it is reasonably fit for habitation. I dare say that a number of people might disagree about that. Personally I should disagree strongly.
The reason why I hope the noble Earl will not press this Amendment is that again it would introduce a considerable element of uncertainty. To say that something must be "reasonably fit" is telling the reader a certain amount but not really as much as he ought to know. It must be fit for habitation, and a properly built house containing good material and with the contributing labour carried out in a workmanlike and professional way. You have not to ask yourself the question, "If the rain comes in through two places does that make it not reasonably fit for habitation?" If the rain comes in, then the house is not fit for habitation and that is the end of it. There cannot be much uncertainty about that.
THE EARL OF KINNOULL: I am most grateful to the noble Lord. In fact, under the Housing Act the expression is "fit for human habitation". Should this not be in this Bill?
LORD STOW HILL: May I think about that?
THE EARL OF KINNOULL: I am most grateful for that. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
9.25 p.m.
THE EARL OF KINNOULL THE EARL OF KINNOULL moved Amendment No. 8:
Page 1, line 17, leave out ("when completed")
The noble Earl said: This Amendment is again a simple one to try to give a certain further clarification. The point has been made that under the present

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drafting one assumes that "when completed" refers to when practical completion has taken place; in other words, when the dwelling is ready for occupation. The danger is seen that if a vendor should leave the work uncompleted he could thus avoid the liabilities of Clause 1. In the absence of an architect's final certificate, it may be difficult to pinpoint the exact date of completion, particularly, of course, of conversions of flats. I hope again that I have said enough to explain the Amendment to the noble Lord. I beg to move.
LORD STOW HILL: I entirely agree that one has to be able to pinpoint some time as at which you have to be able to say of the house that it has been constructed in the right way. If one leaves out the words "when completed", I should have thought that one would be left in the dark. At what period of time are you saying it has to be fit for habitation? The logic, one would suggest, irresistibly compels one to the concept that it must be fit for habitation when it is finished, when the work is done. Those who framed the Bill have tried to comprehend that concept in these two words, "when completed". I quite agree that you may have a case where one of the window panes is not put in, or a couple of door handles are not properly adjusted, or something of that sort has not yet been done. But in answer to the question, "Could you say of a house that when it is still not finished that it is completed in the sense in which the words are used in this clause?" one would say, as we so often say. that this is the kind of situation which our judges can judge in substance. They always rescue us from situations of difficulty in which we find ourselves. They judge them by their obvious common sense and I should have thought myself that in any imaginary cases judges would not find it too difficult to say as a matter of fact whether one could reasonably predicate of this house that it was completed. They would ask themselves: "Are there too many aspects of it which require further work to be done?", but they might say, "The substance of the whole work has been carried out and even if there are one or two additions that have to be made here or there one cannot reasonably say that this house has not been completed."
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I would submit that one certainly must have some words there to try to pinpoint a time, a reference by which to judge these matters. When one gets down to it, it is difficult to find better words than those, and they should not impose upon the judges a task beyond what they could reasonably be asked to undertake.
THE EARL OF KINNOULL: I am sure that the noble Lord will agree that the main purpose of this clause was to catch the so-called jerry-builders and developers. Suppose a jerry-builder builds a whole series of houses and sells them to the purchaser but without the houses being wired. And then he says to the purchaser, "You can buy the house as it is. I will then, under a new contract, wire the house at additional expense." In that case is it possible for the jerry-builder to escape liability under Clause 1?
LORD STOW HILL: Again it depends upon the circumstances. if anybody chooses to buy something which cannot really be called a house, largely because it has only progressed a very few steps from its birth towards its final adult life, the blood be on his own head. But when the noble Earl says, "Supposing it has not been wired, will the learned judge say it is completed?". I should have thought probably not. I should have thought that equally it would be said that the jerry-builder has not provided a dwelling. If anybody likes to buy something with the intention themselves of completing it, it does not fall within Clause 1. I can buy the foundation of a house, intending to put the rest up myself. Clause 1 would not operate, because that is not a case in which a dwelling has been provided.
