Lords Sitting of 20 March 1973

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

UGANDA: REPORTED ATROCITIES
LORD GLADWYN: 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 have reason to believe that the circumstantial account of appalling governmental atrocities in Uganda, contained in the article by Mr. Christopher Munnion in the Sunday Telegraph of March 4, 1973, bears any relation to the facts; and, if so, whether they consider that Uganda under the Amin régime is a suitable Member of the Commonwealth or indeed of the United Nations.
THE MINISTER OF STATE, FOREIGN AND COMMONWEALTH OFFICE (BARONESS TWEEDSMUIR OF BELHELVIE): My Lords, Her Majesty's Government are not in a position to confirm the truth or otherwise of this account, but it is broadly in line with other published accounts and with the expressed views of the International Commission of Jurists. Such atrocities, if the reports are true, are outrageous by normal standards of civilised behaviour, and incompatible with the behaviour expected within the Commonwealth partnership, and with the ideals of the United Nations Charter.
LORD GLADWYN: My Lords, while thanking the noble Baroness for that reply, and while noting that, as I understand it, the charges made by Mr. Christopher Munnion are not denied, may I ask two supplementary questions? In the first place, do the Government not think that the moment has come to evacuate the remaining British subjects in Uganda—there are only 2,000 of them, I
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think—and to compensate any who are deserving of compensation, thereby removing them from the blackmailing power of this mischievous and malignant tyrant? Secondly, will the Government consider putting photostatic copies of Mr. Munnion's report in the Library, so that noble Lords may themselves find out what the charges are?
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, to the second supplementary question I would say that I will certainly consider it. On the first. I need hardly tell the House that the safety of the British community is of constant concern to the Government. The Ugandan authorities have of course been reminded of their responsibility for the protection of the British community on several recent occasions, and they have accepted full responsibility for the protection of the lives and property of all foreign nationals. We have about 2,500 British subjects in Uganda now, and in view of the responsibility accepted by the Ugandan Government we do not think we should take any speedy action in the way suggested by the noble Lord.
LORD BARNBY: My Lords, before asking the noble Baroness a question, may I express gratitude to her for the emphasis she has put on the disapproval of what was reported in that article? Is she aware that to other countries—for instance, South America—accounts of such savage bestiality as are contained in the article referred to, which must have some degree of truth, must surely be puzzling when they concern a member of the British Commonwealth, for which we used to have such admiration and respect? Is it not time that some sound was made to indicate that the rest of the Commonwealth—at least, the Heads of Commonwealth—feel that such a country is no longer fit to be a proper member of the Commonwealth?
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, suspension or expulsion from the Commonwealth could be done only by all the Commonwealth Governments acting in agreement. As to Her Majesty's Government taking the initiative, I would say to noble Lords that we have still several important issues to discuss with the Ugandan Government, and I think we should see how we get on first.
LORD MAYBRAY-KING: My Lords, can the noble Baroness tell us what action Her Majesty's Government are taking about Uganda at the United Nations?
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, whether or not a country should in fact be a member of the United Nations is, again, a question that the United Nations have to decide together. On the face of it, there is a case that General Amin's actions constitute a breach of Articles 55 and 56 of the Charter, in which United Nations' members pledge themselves to act to achieve respect for human rights for all. However, this decision would have to be taken by the U.N. as a whole.
LORD AVEBURY: My Lords, while I entirely agree with my noble friend in the criticisms that he has levelled at Uganda, is it not the case that General Amin's régime might be purely temporary? Would we not regret taking any precipitate action to expel Uganda from the Commonwealth or from the United Nations, when we hope that ultimately civilised behaviour can be restored in that country?
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, I am sure I speak for the whole House when I say that we all hope that civilised behaviour will return to Uganda, but it is not for us to take any unilateral action, either in the United Nations or in the Commonwealth. Nor, as I have said, do we think it wise.
LORD BARNBY: My Lords, in again thanking the noble Baroness for the clearness of her reply, may I ask her if she could expand a little on it? My question was: Is it not time there was evidence of some strong feeling by the Heads of the Commonwealth so that there is a movement from the rest of the Commonwealth to express their opinion as to what seems desirable?
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, we have a meeting of the Heads of Governments of the Commonwealth in August. That is quite a long time ahead, and I suggest we should leave matters where they are at the moment.
LORD SLATER: My Lords, is the noble Baroness not aware that time is a
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great healer? An answer that she has given to this House on this particular Question, which is that caution ought to be taken because of the British subjects who are in that part of the world—and our hearts go out to them in such circumstances—is one which I think we should be well advised to take.
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, I thank the noble Lord for his intervention. We are very concerned about our British subjects, but we hope that the Uganda Government will live up to its responsibilities, which it has undertaken to do.

FRANCE AND N.A.T.O.
2.42 p.m.
LORD SHINWELL: 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 there has been any consultation with the French Government on the subject of their future association with NATO.
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, we keep close and regular contacts with the French Government on defence matters. France is crucial to Europe's effective future defence. But French views on their relationship with the integrated military organisation of NATO are well known.
LORD SHINWELL: My Lords, is it not time for pressure to be brought to bear on the French Government, not only by Her Majesty's Government but by the other NATO Governments, in order to bring the French back into the North Atlantic Treaty Organisation? Is the noble Baroness aware that the Minister of Defence—I regret his absence but no doubt there are substantial reasons for it—frequently talks about the need for a European defence organisation? How can there he an effective, efficient and adequate European defence organisation without having the French closely associated with NATO?
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, I think that the whole House knows of the personal concern of the noble Lord at the

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effectiveness of NATO. I would agree with the assumptions behind his questions. I would also say, in passing, that my right honourable friend the Secretary of State for Defence has, of course, substantial reasons for not being present this afternoon. We enjoy very close consultation with the French on, for example, equipment projects and also in the work of the NATO Conference of National Armaments Directors. I would agree with what he has in mind, but I think it is a little too early for me to speculate here on French political developments.
LORD SHINWELL: My Lords, is the noble Baroness aware of the reason why the French remain out of NATO? Is it because of some treaty they have entered into with the Soviet Union?—there are suspicions about them, and rumours. If that is the position we ought to know. In that case we had better be much more wary of having the French in at all. Can we have some elucidation of the reasons why the French remain out?
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, it is a decision of long standing, going back to 1966. What is important is that the French will work with us, if not necessarily in a strictly defined integrated military organisation. We hope in the future to be able to work closely with them.
LORD GLADWYN: My Lords, is the noble Baroness aware that any direct pressure on the French Government regarding their rejoining NATO would be entirely counter-productive?
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, that is exactly why I did not say so.

AID TO ZAMBIA
LORD BROCKWAY: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask her Majesty's Government what decisions have been made regarding aid to Zambia in the light of the report by the United Nations Mission to the Security Council and the decisions of the Council on the report.
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, in consultation with the Zambian Government, we have considered Zambia's current development needs after her decision to re-route trade on the closing of the border.
On March 9 we made an offer which the Zambian Government have since accepted of a £1 million interest-free loan for road transport equipment. This loan is additional to our normal aid programme to Zambia.
LORD BROCKWAY: My Lords, while very sincerely welcoming that reply from the noble Baroness, may I ask whether it is not the case that Zambia has probably suffered more from our policy of sanctions than has Rhodesia itself and has been extraordinarily loyal to our policy in this respect? In addition to contributing, as they are contributing, will the Government take the initiative in the United Nations to secure financial support for Zambia in view of the fact that Zambia is now carrying out United Nations policy?
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, I would say to the noble Lord, Lord Brockway, that it is not only our policy of sanctions; it is the United Nations' policy of sanctions as well. The report of the economic experts was distributed only last week and is now being studied. I can only say that while we understand the position of Zambia at this moment we feel that time should be taken to consider her needs.
BARONESS LLEWELYN-DAVIES OF HASTOE: My Lords, is the noble Baroness aware—I am sure she is—of the very generous grant of £3½ million made by the Canadian Government to Zambia? Because of that, would she contemplate, as well as action by the United Nations, discussing this matter with the heads of the Commonwealth with a view to assisting Zambia in her very difficult situation?
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, as the noble Baroness will be aware, we have constant consultations with the Commonwealth on this matter. This £1 million was given specifically for transport requirements and is in addition to the over £7 million in aid of one kind or another that we give to Zambia.
BARONESS LLEWELYN-DAVIES OF HASTOE: My Lords, would not the noble Baroness wish to encourage further contributions from other Commonwealth Governments?
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, all Commonwealth Governments and all those affected in the United Nations are studying the report of the Security Council Mission.
LORD BARNBY: My Lords, are we to understand from the noble Baroness's original Answer that the proposed further assistance to Zambia is to enable them to replace to some extent the use of their former rail routes to the sea? Since that is at the option of the Zambian Government, is it necessary to follow the large support already given to Zambia, £75 million in all, by this further assistance?
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, we do not consider this as contingency aid in the sense of the £24 million which was contingency aid in the last crisis; as a member of the Commonwealth and as we have close relations with Zambia, we should like to help her over her decision to re-route her trade.
THE EARL OF ONSLOW: My Lords, will Uganda be asked to contribute to this aid to Zambia?
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, not by us.
LORD BROCKWAY: My Lords, may I ask whether it is not a fact that half of the trade from Zambia, imports and exports, used to pass through Rhodesia and whether it is not a fact that having an alternative route is consistent with our policy of sanctions against the illegal régime in Rhodesia?
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, it was for that reason we voted for the economic resolution of the Security Council.

OIL SLUDGE: PROCESSING AT SEA
2.50 p.m.
LORD PARGITER: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will consider the desirability of requiring all oil burning and oil carrying ships to install centrifuge processing machinery in order to avoid the dumping of oil sludge at sea.
THE MINISTER WITHOUT PORTFOLIO (LORD DRUMALBYN): My Lords, I assume that the noble Lord has in mind oil/water separators using centrifugal methods. Non-tankers are already required to carry separators where they use their bunker tanks for ballast but neither centrifuge nor other separators at present have sufficient capacity for use in tankers. It is, however, the responsibility of shipowners to ensure that whatever equipment is necessary is fitted and that their ships comply with the stringent regulations governing the discharge of Oil.
LORD PARGITER: My Lords, in view of the fact that, on the admission of the Minister, this is a perfectly feasible process for dealing with waste oil, why cannot it be insisted on for larger vessels as well as smaller ones? Is the reason for not insisting on it that it would cost more, or is it because of size? It seems to me perfectly obvious that centrifuges, without being too large at all, could quite easily do this work, with much saving to the environment.
LORD DRUMALBYN: My Lords, I am advised that the capacity of the centrifuges at present available is not sufficient for tankers. As to the last few words in the noble Lord's supplementary question, we have to rely more on enforcement than on separation. By itself, separation is not enough to get over this difficulty.
LORD PARGITER: My Lords, is it not a fact that in the separation process the water is taken off the solids and that the solids when separated represent a relatively small amount of the total and may be more readily disposed of, whereas at the present time the solids form part of the sludge which is so detrimental to the environment?
LORD DRUMALBYN: My Lords, the noble Lord, Lord Pargiter, says that the solids may be more readily disposed of. But, of course, the regulations would

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have to be complied with and I think that the regulations allow the disposal of only so much—I think it is 60 litres per nautical mile at present. To dispose of them all in one lump would offend against the regulations.
LORD PARGITER: My Lords, is it not a fact that they need not be disposed of in one lump? Is not the answer that the solids would be a sufficient mass to sink, whereas the oil, with which they are mixed at the present time, floats?
LORD DRUMALBYN: My Lords, I should like to look into that. I am grateful to the noble Lord for his comment.
LORD DAVIES OF LEEK: My Lords, in view of the distressing consequences which are worldwide in the seas and oceans can the noble Lord tell the House whether the Government are spending money on research, or are encouraging research into this problem of oil pollution?
LORD DRUMALBYN: My Lords, I do not think the question is one of research. It is a question of complying with the regulations; and in the nature of the case it is difficult to enforce the regulations, chiefly because offences are committed at night.
LORD SHINWELL: My Lords, is the noble Lord aware that the shipowners, those responsible for tankers, would be only too anxious to provide what is necessary in accordance with my noble friend's suggestion if the expense could be met? Is he aware of the expense that would be involved in providing these additions aboard ship, and is it not possible for the Government to render some financial aid? Is he aware that what they would gain by preventing the spoliation of our foreshores would offset the additional cost?
LORD DRUMALBYN: My Lords, when an offence is committed within territorial waters our jurisdiction extends to all vessels, but with regard to offences committed outside territorial waters our jurisdiction extends only to United Kingdom vessels.
LORD PARGITER: My Lords, would not the noble Lord agree that if means of separation were enforceable
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there would not be this question of disposing of waste oil at night; and that the answer is that it would be solid matter which would be readily disposed of, so that no one would commit an offence or need to commit one?
LORD DRUMALBYN: My Lords, I am not certain to what extent the sludge could be reduced to solids. This is one of the things I should like to look into. My advice at present is that sludge is often mixed by the load on top.
LORD PARGITER: My Lords, may I ask the Minister whether he would see to it that research takes place into this matter so that we may be informed whether what I suggest is possible or not?
LORD DRUMALBYN: My Lords, this matter is to be examined in the course of the next meeting of the International Convention for the Prevention of Pollution of the Sea by Oil which was responsible for the original Convention in 1954 and the Amendment in 1958.
LORD DAVIES OF LEEK: My Lords, is the noble Lord aware that he has now given the House a great deal of satisfaction, and that it would have helped greatly if earlier on he had added that additional information to the knowledge of this House? It is not a secret society!
LORD DRUMALBYN: My Lords, I apologise if I did not bring it in sooner, but it did not seem to me that it was an answer to the Question that I was being asked.
LORD DAVIES OF LEEK: My Lords, we had to squeeze it out of the noble Lord.

NORTHERN IRELAND: CONSTITUTIONAL PROPOSALS
2.55 p.m.
EARL ST. ALDWYN: My Lords, with the leave of the House my noble friend Lord Windlesham will be making a Statement on Northern Ireland at a convenient moment after 3.30 p.m.

HUMBER BRIDGE BILL
Read 2ª, and committed to the Committee on Unopposed Bills.
DERBY FRIAR GATE CHAPEL BILL [H.L.]
Read 3ª, and passed, and sent to the Commons.

CONCORDE AIRCRAFT BILL
THE LORD PRIVY SEAL (EARL JELLICOE): My Lords, I beg to move that this Bill be now read a third time, and in so doing I should like to thank noble Lords, both "pro" and "con", who took part in the Second Reading debate, which I think was not uninteresting and not unimportant.
Moved, That the Bill be now read 3ª.—(Earl Jellicoe.)
On Question, Bill read 3ª, and passed.

COAL INDUSTRY BILL
Read 3ª, and passed.
EDUCATION (WORK EXPERIENCE) BILL [H.L.]
Read 3ª, and passed, and sent to the Commons.

LAND COMPENSATION BILL
2.59 p.m.
THE PARLIAMENTARY UNDERSECRETARY OF STATE, DEPARTMENT OF THE ENVIRONMENT (LORD SANDFORD): My Lords, I beg to move that this Bill be now read a second time. The Bill is designed to soften the impact of public works upon private property and private living. It is with these issues that the White Paper Development and Compensation: Putting People First and the Report of the Urban Motorways Committee New Roads in Towns, both published last October, have sought to grapple. In the White Paper the Government announced their complete support for the Committee's strategic approach and have lost no time in publishing this Bill. It is a Bill of 79 clauses and I think I may say to your Lordships that virtually all of them deal with completely new entitlements and safeguards for landowners and tenants which will, in one way or another, come
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into play when their private interests are affected by public developments.
Broadly speaking, the Bill does two things. First of all, it provides new powers to get new or altered public works to fit better into their surroundings and establishes new rights for people to physical protection from the effects of new public works upon them. Secondly, it aims to modernise the law on land compensation in certain particulars. The code has been developing steadily for well over a hundred years. Up to now it has been concerned with compensation for land which is taken away from someone for public works. But, as we all know only too well, the noise and other effects of cars and lorries and aircraft spread out far beyond the confines of the roads and the aerodromes that carry them, to mention only two particular classes of public work. So now a code is needed to cover the effects on private property and land values that have been depreciated by the carrying out of public works when the land itself is not taken away at all.
The policy on which the Bill is built rests upon three principles. The first is that in designing new roads and other works special attention should be paid, even if it costs more, to fitting the works physically into their surroundings with the least possible damage and detriment to the landscape and to individual private interests. This is quite simply a matter of good practice, of sensitive and expert design, and the only new powers necessary are those enabling land to be taken beyond the strict limits of the roads and other works that need to be acquired.
The second principle is to secure means for reducing the impact of public works so as to protect people who live and work near, say, a new motorway or an expanding aerodrome from the disturbance, particularly the disturbance from noise, that they might otherwise suffer. No matter how judiciously one may situate its line, some people, especially in urban areas, are almost certainly going to be affected by a new road. Its impact can be reduced by putting it in a cutting or by building baffle walls between it and neighbouring property. But this may not be sufficient—or, indeed, it may not be physically possible—and the next recourse must be to provide with sound insulation the buildings that remain affected. This is

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the concern of Part II of the Bill. The provisions for sound insulations are to be found in Clause 19; and in Clauses 20 to 26 are contained the powers needed for cushioning the impact of public works upon their surroundings: for example, by landscaping the intervening ground between the works and nearby property. In this part also we have provided powers for authorities to buy owner-occupied property seriously affected by a scheme either permanently or during the construction period. These provisions carry through a salient part of the recommendations of the Committee on Urban Motorways.
On sound insulation, I might just mention two points. Clause 19 will work through regulations to be made by my right honourable friend the Secretary of State for the Environment, and because this is a completely new field it has been specially provided that the first set of regulations, which will deal with traffic noise (the main priority), is to be subject to an Affirmative Resolution of both Houses. I am sure that this guarantee of a further Parliamentary debate of regulations on such an important subject will be welcome to your Lordships' House. Then your Lordships will notice that the provisions do not apply to aerodrome noise. This is simply because sound insulation schemes in the case of aerodromes are already provided for in the Airports Authority Act 1965 and in local Acts.
In spite of the measures to which I have referred already, which are essentially physical measures, it can happen that people will find that the value of their property depreciates because of the actual use of public works through the physical effects of fumes, smoke, noise, artificial lighting and so on, even though none of their land itself has been taken for the works. In this situation the third principle of policy comes into play. Hitherto where authorities are statutorily protected from an action for nuisance no one has had a remedy to secure compensation for depreciation of the value of his property from the effect of new or altered public works in a situation, as I have already mentioned, where none of his land is taken for the works. The only compensation of the sort to which he is at present entitled is where all or part of his land is actually taken.
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The new right to compensation is the subject of Clause 1, and Clause 2 defines those who are entitled to make claims. The remaining clauses in this Part of the Bill contain provisions in support of those two clauses. The only one that I need mention is Clause 9, which deals with the case of the altered, as distinct from the new, works.
Clause 1 contains an important feature which has already been widely welcomed. We recognise that many people's properties have been affected by public works which have come into use in the recent past, and so the right to claim compensation has been backdated for three years to include schemes which came into use on or after October 17. 1969.
My Lords, I now come to a further aspect of the Bill. For people who are in fact displaced from their property as a result of planning decisions and public works, the Bill provides a whole range of new benefits. Some of these comprise special payments as provided for in Part III—home loss and farm loss payments, and payments for disturbance. Some are improvements in the rights and entitlements of the individual, and these are to be found mainly in Parts IV and V. which deal respectively with compulsory purchase and planning blight. The payments in Part III are distinguished in kind from compensation for the interests that have been acquired. In the White Paper the Government reaffirmed their intention of retaining market value as the basis of the compensation code, supplemented where appropriate with disturbance compensation covering the claimant's out-of-pocket expenses. The new home loss payments, for which provision is made in Clauses 27 to 30, are quite different in kind. They are not related to or dependent upon acquisition of the claimant's interest. Distress caused through having to remove from one's own home is not a quantifiable financial loss and bears no relation to the market value of one's property: it is the business of the compensation code to attend to that. But the payments ought to be tied to some base, and the Government have decided that the most suitable one is rate-able value, coupled with a guaranteed minimum of £150 and subject to a qualifying residential period of five years. So much for home loss.

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I now turn to the provisions in the Bill which concern farmers. The Bill introduces several improvements of benefit to them when their land is taken for public works. Possibly the most important of these is contained in Clause 43, in Part IV. This clause secures that in assessing compensation for landlords and tenants of agricultural holdings regard is to be had in both cases to the tenant's security of tenure afforded by the Agricultural Holdings Act 1948. The principle here is the same as that in Clause 42, which provides for the business tenant's security of tenure to be taken into account. The general effect of Clause 43 is that, to put it at its lowest, in future no agricultural tenant can be worse off than he is at present, and some will be better off, depending on the circumstances of each case.
Still talking of Part IV, I would mention that Clauses 47 to 54 effect various other improvements in the law. When farm land is taken in future, owners and tenants will have the right to require the authority concerned to acquire the whole of the unit or holding if the remaining land is not reasonably capable of being farmed as an agricultural unit or holding by itself or in conjunction with other land. This right will also apply in respect of blight notices by the owner-occupier. Clause 53 gives the tenant farmer a new right to an option, for compensation purposes, of requiring an acquiring authority which has become his landlord to proceed under compulsory purchase legislation rather than under agricultural holdings legislation. The effect is to give him compensation on the former terms, with a minimum equalling his entitlement under the latter. Clause 54, which is consequential on Clause 53, will enable a tenant farmer who opts for notice of entry procedure under that clause to enlarge the notice of entry from part to the whole of his holding, where the remainder is not reasonably capable of being farmed as a separate agricultural unit either by itself or in conjunction with other land.
Last, but by no means least, there is a completely new provision for an owner-occupier farmer—farm loss payments. This is shown in Clauses 31 to 33. Where an owner-occupier farmer has to give tip his farm for the sake of public
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works he really cannot be expected to get the same return from his new farm to begin with. Therefore, he should be compensated for temporary loss of profitability. It is impossible to quantify this loss accurately, of course, so a formula has to be adopted to secure an approximation. Clause 32 provides for the amount of payment to equal the average annual profit from the agricultural use of the old farm during the three years prior to the date of displacement. The provisions are subject to the condition that the occupant begin within three years from that date to farm another agricultural unit and is also then in occupation of the whole of that unit.
Finally, I should mention that some amendments to the Financial Memorandum of the Bill have been necessitated by the acceptance during the Report stage in another place of a Government Amendment to the home loss provisions of Part III. The charge on the Consolidated Fund has been increased from £50 million to £54 million and the non-recurring expenditure from £25 million to £28 million; also the cost to local authorities has been increased from £12 million to £13 million. There will be other Government Amendments reflecting the debates that have taken place in another place and the undertakings that have been given there. I hope your Lordships will agree that the contents of this Bill constitute a new and welcome attitude to the planning and design of public works and that the new legislation will be of benefit to the people who are affected by them. After the Bill is enacted, Her Majesty's Government will be publishing guidance notes in simple and straightforward terms, designed to help lay people to understand the rights and entitlements to which they may be eligible under the new legislation. My Lords, I commend this Bill as one that has been welcomed on all sides, I think, for its fresh approach and its practical down-to-earth recognition of the private needs and rights of people vis-àvis the needs of the public at large. I commend the Bill to your Lordships and beg to move that it be now read a second time.
Moved, That the Bill be now read 2ª.—(Lord Sandford.)
3.15 p.m.
LORD SHEPHERD: My Lords, this is an important Bill and I am certain the House will be most grateful to the noble Lord, Lord Sandford, for his very clear explanation of what, because of the characteristics of the subject, must be very complex matters.
I should like to make two apologies. The first is on my own account, should I have to leave before the end of the debate. In the event, I shall do so not because I am leaving the service of your Lordships' House but because I have to attend a Committee dealing with European Instruments, in regard to which we are now at the stage of making decisions. Secondly, I speak at very short notice. This is a subject which, if it is to be dealt with adequately, needs a lifetime of experience of housing matters and local authority service. Unfortunately, my noble friend Lord Greenwood who was to have taken this Bill for us cannot be present this afternoon, and I have been pressed to take over at very short notice. I hope that my noble friend will be here to take part in the Committee stage, because in practice this Bill is more suitable for consideration in Committee than by means of a general debate of this nature.
I believe all of us, whether or not we have any intimate knowledge of the problem, must be conscious that there are inequities and undoubted hardships imposed on a small section of our community who are affected by developments and by increasing needs of the community as a whole. One has only to drive down towards the M.4 motorway from Cromwell Road to see the quite appalling conditions that have been created for householders by the construction of that road. This is a subject about which the previous Administration was deeply concerned. In fact, this Bill is largely a consequence of the setting up of a special committee by my then right honourable friend Mr. Richard Marsh, with the object of looking into the matter. It is at least partly based on the findings of that committee that the Government have come forward with this Bill.
While we on this side of the House give general approval to the Bill, it came through in the speech of the noble Lord, Lord Sandford, that it still does not get to the heart of the problem. I believe
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the noble Lord used the phrase that it "softens the impact". So although we may pass this Bill we must realise that problems remain; and after having listened to recent debates in your Lordships' House on transportation and on the environment, one can see that, as a consequence, difficulties are bound to increase, and hardship too. I do not think there is any doubt, having listened to those debates, that Members of your Lordships' House will feel there is a great need to look at development as a whole and at how it affects those who live in the large conurbations of our country.
I welcome this Bill, but on the other hand, I cannot help but feel that it could have been a little more generous and that sometimes the restrictions it contains appear to be rather petty. For instance, redress can be obtained where a new motorway has been constructed, but if an existing road becomes a main feeder road—and we all know that in some parts of London this may have a serious effect on the environment and on the people who live in such roads—there is no compensation at all. I think that is something we shall need to look at in Committee.
It also seems to me strange that although there are provisions for airport development they are restricted to where there is an alteration to the runways. The construction of new terminal buildings and difficult day and night traffic loads, have an effect on families. Why is there art automatic deduction of £50 in compensation for loss of amenity? Why should you be required to live in a house for five years before qualifying for home loss payment? In these days of fitted carpets and fitted furniture there is possibly greater inconvenience and expense after five months than five years. The limit of £1,500 for home loss may be appropriate in most parts of the country; but recognising that some of our people who are displaced may be required by the nature of their employment to live in a particular locality—such as in London—one wonders whether this figure is right, bearing in mind the various hardships involved. I see in the Bill a phrase indicating that possibly as a consequence of regulations the Minister could uplift that figure. Perhaps the noble Lord, Lord Sandford, will confirm that that is so.
Coming back to the question of the qualifying years, in another place we