THE EARL OF KINNOULL: With the greatest respect to the noble Lord, I believe I am right in saying that there are houses, probably new houses, where people prefer candles, other things than electricity. I should not have thought the learned judge would say that the builder has not provided a house because it has not got electricity.
LORD STOW HILL: Again I think the answer must be that it depends on the circumstances. It is difficult to be absolutely precise as to which way the learned judge would find.
THE EARL OF KINNOULL: This is the very point where one is seeking clarification; the clause is very obscure. It is all very well to say it depends on circumstances, but it is of little help to those who may be involved with this Bill at a later stage.
THE LORD CHANCELLOR: I wonder whether I can help my noble friend. I think he is losing sight of the fact that the words "when completed", which he seeks to delete from the clause, relate only to the last part of the sentence in subsection (1). The words "when completed" relate to the words
"and so that as regards that work"—
the work which the person owing the duty has taken on—
"the dwelling will be fit for habitation when completed."
In other words, if a house is designed to have electric light fitted, as most houses nowadays are, and the builder does his work so badly that no wiring is provided in the conduits, he is not doing the work he has taken on, which includes wiring, in such a way that when completed the house will be fit for habitation. On the other hand, supposing a bricklayer is operating on the "lump", as I believe it is called, and lays his bricks so badly that the house will fall down in a reasonably short time, notwithstanding that electric light has not yet been installed, he has broken his duty at that moment; the duty has been broken when the work is done which he has taken on. He does not have to wait until the house is completed. The words "when completed" relate only to the last part of the sentence. I hope that helps my noble friend.
THE EARL OF KINNOULL: It certainly does, and I am most grateful for the guidance of the noble and learned Lord. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
9.33 p.m.
THE EARL OF KINNOULL THE EARL OF KINNOULL moved Amendment N0. 9:
Page 1, line 17, at end insert—
"( ) A person who undertakes any such work shall not under this section be liable in respect of any defect unless he shall have received notice of the defect within such time as is reasonable in all the circumstances after the defect was discovered or ought in all the circumstances to have been discovered."
The noble Earl said: I beg to move Amendment No. 9. Perhaps I could draw the attention of the Committee to Amendment No. 14 which is very similar in character. I hope the noble Lord, Lord Stow Hill, will agree to accept one of these Amendments. In the case of Amendment No. 14, perhaps I should draw his attention to a defect in my own drafting. It should read in the second last line
"of any defective work after the defect was discovered"—
not "after it was discovered". Does the noble Lord follow that?
LORD STOW HILL: Yes.
THE EARL OF KINNOULL: Again, some anxiety has been expressed that there is nothing in the Bill which puts the duty on a purchaser to notify promptly to the vendor, who, as we appreciate, will now be liable, any defects within a dwelling. The costs of remedying a defect can of course be substantially increased. I suggest that the vendor or the builder should be liable for damage under Clause 1, but only to the point where a defect ought reasonably to have been seen, and not for any consequential damage. Amendment No. 9 is so drafted that, if the purchaser does not notify the vendor within a reasonable period of time, the vendor will be completely absolved from any liability, but that may be going a little far. Amendment No. 14 is intended to protect the vendor against any consequential damage after a defect has been notified. I have not described the purpose of this Amendment very clearly, but I hope that the noble Lord has seen what I am driving at. I beg to move.
LORD STOW HILL: The noble Earl has made very clear to me what his view is, and what the contention is which he desires to put forward. I would respectfully agree with him that Amendment No. 9 goes much too far and that, in any event, under the existing law, under a principle to which I will make reference in a moment, a good deal—although not all—of what he wants to achieve by Amendments Nos. 9 and 14 is already achieved. That principle is that if you complain of somebody else's action and say that it caused damage to yourself, you are under a duty to take reasonable steps to mitigate that damage.

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If somebody breaks a contract with me, or somebody negligently pushes me over in the street, or somebody does some other act which gives me a right to corn-plain against him, I cannot recover by way of damages from him for damage which really results from the fact that I failed to take sensible steps to see that the damage was not more than it otherwise might be. That principle is statutorily described by the words: "It is the duty of a person to take reasonable steps to mitigate his own damage."
If one goes back to Clause 1 and assumes that the builder, the architect, the vendor or whoever it might be has rendered himself liable to proceedings because he has committed a breach of the duty which is created by Clause 1, the person who complains of that breach will not be able to recover from him damages which that person, by taking reasonable steps, could have avoided occurring. Therefore, if the purchaser, or some successor in title from the purchaser, knows perfectly well that something is going wrong and ought, as a matter of common sense, to let the builder, or whoever is the person against whom he feels he has a complaint, know about it, then I would respectfully submit—and I hope that the courts would so find—that that is a clear case in which the purchaser, or the successor in title, failed to take sensible steps to prevent the damage from being larger than it might be, and therefore he cannot recover for that increase in damage which he himself, by sensible precautions, could have avoided. If one applies that principle, it produces the result which is the fair result as between the two of them. The builder has committed a breach, but the purchaser or the successor in title must not aggravate the consequences of the breach by his own foolish conduct. That is the fair result between them, and that is produced by the existing law as applied to the provisions of Clause 1. I hope that that explanation will satisfy the noble Earl.
THE EARL OF KINNOULL: I am most grateful to the noble and learned Lord. I was not aware that the existing law applied. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
9.40 p.m.
THE EARL OF KINNOULL THE EARL OF KINNOULL moved Amendment No. 11:
Page 2, line 13, leave out ("in") and insert ("for").
The noble Earl said: This again is a simple drafting Amendment. As to its purpose, the Committee will recall that the Law Commission's Report stated specifically, in relation to the parties to be caught within the net of Clause 1, that, in addition to the owner, the developer, the contractor and the subcontractor, the intention was to include suppliers of purpose-built components but not suppliers of mass-produced components and general building materials. The questions I should like to put to the noble Lord, Lord Stow Hill, are these. First, what is the real difference between these classes—that is, the suppliers of purpose-built components and the suppliers of mass-produced components? And is the drafting as it is at present sufficient to carry out in the future the intention that the Law Commission had? Secondly, I should like to ask the noble Lord how prefabricated houses are treated under this clause. Finally, I should like to ask this question. The present description is "installations in dwellings". What would happen if a gutter, affixed to a dwelling but outside that dwelling, became defective? Would this be caught under this clause? Because at the moment it specifically says "in" dwellings. I respectfully suggest that if he accepts the word "for", this would include the guttering. I beg to move.
LORD STOW HILL: The answer that I would offer to the noble Earl's argument is this. It really will not make much, if any, difference if we substituted the word "for" for the word "in". My reason for saying that is this. If you look at subsection (4), you will see that all subsection (4) is describing is the category of providers who are brought within the scope of the clause at all. If you are talking about somebody who installs pipes in a house—that would be an installation—he has got to be a person whose business it is to provide, in this case, pipes in a house. That clearly would be an installation. Once you have got him within the scope of the general description in subsection (4), you then