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sought to reduce that period from five to three years. There may even be a case to reduce it further. This is a matter we wish to pursue on the Committee stage, bearing in mind the facts and figures that a Minister in another place gave about the average turnover of owner-occupiers and tenants in London, which I think is well below the three years. This is of particular importantce in relation to the proposals of Her Majesty's Government regarding the London motorway. Could the noble Lord explain when the Urban Motorways Committee suggested that the highway authorities should have a duty to pay for sound insulation? In the Bill it is clearly referred to as a duty. Why has the Bill provided only for a discussion and not for mandatory powers? Why does the date of compensation run only from the commencement of the use of a highway? Those of us who watched the building of M.4 will know that that took not months but years. Those who live within the area of that motorway will know of the very great hardships, loss and depreciation of value suffered. I would have thought that if there is justice in providing some compensation for those people who are affected by these developments, it should run from the commencement of the hardship and not from the actual date in which the motorway comes into use.
The provisions regarding noise are particularly welcome. There is a tendency to ignore noise as a problem of pollution; yet it is very important. It is impossible to assess the social ills, the mental illness, deafness, broken homes, and the problem of delinquent children which can be created by the incessant noise that one finds on the motorways, particularly those in close proximity to housing and flats. It may be easy to insulate a house from the noise; but people do not only live in houses, they need to go out into their gardens. I wonder whether local authorities do sufficient in those areas to provide green open spaces where children can play well away from the noise of heavy traffic. This is something we ought to look at when we consider the Bill in Committee.
This debate gives us an opportunity to look wider than the immediate implications of the Bill. In essence, the Bill is trying to soften the worst effects of development for families and shopkeepers. But can we go on merely
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dealing with this problem with palliatives? The basic problem is failure to face up to the transport needs and the problems arising from those needs. As this Bill is going through Parliament the Government have announced acceptance of plans for London motorways, yet they do not appear to have thought out the real transport needs, or the wishes of the community affected. If they had done so, I believe that they would have rejected the motorway proposals and adopted instead a policy of firmly restricting the use of the private car and heavy lorry in central London and the city centres, and would have introduced the cheap flat fare public transport system. The Government so far are not prepared to go into this question. Would it not be wise, if the Government have not yet been convinced, to have an experiment, such as is now being undertaken in Nottingham, to see whether there are ways and means of keeping heavy and unnecessary vehicles from the centres of our cities?
Undoubtedly the money that could be saved from not going ahead with the motorway system around London could be used to very much better effect. I believe this point is now being discussed by those involved in the forthcoming elections in London. I would not underestimate the problem, but is it conceivable that our cities can continue to meet the needs of those who live within them and to provide reasonable amenities, and yet take the consequences of the increasing number of vehicles that are coming out of our factories to-day? I cannot believe that this is so. This is a matter that we debated some two weeks ago.
Not so long ago we also discussed the question of the Third London Airport. I have become more and more convinced that Maplin will be a most dreadful mistake. The quality of life of thousands of families will be disastrously affected as a consequence of the massive new road and rail links that will have to be provided. I do not believe that any Land Compensation Bill will be able to put that right. I believe that the time has come not only for a national strategy for transport and airports, but also for regions.
My Lords, as I have said, we on this side of the House give support to this Bill. There are certain aspects that we

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shall need to consider very carefully in Committee. We recognise that although it has its good points, it is only a short-term palliative and fails to deal with the basic problems of development and the way in which development makes its impact upon the life of our people.
3.29 p.m.
LORD HENLEY: My Lords, there are aspects of this Bill which I welcome; they are aspects which show signs of new thinking and new attitudes on the part of the Government, such as payment for depreciation of property by public works. I also welcome a certain liberalising tendency regarding injurious affection payments and disturbance payments. But when all that is said and done, I agree with the noble Lord, Lord Shepherd, who said that although it may soften the impact of the worst affects of development, it cannot put them right, and does not go to the root of the matter at all.
It has been generally recognised for a number of years that there has been something wrong with our provisions of compensation. Not only by valuers and surveyors acting for people who are dispossessed, but also those valuers and other professional men acting for acquiring authorities. Everybody has come to recognise that grave injustice has often been committed and still is being committed. The noble Lord, Lord Shepherd, used the words "undoubted hardships". We all recognise that and I think what we all have at the back of our minds when we think about compensation are the words which were used by Mr. Justice Scott. I will not quote his actual words I will paraphrase them. They are that no man should be enriched by being compensated for what has been taken from him for the public good, but no more should he be either impoverished or disadvantaged in so far as the disadvantages can be made good by a money payment. These words should be at the back of our minds when we think of compensation and how to tackle the problems of compensation, and they were at the back of the minds of all those professional bodies which have been thinking for many years that there is something wrong with our provisions of compensation.
During the years when the last Administration were in power the professional
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bodies, including the Law Society and others, produced evidence which was put before the Government as to these hardships and what had gone wrong and the various methods by which it could be put right. It took some years before the then Government looked at it, but in fact during the late 1960s, as the noble Lord, Lord Shepherd, said, they went some way towards formulating a policy. Indeed, both during those years and when the present Government were in power when any difficulties arose in regard to compensation problems the answer always was, "The Government are considering this. Wait until our White Paper comes out and we will then deal with the problem". Well, the White Paper which the noble Lord, Lord Sandford, mentioned came out not very long ago and I think we were all rather disappointed with it. It seemed to be a very small mouse to have been brought forth after so much labour.
I think that the Bill, which of course follows the White Paper—and indeed the noble Lord on the Opposition Front Bench agrees with me—is disappointing. It follows the White Paper, and in some measure it produces new and altered powers. The basis it does not alter. The basis remains the market value for existing use. That is all very well, but what does the man do who is paid existing use market value who loses his home or his business or his farm—what does he do with the market value? I think some noble Lords would know exactly what he could do with that market value. The market value never can do more than form the bare bones of a man's claim. The real problem is, and always has been, that of consequential loss. It is no good giving a man the market value of what he has lost unless you make good, a great deal better than this Bill proposes to do, the consequential losses that he will suffer. I admit that disturbance payments and payments for injurious action are in some degree liberalised. I welcome that because I think it is probably along the lines of liberalising this sort of payment that we should try to approach the whole problem of compensation.
What about reinstatement? Take agricultural land: as noble Lords will know, something like 70,000 acres of agricultural land is taken up every year for various developments which are needed

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by society, and inevitably so. I think sometimes noble Lords do not realise exactly what 70,000 acres amounts to. The Isle of Wight is 100,000 acres, so in taking 70,000 acres we are taking every year nearly three quarters of the Isle of Wight. I quite agree that logically it is impossible in such a state of affairs that everybody who loses his agricultural land can have it wholly made good to him. As Mr. Justice Scott said, in certain respects money compensation cannot make good what has been taken from a man. Nevertheless, here we have a situation in which, instead of having a willing buyer and a willing seller, we have an unwilling seller who shortly will become a desperate buyers. This is inflationary, and that situation is aggravated of it by the fact that in the case of large new towns there are a great many men who are suddenly being turned into the position of being desperate buyers in order to get new land. The same situation applies to the man who loses his home and his house. The noble Lord, Lord Shepherd, has drawn our attention to that, and I think the same applies to the small business. So far as consequential loss is concerned, the payments that will be possible under this new Bill are wholly inadequate.
My Lords, I do not know whether it would be for the convenienience of your Lordships if I were to stop for a moment and allow the noble Lord, Lord Windlesham, to make a Statement on Northern Ireland, because what I want to say will probably take another ten minutes.

NORTHERN IRELAND: CONSTITUTIONAL PROPOSALS
3.35 p.m.
THE MINISTER OF STATE FOR NORTHERN IRELAND (LORD WINDLESHAM): My Lords, that is an extraordinarily generous suggestion. It is the first time that I have heard it made in your Lordships' House. I daresay it has happened on other occasions but I am most grateful to the noble Lord and with the permission of the House I will now repeat a Statement being made in another place by my right honourable friend the Secretary of State for Northern Ireland.
The Statement reads as follows:
"Mr. Speaker, I will, with permission, make a Statement. The Government have today published a White Paper setting out Constitutional Proposals for Northern Ireland.
"I will not today take the House through our proposals in detail especially as I understand that my right honourable friend the Leader of the House agrees that there should be an opportunity for an early debate.
"The Government propose to present to Parliament as soon as possible a Bill which will provide for a restoration of elected institutions in Northern Ireland to which a wide range of Governmental powers will be devolved. There will be a single-chamber Assembly of about 80 members elected on this occasion by the single transferable vote method of proportional representation applied to the 12 Westminster constituencies. The Office of Secretary of State for Northern Ireland will continue and, as well as responsibility for those services reserved to him, he will represent Northern Ireland's interests in the United Kingdom Cabinet.
"The Northern Ireland Executive will be formed from the Assembly and discussions will immediately be put in hand by the Secretary of State for Northern Ireland with the Party leaders in the newly-elected Assembly on how this will be done. But the Government have decided that the Executive cannot henceforward be based on any single Party if that Party draws its support and its elected representation virtually entirely from only one section of a divided community. When the Government are satisfied that this condition can be met and that the system will be worked by those concerned, Parliament will be asked to approve the devolution of extensive law-making and executive powers to the Northern Ireland Assembly and Executive. There will, however, be a range of matters which will be excluded from the legislative competence of the Northern Ireland Assembly and in the present security situation there will be no devolution of responsibilities within the area of law and order. Arrangements will be made for the Northern Ireland Executive to be consulted on law and order

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matters, and for the involvement of elected representatives from the Assembly and from District Councils.
"The heads of departments in the Executive will also be chairmen of functional committees whose membership will, so far as possible, reflect Party strengths in the Assembly. No new law or policy will be proposed unless the appropriate Committees have been consulted.
"The White Paper proposes a charter of human rights for Northern Ireland. Central and local government and statutory boards will be debarred from any legislative and executive action of a discriminatory nature. In addition, a Standing Advisory Commission on Human Rights will be set up to co-ordinate the activities of all agencies working in this field, both in the public and private sector. A Bill will in due course be brought before Parliament to deal with job discrimination on religious or political grounds in the private sector following the recommendations of a Northern Ireland Working Party including both sides of industry.
"The Government reaffirm the pledge that Northern Ireland will remain part of the United Kingdom for as long as that is the wish of the majority of its people and this declaration will form part of the constitutional Bill.
"The Government favour the formation of a Council of Ireland but this must be achieved by consent. Therefore, following the elections to the Northern Ireland Assembly, the Government propose to invite representatives of Northern Ireland and the Government of the Republic of Ireland to a conference to discuss three interrelated problems. These are the acceptance of the present status of Northern Ireland and of the possibility—which would have to be compatible with the principle of consent—of subsequent changes in that status; effective consultation and co-operation in Ireland for the benefit of the North and South alike; and the provision of a firm basis for concerted governmental and community action against terrorist organisations. The Northern Ireland Assembly will thereby have an oppor
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tunity to play a full part in devising the form of any such Council.
"The introduction of new institutions in Northern Ireland must be accompanied by progress in the economic sphere. The Government will judge the financial needs of Northern Ireland so as to accomplish as quickly as possible the task of reconstruction; create a sound basis for the economy; and work progressively towards the achievement in Northern Ireland of those standards of living, employment and social conditions which prevail in Great Britain. When the new institutions in Northern Ireland have been formed, the Government propose to discuss with them how they can exercise, within prescribed limits, a large measure of freedom of decision as regards financial priorities and policies.
"In putting forward these proposals, the Government recognise that there is no more urgent task than to bring violence to an end. They will take all steps which are necessary. As part of this task Parliament will shortly be asked to approve legislation to combat terrorism more effectively. This legislation will give effect to the recommendations of the Diplock Commission, and will repeal the Special Powers Act re-enacting only those measures which are still essential. The Government propose that this legislation should operate only in an emergency and should be subject to the approval of Parliament.
"These are the Government's proposals. Under them, Northern Ireland will continue to have a greater degree of self government than any other part of the United Kingdom. Both the majority and minority communities will have an opportunity to play a full part in dealing with issues and procedures of crucial domestic importance to Northern Ireland. The proposed settlement is devised for the interests of Northern Ireland as a whole. It cannot meet all the wishes of any one section of the community. It requires the co-operation of all the people of Northern Ireland. A heavy responsibility now rests upon their leaders. There can be no excuse for withdrawal of co-operation or resort to violence. The many problems of Northern Ireland cannot be solved by Government

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alone but the proposed settlement, given good will, provides a fair and reasonable basis for progress."
My Lords, that ends my right honourable friend's Statement.
3.45 p.m.
LORD SHACKLETON: My Lords, we are grateful to the noble Lord for providing that summarised account of what is a long, complex and obviously very carefully worked-out White Paper. We have continually pressed for the publication of this White Paper. But having done so, I certainly urge my noble friends, and indeed any other noble Lord, to follow the advice of my right honourable friend Mr. Wilson, to avoid to the maximum extent detailed comment on these proposals at this stage. Because of my deep interest in this matter and my views, I myself have some difficulty in not commenting in detail, and I would go so far as to say that my comments might have been pleasing to the Government. But I am quite sure that this is now a responsibility which rests on the people of Northern Ireland, and the Government have wisely presented their proposals in a form which clearly puts upon them the responsibility as to whether they will live in peace and prosperity or in a continuation of the violence and tragedy of the last few years.
It seems to me, without commenting in detail, that the issue of the greatest importance will be the enactment of this legislation. Clearly we shall need to see it. Clearly the Government will wish to get it through. At the same time, I hope that we shall be able to give it the kind of consideration which we have not been able to give to so much other Northern Ireland legislation that has been passed. My particular reason for asking the Government to publish this legislation at the earliest opportunity is the hope that the proposals, for good or for bad (and I believe I have indicated my personal views that they could be very much for good), can be implemented; and, in particular, the elections to the proposed new Assembly, if that proves to be acceptable, should be carried out at the earliest possible date—and I would hope even in the earlier part of the summer.
My Lords, this is once again an opportunity for the moderate opinion in Northern Ireland which we believe exists in large measure to assert itself. When
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one considers the alternative choice, I am sure that all noble Lords wish to encourage that moderate opinion to emerge and if possible to avoid being turned in an extreme direction one way or another. As the noble Lord made clear in his Statement, this White Paper cannot possibly please everyone. It is simply not possible. It is incumbent on all of us to recognise that; and I hope that the majority of people in Northern Ireland will do so. I understand that we are likely to have an opportunity to debate this subject next week and that is an occasion when we may be able to press our views on particular issues. But I should not like to end without extending my personal thanks and gratitude both to the Secretary of State and to the noble Lord, Lord Windlesham, for their efforts.
SEVERAL NOBLE LORDS: Hear, hear!
LORD SHACKLETON: I believe it would be right at the same time to take note of a man who has not often been mentioned but who has had a difficult task; namely, Lord Grey of Naunton, the Governor of Northern Ireland, who, I believe, is shortly to retire; and, once again, all those in Northern Ireland who have continued to behave responsibly and with moderation.
LORD BEAUMONT OF WHITLEY: My Lords, I entirely agree with the noble Lord the Leader of the Opposition that this is not a moment to pass judgment prematurely. Nevertheless, there is obviously enormous food for thought and for action in this White Paper and we on these Benches cannot help being particularly pleased that there are at least two or three major proposals for which we have been pressing for a very long time. This is the first real opportunity for the moderates on all sides in Northern Ireland to work out their future together, and this is a great step forward. Our thanks are due, as the noble Lord, Lord Shackleton, said, to the Secretary of State and his Ministers, including the noble Lord, Lord Windlesham, for the obviously very painstaking care which has gone into this White Paper. They have, indeed, shown themselves to be honest brokers.
There is just one question I should like to ask to elucidate this point. In the Statement the noble Lord said that

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there will be a single Chamber Assembly of about 80 Members
"elected on this occasion by the single transferable vote method of proportional representation".
May I ask him whether "on this occasion" does not mean "in this case"? I understand the Government's reasons for qualification, but the Statement does not mean, surely, that the Assembly will be elected on future occasions by going back to the old "first past the post" system.
LORD WINDLESHAM: My Lords, I should like to thank both noble Lords for what they have said, and particularly for the restraint they have shown in not making instantaneous comments on the proposals of substance in the White Paper. Both noble Lords said that this is a chance for the more moderate people in Northern Ireland to come forward, and we certainly hope that that opportunity is one which will be taken. The noble Lord, Lord Shackleton, mentioned his desire to see urgent action taken, and I can assure him that we shall act with urgency. There will be two Bills, one enacting the constitutional proposals set out in the White Paper and the second Bill dealing with emergency provisions—that is, implementation of the Diplock recommendations; the repeal of the Special Powers Act; and making certain other special provisions which may be called for because of the emergency situation in Northern Ireland. We hope that both these Bills can be presented to Parliament as quickly as possible. They will, of course, be considered by Parliament under the normal full legislative procedures; not by the foreshortened substitute procedures that we have had to make do with. As soon as that is done, elections can be held for the new Assembly in Northern Ireland.
I would not split hairs with the noble Lord, Lord Beaumont of Whitley, about whether the S.T.V. is "on this occasion" or "in this case". The election for the Assembly will be on the basis of P.R. and so will the local government elections for the new district councils, but we do not want to commit ourselves for ever for the future. There have been different electoral forms in Ireland, North and South, in the past, and we should like to keep that particular option open.
THE EARL OF LONGFORD: My Lords, while paying my tribute to the high-mindedness of all those concerned with producing this White Paper, and without having had a chance to study it carefully, may I ask whether the aspiration of the Government, which I entirely share, that the minority will be represented in the new Executive will not in fact be implemented in the proposals here but will continue to be the responsibility of the Secretary of State, and it will be his task to see that it is carried out?
LORD WINDLESHAM: My Lords, it will be for the Secretary of State to judge when powers can be devolved on the Assembly and on the Executive, and in paragraphs 52 and 53, which I commend particularly to the noble Earl, the criteria which the Secretary of State will have in mind are spelled out in some detail. What is said there is that executive powers cannot be concentrated in the elected representatives of one community only. It will depend on the judgment of the Secretary of State when a situation has been reached which fulfils the criteria laid down in the White Paper, and so power will be shared in this way.
THE EARL OF LONGFORD: My Lords, supposing that in fact he forms the opinion that these powers can suitably be devolved and devolution takes place, and afterwards—which I hope will not occur—it breaks down, will he retain the responsibility and the power to make sure that the minority are properly safeguarded in the new Executive?
LORD WINDLESHAM: My Lords, this perhaps is getting a little more detailed than I had hoped on this occasion. There are three categories of powers—excepted matters, reserved matters and transferred matters—which are set out in some detail in the White Paper. I know the noble Earl is going to visit Northern Ireland very shortly. I hope he will be able to take part in the full debate which we shall have next Tuesday, and perhaps we could pursue this matter, along with any others that seem to him of importance, on that occasion.
LORD BROCKWAY: My Lords, in thanking the noble Lord for his Statement and paying tribute to him and the Secretary of State, and, if I may say so especially to him as a Member of this House, for contributing towards this

621
White Paper, may I ask him whether he is aware that those of us who have put forward proposals in the last two years, many of which are now adopted in the White Paper, wish to make an appeal to all people in Northern Ireland to accept a period for consideration of these proposals without seeking to exacerbate the present situation, in order that calm consideration may be given to the ultimate solution which is to be gained?
LORD WINDLESHAM: My Lords, I am very grateful to the noble Lord for what he has said, and he is quite entitled, more so perhaps than almost anybody else in this House, to read the latter part of this White Paper entitled A Charter of Human Rights "with some satisfaction. The timing and the form of the changes that are proposed may be different from those that he has made on a number of occasions, but the aim of policy is the same, and I think he can take considerable credit for that. I hope that the noble Lord's voice, which is listened to with respect in Northern Ireland in those circles concerned particularly with the preservation and the furtherance of human rights, will be listened to on this occasion more than on any other.