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go back to ask: Has he, in terms of subsection (1), contributed to the provision of the house? That being so, I submit to the noble Earl that it does not really make any difference whether you speak of him as a person whose business it is to provide installations "for" or "in" a house. They are house installations—pipes, or something of that sort.
Then the noble Earl asked me what is the position if guttering attached to the outside of a house is defective and collapses, whether because it is not put up in a workmanlike manner or because the materials are inadequate, or something of that sort. The answer is that there would be a claim in respect of that, because that would be a case in which the gutter provider, whoever he may be—the builder, or a person who specialises in the provision of piping or drainage, or whoever he may be—has contributed within the terms of subsection (1) to the provision of the building, and he either has not used proper materials or has not done his work in a workmanlike way. Therefore, my answer to the question would be: Yes, there would be a right to claim damages in that case, always subject, of course, to the provisions of the Limitation Acts, which are made applicable by subsection (5) of Clause 1; that is to say, for six years after the building is completed he would be liable in damages, or, if the gutter fell on somebody and caused personal injuries, for three years from the completion of the building.
THE EARL OF KINNOULL: I am again most grateful to the noble Lord for his explanation. I do not think he in fact quite answered the first point I made to him, which was this. He stated quite rightly that subsection (4) describes the categories of people. I mentioned to him that the Law Commission specifically stated that they wanted to include suppliers of purpose-built components but not suppliers of mass-produced components. Could the noble Lord tell me how this would be effected by the Bill?
LORD STOW HILL: I think the answer is that that depends very much on the ordinary English connotation of the word "installation". What is an installation? A tap is one, I should have thought; and I can think of a lot of things that are not. A block of wood probably is not. A brick, I should have
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thought, which forms part of the floor is not an installation; but if you put in a basin or a sink you are providing installations. Again, what does the word "installation" in its ordinary English connotation include? I think that, generally speaking, that question is one which can be answered without too much difficulty. But I failed to answer the question which the noble Earl asked about prefabricated houses. I should have thought that a prefabricated house if constructed and supplied, whether on a lorry or otherwise, is one which falls directly within the scope of subsection (1). It is a case in which a new dwelling is provided. A duty arises, therefore, in relation to that new dwelling.
Amendment, by leave, withdrawn.
On Question, Whether Clause 1 shall stand part of the Bill?
THE EARL OF KINNOULL: Under subsection (2) of Clause 1 the builder who is registered within the N.H.B.R.C. will be excluded from any liability. I believe that the present liability given under the N.H.B.R.C. certificate is a limited one of £5,000 per dwelling. I should like to ask whether, on present-day costings, £5,000 is sufficient limited liability for builders with this certificate of the N.H.B.R.C. Should not this sum be increased?
Secondly, those builders who are not registered with the N.H.B.R.C. will be subject to liability on conversions of old dwellings. The N.H.B.R.C. in their wisdom have decided that to include conversions under their certificate would not be practicable. It is far too difficult and complicated. I would ask the noble Lord why it is deemed practicable for those builders who are not registered and deemed impracticable for those who are registered.
THE LORD CHANCELLOR: I can perhaps assist my noble friend before Lord Stow Hill replies. I should point out to my noble friend that the exclusion scheme comes under Clause 2 and that we are talking about whether Clause 1 shall stand part of the Bill. I think that that should be borne in mind. Secondly, the approval of a scheme under Clause 2 is a matter for the Government, for the Secretary of State; and the Secretary of State has under the provisions of Clause 2(4)