LAND COMPENSATION BILL
3.58 p.m.
Second Reading debate resumed.
LORD HENLEY: My Lords, I hope those of your Lordships who are interested in the Land Compensation Bill will forgive me for giving way to the Statement. As Lord Shepherd said, it is a very complex Bill and is, in a way, more suited to comment in Committee than on Second Reading. That being so, it seemed to me better that we should not be arguing rather abstruse points about compensation before noble Lords who really were here to listen to the very important Statement about Northern Ireland.
The point that I left your Lordships with was this, that I feel, as indeed do the Opposition Benches, that this Bill does not get to the heart of the problem in so far as, although it sticks closely to market values, it does not really deal with the consequential losses; and consequential losses are those which inflict grievous
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injustice upon people who have land or houses or businesses taken from them. Until we devise methods, which are acceptable to the public, of meeting those consequential losses, we shall not have produced a good Bill.
My Lords, I do not know why this situation has come about, because if one looks at our compensation legislation one might say, if one were a foreigner, "Well, on the face of it this does not look too bad". But I think there has been a long tradition (shall we say?) of Treasury directives which have lessened the effect of what the compensation provisions might be meant to provide, and by that I mean the sort of thing that Mr. Justice Scott suggested that they should provide. Therefore, I welcome any tendency in this Bill towards liberalising payments, towards liberalising the way in which these payments are looked at, because I think it may well be that we can deal with these problems in the long term more effectively by liberalising the attitude which district valuers take than by laying it down in an Act of Parliament. Before 1919, for instance, there was the provision by which over and above the market value a man might receive he got an extra 10 per cent. because the property was taken compulsorily. It has been suggested that perhaps this 10 per cent. might come back again or that it might be 15 per cent. I am not sure whether this would help very much. In some cases it can well be that a man's consequential losses are not 10 per cent. or 15 per cent. of the market value of his property, of what he has had to give up—they may well in certain circumstances be 100 per cent. This is what we must learn to look at if we are going to produce a just Bill. I am arguing here that sometimes a man's consequential losses might be 100 per cent. of the market value of his land and I am saying that, as you cannot always reinstate a man for what he has lost, you must try and devise means for doing the next best thing, which is to make good his consequential loss. Well, there are some small comforts in the Bill towards this—home loss payments—but I do not think it goes very far of course as the maximum payment is going to be only £1,500. That does not go very far even if it is on top of the market value towards his reinstatement. So far as farm loss payments are concerned I feel that

623
they too are derisory. Nevertheless, among those small comforts is also another comfort, that of the new thinking with regard to depreciation by public development where the land is not acquired.
There are two points I should like to follow up when we come to the Committee stage. The first one deals with Clause 43 which the noble Lord mentioned earlier. What worries me about this clause, which is meant to improve the compensation which a tenant should receive for dispossession, is that it looks as if some part of a tenant's very slightly improved compensation is going to be paid for not by the acquiring authority but by the landlord. In another place this was denied by the Minister, but let him show that his denial means something. The noble Lord, Lord Sandford, made a revealing remark, a rather unfortunate one in this context, and I quote his words. He is talking about a tenant's compensation—
"None can be worse off and some may be better off"
That is a very remarkable statement for a Minister of the Government to make about his own Bill. We will see when we come to the Committee stage what can be done about Clause 43 because I think there is widespread feeling that an injustice is going to be cured at the expense of an injustice to someone else.
The second point is one which I feel should not have had to come up under this Bill at all because this Bill is about compensation. I think it is Clause 21 which deals with trying to make roads fit better into the landscape—visually that is. I know, and noble Lords know, that a good modern road can be a very beautiful engineering artifact, but if it is in the wrong place, and if it is using up some very beautiful country such as we were talking about the other night, then although it is itself a beautiful artifact it is damaging to that countryside visually, and there is very little countryside left to damage visually. We can ill afford it. The suggestions put forward by the Bill—and they were foreshadowed in the White Paper—were that it should be possible to acquire land outside the limits of the road itself. The noble Lord mentioned this in his speech. The White Paper looks more promising than
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the Bill and I am rather doubtful whether anything will come of that. Alternatively—and I hope to raise this under an Amendment—to argue the case even if we did not get anywhere, is to try to mitigate the effect of a road, by such activities as planting or smoothing out curves et cetera outside land not acquired. I do not know whether this could be done. I hope, in view of what the noble Lord said, that when we come to the Committee stage we may be able to try it out. I feel it is unfortunate that so important an issue as trying to make roads fit into the countryside should have had to come up in a Bill which is really dealing with compensation—and making roads visually better than they would otherwise be has nothing to do with compensation.
To return now from the two Committee stage points which I raised to the central point of the Bill, although one welcomes the small grains of comfort in it, and though I welcome still more the liberalising effect which the Government's suggestions will have on the payment of disturbance and injurious affection, and so on, I still feel that the Bill is a very poor answer to the misgivings in the minds of nearly everybody connected with the question of compensation over the last three or four years.
4.6 p.m.
LORD WOOLLEY: My Lords, may I first of all apologise to the noble Lord, Lord Sandford, because I was not here to hear the whole of his opening speech. I was unfortunately detained longer than I expected by another engagement. I think that the noble Lord, Lord Shepherd, and particularly the noble Lord, Lord Henley, have covered a fair amount of the ground, that I would wish to refer to, and I hope that noble Lords will bear with me if I address my brief remarks to the agricultural aspects of this Bill. Not that I am unaware of the very great importance and the great hardship that falls on many sections of the community as well as on the farming community, but rather because there are many people much more knowledgeable about those aspects than I am, and such knowledge as I have is largely related to agricultural problems with which for a good many years I have been connected on this land use side.

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It has been a great problem for us in the agricultural community, certainly during the whole of the time since the last war, and constantly efforts have been made to get the terms of compensation made more adequate to the impact of these acquisitions of land on a very vast scale. It was referred to as 70,000 acres a year. We used to use the figure of 50,000 acres and were accused of exaggerating the position, but apparently now it is considerably more. This is of very great significance. I think the agricultural community recognise and have always approached this problem in a responsible spirit—that these losses of land, which is their raw material, are unavoidable; at least that the whole movement is unavoidable though many of the detailed acquisitions may have been, particularly more so in the past than they are to-day, rather carelessly carried out.
This Bill represents, I am sure, an honest attempt by the Government to move forward in this matter of compensating those who are injuriously affected by acquisitions for the public good. The noble Lord, Lord Henley, has referred to what Lord Justice Scott said a good many years ago on this matter, and this philosophy and principle have been repeated by successive spokesmen of successive Governments of different Parties; that those who are so affected should not be worse off in so far as financial arrangements can prevent it. This laudable philosophy has not been carried out in practice so far as the farming side of it, of which I speak with some knowledge, is concerned. This Bill moves somewhat, but extremely tentatively and inadequately, in that direction, but so far as I can see, the owner-occupier is still left with the market value.
The noble Lord, Lord Henley, has referred to the inadequacy of market value, and in this Second Reading speech I do not propose to go into all the details of why market value is inadequate. I am sure that the noble Lord, Lord Sandford, knows the arguments perfectly well. But it is a fact that for years, if a farmer lost his farm to non-agricultural development, he has found that the price of another farm was way beyond the compensation he received, always assuming that he was able to find a suitable farm within the
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period during which he escaped capital gains tax; and if he was unable to escape that tax he would not have enough money to reinstate himself anyhow. In addition to losing the ownership of his land a farmer is also losing his business, and that is a side of the matter with which the Government have sought to deal in the tenants' compensation, which again I acknowledge is a movement in the right direction. The Bill is rather vague as to how the tenant is to be compensated, but for both the tenant and the owner-occupier the position is improved by the compensation for the loss of his home, to which all sections of the community are entitled. I think we can all welcome that.
In the main, therefore, I welcome the direction in which this Bill tries to move, but I am bound to say that it does not go far enough. One may say, "Of course, nothing will ever go far enough to satisfy people in these circumstances", but I do not think that that is really the attitude of those who speak with responsibility for the agricultural community. I certainly think that something more is needed than compensation with market value as the main element. I believe that prior to 1919 there was an additional element which was added on to market value. Suggestions have been made about percentages. The noble Lord, Lord Henley, referred to these and said, quite rightly, that in some instances they could be quite inadequate. We appreciate that market value undoubtedly represents a recognisable and comprehensible measuring stick for compensation, and therefore it has merit, but in itself and alone it is not adequate. That is really the point that I am trying to make, and I hope that during the Committee stage the Government will look sympathetically at this aspect of the problem and will try to move towards some mechanism for adding to and supplementing the market value assessment. In doing so, I hope that they will also recognise that, in addition to losing his land, a farmer is also losing his business.
I do not wish to take up time referring to the tremendous upset when people lose their homes and are uprooted, but there is perhaps more of an upset in the case of farming than in any other vocation

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of which I know. I remember the words of the miller of Dee:
"I live by the mill and she is to me
As parent, wife and child."
I do not know much about millers, but I certainly know that that attitude is abundantly true of many farmers, though not perhaps to the same extent, because they have some regard to their parents, wives and children. But the affection for, the affinity with, and the emotion for their farm is something which it is perhaps difficult for anybody other than a farmer to appreciate. Farmers suffer both a tremendous business upset and a tremendous psychological upset when they lose their farms. We know that these hardships cannot be helped and cannot be escaped from. We know that compensation can never be completely adequate and cannot make up for all that is involved, but let us at least try to make the financial provisions as reasonable as we can.
4.16 p.m.
LORD WOLVERTON: My Lords, I should like to welcome this Bill and to congratulate Her Majesty's Government on bringing it forward. I have always thought it very unfair, in the case of a motorway such as the M.4, that a person does not get compensation if he is not living actually on the line of the motorway. When one drives along the motorway and sees bedroom windows right up against it, one realises that there must be very great hardship. So I am glad that Her Majesty's Government have taken that aspect into consideration and that there will be compensation. That is all I want to say. I have felt very strongly about this matter for a long time, and if we are to build more ring roads in London and other cities people ought to be adequately compensated for the hardship involved.
4.17 p.m.
LORD CLIFFORD OF CHUDLEIGH: My Lords, before we come to the Committee stage may I ask the Government three questions? I think that what I have in mind applies elsewhere, but these points have come to my attention through the recent compulsory purchase of land for a by-pass. Will the Bill enable an owner-occupier to get com
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pensation for the replacement value at the end of the public work, and not at the time of the contractors entering upon the job? Obviously, an owner-occupier cannot build locally while the disturbance is going on, and a farmhouse or a farm building such as a dairy must be sited strategically. If the nuisance lasts for five years, then the compensation should be the replacement value at the end of that time, not at the beginning. It seems to me that the period for exemption from capital gains tax should be extended to at least five years and that should also apply where a part, not the whole, of a man's farm is taken. If part of a man's land is taken, he can compensate himself by putting that money into farm buildings and other services. Is that possibility catered for in the Bill? Also, can the Bill be used to hasten more generous compensation for the repair of damage to buildings and amenities, while these nuisances or these jobs are going on?
VISCOUNT MONCKTON OF BRENCHLEY: My Lords, before my noble friend replies, may I follow those questions with a personal experience? I farm 350 acres and am about to lose 20 acres to the new M.20 Maidstone/Ashford by-pass. This will go through the best land on the farm and will take away 20 acres, instead of going by the poor, gault clay by the railway line which is also mine. I do not want financial compensation; I want 20 more acres to continue farming, or, as the last speaker said, money which I can put into the capitalisation of buildings straight away, in order to be more intensive as a result of having fewer acres. Also, I do not want to be liable to capital gains tax.
4.20 p.m.
LORD SANDFORD: My Lords, I am grateful to the noble Lords who have joined in this debate, and for the welcome they have given to the Bill. As the noble Lord, Lord Henley, and the noble Lord, Lord Woolley, said, it is doubtful whether anything we can do by way of legislation will fully compensate people for the loss and the disturbance they suffer, particularly farmers; and I am sure that that is so. Equally, I think it is unlikely that we shall ever be able to arrive at figures payable under any code of this kind which will satisfy

629
everybody. What the Government have to do is to strike what they believe to be the right balance between those who are disturbed and affected and who suffer loss as a result of public works, on the one hand, and the taxpayers who have to foot the bill, on the other. In this particular case, as a result of all these measures taken together, we are adding another £70 million per annum to what is paid in compensation for public works that affect private rights and private living. I would claim, I think with justification, that that is a step forward, and a fairly substantial step forward; but I would agree with all noble Lords who have spoken that this certainly leaves room and scope for debate when we get to the Committee stage—and I think that, generally speaking, it is better to wait until that stage before we go into anything in much detail.
Dealing briefly with the speeches that noble Lords have made, I would gladly acknowledge the debt that we owe to the previous Administration for the preliminary work that they had already done in this field. The noble Lord, Lord Shepherd, asked me whether the maximum and minimum figures given in the Bill for home loss could be (I think this is the word he used) uplifted, and I would confirm that they can. That is Clause 28(2). The noble Lord asked about the obligations laid upon the authorities for sound insulation, and the distinction between the powers that will be conferred on high- way authorities to do things at their discretion, and the obligations they will have to make payment in cases where entitlement can be established. This will all be set out in the regulations provided for under Clause 19. The noble Lord made the point that there may be a case, and that in fact there often will be a case, in which compensation should start and be calculated from the beginning of the inconvenience that is caused by the construction itself; and that may often be so. On the other hand, there will be cases, I am sure he will agree, where the construction inconvenience may be minimal but the resulting traffic will be very heavy indeed. There may be other cases where the construction work will be very inconvenient and noisy but where the resulting change in the traffic may even lead to a slight reduction in noise. So you cannot tie the two closely together,
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as he was suggesting, but they both need to have provision made for them.
The noble Lord, Lord Henley, and the noble Lord, Lord Woolley, queried market value, but neither of them suggested any other value which was as fair and as just as market value with various supplements.
LORD HENLEY: My Lords, would the noble Lord give way? I did not so much query market value. I think I would accept that, broadly speaking, it must be the bare bones of any compensation that a man receives. What I said was that the grievous injustice always comes under the heading of "consequential loss", and it is in trying to get over the question of consequential loss and in trying to compensate that fairly, that we must look for any improvement.
LORD SANDFORD: My Lords, I think the Government agree with that, and that is why we have introduced three innovations here which will be of benefit to those concerned.
LORD WOOLLEY: My Lords, may I also say this to the Minister, if I may intervene? I was not querying market value as a sound basis, but was saying, rather, that dealing with market values narrowly, as has been done up till now, is really inadequate, and that the supplementation ought to be much better.
LORD SANDFORD: Then, my Lords, we are in even more agreement than I thought, because we are all in agreement that market value is the right basis, and I would have the support of both noble Lords in resting on that and in seeking to deal with what is left by the innovations we are introducing by this Bill: namely, home loss, farm loss, disturbance payments and other payments of lesser significance. I would agree with the noble Lord, Lord Henley, that all the problems here, as is the case with many other problems, are aggravated by inflation. That is why we are so much concerned to counter inflation and to beat it, because inasmuch as we succeed, the problems here, as everywhere else, will be alleviated. I would agree with both noble Lords that the Committee stage is the right moment at which to tackle Clause 43, but I can straight away confirm to (I think it is) the noble Lord, Lord Henley, that Clause 22 makes it possible

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to landscape on land which is not just an extension of the highway land but is detached from it—and this has been needed for a long time.
My Lords, I do not think I will go any further into any of the details at this stage. I will note the points made by the noble Lord, Lord Clifford, and the noble Viscount, Lord Monckton, and can assure them that we shall be able to return to these and go into them fully when we get to the Committee stage.
On Question, Bill read 2ª, and committed to a Committee of the Whole House.

LEGAL ADVICE AND ASSISTANCE (FINANCIAL CONDITIONS) REGULATIONS 1973
4.27 p.m.
THE LORD CHANCELLOR (LORD HAILSHAM OF SAINT MARYLEBONE): My Lords, I rise to move the first of the two Motions relating to legal advice and assistance. The second Motion performs the same operation as regards the Scottish Regulations, and, though they must be moved separately, the House may find it convenient to discuss them together because, so far as I know, no separate point arises. The two Motions give approval to the Regulations necessary to give effect to the Legal Advice and Assistance Act which we passed last Session, and which will be fresh in your Lordships' memory. The Regulations contained in the two Motions are confined to the limits on "disposable capital"—a term to which I will return—and they bring these limits up to the same figures as those we passed for the old Legal Aid Scheme on November 16 last, so following, although not exactly in accordance with, the advice I received from the Legal Aid Advisory Committee. I have also received, as noble Lords will be aware, advice from that Committee that the income limits of both the old and the new schemes should be raised. This advice has not, I should like to say, been rejected by the Government, but it is still under consideration; and I will make an announcement concerning the income limits as soon as I can. I am sorry
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that it has not been possible to make this announcement regarding income limits in time to coincide with the commencement of the new Act in April. In the absence of such an announcement, the limits will of course remain as stated in the Act itself. In the meantime, the present Regulations are required to preserve the link between the old scheme and the new.
My Lords, the effect of the Regulations is to raise the limit of "disposable capital"—again I use the words in inverted commas—from £125 to £250. This is the figure we passed in respect of the old scheme of legal aid on November 16. It is slightly less generous than the figure of £325, the limit at which capital is ignored for the purpose of supplementary benefits, but that is because the supplementary benefits scheme makes no allowance for dependants. The Legal Aid Scheme does make allowances for dependants, as does the new scheme which we are now discussing. The figure of £250 contained in the two sets of Regulations is more generous by £40 than the increase which would be indicated by the rise in the cost of living since the limits were last fixed before November, 1972.
The Regulations will come into force on April 2, 1973, that is, the same date as Parts I and III of the new Act. As the House will recollect, the effect will be that anyone can go straight to a solicitor who has agreed to provide legal advice and assistance, and he will fill in a simple form regarding means. If the applicant is found financially eligible, he will be entitled without further question to free legal advice and assistance up to the figure of £25 plus any excess due to V.A.T. Thus, the £25 figure remains clear of V.A.T. Dependent upon his income he may be asked to pay a contribution towards this advice; but in the case of those within the income limits the advice and assistance will be free. After the first £25 plus V.A.T. further advice and assistance will be available under the new scheme, but in that case the solicitor will need the authority of the appropriate Law Society Committee to incur further expense.
The scheme also makes an important extension to the provision of legal aid in its strict sense. It entitles a client to legal representation by a solicitor if the solicitor happens to be within the precincts of a county court or magistrates'

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court, or, in the case of the Scottish scheme, the sheriff court. The only limitation is that the client must not already be in receipt of ordinary legal aid in respect of the same matter, and the court must either request the solicitor to give his aid or, alternatively, approve of his doing so.
Steps are being taken to advertise the new scheme. The campaign will be aimed to reach both those entitled to give, and those entitled to receive, the benefits of the scheme. There will be advertisements on T.V. and in the Press. There will be posters in post offices, and on buses and elsewhere. Explanatory leaflets will be available in post offices. More detailed pamphlets will be available to citizen's advice bureaux, hospitals, local authorities, and others likely to be in a position to put potential clients in touch with solicitors. The various local law societies under the inspiration of the Law Society itself are themselves undertaking a separate campaign urging solicitors to join the scheme, and meetings of solicitors in connection with the campaign will be held in the coming month.
I have said that the capital limits which are being raised by the regulations refer to "disposable capital". This means the net sum which remains after making various disregards and allowances. Actually the deductions in the Legal Aid Scheme proper are somewhat more sophisticated, and therefore more generous than those permitted by the new Advice and Assistance Scheme. This is because, unlike the Legal Aid Scheme proper, this scheme has to be operated by solicitors and not by the Supplementary Benefits Commission who have expert staff at their disposal.
Under the new scheme there will be disregards in respect of household furniture and effects, personal clothing, tools of trade and half of the net value of the dwelling house after first disregarding the first £6,000. There will also be allowances for dependants—£125 for the first, £80 for the second, and £40 for the third and subsequent dependants. I hope that I have given the House an indication of what the Regulations are about and what they do; and in these circumstances I beg to move the Motion which stands in my name.
Moved, That the Legal Advice and Assistance (Financial Conditions) Regu
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lations 1973, be approved.—(The Lord Chancellor.)
LORD HOY: My Lords, we are grateful to the noble and learned Lord the Lord Chancellor for the explanation that he has given of both these Orders. We have no objection to their being taken together. He has anticipated questions that we might have asked. We should have wanted to know what "disposable capital" represented. We now have a complete explanation and it is a little more generous than we had anticipated. I am hound to say to the noble and learned Lord that we are not altogether impressed by the sums available in both cases being raised from £125 to £250. Even on the figures given by the noble and learned Lord and the depreciation that has taken place since the last Order was made, it may well be that this sum of £250 as laid down in both Orders will very quickly be overtaken.
We are also grateful to the noble and learned Lord for the statement about the income limits. Obviously, we had hoped that that would appear in the Order but we willingly accept the explanation he has given and look forward to that part of the statement because one will then be better able to judge all that is involved. Subject to these few remarks, may I once again express our thanks to the noble and learned Lord the Lord Chancellor for what he has said.
THE LORD CHANCELLOR: My Lords, the noble Lord has not asked me any fresh questions, but I should like to thank him sincerely for what he said. I appreciate his kind remarks. I agree with him that one will hope in the future that these things will be more generous, but I operate under a difficulty as do all Government Departments.
On Question, Motion agreed to.

LEGAL ADVICE AND ASSISTANCE (SCOTLAND) (FINANCIAL CONDITIONS) REGULATIONS 1973
LORD MOWBRAY AND STOURTON: My Lords, like the noble Lord, Lord Hoy, I should like to thank the noble and learned Lord the Lord Chancellor for having spoken also to the Scottish Motion. With these few words, I beg to move that these Regulations be agreed to.
Moved, That the Legal Advice and Assistance (Scotland) (Financial Conditions) Regulations, 1973, be approved.—(Lord Mowbray and Stourton.)
On Question, Motion agreed to.

FATSTOCK (GUARANTEE PAYMENTS) ORDER 1973
4.36 p.m.
EARL FERRERS: My Lords, there are two Motions down in my name on the Order Paper, one concerning the Fatstock (Guarantee Payments) Order 1973, and the other the Calf Subsidies (United Kingdom) (Variation) Scheme 1973. Again it may meet the convenience of the House to discuss both Motions at the same time. As your Lordships will see, both Orders deal with subsidies and with stock. I should like at the outset to refer to the market price for fat cattle as this forms the background to these Orders.
The market price of fat cattle has over most of the past year been above the level of the guaranteed price because of the world market situation of beef. As a consequence, no guarantee payments have been made since the week beginning May 8, 1972, and it seems clear that no more will need to be made in the last week or two of the current fatstock year. The fat cattle guarantee has therefore already become rather theoretical. On February 1, the United Kingdom adopted the Community mechanism of support for beef. This means that market prices will, if necessary, be supported by the system of duties and levies on imports and by new intervention arrangements which the Community has decided to introduce.
These new arrangements provide beef producers with a firm assurance against the possibility of market prices falling to an unduly low level and so they are fully adequate to replace the guarantee arrangements. That is why we decided to terminate the guarantee for fat cattle. This was done by laying the Common Agricultural Policy (Termination of Guarantee Arrangements) (Fat Cattle and Rye) Order. That is not the subject of debate this afternoon as it requires the Negative Resolution procedure.
My Lords, that is the background to these two Orders. The Fatstock (Guaran
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tee Payments) Order which is before your Lordships merely re-enacts to a considerable extent the provisions of the Orders which it revokes. But it excludes provisions for fat cattle, since they are no longer required. As before, the provisions for fat sheep enable guaranteed payments to be made each week if the market price falls below the guaranteed price expressed on a weekly basis. It also enables the rate of payment to be adjusted if prices fall below the levels estimated for each week. This mechanism is to encourage producers to market sensibly and to hold off their marketing if prices fall unduly low.
The two changes for pigs are also straightforward. The first is that the flexible guarantee for pigs, which has provided a kind of production target, will cease to operate after March 25. The setting of a United Kingdom production target would no longer be appropriate within the European Community, and it could also have imposed a disincentive on the home producer at the start of transition. Secondly, the arrangements relating to the feed formula are being slightly modified. The new Order enables Ministers, should they think it appropriate at some stage, to terminate the feed formula while retaining the basic guaranteed price.
My Lords, the Calf Subsidy (United Kingdom) (Variation) Scheme merely makes essential legal changes so that the existing Scheme can continue. These changes are necessary because, as I explained earlier, fat cattle will be removed from the guarantee arrangements from March 26. I trust, my Lords, that that explanation will indicate what these Orders are about, and I beg to move the first Order.
Moved, That the Fatstock (Guarantee Payments) Order 1973, be approved.—(Earl Ferrers.)
4.42 p.m.
LORD HOY: My Lords, we are grateful to the noble Earl, Lord Ferrers, for explaining what these Orders are about. It is a little unusual when the Minister producing an Order says, "You know, this is a complete misdescription of this Order, and guaranteed prices are no longer guaranteed." What the Minister has said is that the price level has now risen so high that the guarantee is of no use. To bring in an Order of this kind,

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describing guaranteed prices and an assured market, seems to me to indicate that the Minister and the Department of Agriculture, Fisheries and Food, might well be prosecuted by the Department of Trade and Industry under the Trade Descriptions Act. Here they have introduced an Order which they say means nothing at all and which certainly does not conform with the description. But I will not quarrel with the noble Earl over that. In the old days I used to argue that the Treasury should have been a little more generous over guaranteed prices because they never had to pay out what they guaranteed.
I may have misread the Order, but I differ with the Minister so far as the pig guarantees are concerned. On page 3, the Order states, in paragraph 5:
"Provided that in the case of fat pigs any such guaranteed price may be related to a price per hundredweight of a basic feedingstuffs ration determined in respect of the guarantee period."
I find it a little difficult to understand what that means, and I am not offered a further explanation if I turn to page 5, where, in paragraph 11, it states:
"The Minister may until such time as he may determine ascertain in respect of each week of each guaranteed period an average price per hundredweight of the basic feeding-stuffs ration; such price to be ascertained by reference to the prices of the basic feeding-stuffs during such period as may be determined by the Minister."
I think that calls for a little explanation. Secondly, is the Minister saying that it is a change in the price that is being announced? Is he saying that the guaranteed price will go and that the Government will substitute an intervention price for pig feed? It is a little difficult to understand. I would not ask the Minister to explain what all these guaranteed weeks or periods mean, but I am certain that he would be delighted to tell your Lordships whether these particular provisos in this Order intimate changes so far as guaranteed prices are concerned.
LORD HAWKE: My Lords, may I ask my noble friend a question? He referred to the E.E.C. guarantee as being better than our own. Would he illustrate that with the figures? My other point is: is it not time that we stopped calling these animals "fatstock"? The British people do not like fat. They would much prefer to have Orders dealing with "mature
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stock" or some such term as that. "Fatstock" revolts them.
EARL FERRERS: My Lords, I will certainly take note of the fact that my noble friend, Lord Hawke, does not like the word "fatstock". I do not know whether he would like it if all animals consumed by the public were to be described as "leanstock". I doubt whether that would suit his palate or his plate.
LORD HAWKE: My Lords, that is exactly what the public are asking for.
EARL FERRERS: Maybe they are, my Lords, but I think that the noble Lord would find that if the public were presented periodically with lean animals which were either immature or too mature, that would not be palatable. I take my noble friend's point, but I think it would be promising too much to suggest that this word would be altered in future.
To deal with my noble friend's question first, it refers of course to fat cattle. His question was, what would be the comparative prices of fat cattle? It is always difficult to assume a direct comparison, and, if I may preface my remarks with that observation, I will give my noble friend such figures as I can. The guarantee system is different from the European Community system and therefore it is difficult to get an exact figure, but if there were no change in the Community guide price for cattle for 1973–74, the United Kingdom guide price—which, of course, would be different from the Community guide price because of the transitional period—would be £14·87 per live hundredweight. That refers to all cattle, including culled cows to which the guarantee does not apply. It is the equivalent of a price of at least 80p. per live hundredweight higher; in other words about £15·70 per live hundredweight, if it is looked at in terms of the price of clean cattle which would be eligible for the guarantee. So if my noble friend will take that figure of about £15·70 and refer back to the existing guarantee level for cattle, which is £13·20, I think he will get an idea of the comparison.
The noble Lord, Lord Hoy, said that it was a bit of a swindle to call it a guaranteed prices Order when there was no guarantee. There is, of course, a guarantee, which is that if the market

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price drops too much, the Government come in, and that produces a guarantee. I agree with the noble Lord that over the last several months this action has not been necessary in the case of fat-stock. He drew attention to paragraph 5 of the Order and asked me to explain what this meant. In fact there is no great change from the Order that existed previously, other than that it states:
"Provided that in the case of fat pigs any such guaranteed price may be related to a price per hundredweight…".
In the old days it read:
"…shall be related to the price per hundredweight".
This permits the Minister to incorporate the feed formula system in the guaranteed price but it does not make it mandatory on him to do so. As I explained earlier, there may be an occasion in the future where the food formula will be removed from the guaranteed price. That is the only alteration in that section.
LORD HOY: My Lords, this is the reason why I raised the point, because every time this question has come up in your Lordships' House or in another place we have always been told by Government spokesmen, irrespective of Government, that "may" means "shall" and shall "means "may". I wondered if what the noble Earl is now saying indicates that the two words have a completely different meaning. I wanted to know this for future reference.
EARL FERRERS: My Lords, as one who used to speak from the Dispatch Box, the noble Lord, Lord Hoy, surprises me if he thinks that "may" and "shall" are the same. I should have thought that there was a considerable difference, in that one makes it mandatory upon the Minister to do something and the other makes it permissive. That is the change. With regard to page 5, to which the noble Lord, Lord Hoy, referred, this is merely the continuation of the new formula.
BARONESS PHILLIPS: My Lords, before the noble Earl sits down, perhaps I may ask a simple question. I find it difficult as an ordinary consumer to follow about "clean cattle" and "fat cattle" and so on. Can the noble Earl give us any indication whether we. can
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expect the retail prices of beef, pork and so on to be higher or lower?
EARL FERRERS: My Lords, as this scheme works, it will not affect retail prices at present.
LORD HAWKE: My Lords, I thank my noble friend for those figures, which were most interesting. I think this proves that the high price of beef in the shops has nothing to do with our going into the Common Market. I make out, from his figures, that approximately 6p to 9p a lb. in the butchers' shops will be the difference between our old guarantee and the new guarantee; and, goodness knows!the price has gone up a great deal more than that. So it is a scarcity price and not an E.E.C. price that we are suffering to-day.
EARL FERRERS: My Lords, I am grateful to my noble friend for confirming this. The Government have been saying for a long time that the high price of meat is due to a world shortage, and a world increase in the price of cereals, as opposed to our entry into the Common Market. My noble friend is quite right in saying that the high prices which we are experiencing, and which we deplore, have nothing to do with the Common Market.
LORD HOY: My Lords, I do not want to prolong this discussion unnecessarily, but I am provoked into doing so by the noble Lord, Lord Hawke, who said that he is delighted, because the only reply he got was that as a consequence of going into the Common Market the price would go up still further. I am not going to argue at this time as to what has been responsible, but when you get an answer of that kind and seek to convert it into a saving to the housewife, then I think the noble Lord goes a little too far.
LORD WIGG: My Lords, the Government must not be allowed to get away with this canard that their difficulties arise from world prices. It is true that world prices have risen, but as the noble Lord, Lord Butler of Saffron Walden, will know, when he was in charge of Conservative propaganda in the 1950–51 Election, the fact that world prices were moving against the Labour Party was treated with cries of derision from Tory quarters, and it was said that it was not an argument that could then be put forward. Nor

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was the fact that from 1950 up to the 'sixties the terms of trade on a world basis moved in favour of this country and was of considerable assistance to the Conservative Administration over those years. Those facts were completely ignored. Only now when the question of world prices have moved against this country (and this is true) can it be used as an excuse. They must not be allowed to get away with it, because at a time when world prices are rising they have abandoned the historical cheap food policy of this country; and without any shadow of doubt, the fact that they have done so and have gone into the Common Market has exacerbated an already difficult situation. So that the responsibility for rising prices is the responsibility of the Government. They cannot be allowed to get away with it and, so far as I am concerned, they certainly will not. Yesterday this House passed a Bill which was I may say the vernal instalment of our entry into the Common Market. On April 1 we move forward to the second instalment, and we shall go on. We are paying instalment after instalment, arising from a muddleheaded, obstinate, incompetently applied policy by the Government, and I shall on every occasion nail them down on this issue.
On Question, Motion agreed to.

CALF SUBSIDIES (UNITED KINGDOM) (VARIATION) SCHEME 1973
EARL FERRERS: My Lords, I beg to move that this Scheme be approved.
Moved, That the Draft Calf Subsidies (United Kingdom) (Variation) Scheme 1973, laid before the House on March 7, be approved.—(Earl Ferrers.)
On Question, Motion agreed to.

GUARDIANSHIP BILL [H.L.]
4.54 p.m.
THE MINISTER OF STATE, HOME OFFICE (VISCOUNT COLVILLE OF CULROSS): 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.—(Viscount Colville of Culross.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD DOUGLAS OF BARLOCH in the Chair.]
Clause 1 [Equality of parental rights]:
THE DEPUTY CHAIRMAN OF COMMITTEES: Amendment No. 1: Lord Simon of Glaisdale.
LORD HOY: I do not know if we have moved too quickly for the noble and learned Lord, Lord Simon of Glaisdale. The noble and learned Lord has been very attentive to this Bill and given it a tremendous amount of thought. He is a noble and learned Lord for whom we all have the greatest respect. I am certain that he must be about to arrive in your Lordships' House, and perhaps I might take this opportunity to ask the noble Viscount, Lord Colville of Culross, if he has any intimation to make about whether the noble and learned Lord is going to be here or not.
VISCOUNT COLVILLE OF CULROSS: No. I was very much looking forward to hearing the noble and learned Lord, because, particularly on the subject of the first Amendment, he had a point which he made in the course of his speech on Second Reading and has repeated in his first Amendment, and it is something that really needs discussing. The snag about it is that, with the grealtest possible respect to me and to others who are not particularly skilled in the Family Division of the High Court, I doubt whether any of us would do it nearly so well as the noble and learned Lord, Lord Simon of Glaisdale—except that I see the noble and learned Lord, Lord Gardiner, is here: I do not know whether he knows anything about the avoidance or enforceability of ante-nuptial agreements and the affect on Section 1 of the Guardianship of Infants Act 1925.
LORD BESWICK: Ought it not to be regularised by formally moving the Amendment?
LORD HOY: Obviously it is impossible for the noble Viscount who represents the Government to move an Amendment on behalf of somebody who perhaps is in disagreement with him, but I am sure that it must be in order for me to move the first Amendment standing in the name of the noble and learned Lord, Lord Simon

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of Glaisdale. Accordingly I beg to move Amendment No. 1.
Amendment moved—
Page 2 line 5, leave out from begining of line to ("of") in line 6.—(Lord Hoy.)
VISCOUNT COLVILLE OF CULROSS: Without having the argument deployed, I think I shall probably have to do it myself. I will attempt to describe the situation—and may I say in advance that this is a point on which I should welcome the views of the Committee, whether it relates to England (as it does here) or to Scotland under Clause 10(2), because exactly the same point is dealt with, although there is no Amendment down on the Scottish clause. Until 1873 the common law in England was that it was against public policy for a father to make agreements which derogated from his legal position as the guardian and "looker-afterer" of his children. The result was that if he made an agreement with his fiancée before they married which said that in the event of there being any children they would be brought up in the Roman Catholic faith, or in the Protestant faith, or something of that sort, then it appears that at that stage the courts did not consider such an agreement to be valid at all. Equally, in England a separation agreement was not valid either. Therefore if the separation agreement was made between two parties without a court order that the children should be looked after by the mother and that there should be payments of a certain sort by the father to the mother and so on to the children—I hope I have got this right: I was expecting this matter to be explained by somebody else—then the courts did not consider that to be a valid agreement either.
In Scotland the situation was slightly different, since, I am told, nobody has ever heard of litigation on ante-nuptial agreements in Scotland; but there was a slightly similar situation with regard to separation agreements, in that then (and I believe to this day) one could make an agreement which would be enforced by the courts at common law whereby the father paid money to the mother but not whereby he paid money to the children. I do not think the common law is quite the same in England as it is in Scotland, but I will not take that further for the moment.
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In 1873 an Act of Parliament was passed which enabled the courts to take a separation agreement into account, so far as they thought fit for the purposes of the welfare of the child. I said on Second Reading that the same Act also dealt with ante-nuptial agreements, but I was wrong: it did not. The situation so far as ante-nuptial agreements are concerned has never been regulated by Statute at all. So the position then was that in the case of separation agreements the courts could apply them so far as they thought it was right for the child; and in effect this is what is intended to be reproduced in Clause 1(2) when it refers to separation agreements.
Then there came Section 1 of the Guardianship of Infants Act 1925, which said that the courts could have a generally overriding power in any construction of documents or any other litigation in relation to children, so that they could put the welfare of the children first in any case. In these circumstances it is thought that, whatever one said in separation agreements, they could be overridden by the powers of the courts under the 1925 Act, and probably the courts would do the same in relation to ante-nuptial agreements. The courts would look at an agreement under the general power given by the 1925 Act and would or would not enforce it according to what was thought best for the child. There is some modern litigation: there was a case in 1950 which bears on ante-nuptial agreements, though not precisely on this point because in that case both parents were dead, but there was still in contemplation the possibility of two different religious upbringings which it had been sought to regulate by an agreement, though the parties were dead. In fact the court decided that the 1925 Act overrode it all and decided accordingly to do what they thought best for the child.
In this Bill we have a situation which changes the matter to a certain extent. No longer are we in a position where the common law will be able to say that fathers must not give up the duty to look after their children, because for the first time we give these powers equally to the mother and the father. It looked as though the best thing to do so far as separation agreements were concerned was to repeat the substance of the 1873 Act and allow them, as occurs in Clauses

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1(2) and 10(2), to be enforced so far as the court may think right for the benefit of the child. At the same time, since the basis of the common law has changed, as I have said—the common law was based on the idea that fathers should not, as a matter of public policy, be allowed to give up their duties to the children—and since we have now changed that by giving powers equally to mothers and fathers, we thought, when drafting this Bill, that it might be a good idea to clarify the situation in relation to ante-nuptial agreements.
It is on this matter that the noble and learned Lord, Lord Simon of Glaisdale, has taken some issue. I do not think that he wants this provision taken out of the Bill—I am happy to see that the noble and learned Lord is now with us—I do not think he wants the ante-nuptial agreements to be made void, but what I think he wants to do is to retain the existing situation whereby the court could look at them but at the same time would provide for the children in accordance with what is best for them, and would not to be bound by the ante-nuptial agreement, if there were one.
As it happens, the way in which this Amendment is drafted would not do this, because it would have the effect of making the ante-nuptial agreement wholly void and would not allow the court to look at it at all. But if the Committee thinks that what the noble and learned Lord has suggested is right—that is, that we should not try to say anything legislatively like this but leave it to the common law to work out in the context of the Bill, and with the overriding power still in the 1925 Act to consider the welfare of the children first—then I do not think the Government would wish to oppose that. It could not be done by means of this particular Amendment: it would require the recasting of Clause 1(2), but what I would welcome from the Committee is advice on whether, in the circumstances I have described, it would be more sensible to mention this subject, since we are changing the basis of common law, and put it in the same category as separation agreements, but give an overriding right so that the court could take note of it if it wanted but could override it for the benefit of the children, or whether, on the other hand, it would be
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better to make no mention at all of ante-nuptial agreements (which have not been previously mentioned in any Statute) and leave it to the courts to sort this matter out on what I think are the pretty rare occasions when it comes up.
The only remark I would make is that it is plainly not an entirely dead letter, because, as I said before, we had this case in 1950 when the point was touched on. People do still make this sort of agreement. It is on that that I should welcome the advice of the Committee. It probably does not matter very much, but if we do not mention ante-nuptial agreements at all there would be room for argument in the courts. It was for that reason, and for that reason only, that we put this provision in. I do not think there is very much between me and the noble and learned Lord, but I hope that by saying what I have he will have had time to collect his thoughts on what I have been saying. This matter is one upon which the Government have a very open mind and would be glad to be guided by the Committee.
5.10 p.m.
LORD SIMON OF GLAISDALE: I must first of all apologise most humbly for not having been in my place to move this Amendment at the proper time. I had made arrangements to be given notice, but unfortunately they went astray. I am extremely grateful to the noble Lord, Lord Hoy, Who moved the Amendment on my behalf.
May I explain what I had in mind?—because I do not think the noble Viscount has quite met my point. The reason why there is a similar provision, though not exactly in the same terms, in the 1873 Act as one gets in Clause 1(2) of this Bill—although without the 1873 provision for ante-nuptial agreements—was that at common law any agreement by a father to give up his rights of custody was void, and therefore such a provision was necessary in order to make custody arrangements in separation agreements. In view of Clause 1(1), that is no longer the case. The whole of subsection (2) is quite unnecessary. On consideration, the noble Viscount may well think that it would be better to recast subsection (2) entirely merely leaving in the last part giving the court power to override any agreement. The noble Viscount was good

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enough to write to me about this matter. With very great respect, I do not agree that my Amendment would make anything—separation agreement or ante-nuptial agreement—void. Clearly, any such agreement, in view of subsection (1), would be completely valid and therefore in my respectful submission all that needs to be done is to see that the court has power not to be bound by any agreement come to between the parents, unless that agreement is for the paramount benefit of the child.
On the other hand, the provision in the subsection as it stands at the moment seems to me not only unnecessary, but positively undersirable. The last thing you want to do is to encourage engaged couples to derogate from their rights under subsection (1), and that is precisely what the second subsection does in the provision which I have dealt with in my Amendment. After all, engaged couples are not really the right people to be encouraged to enter into these agreements in derogation of statutory rights. They will be discussing such things as whether their sons will sit on the Woolsack, whether they may go in first for England at Lords, and whether their daughters will be the first women occupants of 10 Downing Street. They are far too amenable to influence to be allowed, if it can be avoided, to enter into the agreement which is contemplated in subsection (2) derogating from their rights conferred in subsection (1). With very great respect, this clause seems to be drafted wrongly in any event. It applies to agreements only if they form part of another agreement: whereas an agreement for separation may be the whole of the relevant agreement. I will not press this Amendment; but I hope the Minister will consider not only whether an ante-nuptial agreement derogating from subsection (1) is unsatisfactory, but also whether subsection (2), apart from its last provision, is necessary at all.
BARONESS BACON: Like the noble and learned Lord, I must apologise for not being in my place at the commencement of the Committee. He said that something went wrong with the arrangement for informing him when the Committee began. I can only say that
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I was sitting in a room with only one other person present waiting for the Fatstock Order to be announced, when I had intended to come into the Chamber, but I did not hear it announced. I wonder whether something has gone wrong with the usual method of letting Members know what is happening. I agree with the view of the noble and learned Lord about this Amendment. What he fears, and what others who have spoken to me about it fear, is that this Bill is somehow giving greater legality to pre-nuptial agreements. As has been explained by the noble Viscount, Clause 1(2) provides that any agreement to relinquish parental authority in whole or in part in relation to any child living or to be born, is to be valid, in the words of the Bill,
"only if it forms part of an agreement made before and in contemplation of their marriage or of an agreement for their separation while married, and shall not be enforced by any court"
which considers that the agreement will not be to the benefit of the child.
As has also been said, since the enactment of the Infant Custody Act 1973 it has been clear that a separation agreement between spouses may include provision for someone other than the father to have custody of a minor. In a case which has been before the courts it has been established that the courts will not enforce such an agreement if they do not consider it for the benefit of the child. On the otherhand, it is well established in English law that any ante-nuptial agreement by which either of the parties waives in advance his or her parental rights in respect of children to be born after the marriage is void and unenforcible unless acted upon for a considerable time to the financial detriment of third parties. I understand that such an ante-nuptial waiver is sometimes required by the authorities of a religious community from someone not a member of that community as the price of permitting the marriage with a member of the community. The English courts have always considered that such ante-nuptial waivers were undesirable and if extracted have usually considered them unenforcible unless acted upon for years to the detriment of third parties. A reversal of this policy as here suggested might have far-reaching consequences. It could revive sectarian litigation about

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authority over young children when there is not so much litigation at the present time.
The noble Viscount said that he wanted to hear the views of the Committee and I wonder whether putting these words into the Bill will mean that in the future there is going to be more litigation about agreements entered into before marriage. The noble and learned Lord said that he is not going to take this Amendment to a Division and I certainly would not propose that we should do so; but the noble Viscount might consider carefully whether or not in the future this is opening the way to much more litigation, particularly about religious matters as they affect children.
5.19 p.m.
LORD GARDINER: I cannot claim to speak in this field with anything remotely like the learning or expertise of the noble and learned Lord, Lord Simon of Glaisdale, but I must say that when I saw this clause at Second Reading I did not like it, for the following reasons. First, I think it was said that it came from the Act of 1873. This has been acknowledged to have been erroneous, so it is something new.
VISCOUNT COLVILLE OF CULROSS: No, I am sorry. The ante-nuptial settlement business did not come from the Act of 1873. The separation agreement does. And it has to be repealed, replaced, or something has to be done about it.
LORD GARDINER: I am much obliged, and I have no quarrel at all about the provision about the separation agreement. My quarrel is only with the ante-nuptial agreement, which is something new. Married people make agreements every day of the week which ordinarily are not contracts in law. The noble Viscount and the noble and learned Lord will be familiar with a famous judgment by Lord Atkins. If I remember the case rightly the husband had entered into an agreement with his wife to pay her so much housekeeping money a month, and when he did not pay her she sued him, Lord Atkins said: "This is a field in which the King's Writ does not run. Married people make all sorts of agreements all the time. They are their
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Own judges and executioners", and so forth.
As I understand it, this would for the first time treat an ante-nuptial agreement as a legal contract. It seems to me to be most undesirable, for the following reasons: First, I should have thought that in general it is most undesirable to do anything to encourage a parent to give up all his responsibility for a child or children to the other spouse. Secondly, it is most undesirable when he (or she) cannot love them and I say that because if it is an ante-nuptial agreement the children will not have been born and they do not exist as people. One hopes that when the children are born they will be equally loved by both parents, who may then very much regret having made an agreement of this kind. What seems to me to be even more odd about it is that there is no provision that this agreement to give up entirely to the other spouse one's own responsibilities in the field of religion, education, and so on, cannot be made unless each party is separately advised by a solicitor; there is no provision that it has to be in writing—the sort of thing which may be done over the breakfast table—and I cannot really understand on what grounds the proposal is put forward. There seems to be no real reason for it and I should have thought it in every way a most undesirable thing to make an agreement of this kind, even if it may not have legal effect. I hope very much that the Government may be prepared to reconsider this matter.
5.22 p.m.
VISCOUNT COLVILLE OF CULROSS: My trouble here is, that with the greatest respect to those who have spoken I do not think that we have got to the heart of this issue. If I may go back to the speech made by the noble and learned Lord, Lord Simon of Glaisdale, on Second Reading—and he will correct me at once if I am wrong—what I understood him to be saying was, "Take this thing specifically out of the Bill; leave it to the courts (if one of the parties turns up) to deal with as they think fit, with the overriding power always to put the welfare of the children first. Do not mention it in the Bill but leave it to the courts with that proviso—that overriding power". That is what I understood him to say, and if the noble and learned Lord

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does not correct me I shall go on, in the assumption that that is what he wants.
LORD SIMON or GLAISDALE: The noble Viscount is absolutely right but, as I said, on reconsidering the matter it seemed to me that the whole provision is unnecessary because the whole of subsection (2), except for the last proviso from the words "shall not be enforced" to the end, is framed against the background whereby the common law held any agreement by a father to give up custody to be void. Therefore the whole of the subsection is now unnecessary. If any part remains I agree entirely with the noble and learned Lord, Lord Gardiner, that in any event the part relating to ante-nuptial agreements is particularly objectionable.
VISCOUNT COLVILLE OF CULROSS: I am very much obliged to the noble and learned Lord. In that case, may I go on and try to deal with both halves of this matter—both the 1873 Act and the ante-nuptial settlements as well. As I understand, what one has to bear in mind is that the reason why the common law considered and held that both these sorts of agreement were void was because the common law did not approve of the father handing over to the mother his rights and his duties to look after the children.
As these separation agreements which provided for custody were being held by the courts to be void, Paliament stepped in to say, "No, you may be allowed to do this, subject to the welfare of the child and we will validate the agreements with that proviso". Parliament did that in 1873 and it is being reproduced in this Bill; and I think the noble and learned Lord, Lord Gardiner, does not object to that. At the same time, although there is no case law of any modernity at all which touches exactly on the point, it is probable that the common law would still say that the ante-nuptial agreement is void for the same reason.
LORD SIMON OF GLAISDALE: Why does the noble Viscount say that when Clause 1(1) says that the parents have equality of parental right? What reason should the common law have for saying that for the father to give up his rights to the mother would be contrary to public policy?
VISCOUNT COLVILLE OF CULROSS: With his usual acuteness the noble and
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learned Lord has come to precisely the point which I was about to reach. When I say that, as far as I know, the common law still considers ante-nuptial agreements to be void, although there is very little information on this I am speaking now in terms of this Bill not having been passed. If this Bill were to be passed the whole reason for the common law holding these agreements to be void would fall, for precisely the reason that the noble and learned Lord, Lord Simon of Glaisdale, has just said, in that the basic structure of the law whereby it used to be impossible for fathers to get rid of any of their rights and duties has now been changed. Under Clause 1(1) we now give the father and the mother equal rights. The common law is therefore cut adrift and will have to start again. We do not know which way the courts will go, but certainly if I attempted to argue one of these cases, if one repealed the 1873 Act, as I believe the noble and learned Lord, Lord Simon of Glaisdale, would like to do, and left the matter completely to the common law, I would start off by arguing that any policy whereby this sort of agreement was held to be void as against public policy, had disappeared with the passing of Section 1(1) of the Guardianship Act 1973. The coast would therefore be entirely clear for the common law to re-create a completely new set of rules. What we are trying to do in this Bill is to save the doubt and difficulty which would be involved in that process.
Just as an instance of this, on the ante-nuptial settlement side all the researches of my advisers have produced only three cases with some bearing on this subject since about 1873. It does not come before the courts very often and therefore this is to some extent an answer to the noble Baroness, Lady Bacon—it takes a long time for any rules to be made. We certainly do not want to encourage litigation; all that we wish to do is to try to ensure that there is some basis on which the courts can work if they have to deal with one of these situations.
I would suggest that if one abandons the 1873 Act and does not reproduce it, as Clause 1(2) does—and incidentally in Schedule 3 we repeal that part of the 1873 Act—it is probable that there will be no common law left and the courts will have to start again. I suggest that