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a power to vary an order approving a scheme. This would cover my noble friend's point about the maximum. One hopes it will not happen, but, no doubt, things being as they are, the value of money may decrease still further. No doubt my right honourable friend will bear that in mind.
As regards the last point, perhaps I should leave the noble and learned Lord, Lord Stow Hill, to reply as it is his Bill. But I think the position is that the duty imposed by the Bill as drafted is an underlying duty which would apply to everyone except in so far as they were covered by an approved scheme which, at any rate in theory, is not one limited to the scheme that my noble friend has mentioned. Therefore, there is no inconsistency or discrimination, as I understand it, in the Bill as drafted. But I will leave the second point to the noble and learned Lord, Lord Stow Hill, who is more familiar with the terms of the Bill than I am; but I think that is the answer.
LORD STOW HILL: I am most grateful to the noble and learned Lord the Lord Chancellor for what he has said, and may I respectfully say that I entirely endorse what he said. With regard to the last point, it is true that the Bill was deliberately framed in this way. Clause 1 relates to "provision" in the general sense as enlarged by the words in the brackets. Clause 2 exclusion is limited to the erection. Subject to this, it is not only the erection, it is first sale or letting for habitation. So that, in a sense, Clause 2 is slightly more enlarged in ambit than Clause 1, and in another sense it is more restricted. That is the way it has been drafted. It may be that the drafting needs reconsideration, but, whether or not that intention is the best in the circumstances, that is the intention of those who framed the Bill. I frankly admit that the word "erection" is more limited than the word "provision". That is not by accident but by design. As the noble and learned Lord the Lord Chancellor has said, Clause 2 applies in general to approved schemes. It is not limited to the National Housebuilders' Registration Council. That certainly was the scheme that those who framed the Bill had in mind.
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As the noble Earl may know, the Law Commission thought that the ambit of Clause 1 should include even houses that were subject to National Housebuilders' Registration Council approval. But it was thought by those who drafted the Bill that inasmuch as the advantages under an approval by that Council are very substantial, and in many ways exceed the benefits which Clause 1 could confer, the exception in Clause 2 should be made. I will mention one example. Suppose, under Clause 1, you have a claim against a builder who is very unsubstantial and quite unable to pay £5,000, or £2,000, or £500. You have the resources of the National Housebuilders' Registration Council behind you, or rather the builder does; and the builder's default and the damages he may be ordered to pay will be met by the Council, subject to certain obviously necessary limits. That I think must be the answer to the question why the limit is £5,000. I should have thought that, with the financial possibilities of the Council, not to impose some limit might result in a very difficult decision; and after all, £5,000 is a pretty substantial amount when one considers that it stands behind a builder who is unable from his own resources to meet a comparatively small sum in damages.
THE EARL OF KINNOULL: I am most grateful to the noble and learned Lord. Lord Stow Hill, and to the noble and learned Lord the Lord Chancellor for clarifying my mind. Not that I would wish to attack the N.H.B.R.C. for which I have the greatest respect. But the builders that the Council stands behind are on a list prepared by the Council and are substantial so I should not have thought that it had a great effect.
Clause 1 agreed to.
Clause 2 [Cases excluded from the remedy under section 1]:
9.55 p.m.
THE EARL OF KINNOULL THE EARL OF KINNOULL moved Amendment No. 15:
Page 3, line 33, at end insert—
("(7) No action shall be brought for breach of the duty imposed by section 1 above by any person acquiring an interest in any dwelling in circumstances in which that person is an authority possessing compulsory purchase powers within the meaning of the Town and Country Planning Act 1971.")
The noble Earl said: I should like the Committee to consider Amendment No. 16 with this Amendment. Both deal with the situation in cases that arise under compulsory purchase orders. I believe that there is a strong feeling that a compulsory purchase order is not a normal contract of sale. This is usually the case of an unwilling seller and a willing buyer and not a willing seller and a willing buyer. Furthermore, under the special procedure of a compulsory purchase order the purchaser is not liable or subject to any liabilities as a normal purchaser is—and one example is that of restrictive covenants. It is true that under compulsory purchase law the purchaser has to give full compensation. But, as I said, feeling is strong that there should be some acknowledgment that a compulsory purchase procedure is very different from the normal contract for buying and selling.
Amendment No. 15 goes fairly wide and includes all owners or vendors. In the case of Amendment No. 16, this limits owners to those who have built the house themselves with their own hands or have instructed the builder to build the house for their own occupation. Again I would remind the noble Lord that in this sort of case they have no intention of selling the house willingly. The case of the owner who has built the house with his own hands is, I believe, particularly strong, and if the noble Lord feels unable to accept either Amendment No. 15 or Amendment No. 16, perhaps he will consider on the Report stage the case of the owner who has built the house with his own hands. I think that covers all the points that I wish to make, except that if the noble Lord is agreeable at all to consider Amendment No. 16, I understand that the words could be, "or to the order of" in the first line of Amendment No. 15, and I should be happy at the next stage to withdraw those words. I beg to move.
9.57 p.m.
LORD STOW HILL: Perhaps I can be quite candid with the noble Earl and say that when I first looked at his Amendment I felt considerable sympathy with it, and I still do. I have, on reflection, after consulting those who have been so good as to advise me, decided to come down, rightly or wrongly—perhaps wrongly, but I hope rightly—in favour of the opposite view. But there are
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clearly arguments on both sides. May I try to state them? I will come first to the two Amendments. The first, as the noble Earl said, is really much too wide. But the second is limited to the case of the person who builds his house or procures it to be built for his own occupation. Again, I would submit to the Committee that as it stands it is too wide. To begin with, it would exonerate the builder; it would exonerate the architect; it would exonerate all sorts of people who have no claim to exoneration by reason of the fact that there is compulsory acquisition from the owner-occupier who had it constructed. The builder has no claim to ask to be exonerated in a situation of that sort; nor have the other people whom I have mentioned. The only person who has such a claim, and whose situation I must confess influenced me, is the person who procured the house to be built for himself.
What are the considerations which finally brought me down, rightly or wrongly, on the other side? The sort of case envisaged must be a rare case. If a person builds a house for himself and is unfortunate enough to have it taken from him under a compulsory purchase order, this must be due to one of two things. It may be (and this may be the more probable) because a road is to he built through, and the house is to be demolished, or something of that sort. In such a case he will receive compensation. It may well be that he will have a claim against persons who wrongly advised him that there was no known development scheme by the local authority under contemplation. After all, normally speaking, you look to see whether there is any road development scheme which may affect you, and those who advise you may be liable to heavy damages for not having made the proper researches.
Or it may be that the local authority wishes to acquire a man's house, not to pull it down but to use it in connection with a housing scheme or to provide dwellings pursuant to one of the Housing Acts, or something of that sort. If that is the situation, can it not be fairly argued against the person who has built that house for himself in this way: "You built the house; you knew perfectly well that you would not be there for ever.