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this is undesirable because nobody will know where they are. They will not know whether these agreements are held to be void, valid, semi-valid, subject to overriding powers or whatever. Therefore, I suggest that we do something about separation agreements because they have been dealt with by Statute for some time; and I agree with the noble and learned Lord, Lord Gardiner, that they ought to be dealt with for that reason.
Where we are slightly in discord is whether we say anything about the ante-nuptial agreements at all. I understand the point about not encouraging litigation. I do not think these cases are very common, but if one leaves the matter absolutely at large it may be we shall have quite a long period before anybody knows where they are. The alternative is to deal with it in this Bill and put it on the same footing as the separation agreements, so that if one of these matters does come before the courts (and it is very rare) then the courts have some guidance and can overlook and override anything in the agreement if it is not for the welfare of the child. Then we have established a firm foundation for them to work on arising out of the new situation in Clause 1(1).
What I should like to know is this. If, as the noble and learned Lord, Lord Simon of Glaisdale, has rightly said, we change the whole basis upon which the Common Law used to operate and on which it used to say that these things were void, does he want us to say nothing to put in its place? Does he want the courts (and it would be his division very largely) to start again with no guidance from Parliament; with the abolition of the 1873 Act; and start making their own case law on this, or would he like to have separation agreements dealt with on the same basis as the 1873 Act, giving the courts power to consider them and override them if they think fit? And, if we are to deal with the separation agreement, does he or does he not want the same situation to arise with the ante-nuptial agreements? The alternative is, as he said, to recast Clause 1(2), to make it reproduce exactly the provisions of the 1873 Act, but leave out any reference to ante-nuptial agreements for the sort of reasons which the noble Baroness, Lady Bacon, gave, that we should not encourage these things, and if one were
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to crop up in court just let them scratch their heads and look at the new policy and make of it what they can without any guidance from Parliament. Those are the options which I think are open. Without wishing to prolong this discussion, unless noble and learned Lords wish to, I do not think that we have got to the root of this matter in the discussion and I am not quite sure what it is that the Committee wants.
LORD SIMON OF GLAISDALE: I am very grateful to the noble Viscount for his reply. As I said, I do not propose to press this Amendment to a Division, but since the noble Viscount has asked me to express a preference, I should myself very much prefer that this subsection merely read:
"No agreement between a man and a woman for either of them to give up in whole or in part, in relation to any child of theirs, shall be enforced by the court if the court is of opinion that it will not be for the benefit of the child to give effect to it."
That seems to me to be all that is necessary. It gives sufficient Parliamentary recognition for agreements relating to a child, and particularly in view of the statutory background of the 1873 Act in relation to separation agreements. My second and very strong preference would be, if this subsection remains as it is, the part to which general objection has been taken; namely, ante-nuptial agreements, should be removed. The subsection as drawn goes far beyond what the noble Viscount suggested or agreed on Second Reading was its object; namely, to deal with such agreements as the religious upbringing of a child and, I suppose, the name that a child should bear, and so on. It allows for a fiancé to give up entirely the rights given by subsection (1). I entirely agree with what the noble and learned Lord, Lord Gardiner, has said, that any such agreement should be reached only with legal advice. That has been the experience of the Continental countries which have ante-nuptial agreements about property régime, and that strikes home much more nearly to agreements about the upbringing of a child. In my respectful submission, whatever else is done about subsection (2), that provision should be removed. I need only add that of course a comparable Amendment would have to be made in, I believe, Clause 10. I did not venture

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to put down an Amendment to that clause as it deals with Scottish law.
LORD HALE: May I make a single observation? It seems to me that this clause shifts the onus of proof. As I understood the argument of the noble Viscount, the whole of the provisions of this Bill will completely alter the Common Law in the sense that this has gone. Having done that we then write in a clause which says that an ante-nuptial agreement shall be valid in relation to the custody of the children, and then go on to say "but only on conditions". The difference, I agree, is minimal, and I do not want to press the point, but I should have thought that the courts are bound to say: "Parliament has said we ought to look at the ante-nuptial agreement and we can decide it is not valid if we are satisfied that it is not in the interests of the child, and so on." But the mere reiteration in the Bill of the opening words of paragraph (2) appears to me to convey to the courts that they have to look at this agreement at any rate, and that if they are not satisfied with absolute certainty as to where the welfare of the child lies, then the provisions of the ante-nuptial agreement would prevail. In view of the religious implications of some of these ante-nuptial agreements, which I believe are not very common now—and I do not think that the Church very often takes the view that it used to take—but which still happen, on the whole it is clearly the opinion of the Committee that they should not be binding in any circumstances. I feel that the reiteration in Clause 2 puts an obligation on the court to have some regard to them but only, of course—and I say the difference is minimal—when they are able to consider the real welfare of the child.
BARONESS BACON: Before the noble Viscount replies, I should like to reiterate what my noble friend Lord Hale has said. It gives validity to the ante-nuptial agreement. I know that it says at the end of the subsection that it:
"shall not be enforced by any court if the court is of opinion that it will not be for the benefit of the child to give effect to it."
But my noble friend Lord Hale has said that the courts will have that before them and a statement that, "this is valid
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unless…". But it is not only the courts that we have to consider here; we have to consider the people outside in various religious bodies, and if this is put in an Act of Parliament in the positive way that it is here, while the noble Viscount may say that there is not very much difference because the courts who will have to decide what is better for the child, my fear is that it will encourage religious organisations to encourage in turn the members of their organisations to have these ante-nuptial agreements. If that is so, then it is possible that there might be more litigation. Like the noble and learned Lord, Lord Simon of Glaisdale, would much prefer to see this out of this clause altogether.
LORD GARDINER: in response to the observations made by the noble Viscount, I should like to make it clear that I should much prefer to see ante-nuptial agreements made invalid for precisely the same reasons that the common law has done so in the case where the responsibility was only on the father. Exactly the same considerations apply to the mother as applied formerly to the father: namely, that it should be contrary to public policy for either parent to be able to give up all their responsibilities, all the rights referred to in subsection (1) over their own child or children, and particularly of course before they are horn, when later on they may very much regret it indeed. The noble Viscount did not say in answer to my question, as I understand it, that it does not have to be in writing, and that it does not have to be under legal advice, and I should have thought that most undesirable. It has never been the law before. On the contrary, the law has always frowned on the father, who was the only one with the right, being allowed to enter into an ante-nuptial agreement which had the force of law. This is the first time that these agreements have been given the force of law. I should much prefer the clause to say quite clearly that ante-nuptial agreements were invalid.
VISCOUNT COLVILLE OF CULROSS: What I shall have to do now is to study everything that has been said. I am grateful to the Committee for contributing as they have. I also take the rather subtle point of the noble Lord, Lord Hale, about the change in the onus and the way in

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which the subsection could be said to have resulted in the agreement being binding unless it is shown that it is in fact bad for the child. It is, of course, perfectly possible to remove all reference to ante-nuptial agreements from this clause, and if we do that—depending slightly on how we do it, but if we make it completely neutral—I think the result is likely to be that the common law may say that they are valid, subject to the overriding power to consider the welfare of the child first, not under common law but under the 1925 Act. This seems to me likely from the argument of the noble Lord, Lord Simon, that the whole of the basis on which the common law used to say that they were void will have disappeared on the passing of this Bill. I do not think the first suggestion of the noble and learned Lord, Lord Simon, of a possible replacement for this subsection, would have had that effect, because I think it would have included ante-nuptial agreements, without mentioning them specifically and therefore without encouraging them; it would have allowed them to be made, but subject to the overriding supervision of the court on welfare, and I think that would probably have met Lord Hale's point, so that we would not have the problem which he has mentioned.
We have now these two views. There is certainly one noble and learned Lord who is prepared to see them contemplated and looked at by the courts. I think probably the noble Lord, Lord Hale, would allow the courts to look at them. Two other speakers have suggested that they should be positively made invalid. I very much doubt whether I can take this further this afternoon. The noble and learned Lord, Lord Simon, is perfectly right in saying that Scotland would have to be dealt with as well. I had mentioned this just a moment before he came in. I think it would be correct to have the same arrangements both sides of the Border on this, and therefore we would have to have the necessary Amendment for Scotland. I am sure that we are not going to resolve this this afternoon, but perhaps I could consider it with my advisers, and perhaps I might ask those who have contributed to this debate to discuss it further with me when I have had a chance to look at the speeches. At the moment I would wish to take the views of my colleagues as to which way to go on this, and perhaps
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come back and talk informally, if I may, to noble Lords afterwards. I hope the noble and learned Lord, Lord Simon, will allow me to do that. I know he said he was not going to press this Amendment, but a good deal has been said and it requires very serious consideration.
LORD SIMON of GLAISDALE: I am very content to leave the matter in the hands of the noble Viscount, as he suggests. I have only one further thing to add, which is in furtherance of the point made by the noble and learned Lord, Lord Gardiner, that these agreements contemplated by subsection (2) can be oral. That stands in contradistinction to the 1873 Act, where they not only had to be in writing but actually by deed; it seems to me that to allow oral transitory agreements might depend upon a nod and a wink, in the way the noble and learned Lord described it. To have it necessary to be litigated would be an additional disadvantage. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
5.45 p.m.
LORD SIMON OF GLAISDALE LORD SIMON OF GLAISDALE moved Amendment No. 2:
Page 2, line 11, leave out ("subsection (4) below") and insert ("the subsequent provisions of this Act")
The noble and learned Lord said: This Amendment goes with Amendments Nos. 3, 5 and 6, and perhaps I may take them together. They all relate to the power of the court to make orders, but not, in line 15 on page 2, an order for custody, or, which is dealt with by Amendment No. 4, a right to access. The present group of Amendments are, of course, alternative to Amendment No. 4. I am pretty sure I have got the drafting wrong, because I found it extraordinarily difficult to trace through the various custody proposals. The point of these Amendments arises out of subsection (3). That gives the parents of the child power to go to the court to have their differences over the child resolved without, as at present obtains, having to make the child a ward of court, or having to be separated or divorced. As I understand subsection (3), the parties may, if they differ about the upbringing of a child, go to the court, even though they are in a state of cohabitation. I wholly approve of that; I think it is desirable

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that the parties should be enabled to get independent arbitrament without the necessity of their separating, or the rather archaic mode now of making the child a ward of court. But that is subject to subsection (4), which says that the court in exercising its powers under subsection (3) shall not make a custody or access order.
I am at the moment dealing purely with a custody order, and my interest in it is this. On a custody order the court can make a supervision order, and that, as your Lordships know, is a very valuable power. When I used to have to sit in a family jurisdiction and made a custody order after divorce, I used often to try to persuade the parents, or the parent, having custody, if I felt that she (it was generally the mother) was in need of social support, to accept a supervision order—occasionally a local authority order, although that would be a more remote possibility. I used to assure the mother that it was no sort of reflection on her if a supervision order was made. It was merely making available to her social services which Parliament had provided, if she welcomed them. I always found that such a suggestion was received without resistance of any kind, and I have every reason to believe that it may often be helpful to a parent, particularly a mother, separated and having to bring up children, to have the assistance of the local authority children officer or a probation officer.
In this series of Amendments I am not sure I have dealt with the matter correctly. My sole object is to enable a supervision order to be made if the parents apply to the court under subsection (3). The way that I have chosen to do it (it is probably the clumsy way) is to enable the court to make, say, an order for custody jointly in favour of both parents and attach to that a supervision order. I am not proposing—I would not regard it as desirable—that a custody order should be made in favour of one parent only while the parties are in cohabitation. My object, as I say, is quite different: it is to enable a local authority order, or more frequently a supervision order, by a probation officer or children officer, to be available to parents who have fallen out, which is the situation which pis envisaged by subsection (3). I think that very often when
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parents have got to that state of disagreement and have to go to the court they might well welcome the help of an experienced welfare officer. I beg to move.
VISCOUNT COLVILLE OF CULROSS: I am bound to confess that we were not altogether clear what it was that the noble and learned Lord was trying to achieve in this series of Amendments though I appreciated that two were alternative to each other. What I should like the noble and learned Lord to tell me in the furtherance of his argument is this. Under Section 9 of the Guardianship of Minors Act 1971 the court can, on the application of either parent, make an order regarding custody or access such as it thinks fit, having regard to the welfare of the child and the conduct and wishes of the mother and father. It can deal with the money, and that order under Section 9 can be made notwithstanding that the parents of the minor are then residing together.
LORD SIMON OF GLAISDALE: But am I not right in thinking that it can come into effect only when the parents separate?
VISCOUNT COLVILLE OF CULROSS: The noble and learned Lord is quite right. I was just going on to read that it is not enforceable and no liability will accrue while they are living together, and that it lasts only for three months if they continue to live together. I do not know—andthis is simply ignorance on my part as I was not prepared for the line which the noble and learned Lord took—whether in those circumstances that is inadequate, because I should have thought that if either of the parents go, then under Section 9 the court can consider the question of supervision. What we are dealing with in Clause 1 is not, I think, the case of the parents who are separated, with the mother having to bring up the children by herself and requiring the assistance of the local authority, which is one of the examples which the noble and learned Lord gave. Under Clause 1, as I understand it, we are really dealing with a situation where there is no basic matrimonial upset but what is wanted is some resolution of the rights of the child to money, or it may be his religious upbringing or something of that sort, but against the background of a stable matrimonial situation. Of course, if there is a

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stable matrimonial situation it really cannot be suitable to give access or custody to one or other of the parents. I do not think that that is what either the noble and learned Lord or the Government want to do.
The only question arises if you do not give custody or access, and if you think that Section 9 of the 1971 Act is inadequate in relation to supervision. Then do we want to put in this Bill something about supervision despite the fact that the hypothesis is that the two parents are living happily together? I should have said No. Has the noble and learned Lord got any example in mind, from his enormous experience, which suggests that happily married families, who might under this Bill go to the court to resolve some question of the child's property or change of name on the inheritance of money under a will, or something like that, would also want supervision from the social work department of the local authority? I should have thought that if they did it would be more likely to occur when there was disharmony, and the existing law already deals with that. I am quite prepared to consider this matter but at the moment I am not convinced that there are occasions when it would be necessary in practice.
BARONESS PHILLIPS: Would the noble and learned Lord elucidate one point for me as a magistrate? He made the point that supervision would be a voluntary matter; that they would call in the children's officer. That is not, I must confess, how I have understood supervision. I rather thought there was some element of interference—using the word in its widest sense. Perhaps the noble and learned Lord would elaborate that subject.
LORD SIMON OF GLAISDALE: My recollection is that the noble Baroness is quite right. I think a supervision order can be made only in exceptional circumstances, but in fact the courts interpret that failrly liberally and regard it as an exceptional circumstance where one of the parents needs some social support. That has been my experience of how magistrates work that provision, and certainly it is how the Judges of the High Court do. As to what the noble Viscount said, I am not entirely happy about reliance on
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Section 9 of the 1971 Act. The reason for that is that that Act cannot bite unless the parties separate. The whole advantage of Clause 1(3) is that parents living together can get their differences resolved without having to separate, but where I venture to part from the noble Viscount is when he describes that sort of situation as one where there is a stable and happy marriage. When the parties have to go to court under subsection (3), there is likely, to be at least some danger of instability, some danger of unhappiness and certainly a disagreement. The court may well feel that the marriage is in danger to the detriment of the children by the difference over the children, and may feel that the support of an experienced welfare officer may make all the difference to the happiness of the parents and the children. It is simply to allow for that situation that I venture to move these Amendments, but I am very content to leave the matter for the further consideration of the noble Viscount.
VISCOUNT COLVILLE OF CULROSS: Before the noble and learned Lord leaves the point, may I say that I cannot see why the parents should not go to the social work department voluntarily if they wish, to get the assistance of the experts. Section 1 of the 1969 Act is quite wide enough in providing preventative powers for anybody to be allowed to approach the local authority for that sort of assistance. What the noble and learned Lord is saying is that when the parents come, whatever the background may be, under Clause 1(3) they will put themselves in a position where compulsory supervision may be ordered by the court, whether they want it or not. I do not know about that, but it seems to me that if you go to the court in order to resolve something which is, so far as the two parents are concerned, not an issue which goes to the root of the marriage or is likely to cause unhappiness, but merely arises out of the fact that both parties are now legally in charge of the child and its property and its upbringing, and you find yourself suddenly getting compulsory supervision from the local authority which you did not want at all, you may not be so willing to go to the court to get it resolved. I do not know what the balance of this is, but I think that the noble and learned Lord must realise that what he wishes to do is to put in compulsory

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supervision which may be quite unsuitable.
BARONESS BACON: Like the noble Viscount, I am thinking on my feet because I was not aware of what the noble and learned Lord, Lord Simon, was really getting at in these Amendments. I did not realise that it was anything to do with supervision. I should like to ask the noble Viscount one question. He said that if the parents go to court on such matters as a bank book or the name or something of that kind, surely they should not have to be subjected, perhaps at the discretion of the court, to compulsory supervision. Surely, it does not necessarily follow that those are the sort of matters about which parents will go to court. Like the noble Viscount, I am not quite sure what the noble and learned Lord has in mind, but are we quite sure that there will not be other matters about which parents will go to court, where supervision might be suitable? I can see the noble Viscount's point, that if there is to be supervision the parents might not be so willing to go to court to get something adjudicated upon, but might there not be other circumstances where supervision is desirable? It seems to me that this Amendment would be putting power into the hands of the courts, and that we should have to rely upon the courts fo do the right thing in the circumstances. I do not know whether or not we should go so far as that, and I should like to know whether there are circumstances other than the one which the noble Viscount mentioned.
VISCOUNT COLVILLE OF CULROSS: We have not looked at the point in this way, but I understand what the argument is about. I think I ought to look and see whether there are powers elsewhere to deal with all the other aspects which are likely to have more sinister undercurrents. I believe that those are more likely to be dealt with under other legislation, but if we can think of circumstances where Clause 1(3) disputes under this Bill would be likely to show up a very unhappy home, and circumstances where assistance might be needed—which is really the point the noble and learned Lord has in mind—then perhaps we can return to the matter at another stage. I am grateful to the
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noble and learned Lord for having raised this point. I think it is interesting and useful, but I cannot give him a definitive answer this afternoon.
LORD SIMON OF GLAISDALE: On the contrary, it is for me to express my gratitude to the noble Viscount and, as I said, I am content to leave the matter to his further consideration. Of course he is quite right in saying that there is nothing to prevent parents voluntarily approaching the local children's department or the probation officer, but I have found extraordinary ignorance about the welfare services that are available and it is often very useful for the court to be able to use its influence in trying to help the parties, by putting them ill touch with the welfare services. As for the point of forcing a supervision order on the parties, I should think that would very rarely be desirable although I can envisage circumstances in which it might be; for example, where the parents have fallen out about a child and the court thinks that the child might be in danger of falling into delinquency and can be helped by supervision. But that would be an exceptional case, and I should have thought that the safeguard was in using the words which I used earlier in answer to the noble Baroness on the Opposition Front Bench; namely, that a supervision order ought to be made only in exceptional circumstances. But I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
6.4 p.m.
LORD SIMON OF GLAISDALE LORD SIMON OF GLAISDALE moved Amendment No. 4:
Page 2, line 15, leave out from ("or") to end of line 16.
The noble and learned Lord said: I have dealt with the background of this Amendment, which is the refusal to allow the court to make an order relating to access when it operates its powers under subsection (3), although this Amendment raises a rather different point. I imagine that, very often, a dispute under subsection (3) will relate to the education of a child, and I think all judges and magistrates concerned with this jurisdiction will have been worried about the great difficulty that schoolmasters and schoolmistresses are put into where the parents are at variance. I know that the noble

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Baroness can speak to that point with great authority. I often found it absolutely necessary in directing an order as to education, to order school visiting or to deal with weekends spent away from boarding-school and so on. It is now possible to get children to local authority boarding-schools, so that applies to all parts of the social spectrum. In my view, it is absolutely necessary to deal with the rights of access in that situation, and I hope that the noble Viscount may consider that point. I beg to move.
VISCOUNT COLVILLE OF CULROSS: I am afraid that I do not understand the situation in which these circumstances are likely to apply. Is the noble and learned Lord talking about parents living together, who are therefore not within the catchment area of Section 9 of the 1971 Act, who fall out over the sort of education that a child will have or over who will visit on which weekend? It seems to me almost inconceivable that if they are living together and are not separated, so that access cannot be dealt with under Section 9 of the 1971 Act, we shall ever have a problem. I just do not understand what the circumstances might be, unless the marriage is so unhappy that the parents are holding it together only for the sake of propriety and, in fact, there is open warfare going on between them. With the greatest respect, that seems so far-fetched an occurrence when the parents are actually living together.
LORD SIMON OF GLAISDALE: Of course, we have not yet had experience of the courts' jurisdiction when the parents are living together because, although theoretically it can arise under a wardship order, in fact it never does. All we have had experience of is the situation where the parents are separated, and it is drawing on judicial experience of that kind that led me to make this point. Although it might be unusual it could certainly happen. If there are parents of different religions, there might be a dispute about how the child shall be educated. Shall the child go to a boarding-school where he will be brought up in religion A, or to a boarding-school where he will be brought up in religion B? One would hope that while the parents were living together they would visit the child jointly, and be able to regulate the situation satisfactorily. But, as I said, school
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masters and schoolmistresses are put in extraordinary difficulty when parents are not agreed about their children. I should have thought it was well worth while to leave a residual power with the court for the exceptional case, whereas by line 15 the court has no such power at all.
BARONESS BACON: On this Amendment I tend to agree more with the noble Viscount than with the noble and learned Lord. In my dealings with education I have come across many instances where parents have been separated and headmasters and headmistresses of schools have been put in very difficult positions indeed by one parent turning up and demanding to see a child or interfering in his education. I must say, from long experience, that I cannot remember any case at all where this has happened, or where there has been difficulty when the parents have been living together. It may be that there is such a difficulty: all I can say is that I have never come across it. The noble and learned Lord, Lord Simon, said we ought to have this in for the exceptional case. I think it would be very exceptional indeed, and I have very grave doubts about whether one ought to legislate for something so exceptional. But I agree that where the parents are separated then there is this very great difficulty with regard to education and access in schools.
VISCOUNT COLVILLE OF CULROSS: I am encouraged by what the noble Baroness has said. Of course, where the parents are separated the existing law deals with it, because you can deal with it under a number of other Statutes. But on reflection, and now that I can again see, with respect to the noble and learned Lord, what it is about, I am not sure that I do not see something of the danger in this that the noble Baroness was pointing to about ante-nuptial settlements. If we provide in the law that parents can have a row about taking the children out from school when they are living together and allow the courts (under the Bill, of course, drafted as it is) to talk about rights of access to children when both parents are in the same breath being given equal rights of custody and access, we are only encouraging friction in the family and encouraging the courts to take a view about a family which gives rights of access to one rather than the

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other instead of acting in a way which, one would have hoped, would have kept the family together. I should have thought, upon further reflection, that there was very little to be said for this, and that it might actually be damaging. I do not want to turn it down without further thought—I promised the noble and learned Lord that—but my predilection at the moment is to say that I think this is a bad Amendment and probably should not be made to the Bill.
LORD SIMON OF GLAISDALE: Having been deserted by the noble Baroness, I naturally hasten to withdraw the Amendment all the more readily on the kind assurance of the noble Viscount that he will give further consideration to the point.
Amendment, by leave, withdrawn.
6.13 p.m.
On Question, Whether Clause 1 shall stand part of the Bill?
BARONESS BACON: I should like to raise one point with the noble Viscount. On page 1, in Clause 1, we have the whole kernal of this Bill. It says:
"…a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal and be exercisable by either without the other".
During the Second Reading debate on this Bill I raised the question of passports, and whether this clause meant that, so far as passports and taking children out of the country are concerned, there would be equal rights. During the Second Reading debate the noble Viscount said that the question of passports was a very complicated one. He said that he had already asked his right honourable friend the Foreign and Commonwealth Secretary to look at this problem, but he had not yet got to the bottom of the matter and he asked whether he could take this back for the moment and then come along and give us a better answer later on.
I have had a letter from the noble Viscount, for which I should like to thank him, in which he sets out the position about passports in cases where the children are on either the mother's or the father's passport. Having read this letter, I myself think that the position seems quite satisfactory so far as children are
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concerned, and some of the fears that have been expressed to me about this are perhaps groundless. But since I have had this letter and the rest of the Committee do not know what is in it, I raise this matter now to give the noble Viscount an opportunity to give to the Committee the information which he gave to me in the letter.
LORD HOY: Before the noble Viscount replies, I should like to raise one other point with regard to subsection (3), which deals with proceedings in a court. I raise it here because I shall have to raise it again when we come to the clause dealing with Scotland, the matter having been raised with me by the Scottish Law Society. Perhaps we might deal with it here. In fact, of course, either parent can go to court, but even though it be the wife who takes the husband to court then apparently, according to their reading of it, win or lose the husband has to pay all the expenses. So the wife can go to court in the knowledge that, even if she loses, although she has been granted equal rights she is going to have the right not to pay, and the total cost will fall on the husband. I thought that, instead of waiting until we got to the Scottish clause dealing with this, it would be applicable to England and Wales as well as to Scotland, and perhaps the noble Viscount when he comes to reply will tell me where in fact the expenses will fall.
VISCOUNT COLVILLE OF CULROSS: Dealing with that point first, it had not occurred to me that this would be a direct result of the Statute. Indeed, I cannot see anything in either Clause 1 or Clause 10 which deals specifically with costs. I think the practical situation may very often be that the father would have to pay, because unless the wife has money of her own then, even if the case goes against her, an award of costs against her is wholly valueless to the father. But on the face of it I cannot see any reason why, if there is a dispute between two parents, each of whom has money of his own, there is anything to prevent the court from awarding costs against whichever one it chooses, and the award being enforceable that way. I see nothing in Clause 1 to prevent them from doing that, and I wonder what specifically it is that the Scottish Law Society saw in Clause 10 which gave them that idea.

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Possibly the noble Lord will be so good as to take this up with me afterwards, or perhaps show me any correspondence he has had, because I should like to make quite sure we do not have a ridiculous situation here. But I think one must accept that, in practice, if the wife has no money of her own then costs cannot realistically be awarded against her, and that if they are they will not be paid. That is a situation which often arises.
LORD HOY: The noble Viscount says that if that is the situation we shall get into this ridiculous position. According to the legal advice I have, this is exactly the position in which we would be. I shall be delighted to pass to the noble Viscount the correspondence in which this is argued, I think firmly and fairly, by those who deal with these matters in Scotland. The sole reason for my raising it on this particular clause is that I did not feel I ought to allow it to pass here and then raise it at a later stage. I thought that would be unfair. But I will certainly pass the correspondence to the noble Viscount.
VISCOUNT COLVILLE OF CULROSS: The noble Lord, Lord Hoy, has done me a great service in drawing attention to this. Perhaps he will take it for granted that I will deal with it on the Scottish clause as well if I can see the argument, which at the moment, frankly, I do not understand. I am sure I shall when I read it, and no discourtesy is intended to the noble Lord; he was just mentioning it very briefly.
As for the point raised by the noble Baroness about passports, I quite agree it would be a good idea if I repeated what my colleagues in the Foreign Office told me. The present situation is that a child may be included on his father's passport or on his mother's passport, or on both of them simultaneously. Under the existing practice, a mother who wants to take abroad a child who is entered on his father's passport has only to apply to the Passport Office to have him entered on her own passport, always provided that no objection has been lodged by the legal guardian or by a party awarded custody or care and control by a court, or by a party whose consent is prescribed in an order of the High Court. This, I think, was a relaxation of the previous practice which was announced by Mr.
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George Thomson in what looks to me like a Written Answer in another place on January 27, 1966, where the situation is very fully set out—and I referred the noble Baroness to that in my letter.
That applies to the standard ten-year passports. If the Bill is enacted as it is at the moment, then provisions will have to be made to take note of any objection made under Clause 1(3) or Clause 10(3) in the case of a court order which gives any directions under those two provisions. So the practice will be very slightly modified under these two provisions for England and Scotland if the Bill is passed as it stands at the moment.
As for British visitors' passports, the situation is rather different. Before one is issued for a child the consent of the legal guardian, normally the father, is required. That is the present situation. Once both parents have assumed guardianship rights, as the Bill envisages, it is possible that British visitors' passports will be issued with the consent of either parent; but the parents giving their consent in this way will be required to sign a declaration that their rights in respect of the child have not been in any way limited by a court order. I think therefore that the situation is fairly satisfactory. It will require a little revision under the Bill but the Passport Office have this in mind already and are alive to the changes that are coming about. I hope, as the noble Baroness has indicated, that this will succeed in alleviating any worries there may have been.
Clause 1 agreed to.
Clause 2 [Jurisdiction and orders on applications under s. 9 of Guardianship of Minors Act 1971. 1971 c. 3]:
6.21 p.m.
BARONESS BACON BARONESS BACON moved Amendment No. 7:
Page 3, line 20, leave out from ("authority") to end of line 21
The noble Baroness said: The effect of this and of the next Amendment, which is consequential, is to ensure that where supervision is necessary for a boy or a girl below the age of 16, that supervision shall always be carried out by the local authority social services department and not by the Probation Service. I dealt with this in some detail during the Second Reading debate. If my Amendment were

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passed it would be in line with the Report of the Seebohm Committee and also with the provisions of the Children and Young Persons Act 1969. This part of the 1969 Act has not yet been implemented by the present Government, but from a speech made by Mr. Mark Carlisle, the Minister of State, Home Office, which I quoted during the Second Reading debate and which I shall not quote at length now, it is the Government's intention to implement that part of the 1969 Act. In that speech, Mr. Carlisle referred to the many additional duties being placed on the Probation Service and said that the Government maintained that the supervision of children under 14 and the provision of inquiry reports should be progressively handed over to the local authority social services committees. The local authority social services department have links with the education department of the same local authority in a way which the Probation Service does not have.
The noble Viscount, in his reply on Second Reading, said that the present Bill is in line with the matrimonial proceedings in magistrates' courts but surely it would be better in dealing with children to bring the matrimonial proceedings in Line with the new Children and Young Persons Act. I think it is right that the same procedure for the supervision of children should be adopted no matter under which Act it is dealt with. Therefore. if the Government intend to implement this part of the 1969 Act, I think that there is a good case for saying that, in all cases where the courts say that supervision is necessary for children under 16, that supervision should be undertaken by the social services department of the local authority and not by the Probation Service.
The Children and Young Persons Act 1969 says that this will be done in that Act. In that Act many of the young people appearing before courts will be appearing because of some misdemeanour they have committed. Yet the Government have accepted in all these cases that it shall be the social services department of the local authority which shall provide the supervision in the future. It seems curious to me that the children with whom we are dealing under this Act to-day should be supervised by a
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probation officer when they will be coming before the courts because of a dispute between their parents.
I have the greatest admiration for the Probation Service. I think they are grossly overworked and more and more work is being put on them. I should have thought that it was in line with modern thinking and with the thinking of the Seebohm Committee and of all those committees who have considered this matter, that supervision should be handed over to the social services department of the local authority. I feel strongly about this and I know that many people in the country also feel strongly about it. Perhaps the noble Viscount in his reply could give us some indication of the progress of this part of the Children and Young Persons Act 1969. If the Government are going to drag their feet on this part of their Act, perhaps there is some justification for the noble Viscount sticking to the wording of the present Guardianship Bill. But if in fact they are wing to implement properly the Act which was passed in 1969, I see no reason whatever to put the children who come before the courts because of a disagreement between their parents on a completely different footing from those who come before the courts for other reasons. I therefore beg to move this Amendment.
VISCOUNT COLVILLE OF CULROSS: I am a little sad that the noble Baroness should have taken quite this line. If one looks at some of the provisions in the Children and Youne Persons Act 1969—and I am thinking particularly of the approved schools, or what used to be the approved schools—the fact is that the Government who passed that Act were not in a position to be able to provide for the necessary implementation of it. There has been a great deal of trouble caused by the lack of preparedness. If the noble Baroness were still in the position she used to hold (and which I now hold) and had had discussions with magistrates about the shortage of some of the provisions which ought to have been provided under that Act, then I think that perhaps she would not be quite so pleased with the work done then as she is at the moment.
BARONESS BACON: I do not see that that has anything to do with it.

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It has, to this extent. The aspirations of the then Government in handing over the work from the Probation Service to the social services departments was dependent upon staffing. This is the crux of the matter. The noble Baroness has said that the Probation Service is heavily worked. It is. That is one reason why in the Criminal Justice Act we were careful only gently to load it with extra work.
We are gradually raising the age under which children will be dealt with, not by the Probation Service but by the local authority social service departments. I accept the argument that this is a good thing. We are doing it gradually; but we are doing it only as the staff becomes available in the social service departments. This is not a matter for the Home Office; it is a matter for my right honourable friend the Secretary of State for Social Services. His judgment, with which I would not disagree, is that we cannot go overboard at this stage. I am sure that the noble Baroness is right in saying that this Bill, the Matrimonial Proceedings (Magistrates' Courts) Act 1960, the Matrimonial Causes Act 1965 and the Family Law Reform Act 1969, all of which provide in one form or another for supervision either by the Probation Service or by the local authority, should be kept in line. That is what she said. I agree. The question is: Which line? Do we take the opportunity of this Bill suddenly to impose on the social services departments the 4,000 children—and I ask the noble Baroness to note that number—who are at the present moment being supervised by the Probation Service as a result of matrimonial proceedings—because the advice I have is that, with the best will in the world, the social services department could not take it on.
What is going to happen is this. We shall gradually raise the age, as the Minister said in the other place in the speech referred to by the noble Baroness. We shall do it step by step in accordance with the availability of staff in the social services department. So the provisions in all these Statutes which allow the courts to make supervision orders by a probation officer will drop out. More and more children will go to the social services department.
I must advise the Committee that this is the only satisfactory way to do it. We are all going in the same direction
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as the noble Baroness. But to amend all these Statutes at this stage, and to insist that all children requiring supervision as the result of any form of matrimonial proceedings must be dealt with by the social services department, just is not on in terms of staff at the present time. I hope that the noble Baroness will realise the situation and that the right way to do this is to take it gently, because in that way we shall achieve what she wants without suddenly shifting this intolerable work load on to the local authority department.
BARONESS ELLIOT OF HARWOOD: May I ask the noble Viscount a question about this, because I am very interested? In Scotland all the children are looked after by the social services department and there is no question of any probation officer coming in at all. As I read the Bill it seems to me to be possible that those in social work departments are charged with the supervision, and you are leaving in supervision by the probation officer as an alternative, but not the only alternative. Is that right?
VISCOUNT COLVILLE OF CULROSS: Yes.
BARONESS ELLIOT OF HARWOOD: You can even now ask the social services department to supervise. In Scotland it would be impossible to suggest that supervision should be carried out by the Probation Service since it is all done by the social services.
VISCOUNT COLVILLE OF CULROSS: My noble friend is quite right. If she looks at Clause 11, which is the Scottish equivalent for this clause, she will see that there is no reference to the Probation Service at all. This reflects the situation in Scotland, where they are more advanced than we are South of the Border. But here we are dealing with England and Wales. Again she is quite right that there is a choice. The courts have chosen the Probation Service in the case of 4,000 children who at the moment are being supervised by probation officers; and it is this case load that I am worried about in relation to any attempt to accept this Amendment.
LORD SIMON OF GLAISDALE: I would agree entirely with the noble Baroness, Lady Bacon, and I think her

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view is agreed to by the noble Viscount, Lord Colville of Culross: that young children are better dealt with by the local authority, and older children by the Probation Service. But I would draw attention to one transitional problem which ought to be considered whether the matter is to be dealt with legislatively, as the noble Baroness has suggested, or administratively, as the noble Viscount prefers.
VISCOUNT COLVILLE OF CULROSS: I must interpose here before the noble and learned Lord continues because I have misled the Committee. I am afraid I was wrong. The Law Commission is looking into this at the moment. It will require legislation in respect of these other Acts we are talking about, and I think the Committee should be put right at once. The factual situation remains as I have said, but the age limit can be raised only under the provisions of the Children and Young Persons Act. It does not have the consequential effects in these other areas of legislation. I am very sorry, and I apologise to the Committee.
LORD SIMON OF GLAISDALE: I am very grateful to the noble Viscount. I think the point I was venturing to make will have to be dealt with just the same. Courts have found it desirable that all members of a family are dealt with by the same social unit, and where you find a probation officer seized of one family problem it is generally desirable that he should be enabled to continue to supervise any other member of the family who needs that help. I think that many benches of magistrates, who know their probation officers very well, would know that; and perhaps that transitional problem could be borne in mind when legislation is considered.
BARONESS BACON: I am grateful to the noble Baroness, Lady Elliot of Harwood, for drawing attention to the point to which I drew attention during the Second Reading debate; namely, that Scotland is very much ahead of England in this respect, in that the Probation Service there is a part of the social services. Whether a child is dealt with by a social worker or a probation worker, it is part of the local authority and the difficulty which I have pointed out to-day does not arise. This is due to the fact
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that the Kilbrandon Committee reported about 1964, and the then Government had the advantage of that excellent Report, but we in England had not.
I am pleased that the noble Viscount Lord Colville of Culross, realised his mistake about legislation. Indeed in the Children and Young Persons Act it is laid down that it shall be the social services department rather than the Probation Service which will supervise children under a certain age. The only point at issue here is when the Government will bring in that part of the 1969 Act. It was my point that when that was brought into operation it would surely be anomalous if those children appearing before the courts under the Children and Young Persons Act, who were not able to be dealt with by a probation officer, but were dealt with by the social services department, should be treated differently from those children whose parents come before the courts and who are put under supervision either of the social services department or of the Probation Service. I want to ensure that all children are treated the same in this respect. I was pleased that towards the end of his speech the noble Viscount said that progressively these other Acts would be brought into line with the Children and Young Persons Act. I should like him to give me an assurance that when this part of the Children and Young Persons Act is brought into operation the Government intend to bring these other Acts into line, because that is what I am asking for.
It was totally unnecessary for the noble Viscount to give me a lecture about community homes and approved schools. I know all about them, and I am very pleased to have been associated with the policy of doing away with the approved school order, which was fought by so many people in this country, including magistrates. I am very pleased that the present Government—even though the noble Viscount seems to think that they have had a struggle to do so—have been able to adopt that policy. But I do not see what it has to do with this Amendment—except that somehow the noble Viscount wanted to get something off his chest. I very much deplore the fact that I got that lecture. It was totally unnecessary. I could probably teach the noble Viscount a few things about approved schools and community homes. I have probably visited far more of them than

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he has. I should like to get a specific assurance from the noble Viscount that when that part of the Children and Young Persons Act is brought into operation, making it possible for children under a certain age to be supervised only by the social services department and not by the Probation Service, the other Acts will be changed to bring them into line with the Children and Young Persons Act of 1969.
6.40 p.m.
VISCOUNT COLVILLE OF CULROSS: I thank the noble Baroness and I have now got it off both our chests, and perhaps we can forget it on the other parts of the 1969 Act. I cannot possibly give this assurance. It has nothing whatever to do with the Home Office. It is a matter for my right honourable Friend the Secretary of State for the Social Services to deal with, because it is going to be done by the social services department, and he has to be satisfied that the social services department have the staff to carry this matter through. I have no idea whether and at what stage he will be satisfied that this is so. I am sorry, but I really cannot give the noble Baroness that assurance.
What I was saying about its being progressively applied was, I am afraid, part of the mistake. I was under the mistaken impression that as you raise the age under the Children and Young Persons Act it would have an effect across the board; but the Children and Young Persons Act was not drafted so as to apply to the various matrimonial Acts as well; therefore it does not have the consequential effect if you raise the age under the 1969 Act. It would need legislation to change the arrangement whereby at the moment the courts have a choice between the Probation Service and the social services department. One of the reasons for the exercise of their choice, as we all know well, is that which the noble and learned Lord, Lord Simon, gave: that they want all the members of the family to be dealt with by one agency. It would need legislation, and I am afraid I cannot give the noble Baroness an assurance that we shall be able to have that legislation step by step with the Children and Young Persons Act legislation.
BARONESS BACON: I am sorry to hear that. I thought the only mistake
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that the noble Viscount admitted was that it would need legislation. I thought he was saying that we shall need legislation, and that we must have this legislation. So the whole of his reply to me was based on a wrong assumption, and there is going to be no change in these other Acts of Parliament.
VISCOUNT COLVILLE OF CULROSS: That is right.
BARONESS BACON: The noble Viscount can give me no assurance?
VISCOUNT COLVILLE OF CULROSS: No.
BARONESS BACON: So we shall go on in the future with children under a certain age appearing before the courts under the Young Children and Persons Act and being dealt with by the social services department, but any other children, who perhaps do not come before the court but whose parents come before the court on something affecting the child, might be supervised by the social services department or by the Probation Service. This can perhaps go on for ever. There will be this anomaly for many years to come, and the Government hold out no prospect for a change. I must say that I find this most unsatisfactory. I thought that the noble Viscount gave me as his first answer that he was agreeing with me that it was desirable that what I have suggested should be done, and was merely saying that it would be done progressively because we could not do everything at once. I realise the difficulty of suddenly taking 4,000 children who are supervised by the Probation Service and putting them under the social services department. I thought the whole of the noble Viscount's argument was that it would be done progressively and in stages. But now he tells me that it will not be done at all.
VISCOUNT COLVILLE OF CULROSS: What I said—I said it rather quickly, and the noble Baroness may be excused for not having heard me—was that this was one of the matters that the Law Commission are looking at at the moment. So it is not right to say that I can hold out no prospect of its ever being done, and that it will go on for ever, because it is something that is subject to a current Law

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Commission Working Party. The question whether the social services department will be able to cope is, I think, the other important question, and I am glad that the noble Baroness recognises that, because I am sure it is a serious argument of which one has to take cognisance. But I do not want the noble Baroness to think that the Government have washed their hands of this problem, because it is, as I say, something that the Law Commission are looking at.
BARONESS BACON: I should like to thank the noble Viscount. He has gone back a little to where he stood in his first reply. The hour is very late. I do not feel like withdrawing the Amendment, and it will have to be negatived.
On Question, Amendment negatived.
On Question, Whether Clause 2 shall stand part of the Bill?
LORD HALE: I find myself very unhappy after all the courtesy of the noble Viscount, all the assistance he has given and the pains he has taken, that immediately after he has had a complaint from the noble Baroness, Lady Bacon, that she received from him an unnecessary letter, I have to rise to say that I have not had a letter. I did not table an Amendment. I thought it would need a new clause. The noble Viscount said that Schedule 2 possibly might have some implications in this matter. I raised the question of the stepmother who has had the care and custody of the children practically throughout their lives, and who appears to be excluded.
It seems that under the provisions of Clause 2, and indeed under the Act of 1971, the court could, if they were fully informed of the matter, say that the stepmother, although a stranger, could be entrusted with the care as a suitable person. As I understand it, there is as yet no provision by which she can bring herself before the court. The court are fully informed, and I think they could do it. I speak with great hesitation about this matter, because I am much out of date in it. However, I think it is an important point. In view of the noble Viscount's promise to look into the subject and possibly have a word to say about it, I wonder whether he can say that he has
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made any further inquiries (I gather now that we seem likely to have a Report stage), whether I should table a new clause, or whether he thinks the question might be referred to the Law Commission who are considering some of these problems at the moment.
VISCOUNT COLVILLE OF CULROSS: To be truthful, at the moment I have not anything to tell the noble Lord, Lord Hale, about this point. My recollection is that the noble Lord raised it under Clause 1 rather than under Clause 2. I thought he was saying that in the case of a stepmother she should have equal rights with the true father of the children. I did not think he was raising the question under Clause 2, which of course is an entirely different section of law which attempts to assimilate the guardianship proceedings to those which the magistrates' courts already have under the 1960 Act. The noble Lord would do me a great service if he could tell me which of the two areas he wishes me to explore.
LORD HALE: The noble Viscount's recollection is quite right. I raised the matter on Clause 1, but I rather thought I was told that I raised it on the wrong clause. I have been told that so often that I may be thinking of the wrong case. To the best of my recollection, the noble Viscount referred to Schedule 2 and the provisions there. However, I have raised this point now, and certainly I had in mind something analogous to equal rights for the stepmother, where she was effective, with the mother. I do not know what the noble Viscount would like me to do about it. Would he like me to table a new clause, or to put down an Amendment, or will he look into it again?
VISCOUNT COLVILLE OF CULROSS: I should be more than grateful if the noble Lord would write to me setting out precisely what is the proposition that he would like me to consider, because I do not think now it has anything to do with Clause 2: and if I referred to Schedule 2 in this context in relation to Clause 1, then I must have made another mistake. Therefore if the noble Lord would be so kind, if he has the chance this evening or tomorrow, to set out on a piece of paper what he wants to see happen about stepmothers, I shall be glad to see whether we can do it or not. At the moment, I am afraid I am a little muddled about it.
LORD HALE: I am obliged to the noble Viscount.
Clause 2 agreed to.
Clause 3 [Additional provisions as to supervision orders]:
On Question, Whether Clause 3 shall stand part of the Bill?
6.50 p.m.
LORD SIMON OF GLAISDALE: I should like to ask a very short question of the noble Viscount which I think arises on Clause 3 because of a reference to an order in the High Court. It is at page 4, line 42. I have succeeded the noble Viscount on a legal treadmill known as the Joint Committee on Consolidation Bills. We have recently consolidated the Matrimonial Couses Acts and I should like to ask whether this Bill will affect those Acts and whether there will be further consequential consolidation.
VISCOUNT COLVILLE OF CULROSS: No, I do not think it will affect the Matrimonial Causes Acts. There is nothing in the Appeals Schedules which touches upon those, and I think the plan is more to bring the magistrates' courts proceedings and the guardianship proceedings in line with each other—that is to say, except for Clauses 1 and 10. So I do not think there will have to be another consolidation of matrimonial causes legislation. But I am not at all sure that there will not need to be a consolidation of Guardianship Acts, because although that was done to some extent in 1971 we shall now have this Act and the various other powers of magistrates' courts which, for all I know, may be thought a suitable subject for consolidation—but not, I think, matrimonial causes.
Clause 3 agreed to.
Clauses 4 to 9 agreed to.
Clause 10 [Equality of Parental Rights]:
6.52 p.m.
LORD HOY LORD HOY had given Notice of his intention to move Amendment No. 9:
Page 10, line 4, at end insert ("except that, in regard to any one matter, only one parent shall be entitled to sue or be sued on behalf of a pupil child; that, subject to the existing rules of tutelage as amended by this Act, the same parent shall continue to act as tutor for the purposes of the said matter; that only one
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parent shall be entitled to execute any deed or discharge any obligation on behalf of a pupil child; and that, subject to the existing rules of tutelage as amended by this Act, the same parent shall continue to act as tutor in respect of the said matter.").
The noble Lord said: With consent, I will not move this Amendment but will make my argument on it on the Question, That Clause 10 stand Part of the Bill, if that is convenient to the Committee.
On Question, Whether Clause 10 shall stand part of the Bill?
LORD HOY: I should now like, if I may, to raise the question I mentioned earlier in connection with the clause concerning age. At the present time, as 1 understand it, there is a differentiation in age between the male and the female of the species. It was felt by my legal advisers that we should take advantage of this occasion to obviate that differentiation. That is the sole purpose of the Amendment. If the noble Viscount can tell me when he replies that the Government also take this view, then the matter can quite easily be dealt with by putting down an Amendment at Report stage. I withdrew the first Amendment because it would have meant a radical change in the Bill, and I was very well aware of this. But I am bound to say to the noble Viscount that another reason for withdrawing the Amendment was that only to-day I received a letter from the Law Society of Scotland outlining their views and also their complaints—because in their letter they say that this matter has not been the subject of discussion with or of an inquiry from the Scottish Law Commission or any legal body, or any other organised society or association in Scotland before its appearance in the Bill.
I should have thought, if this is correct, that it is due to a little mismanagement—I would not put it any higher than that—because in the letter which I have before me they describe this change in Clause 10 not only as "radical" but as "revolutionary". It seems to me that if they regard it in this way one might have assumed that some consultation would have taken place between the Scottish Office and the law societies as they are represented in Scotland. As to the argurnent I was making earlier, the noble Viscount suggested that perhaps I could "spell it out" when we arrived at Clause 10.
VISCOUNT COLVILLE OF CULROSS: This is costs, is it?
LORD HOY: Yes. I will put it to the Committee as the Law Society of Scotland have put it to me, and I will deal with it as briefly as possible. In any case, I will send the whole of this document to the noble Viscount. They say:
"The Council considers that it is most important to have regard to the enforcement provisions when considering whether the substantive provisions themselves are desirable. Subsection (1) and subsection (3) are not in terms expressed to be interdependent, but they are subsections of the same section and the wording of subsection (3) echoes in many respects the wording of subsection (1). The Council therefore proceeds on the assumption that the remedy provided in subsection (3) is necessarily related to the changes in the law provided in subsection (1)."
I shall omit the next part and continue as follows:
"Now the remedy and the only possible remedy (for there is none at common law) for any dispute arising under subsection (1) is that provided by subsection (3) to the effect that either party may apply to the Court and the Court may make such order as it may think proper. The application is to be by a person who in the context is presumed to be living amicably in family with his or her spouse. Thus for the first time in the long history of what the Council is pleased to regard as the very civilised system of law in Scotland, it is contemplated that spouses living together in the family home will resort to litigation. If that is to be the remedy then the Council respectfully submits that any provision which needs such a remedy to make it work must itself be bad because it leads to this antisocial and undesirable result. It contemplates that a purely domestic difference of opinion should be the subject of litigation."
They then go on to argue about costs, and this is what they say:
"On the question of the litigation there are further matters which follow. Although the background or philosophy of the proposal seems to be the modern cry for equality of the sexes there has yet been no suggestion anywhere made that it will be other than the husband who in domestic dispute will have to pay expenses. Accordingly what is being effectively proposed is that a husband whose wife differs on a matter affecting the welfare of a child (of any age up to 18 be it noted) may threaten him with a litigation in which he will have to pay two sets of expenses, win or lose. That will not only be an undesirable result in itself in his pocket, but it will of course lead to a lowering of the domestic expenditure in other ways and especially lower expenditure on the child whose welfare was supposed to be the de quo of the litigation."
That is the considered opinion of the Law Society of Scotland. I am bound to point out in fairness that the notice has
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been so short that they have not had time to discuss it as a Council. In fact, they will be meeting on Friday the 23rd to discuss this in greater detail. But they felt that, inasmuch as your Lordships will be dealing with the Committee stage this evening, at least they ought to have their proposals put forward before it was too late. The noble Viscount asked me what the case was, and I am now quoting the case as it has been given to me by the Law Society of Scotland. I should be grateful to have an answer on that point. I am also interested in the proposal—not made by the Society—in the second Amendment which was purely a personal one resulting from what was said by a legal adviser on the question of age. I hope the noble Viscount will be able to say something about that matter also.
7.0 p.m.
VISCOUNT COLVILLE OF CULROSS: I am glad that the noble Lord, Lord Hoy, has dealt with the matter in this way rather than by means of those Amendments, because they were very intricate, particularly the first one; and I am bound to say again that I was not wholly certain of the problem he was trying to deal with. Of course if at any time he should wish to discuss these things, I am at his service, and so, I am sure, is my noble friend Lord Polwarth, whose part of the Bill this is. If there has been some failure in consultation on behalf of the Scottish Office, I am sorry. But of course we will take into account views like those that the noble Lord has drawn to our attention. If he will let me have the correspondence I will see that it is looked at most carefully.
I spent one and a half hours this morning with Scottish advisers talking about the whole of this area of the Bill, including age. The answer on age—and I am sorry to go on sheltering behind Law Commissions—is that the Scottish Law Commission is at this moment looking at this matter. I do not think it is necessarily right simply to equate boys with girls and make them both 12 or both 14 for the changeover from tutelage to curatory. I do not think 14 is better than 15, or 13, or 16. We need to have a good look at what are the legal situations that arise under tutelage as against curatory, to see whether these are satisfactory to modern circumstances, and to see when they