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You may want to sell it, and it is the act of building a new house which places upon you a responsibility to the other people who may thereafter live in that house to see that it is properly built from the point of view of the standards set out in Clause 1. You may die; there may be successors of yours in title—who knows? You may want to sell it, and, if so, you ought to have in mind that those persons who buy the house from you should be entitled to look to you for compensation if you are the person who was originally responsible for the bringing into being of that housing unit."
Rightly or wrongly, those conclusions led me to the view that the balance of the argument—though the case may seem hard, and is hard in individual circumstances—is in favour of leaving the clause as it is. In any event, for the reasons I would respectfully submit to the noble Earl, both his Amendments go far too wide, in the sense that I have indicated; and I hope he will agree with me that the right course is to leave the clause as it is, the balance of argument being as I have sought to describe it. Between now and Report, if he feels dissatisfied with my answer, of course he can come back to it and the matter can be decided by a vote of the House, if necessary, at a later stage of the Bill. But I hope that he will think there is at least an arguable case in what I have said and will not press his Amendment.
THE EARL OF KINNOULL: In view of the size of the Committee, I certainly should not think of pressing the Amendment now, although I understand that the next phase of the Bill will arrive within thirty-six hours and so we do not have a great deal of time to consider further Amendments. The noble Lord says that both Amendments are too wide. I accept that entirely, but I am very disappointed that he did not come down in favour of the case that I described at the end. Admittedly, I did not put it into the Amendment.
LORD STOW HILL: Perhaps I did not express myself clearly. Even assuming that his Amendment were narrowed in order to operate solely to the advantage of the person who built the house for himself, I still think that the balance of the argument lies in the scales as I
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sought to weigh them. But the noble Earl can of course come back to that if he is not satisfied, on thinking over what I have said.
THE LORD CHANCELLOR: Perhaps I ought to say this. We are rather thin on the ground at this hour of night, and I think that a question of policy is to some extent involved in this Amendment. If my noble friend will withdraw his Amendment now I will put it to officials as to whether something can be done for him, if the noble Lord, Lord Stow Hill, would have no objection to this course. Obviously we are not sufficiently representative to-night to take the view of the Committee.
TIIE EARL OF KINNOULL: I willingly accept what has been said. I beg, leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 2 agreed to.
Clause 3 agreed to.
Clause 4 [Landlord's duty of care by virtue of obligation or right to repair premises demised]:
10.4 p.m.
LORD STOW HILL LORD STOW HILL moved Amendment No. 17:
Page 4, line 29, leave out from ("means") to end of line 33 and insert—
("(a) where the tenancy commenced before this Act, the commencement of this Act; and
(b) in all other cases, the earliest of the following times, that is to say—

(i) the time when the tenancy commences;

(ii) the time when the tenancy agreement is entered into;

(iii) the time when possession is taken of the premises in contemplation of the letting").