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should stop, bearing in mind that a person remains a minor until 18. The whole of this area needs rather more explanation than a simple Amendment would achieve to equate the changeover between the status of the two things in Scotland. Therefore if the Scottish Law Commission could be allowed to look at this matter in more depth, we should probably obtain a more satisfactory answer.
As for the other point, that raised by the Scottish Law Society, starting at the end, on costs, I suspect that their argument is the one which I attempted to answer: there is nothing in the Bill, but it is a practical consequence in most households that the wife is not able to pay legal costs. If an action of this sort were started it would be the husband who would have to pay both. So far as I can see, there is nothing in the Bill which actively prevents a wife's having costs awarded against her if she can afford to pay them. It is therefore a matter of practice rather than law.
The Scottish Law Society is arguing, as I understand it and without doing more than having heard the letter, that Clause 10(1) provides for equal rights; Clause 10(3) provides for the remedy whereby these equal rights are sorted cut if they conflict. They are perfectly right in that. There may be rare occasions when the Scottish common law could also provide another remedy, if one of the spouses has been negligent in exercising his or her duties. This would be extremely unusual. But they are right in saying that Clauses 10(1) and 10(3) are bound together. If you want to have equality for the two adults, equality between the sexes—which is what I thought everybody on Second Reading wanted, including the noble Lord, Lord Hoy—certainly that is the policy of the Government. It is sensible that one should not just leave it at stating the principles of equality, but also provide machinery whereby the disputes that may arise as a result of that change can, if necessary, be litigated.
I do not know—we have had discussions about this earlier—to what extent in England and Wales Clause 1(3) may be used; or, in Scotland, to what extent Clause 10(3) will be used. It would be irresponsible of Parliament to change the law in this way and not provide any
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machinery whereby the Sheriff's court, or the Court of Session, could deal with resultant rounds. That is not to say that I do not understand that it is a fairly major change. It is part of the Government's policy that we should promote the equality of women in the family life, as we are trying to do in many other respects. If the Scottish Law Society do not like it, I am sorry; but I am perfectly prepared to consider alternative methods of enforcement if they can think of anything better than what we have in Clause 10(3).
As I said, this morning I have been through this in fairly considerable detail with the advisers to my noble friend Lord Polwarth. None of us could see any problems which ought not to be able to be sorted out by reasonable people, and very few problems that ordinary, sensible solicitors would not be able to get over when they took account of the fact that both the husband and the wife might have powers over, for instance, things like children's property and matters of that sort. We discussed this fully; nobody can think at the moment of any substantial problems. I hope, therefore, that if the Scottish Law Society at theft Council meeting can think of any difficulties, they will rapidly draw them to our attention because we shall be glad to know of them. On the matter of principle I am quite unrepentant. I think it is right that the husband and wife should have equal rights over their children.
LORD HOY: I am grateful to the noble Viscount for his reply. The Scottish Law Commission is actively engaged in considering this particular point. Quite obviously one would not want to push it prematurely but would look for the correct answer. Regarding the second point, may I make this appeal to the noble Viscount: the Scottish Law Society feels that this Bill has been rushed considerably, although they admit that the printing date was February 1. The noble Viscount knows that the law does not work very quickly, nor do lawyers' offices work very quickly. The Society's first meeting, I believe, will be on Friday. May I suggest that perhaps we might not push on too quickly to the Report stage on this Bill—perhaps we should consult

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the Whips about this—so that the Secretary of State can be given an opportunity, if the complaint is correct, to call the Scottish Law Commission in for consultation, perhaps immediately after the meeting has been held? I do not detract one word of what I said on Second Reading; but I agree that to avoid troubles we should let them formulate whatever Amendments they think are necessary under these circumstances. All I would plead for is a little more time before we get to the Report stage, so that the Bill is not rushed through without due consideration being given to the views of the Scottish Law Society.
VISCOUNT COLVILLE OF CULROSS: I suspect that there will be an occasion in another place for a fairly thorough Committee stage. Therefore the Scottish Law Society need not think that if they do not get all their Amendments dealt with in this House it is the end of the world. I am in favour of starting some fairly important pieces of legislation in this House so that we do not get everything at the end of July. This gives the other place an opportunity to put down Amendments in whatever degree is necessary. I do not know how happy the usual channels would be to delay the Bill unduly, but I will see what we can do about the Report stage.
LORD SIMON OF GLAISDALE: I am not intervening on a matter of Scottish Law. I apologise to the noble Viscount for not having given him notice of this question. Has subsection (8) any English equivalent, and if not, why not?
VISCOUNT COLVILLE OF CULROSS: I have not the faintest idea.
On Question, Clause 10 agreed to.
Clauses 11 to 15 agreed to.
Schedule 1 agreed to.
Schedule 2 [Amendments of Guardianship of Minors Act 1971]:
7.9 p.m.
VISCOUNT COLVILLE OF CULROSS: This is a drafting Amendment. Although I could spend five minutes explaining it, I will not do so. I beg to move Amendment No. 11.
Amendment moved—
Page 15, line 10, at end insert ("at the first place where the applicant is mentioned, and
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the words "the person given the custody" at the other two places; and for the words "that person" there shall be substituted the words the person so served ").—(Viscount Colville of Culross.)
On Question, Amendment agreed to.
Schedule 2, as amended, agreed to.
Schedule 3 agreed to.
Schedule 4 [Amendments of Guardianship of Infants Act 1925 s. 3, and of Maintenance Orders Act 1950 s. 7, and texts as amended]:
VISCOUNT COLVILLE OF CULROSS: I beg to move Amendment No. 12, which is a drafting Amendment.
Amendment moved—
Page 18, line 16, leave out ("then").—(Viscount Colville of Culross.)
On Question, Amendment agreed to.
VISCOUNT COLVILLE OF CULROSS: I beg to move Amendment No. 13, which also is a drafting Amendment.
Amendment moved—
Page 19, line 27, leave out ("then").—(Viscount Colville of Culross.)
On Question, Amendment agreed to.
House resumed: Bill reported, with Amendments.

REHABILITATION OF OFFENDERS BILL [H.L.]
7.14 p.m.
Report received.
LORD GARDINER LORD GARDINER moved Amendment No. 1:
Page 1, line 19, at end insert—
("(2) For the purposes of this Act the payment in full before the commencement of this Act of any fine or other sum ordered to be paid by any Court by way of sentence in criminal proceedings shall be deemed to have been a compliance with the sentence notwithstanding that the payment was not made within the time, or any further time, allowed by the Court.")
The noble and learned Lord said: My Lords, the House will remember that this Bill only applies under Clause 1 to those who have duly served or complied with the sentence of the court when they were convicted, and if the sentence is that a fine be paid by a particular date then if they do not pay by that date they do not have the advantages of the Bill. I defended this draconian attitude at the

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Committee stage on the ground that the orders of the court ought to be complied with and if anybody got into difficulties he could always go to the court and apply for an extension of time. That view found a welcome with the noble Viscount, and that I still think is right as from the date of the commencement of the Act. But it would be very hard on somebody who, 20 years ago, failed to pay on the due date, if he could in no way put himself right. Accordingly, what this Amendment does is to propose that if a man, however long ago that happened, pays in full before the commencement of the Act, then he should not be regarded as having failed to comply with the terms of the crder. It would be, I would hope, for the Home Office, and certainly for bodies like Justice, NACRO, and the Howard League to publicise the effects of the Bill on such people before it receives the Royal Assent. No doubt some time will elapse before it is passed, or before it comes into force, and I hope therefore the House will consider that this is a reasonable solution to the problem. I beg to move.
VISCOUNT COLVILLE OF CULROSS: My Lords, perhaps I could preface my brief remarks on this Amendment by again congratulating the noble and learned Lord, Lord Gardiner, and thanking him and his advisers for going so far to meet a large number of points that were raised, I think mainly by me, at the Committee stage. There is not, I think, a single Amendment down on the Marshalled List that I do not want to accept and recommend to the House. They all seem to have come out fairly well, but perhaps the noble and learned Lord will let me say this at this stage. There are problems which we still have not got right, not necessarily on this Amendment, although it does to some extent tie up with the Schedule and the way this is set out. There are problems on a number of these Amendments which, considering we have another debate to come, I will not inflict upon the House, but I would suggest that we are getting into the realm where nobody but a Parliamentary draftsman is even going to get this right. At the risk of again saying something that the noble Lord, Lord Shackleton, does not like, I must sav that we have not got a Parliamentary draftsman available to us to clear this up and I am afraid these
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discrepancies will continue to arise, however earnestly the noble and learned Lord tries. I think the best course for me will be to have a word with him afterwards where technical problems have arisen and draw them to his attention, rather than to describe them in detail. I do not think there is one on this Amendment and I certainly would recommend it to the House.
May I also say, so that I do not have to go on saying it throughout the course of the Bill, that there are still parts of this Bill on which the Government reserve their position, and when I suggest to the House that we should accept this or that Amendment in the course of what I think may be fairly swift proceedings, it does not mean that I have in any way resiled from that position. We are still not happy about Clause 4 and the Schedule, and we are still not happy about Clause 7 and one or two other things, but our position should not be endangered by anything that I say this evening. I hope that makes the position absolutely clear, but in the meantime this Amendment is a good one and is an improvement to the Bill.
LORD SHACKLETON: My Lords, the noble Viscount will never incur my displeasure (or whatever phrase he used) but I am bound to say that it is a reflection on Government—and I do not mean his Government; I mean our governmental system—that, because of the specialised nature of Parliamentary draftsmen, for whom anybody who has had anything to do with them has the highest regard, we are unable to deal with a Bill of this importance as we should do since certain absolutely vital facilities are not available. My noble and learned friend Lord Gardiner is as well aware as anyone, despite the brilliance and energy of his drafting and those who advise him, of the limitations that are imposed upon him. I do not want to press the noble Viscount on this particular point because I had to face it at various times and perhaps he has done it more bravely and frankly than I ever did, but it is an awful thought that perhaps in another 10 years' time we shall still be using this argument with regard to a highly desirable measure. One wonders whether a reserve capacity could be built up. In fact, we are being asked to pass a Bill which in certain respects the Government and, I think, the noble and

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learned Lord, Lord Gardiner, and others, will accept could be considerably improved.
On the other hand, I accept that the noble Viscount has encouraged my noble and learned friend to go ahead with this Bill, and at least the fact that it gets through the stages here is valuable, but it is not encouraging for its progress subsequently in another place. I hope that the noble Viscount will, therefore—and I am sorry to go into a subject which does not arise on the Amendment, but he started it—consider the possibility of how, perhaps in the next Session, the Government might pick up the Bill themselves, as was done on a number of other Bills in the time of our Government.
But as to this particular Amendment, as my noble and learned friend knows, I have had doubts about certain aspects of the Bill, and the particular provision with which this Amendment seeks to deal still seems to me to be inequitable. I should like to repeat that my noble and learned friend was good enough to use the phrase which I used on the last occasion, namely, that it was draconian that somebody who had failed to fulfil his obligations to the court should never be able to have his conviction spent. My noble and learned friend now provides that this can be done with regard to those people who do whatever is necessary before the passing of the Bill. Since the Bill is not likely to be passed into law very soon, that provides a certain leeway, but it seems to be quite inequitable to apply this provision to those who take this action before the passing of the Bill and not to make some provision for those who, for one reason or another, have failed to fulfil their obligations to the court.
I agree entirely with my noble and learned friend that it is right that people should respect the orders of the court. I may be using the wrong phrases, but if they are required to pay a fine then they should pay it. But there are some people who, either through incompetence or through misguided views on some point of principle, refuse to do so. Although they can purge their offence by doing what they ought to do, in the sense that if they pay up or do whatever they are called upon to do they are all right, it
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nevertheless remains for ever a conviction on the record and can always be used. It seems to me to be wrong that there is no provision for the spending (if that is the right word), or the annulment, of a conviction in such circumstances. Even at this late stage, I would urge my noble and learned friend to see whether or not there is some Amendment that could meet this point.
I repeat again the objection I have as a layman who feels that the courts, in the very proper desire to uphold their authority, are at times inclined to regard offences against them as worse than offences, for example, against the criminal law. That may be an exaggeraated statement but that is what we are saying. In this particular Bill we are saying that somebody who has failed in this respect after the passing of the Bill will never be able to regard his conviction as spent. It may be that I have misunderstood the matter and if I have, perhaps my noble and learned friend will correct me, but it seems to me to be a simple point of equity and I hope that even on Third Reading something can be done by some device. It may be that this offence ought to attract a certain type of penalty; it might be deemed to be the equivalent of, say, a six-months sentence or something of that kind that could not be spent before a reasonable period—perhaps five years or ten years—but that ultimately it ought to be capable of being wiped away. That generally is the object of my noble and learned friend, and it is a slight blot on the Bill that this instance has not been taken care of.
LORD JANNER: My Lords, may I support what my noble friend has said by adding a few words here. I cannot understand why the wording of this Amendment is objectionable to anybody if the intention is to carry out ultimately what is required. I say, with all humility, that had I been asked before, in my own practice, for someone to draft an Amendment of any kind, and I had gone to the noble and learned Lord, Lord Gardiner, I should have felt more than 100 per cent. satisfied that his wording would have suited the case. I say that, knowing that that is the opinion of practically everybody who has had any connection with the noble and learned Lord

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and who has had cause at any time to approach him on a matter. The wording of this Amendment conveys to me precisely what one wants. There is nothing, complicated about this particular Amendment, and I ask the noble Viscount to accept it because I can see no objection to it at all.
VISCOUNT COLVILLE OF CULROSS: My Lords, I have already suggested to the House that it is highly acceptable.
LORD JANNER: My Lords, then I am extremely sorry to have intervened. If this Amendment is to be accepted there is no need for me to say any more.
LORD GARDINER: My Lords, I am grateful to the noble Viscount for what he has said. I am sorry that I have not gone far enough to please my noble friend Lord Shackleton, but I will certainly give consideration to what he said, and if by the Third Reading of the Bill he cares to let me have an Amendment putting forward his view, I will give it every consideration. I am glad to know that the present Amendment is acceptable to all. I would only add that I think the position about the Parliamentary draftsmen is absolutely ludicrous. It went on through the whole time that we were in Office and also, I believe, in the Government before that. No large company in this country would allow its business to be held up for the lack of twelve technicians. There has never been a proper system for recruiting Parliamentary draftsmen. Although they run training courses for Commonwealth draftsmen they have never had any training course of their own. I hope that at some time some Government will be brave enough to tackle this question.
On Question, Amendment agreed to.
Clause 3 [Rehabilitation periods]:
7.28 p.m.
LORD GARDINER LORD GARDINER moved Amendment No. 2:
Page 2, line 36, after ("sum") insert ("(and for this purpose a suspended sentence ordered to take effect, with or without any variation of the original term, on the expiration of another term of imprisonment shall be treated as having been imposed on the same occasion as that other term);").
The noble and learned Lord said: My Lords, I beg to move this Amendment, which arose out of a point referred
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to by the noble and learned Viscount, Lord Dilhorne, on the Committee stage of the Bill. The noble and learned Viscount inquired what would happen if a suspended sentence were ordered to take effect on the expiration of another term of imprisonment. It was right, I believe, to say that that point was not expressly covered by the Bill. The Amendment provides that a suspended sentence so imposed
"shall be treated as having been imposed on the same occasion as that other term."
That makes applicable Clause 3(2)(b) which provides for
"consecutive custodial sentences for specified terms imposed on the same occasion shall be treated as one custodial sentence for a term equal to their sum".
I hope that that solution to the problem may commend itself to the House. The noble and learned Viscount, who, I am sorry to say, is unable to be here, has been good enough to write to me to say that he likes the way I now deal with suspended sentences, and he adds that he has gone through the other Amendments on the Paper and has no criticism to make of them.
VISCOUNT COLVILLE OF CULROSS: My Lords, I agree with the noble and learned Viscount.
On Question, Amendment agreed to.
7.30 p.m.
LORD GARDINER LORD GARDINER moved Amendment No. 3:
Page 2, line 43, at end insert—
("( ) A custodial sentence imposed as an alternative to a fine or other payment shall not be treated as a custodial sentence unless it has taken effect, and a committal order for default in payment of a fine or other sum shall not be treated as a custodial sentence;").
The noble and learned Lord said: My Lords, I beg to move Amendment No. 3. This Amendment relates to a question of custodial sentence imposed either as an alternative to a fine or as a committal order for not paying the fine. Of course, where a custodial sentence is imposed as an alternative,£20 or 14 days, the person concerned has an option. There seems no reason to treat that as a custodial sentence if he pays the fine. But if he chooses to go to prison, there seems no reason for not treating it as a custodial sentence. On the other hand, where it is a committal order for default in payment of a fine, this is not imposed

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because of the original offence; it is not in itself a criminal offence, and it would, therefore, seem right not to treat it as a custodial sentence. I beg to move.
VISCOUNT COLVILLE OF CULROSS: My Lords, this again, I would suggest to the House, is an improvement. It is an area of the law where we have uncovered the most appalling number of problems, and it is, therefore, one on which I would be glad to have a word with the noble and learned Lord, if he would be good enough to look at some of the problems with me.
On Question, Amendment agreed to.
LORD GARDINER LORD GARDINER moved Amendment No. 4.
Page 3, line 32, leave out ("twelve months") and insert ("two years").
The noble and learned Lord said: My Lords, I beg to move Amendment No. 4, which relates to mental health orders. The subsection provides that:
"…the rehabilitation period in respect of that conviction shall not expire until twelve months after the order ceases to have effect, or five years from the date of conviction, whichever is the later."
It was represented to me that twelve months after the order ceases to have effect was perhaps on the low side, having regard to the fact that, of course, with mental health orders there can be danger to the public. Accordingly, the Amendment proposes in place of twelve months a period of two years. I beg to move.
VISCOUNT COLVILLE OF CULROSS: My Lords, again I think this is an improvement. There is one point on the certificate which I will draw to the attention of the noble and learned Lord. I am not at all sure how the courts will be able to issue a certificate of rehabilitation in the case of people who have orders made on them under the Mental Health Act, because, of course, the whole question depends on the discharge of the order and that is not a matter for the courts; it is for the hospital authorities or in some cases my right honourable friend the Home Secretary. I think that there is an area to explore, that is, how the courts will ever be able to give the certificate in these cases.
LORD GARDINER: My Lords, I am much obliged to the noble Viscount. I
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will certainly look into that point before the next stage of the Bill.
On Question, Amendment agreed to.
LORD GARDINER LORD GARDINER moved Amendment No. 5:
Page 4, line 23, after first ("periods") insert ("or terms") in each case.
The noble and learned Lord said: My Lords, if I may, I will also discuss Amendment No. 6 with this Amendment. Clause 3(9) provides:
"The Secretary of State may by order substitute different periods for any of the periods mentioned in subsections (1), (2) (3) and (5) of this section, and may in like manner substitute a different age for the age mentioned in subsection (6)…"
Some doubt was expressed on the Committee stage of the Bill as to whether this really covered all the periods of time referred to in the Bill, although it was intended that it should. For example, in Clause 3(1)(b) the rehabilitation period is:
"seven years where the sentence imposed was a custodial sentence for a term not exceeding six months".
So there are places in which the word term is used as well as the more usual phrase "period". The object of these two Amendments is to see that the Secretary of State has power to alter any, what I would call neutrally, lapse of time which is referred to in the Bill.
There is one additional point which I should mention. The draft Amendment sought to deal with these two words "periods" on the same page in the same line by saying that this was to apply "in each case", and it was thought by the powers that be that it might make it clearer if this was split into two, dealing first with the first word "periods" in the line and then the second "periods" in the line. What they had not realised was that in that case one must omit the words "in each case". I hope that in moving Amendment No. 5 the House will allow me to say that the words "in each case" should be disregarded. I beg to move.
On Question, Amendment agreed to.
LORD GARDINER: My Lords, I have spoken to this Amendment. I beg to move.
Amendment moved—
Page 4, line 23, after second ("periods") insert ("or terms").—(Lord Gardiner.)
On Question, Amendment agreed to.
Clause 5 [Evidence of previous convictions]:
7.36 p.m.
LORD GARDINER: My Lords, this Amendment deals with the clause which already provides that:
"Notwithstanding the provisions of section 2…evidence of all spent convictions…shall be admissible at any time",
and there are various proceedings listed, beginning with adoption and going on to guardianship, wardship, custody, care or control, or access to, any minor. It is suggested that to that should be added marriage. I beg to move.
Amendment moved—
Page 5, line 28, after ("wardship,") insert ("marriage,").—(Lord Gardiner.)
On Question, Amendment agreed to.
LORD GARDINER: My Lords, this Amendment is of a similar nature and applies to proceedings in which there is an issue as to whether a particular person is a fit and proper person to be a foster parent. I beg to move Amendment No. 8.
Amendment moved—
Page 5, line 29, at end insert—
("( ) in any proceedings under section 5 of the Children Act 1958 (as amended by the Children and Young Persons Act 1969) or section 62(3) of the Social Work (Scotland) Act 1968").—(Lord Gardiner.)
VISCOUNT COLVILLE OF CULROSS: My Lords, the foster parent point is fine, and was what I asked for. I am not certain that the reference to the Social Work (Scotland) Act is right. I think the pattern of the noble and learned Lord's Amendments—and I am not quite sure what the policy should be on this—is to deal with cases which go to the courts and not to some other tribunal. It was for this reason, I suspect, that he left out the question of fitness under the Education Acts, because that does not go to the courts but to some tribunal. I am told that the question of management of residential establishments, including children's homes, in Scotland under the Social Work (Scotland) Act, if it goes on appeal at all, goes to an appeal tribunal chaired by the sheriff and not to the sheriff sitting as a court. I think, therefore, that probably this is one which, if we are not going to have tribunals, ought not to be
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in, and the reference is probably to Section 64(4) rather than 62(3). Again this is an area we might discuss.
LORD GARDINER: My Lords, a Scottish Parliamentary draftsman was good enough to look at this for me, but I will certainly reconsider the observation the noble Viscount has made.
On Question, Amendment agreed to.
LORD GARDINER: My Lords, Amendment No. 9 and Amendment No. 10 are drafting Amendments. I beg to move.
Amendment moved—
Page 5, line 31, leave out ("of an offence").—(Lord Gardiner.)
On Question, Amendment agreed to.
LORD GARDINER: My Lords, I beg to move Amendment No. 10.
Amendment moved—
Page 5, line 33, leave out ("offence") and insert ("conviction").—(Lord Gardiner.)
On Question, Amendment agreed to.
LORD GARDINER: My Lords, at the Committee stage of the Bill the noble Viscount suggested that there might be some clash between Clause 5(4) and Clause 6. In order to make quite sure that that is not so, the Amendment provides for the insertion in Clause 5 of the words "but subject to the provisions of section 6". I beg to move.
Amendment moved—
Page 5, line 36, after ("2") insert (",but subject to the provisions of section 6,").—(Lord Gardiner.)
On Question, Amendment agreed to.
LORD GARDINER: My Lords, Amendments Nos. 12 and 13 deal with the question of court-martial, which we discussed for some considerable time at the Committee stage. What the Amendment now proposes is that all spent convictions should be admissible at any time upon conviction by any court-martial, which will, of course, already have the full military record, provided that they are not convictions which had become spent before he became a member of the Armed Forces. I hope that that solution may commend itself to the House. I beg to move.
Amendment moved—
Page 5, line 37, at beginning insert ("(a)").—(Lord Gardiner.)
VISCOUNT COLVILLE OF CULROSS: My Lords, this is a point which I discussed with the noble and learned Lord, and as far as I can see this is a very reasonable compromise. On the other hand, the Ministry of Defence are still brooding on the whole question of courts-martial. Nothing has yet hatched, and therefore I cannot commit the Government to saying that this is the right way to handle courts-martial or that this is the only amendment that will be needed.
LORD SHACKLETON: My Lords, I do not particularly welcome this compromise. I have yet to be convinced, and so I suspect has my noble and learned friend, that this is necessary. I cannot for the life of me see why in this particular matter courts-martial should be in a different position. It is quite different from the question of whether you employ somebody in the Services and whether this information will be available from the criminal records office and so on. The convictions will still remain. I can well believe that the Ministry of Defence are brooding. I hope that they will do some fairly solid brooding and, if necessary, if I may suggest it, I hope the noble Viscount will not hesitate to speak to the Secretary of State himself about it. I am all for getting this Bill through, but I cannot believe that my noble and learned friend regards his own Amendment with any more enthusiasm than I do. Nevertheless, I will go along with it.
On Question, Amendment agreed to.
LORD GARDINER: My Lords, I beg to move Amendment No. 13.
Amendment moved—
Page 5, line 42, at end insert—
("(b) evidence of all spent convictions of a rehabilitated person (not being convictions which had become spent before he became a member or entered the employment of the armed forces of the Crown) shall be admissible at any time upon his conviction by any Court Martial held in Great Britain or elsewhere and (insofar as such evidence is admissible during his trial by virtue of the provisions of any enactment or any rule of law) during his trial by any such Court Martial.")—(Lord Gardiner.)
VISCOUNT COLVILLE OF CULROSS: My Lords, this is not on this particular Amendment, but before we leave Clause 5(4), I have just had a note suggesting a possible way of getting over some of the remaining difficulties at civil courts, which I mentioned on the Committee stage, and
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on which the noble and learned Lord and I when talking found no solution. They have now come to a head because we have hit trouble on the Inheritance (Family Provision) Act. This is a very important point, and I would welcome further discussion with the noble and learned Lord. I have a form of words which may overcome all the difficulties which I mentioned to him the other day arising out of Clause 5(4).
LORD SHACKLETON: My Lords, may I ask the noble Lord whether this stop press information he has, relates to Amendment No. 13 or is this just a sort of interjection in the middle of the Bill, for luck?
VISCOUNT COLVILLE OF CULROSS: No, my Lords. With the leave of the House, I am trying to be open with the House here. I thought that as we were about to leave Clause 5(4) and there is an unresolved problem which was discussed in Committee and which has not appeared in the form of an amendment, it was legitimate to say a few words on the subject.
LORD SHACKLETON: May I say, on procedure, that you cannot debate the Question, That Clause 5(4) stand part of the Bill, which is what the noble Viscount is doing; and I must enter the mildest of protests.
On Question, Amendment agreed to.
LORD GARDINER LORD GARDINER moved Amendment No. 14:
Page 5, line 42, at end insert—
("(5) Where a person convicted was conditionally discharged, or where a probation order was made, and that person within a period of two years after the order has ceased to have effect appears or is brought before any Court exercising criminal jurisdiction in any part of Great Britain, the provisions of section 2 of this Act shall not be construed so as to preclude the making or restrict the contents of written probation or social reports about him to that Court.")
The noble and learned Lord said: My Lords, this Amendment relates to the rather difficult question of probation orders and conditional discharges which we discussed at some length on the Committee stage of the Bill. The Amendment proposes, in the case of a conditional discharge or probation order, that a person—
"within a period of two years after the order has ceased to have effect appears or is brought