The noble Lord said: This Amendment, although it is a long one, is purely a drafting Amendment. The clause as at present formulated, by a mere accident omits to provide for the case in which the tenancy commenced before the Act. Without going through the detail of it, your Lordships will see that it provides for a number of other situations, but accidentally that particular one is left out. It is filled in Amendment 17, in paragraph (a), which says:
"Where the tenancy commenced before this Act,…".
The relevant time is the commencement of the Act. I beg to move.
On Question, Amendment agreed to.
THE CHAIRMAN OF COMMITTEES (THE EARL OF LISTOWEL): Before I call Amendment No. 18 I should point out to the Committee that if this Amendment is agreed to I cannot call Amendment No. 19.
LORD STOW HILL LORD STOW HILL moved Amendment No. 18:
Page 4, line 37, leave out from ("when") to ("shall") in line 38 and insert ("he first is, or by notice or otherwise can put himself, in a position to exercise the right and so long as he is or can put himself in that position, he").
The noble Lord said: This again is little more than a drafting Amendment. On further examination of the Bill it was thought that the word "exercisable" was not as clear as it might be. Subsection (4) says:
"…as from the time when the right becomes exercisable and so long as it remains exercisable…".
It was thought wise, in the interest of clarity, to specify more clearly what was meant by "exercisable", particularly in the case in which the right of the lessor depended upon a notice being given to the lessee and the lessee failed to comply with the requirements of the notice. Therefore the Amendment seeks to insert:
"he first is, or by notice or otherwise can put himself, in a position to exercise the right and so long as he is or can put himself in that position, he".
That is really for the purpose of clarification. I beg to move.
On Question, Amendment agreed to.
LORD STOW HILL: I beg to move Amendment No. 20 which is purely consequential.
Amendment moved—
Page 5, line 4, leave out subsection (6).—(Lord Stow Hill.)
On Question, Amendment agreed to.
Clause 4, as amended, agreed to.
Clause 5 agreed to.
Clause 6 [Supplement]:
THE EARL OF KINNOULL THE EARL OF KINNOULL moved Amendment No. 21:
Page 5, line 39, at end insert ("and any contract for the giving of an indemnity by any person acquiring an interest in a dwelling in respect of any duty so imposed or enforceable in relation to that dwelling shall, to the extent of the indemnity, be void")
The noble Earl said: I wish that I could say that this Amendment was consequential, but it is not; it is basically a probing Amendment. It attempts to fortify the Law Commission's intention to prevent any contracting out of the liability of a vendor under Clause 1. Take the case of a defective house which is being sold cheaply because it is known that it is defective. The fear is that as the clause at present stands the vendor could either seek to negotiate with the purchaser to pay the premiums on any indemnity insurance policy, or even allow the purchaser to give a personal indemnity both for him and for subsequent purchasers. Such an indemnity would virtually, one understands, be the title of the property. The purpose of the Amendment basically is to prevent the purchaser from giving a personal indemnity for either himself or others. The purpose is 'to make certain that any indemnity that is arranged is through a third party; namely, an insurance company. I hope that I have explained this Amendment sufficiently.
LORD STOW HILL: I am most grateful to the noble Earl for putting that Amendment down. I do not think that we have the wording right. The contracting-out provisions in that clause require reconsideration. Whether or not the noble Earl's wording is quite right I am not quite certain. If the noble Earl would ask leave to withdraw his Amendment, I would undertake to give careful thought to this matter between now and Report stage. My impression is that some change is necessary and we have our wording wrong. That is my view at the moment.
THE EARL OF KINNOULL: I am grateful to the noble Lord, and beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 6 agreed to.
Clause 7 [Short title, commencement and extent]:
On Question, Whether Clause 7 shall stand part of the Bill?
THE EARL OF KINNOULL: I wonder whether I could raise one point? In the Law Commission's Report they emphasise that this Bill should not come into force for at least a year after it passes on to the Statute Book. The purpose was to give insurance companies and others involved time to work out the necessary alterations to their policies. I notice now that it is to come into force on January 1st—
LORD STOW HILL: 1974.
THE EARL OF KINNOULL: I thought it was 1973, I apologise.
Clause 7 agreed to.
House resumed: Bill reported, with the Amendments.

NATIONAL INSURANCE (AMENDMENT) BILL
10.12 p.m.
LORD REIGATE: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Reigate.)
On Question, Motion agreed to.
House in Committee accordingly.
[The EARL OF LISTOWEL in the Chair.]
Clause 1 [Amendment of s. 30 of 1965 c. 51.]:
LORD ABERDARE: This Amendment will result in the present earnings rule being repealed when a new rule in Clause 1 takes its place. I beg to move.
Amendment moved—
Page 1, line 21, at end insert:
("(2) Section 2(2) of the National Insurance Act 1971 is hereby repealed.")—(Lord Aberdare.)
On Question, Amendment agreed to.
Clause 1, as amended, agreed to.
LORD ABERDARE LORD ABERDARE moved Amendment No. 2:
After Clause 1, insert the following new clause:
Amendment of section 29 of 1966 c. 6 (N.I.)
".—(1) For section 29(7) of the National Insurance Act (Northern Ireland) 1966 there shall be substituted a subsection in the terms of that set out in section 1(1) above, but with the words section 44(a)" replaced by the words "section 43(a)"; and Article 2(2) of the Social Services (Parity) Order (Northern Ireland) 1971 is hereby repealed.
(2) The Interpretation Act (Northern Ireland) 1954 shall apply for the purposes of the interpretation of this Act in its application to Northern Ireland as that Act applies for the purposes of the interpretation of an Act of the Parliament of Northern Ireland; and—

(a) in section 104 of the National Insurance Act 1965 (which provides for establishing a unified system of insurance in Great Britain and Northern Ireland) references to Northern Irish legislation shall be deemed to include this Act as it applies to Northern Ireland; and

(b) this Act shall, in so far as it relates to matters in respect of which the Parliament of Northern Ireland has power to make laws, be deemed for the purposes of section 6 of the Government of Ireland Act 1920 to have been passed before the day referred to in that section as the appointed day."

The noble Lord said: These two Amendments extend the application of the Bill to Northern Ireland. The Northern Ireland Insurance scheme is virtually identical with the Great Britain scheme, and changes in this country's legislation are usually followed closely by Northern Ireland. As the Northern Ireland Parliament is at present prorogued the Secretary of State for Northern Ireland has asked us to include preliminary provisions for that country in this Bill. I beg to move.
On Question, Amendment agreed to.
Clause 2 [Short title, citation and commencement]:
LORD ABERDARE: This Amendment equally is to include Northern Ireland in the Bill. I beg to move.
Amendment moved—
Page 2, line 3, leave out subsections (2) and (3) and insert—
"(2) This Act as it applies to Great Britain may be cited with the National insurance Acts 1965 to 1971 as the National Insurance Acts 1965 to 1972, and shall come into force on such day as the Secretary of State may by order made by statutory instrument appoint.

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(3) This Act as it applies to Northern Ireland may be cited with the National Insurance Acts (Northern Ireland) 1966 to 1971 as the National Insurance Acts (Northern Ireland) 1966 to 1972, and shall come into force on such day as the Secretary of State may by order appoint; and in relation to that order the expression "rule-making authority" in the Statutory Rules Act (Northern Ireland) 1958 shall include the Secretary of State (and the order shall be a statutory rule within the meaning of that Act accordingly)."—(Lord Aberdare.)
On Question, Amendment agreed to.
Clause 2, as amended, agreed to.
LORD ABERDARE: This Amendment to the Long Title of the Bill corrects a minor technical deficiency. I beg to.
Amendment moved—
In the Title, line 2, leave out ("1969") and insert ("1971").—(Lord Aberdare.)
On Question, Amendment agreed to.
LORD ABERDARE: This Amendment also covers the extension of the scope of the Bill to Northern Ireland. I beg to move
Amendment moved—
Line 3, at end insert ("and to make parallel provision for Northern Ireland.")—(Lord Aberdare.)
On Question, Amendment agreed to.
Title, as amended, agreed to.
House resumed: Bill reported, with Amendments.

DERBY CORPORATION BILL
The CHAIRMAN OF COMMITTEES informed the House that the opposition to the Bill was withdrawn: the Order
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made on May 2 last discharged, and Bill committed to the Committee on Unopposed Bills.

BRITISH TRANSPORT DOCKS BILL
Brought from the Commons; read 1a, and referred to the Examiners.
WHITLEY BAY PIER (EXTENSION OF TIME) BILL [H.L.]
Returned from the Commons agreed to.