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before any Court exercising criminal jurisdiction in any part of Great Britain, the provisions of section 2 of this Act shall not be construed so as to preclude the making or restrict the contents of written probation or social reports about him to that Court."
One appreciates that, if within a reasonable period somebody has been put on probation, the probation report or any social report is of considerable value to justices and I hope that the House may feel that this is a reasonable compromise. I beg to move.
VISCOUNT COLVILLE OF CULROSS: My Lords, I shall certainly be in order in what I say on this. The noble and learned Lord has gone a long way to meet the difficulties I pointed out about this. There is a further point which has occurred to us. When a court is dealing, as would now be possible under this Amendment, with somebody who has previously been on probation, the idea is that it should know how he has responded to probation—whether it is a good idea to try it again or whether it has been considered a failure and it should think of something else. There is something to be said for the court's being able similarly to take account of the way somebody has responded to a supervision care order under the Children and Young Persons Act, because with the rehabilitation period being in some cases very short for young people it may be that this would be relevant in exactly the same way as a probation report would be relevant to the way a court treated the person when he came up again. I would therefore commend this to the noble and learned Lord because it may come into the same category as the point that he is covering in this Amendment.
There is, however, one great defect in this Amendment which I had not myself spotted. It does not deal with the point which I am practically certain that the noble and learned Lord concedes, that the court ought to be able, if it puts somebody on probation for a year, to deal with him for any breach of that probation by the commission of a further offence during the year. Although the court is enabled under this Amendment to look at the way he behaved on probation, the rehabilitation period as it stands in the Bill depends upon his not being convicted within the period of the probation order or before the conditional
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discharge has expended itself. But, of course, he may commit an offence within the period of the probation order or the period of the conditional discharge but not be convicted until after the period is finished. So the court ought to be able, we say—and I think the noble and learned Lord agrees—to deal with breaches of a probation order or of a conditional discharge notwithstanding the fact that the man does not appear in court until after the year, or whatever it is, is finished. This has not been put right. I think it is an oversight but I am quite sure that it must be put right. Therefore, the dependence upon conviction rather that the commission of the offence in this particular case is not apposite, and I think we shall have to have a further Amendment on this.
LORD GARDINER: My Lords, I will certainly give this matter further consideration. It has always seemed to me a very fine point, but what happens a month on one side of a date or a month the other side does not seem to me to matter to a practical extent. All the dates in the Bill are from the date of conviction. They might, of course, be from a date of commission of the offence but they are not; they are all from a date of conviction. The simple reason is that, as all lawyers know, a person is often charged with having committed an offence between July 14 and December 19 of a particular year, and there is no record of the date of the offence, but there always is a record of the date of conviction. I quite agree that logically it does not seem sensible to date the 12 months from the date of conviction, because if there is going to be a breach of the order one wants to know whether it has taken place within the 12 months. If the man is not prosecuted for another month or so it is logically not right, but I will certainly give further consideration to the point.
On Question, Amendment agreed to.
Clause 7 [Unauthorised disclosure of spent convictions]:
7.49 p.m.
LORD GARDINER LORD GARDINER moved Amendment No. 15:
Page 7, line 22, at end insert—
("( ) to the Secretary of State or a person authorised by him in writing for purposes

703
relating to the security of the State or the maintenance of law and order; or")
The noble and learned Lord said: My Lords, if it is not inconvenient to the House, may I discuss Amendments Nos. 15, 16, 17, 18 and 19 together? They are a little difficult to follow from the Amendments in the Order Paper, so perhaps I may read what Clause 7(4)(c) and (d) will come to if the Amendments are accepted. Subsection (4) would provide that:
"In any proceedings under subsection (2) of this section, it shall he a defence to prove that the accused disclosed the specified information in the course of his official duty".
Then paragraph (c) would read:
"to the Secretary of State or a person authorised by him in writing for purposes relating to the security of the State or the maintenance of law and order".
Paragraph (d) would read:
"to a member of a class of persons which the Secretary of State has by order designated as a class of persons to whom specified information may be disclosed for purposes specified in the order".
Then subsection (7) would read:
"Any order pursuant to paragraph (c) of subsection (4) of this section shall be made by statutory instrument and shall be subject to annulment in pursuance of a resolution by either House of Parliament."
Your Lordships may remember that at the Committee stage of the Bill the noble Viscount thought that the publication by the Secretary of State of the people to whom he was giving access to the criminal records should not be limited to classes of persons but could include individual persons, although they should not have to be specified. I quite appreciate that individual persons may be those concerned with security, and that it may be quite reasonable that in cases relating to the security of the State or the maintenance of law and order the Secretary of State should not have to specify the persons in question.
I have also yielded to the objection of the noble Viscount to the Bill as it stands, that the instrument to be laid by the Secretary of State should have to be approved affirmatively by both Houses of Parliament. I have now accepted the negative form of resolution, particularly as I have the support of my noble friend Lord Shackleton, who took the view that while there have been a great many difficulties in the past in finding Parlia
704
mentary time for Negative Resolutions in the other place, that will now be avoided.
There is one other point which I should mention and which I believe can be dealt with as a printing matter, or however these points are dealt with. If these Amendments are passed, then I think it will be found that the words in subsection (7) "pursuant to paragraph (c)" will no longer be right, and the Bill will then have to read "paragraph (d)". But I believe that that can be dealt with automatically. My Lords, I beg to move.
VISCOUNT COLVILLE OF CULROSS: My Lords, I should like to say that I am very grateful to the noble and learned Lord for his further thoughts and for recasting the Amendment in the way he has now explained to us. I studied this point and came to precisely the same conclusion, and I think that this is a very great improvement.
On Question, Amendment agreed to.
LORD GARDINER: My Lords, I beg to move Amendments Nos. 16 to 19 en bloc.
Amendments moved—
Page 7, line 23, leave out ("the Secretary of State or a person whom") and insert ("a member of a class of persons which")
Page 7,line 24, leave out ("a person or as one of")
Page 7,line 26, after ("disclosed") insert ("for purposes specified in the order")
Page 7,line 39, leave out from second ("shall") to ("House") in line 41, and insert ("be subject to annulment in pursuance of a resolution by either '—(Lord Gardiner.)
On Question. Amendments agreed to.
Schedule [Form of certificate]:
LORD GARDINER: My Lords, if the House—and, in particular, the noble Viscount—agrees, I should like to move Amendments Nos. 20 to 31 en bloc, because they all relate to the Schedule and they all either make amendments to the Schedule which are necessary in accordance with amendments which have been made to the Bill, or are drafting improvements.
Amendments moved—
Page 8, line 9, leave out ("You have today been") and insert ("On 19 you were")
Page 8,line 14, leave out ("your") and insert ("this")
Page 8,leave out ("today")
Page 8,line 24, leave out ("limited") and insert ("allowed")
Page 8,line 25, after ("court") insert ("or any further time which is allowed")
Page 8,line 27, leave out ("limited") and insert ("allowed")
Page 8,at end insert ("or any further time which is allowed")
Page 8,line 33, leave out ("is not triable") and insert ("cannot be tried")
Page 8,line 40, leave out ("your") and insert ("this")
Page 8,leave out ("today")
Page 9, line 5, leave out ("two years'") and insert ("thirty months'")
Page 8,line 14, leave out from ("OFFENCE(S)") to ("The") in line 15, and insert ("REFERRED TO IN PARAGRAPH 1 ABOVE ").—(Lord Gardiner.)
On Question, Amendments agreed to.

KIELDER WATER RESERVOIR PROJECT
7.54 p.m.
VISCOUNT RIDLEY VISCOUNT RIDLEY rose to ask Her Majesty's Government whether they realise that the failure to reach a decision on the reservoir to be known as "Kielder Water" might jeopardise the prospects for the attraction of new industry to the North-East of England and will probably postpone the availability of supplies by about three years, so that a water shortage is now possible after 1976. The noble Viscount said: My Lords, I should first apologise for what may at first sight appear to be a very parochial and parish-pump type of Question, but I think I may be able to show that it is of far greater significance than that. Reservoirs are about the most emotive subject which can he raised among your Lordships at the moment, but it is my intention not to stir up more of that emotion than I must do and I shall try to stick briefly to the facts.
The start of this story was when the Northumbrian River Authority applied for an order authorising the construction of Kielder Water—an enormous reservoir in the North Tyne Valley—and concurrently applied for an order authorising an extremely expensive aqueduct to take the water from the Tyne Valley to the Rivers Wear and Tees. This aqueduct is now known as the "North-South" solution. I shall not go into any further detail at the moment, because there was a very long public inquiry held in Newcastle a year ago which covered all the facts.
To cut a long story short, at the end of the inquiry the inspector recommended that the river authority's proposals should be accepted by the Government as the best solution to the water problems of the region. On January 19, 1973, the Secretary of State for the Environment said in a letter that he was not—and I must quote him because it is important—
"convinced that the need for the scheme and the physical suitability of the reservoir site do outweigh the objections to the formation of Kielder Water."
He went on to say that he was of the opinion that the degree of hardship, particularly for those who would have to leave their houses, and the damage to the environment which would result from flooding the site, ought not to be accepted without first testing more fully the case for and against constructing a reservoir on the River Irthing, as a first stage in the development of the resources likely to be required over the 30-year planning period. From this he concluded that the best means of providing a formal opportunity to test the strength of the case for and against development of the Irthing site, would be for the river authority to make formal applications for planning permission to develop a reservoir on the Irthing site, and for the transmission links for carrying water into their area—that is, Eastwards.
I am afraid that this was, in effect, a non-decision. I must say that I respect the Secretary of State enormously for taking what is at least a very brave decision (or, should I say, a very brave non-decision) which is, as I am sure he now realises, very unpopular. He had every right to take this decision and, as one of his constituents and knowing him as I do, I utterly reject the allegations which have been made elsewhere that he has acted unfairly because the North Tyne Valley happens to be in his constituency, unlucky coincidence though that may be. Unfortunately, however, I cannot see that the further planning applications which he has called for will help in reaching a decision on this matter, which is of vital importance to the future of the North-East. The Secretary of State said in another place on March 7 last that:
"Nobody has been disputing the need for the water and no one is denying the need to have regard to the timetable."—[OFFICIAL REPORT, Commons 7/3/73; col. 401.]

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I wonder whether this may indicate a change of attitude on his part. So much for the history of the matter to date. Now I should like to give a few more facts. I must apologise to your Lordships if I have to descend into tedious statistics for a moment, but I have checked these and believe them to be important.
If nothing is done, the available reserve supplies will be exhausted by about 1976–77 throughout the North-East as a whole; by 1981 the region's total deficit will be 59 million gallons a day, and by the year 2001 this figure will be 190 million gallons a day. These figures are not, I think, in dispute. Indeed, any more winters as dry as this one, when the reservoirs are now half empty at a time when they are normally overflowing, could make matters very much worse. A more up-to-date forecast recently carried out by the river authority indicates that the figures for expected demand, which were given at the inquiry a year ago, may already be about 10 per cent. too low for the year 1981.
If Kielder Water had been given the go-ahead in 1972. it would have been in production by 1977 or 1978, with a subsidiary smaller dam higher up the valley, called Bakethin, producing 15 million gallons a day to bridge the gap between 1976 and 1978. The Tyne-Tees aqueduct would have been constructed concurrently, so that the Tees and the Weir would have been able to use this new sunnly at once. There would be no crisis and ample supplies throughout the region were assured until the year 2001. If Kielder Water were to be authorised now, we should have lost only one year and I do not think the situation is too desperate. If the public inquiry into Kielder were re-opened forthwith—and I believe that this is a possibility—there is still a hope that construction could start in 1974, and that supplies could become available in 1978 or 1979. But this must depend, of course, on the time it took the Minister to reach a decision.
Even if there are no obstacles to the Irthing Reservoir scheme—and there will be, because these democratic processes do take time; the Irthing Reservoir is a site of special scientific interest and harbours a rare sedge or bird or two—the
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investigation into the pipe-line across to the South Tyne Valley, the various planning procedures and the public inquiry there would have to be into the application for any order, together with the time taken for the Secretary of State to decide, would mean that construction could not start at the Irthing until 1976, and it would be 1978 or 1979 until the reservoir was in production. This is the same year as that which I gave for production from Kielder water. But—and this is an important fact—Irthina's yield of water is almost exactly only one-third of Kielder's, the figures being 64 million gallons a day for Irthing and 190 million gallons a day for Kielder. Therefore, there would be nothing like enough water to spare for the Tyne Tees aqueduct. The very heavy cost of this aqueduct could not possibly be justified on the Irthing alone, and Teesside and Wearside would have no increase in supplies for the foreseeable future. Secondly, the smaller Bakethin dam, to which I have already referred as covering the short gap, it would not have been possible to build under this scheme.
It therefore follows that if Irthing River is chosen other reservoirs will be urgently needed as well. Where ought they to be? Further reservoirs in the Tees or Wear Valleys have, I think, very few supporters, and they would be violently opposed. They would take much valuable land—much more land than Kielder—and would displace hundreds of people. I think it not going too far to say that even the daffodils at Farndale must be threatened again now. The leading objectors to the Kielder scheme, the North Tyne Valley Preservation Society, have suggested that smaller reservoirs could be built on the tributaries of the North Tyne. This, of course, is possible, and may well be a perfectly good solution. But it must be realised that these reservoirs would cost more than Kielder water; they would flood more land; they would involve almost continual disturbance for many years if they were constructed piecemeal, instead of the once-and-for-all upheaval if Kielder water was built; and the smaller reservoirs would not provide the marvellous recreational potential of a single large reservoir, which is one of its most attractive features. Furthermore, I do not think that there is any time left to investigate these smaller reservoirs in the situation we find ourselves in to-day.
Much has been said of the environmental aspects of Kielder, but this valley, I would point out, is poor land, almost entirely in the hands of the Forestry Commission, who are in the process of flooding most of it, anyway, with a green blanket of Sitka Spruce. I am told that the majority of the 95 residents (excluding those who are only there at weekend cottages) over the age of 18 living in the area would not object if they were offered adequate compensation or alternative housing in a more centrally-sited village. Most of these people are in any case employees of the Forestry Commission, and I think their jobs would be unaffected and quite secure. Of course, every reservoir anywhere involves a great degree of hardship and disturbance to some people. We must be sympathetic to these people and do all we can to help them. Indeed, the Bill to which your Lordships gave a Second Reading earlier this afternoon will no doubt help in this respect. But we have to balance their fate against the thousands of unemployed whose future may well be dependent on water supplies in other parts of the region.
I should like to refer to the really serious situation which this non-decision has created on the industrial side. In South-East Northumberland the reserves of water for incoming new industry are now fully committed. It is already impossible to allow any new industry to come to this area if it is using anything more than a minimal quantity of water. Boreholes and old mine workings as temporary sources have been investigated and found unsuitable. I think desalination (or it may be desalinisation; I never quite know which) must be years and years away through cost, and, anyway, it may well be environmentally just as bad as any reservoir. Water from Scotland has been considered, but I think the Water Resources Board themselves have ruled this out as quite impracticable through the very heavy expense of bringing it over. I think that on Teesside the situation is even more serious. Almost all the reserves of the Tees Valley and the Cleveland Water Board will be completely used up by 1978 even without the vast quantities of water which will be needed for the new British Steel complex on that river. The establishment of Ekolisk's operations at Hartlepool might well indeed be threatened.
The Secretary of State will be only too well aware of the concern which has been expressed to him about the situation by the Economic Planning Council, by the C.B.I. and by many others whose names I will not weary your Lordships by reading out. They include, of course, most local authorities, as well as many local Members of Parliament and other people of that kind. The Northumberland County Council's planning authority are now quite satisfied on all counts about Kidder. The C.I.A., the N.F.U., the Council for the Protection of Rural England. the Nature Conservancy and the Countryside Commission did not object to Kielder water. So we face a situation where all the concerted efforts of national and local government could be destroyed by the running out of this one essential raw material—water.
It has taken years and generations, no less, to get the people in the North-East to speak in regional terms. Paradoxically, this reverse—this temporary reverse, as I hope—has done this more than anything else could have done in such a short time. If we are to face any setback to the development area policies at this moment, when there are encouraging signs of a recovery in inquiries, it is little short of tragic. It is of course not yet possible to say that any industry has definitely been turned away in the two months which have gone by since the Minister's letter. I can only have suspicions about this. But to see the whole strategy crumbling like this is, to me, a personal tragedy, and all our efforts and the taxpayers' and the ratepayers' money must be at risk. It is even worse if one contemplates the psychological effects that the situation has already caused. This sort of reputation is a very difficult one to combat, and in some sense the damage may already have been done and will take some years to put right.
I must finally say what I think should be done now. I believe that the Secretary of State for the Environment already has enough information to allow him to reach a decision on Kielder. But in any event a planning inquiry into the Irthing cannot really help on this. If he feels there is further information that he can have there are many ways in which he could seek it, and if further examination is required before he decides on the future strategy he might, of course, as I have already mentioned, reopen the

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Kielder inquiry. But he will by now, I hope, have much more information, since his letter in January, and I hope it is enough to make him act quickly and to realise, as I am sure he does, that speed is absolutely critical and is the essence of this problem, where jobs of this kind are at stake. I believe, my Lords, that the danger really is that the delay has already been so long that the Secretary of State has in fact lost any option which he may have had to use any other source of supply except Kielder water.
8.7 p.m.
LORD INGLEWOOD: My Lords, I am very glad of this chance this evening to support my noble friend. On these regional issues I speak more often on those which more intimately affect the North-West than the North-East, but I have lived in the North-East for a large part of my life and I look on the North of England as one, and not as a part of this country which is subdivided. I am puzzled at the Minister's decision, because this Kielder scheme would seem to me to be attractive on account of its great yield. No other suggested scheme that I know of compares with that yield. It seems to me to be attractive on conservation grounds, too, because an internal reservoir is generally to be preferred on conservation grounds to any estuarial scheme; and, of possible internal schemes, it is hard to imagine an area which is more attractive than Kielder for putting down a reservoir, because this area is dominated by manmade forests with an unavoidable uniform character.
This Kielder scheme is also attractive on grounds of amenity. Such an impounding reservoir ought to add to the amenity of the district rather than to detract from it, since it must break into the monotony which a great forest area of this size inevitably creates. It must be attractive, too, on grounds of recreation. What better area for water sports could my noble friend imagine, including those noisy water sports, than the Kielder area, remote in a sense from the more popular areas, from the established small villages where people go for their holidays? What better area for water sports is there than the Kielder area? We all take note of the increasing
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demand for such facilities. They are illustrated in the North of England by the use of the Blanchland Reservoir, which in a sense compares with this but is much nearer the centres of population and is much smaller. Both are so different from the quiet character of the Lakes in Cumberland and Westmorland where many go to enjoy these sports and where they find that there are many others who feel that the area is not big enough to accommodate both.
I think the Minister must explain the reasons for the odd decision which his right honourable friend has taken. The references to the Irthing scheme are inexplicable. What really is there about the Irthing scheme which we do not know about already and yet ought to know about at this time? That is the point of my noble friend's Unstarred Question this evening: the references to Irthing in the letter from the Secretary of State and what in fact are the reasons behind these references. If a decision on Kielder depends on further investigations of the proposed Irthing scheme, why were those investigations not started before, as against after, the public inquiry on the Kielder scheme? I can see no reason why that should not have happened. If the inquiry is to start after that on the Kielder scheme, lost time is unavoidable.
My noble friend spoke about Scotland. I do not wish to follow him on that point. He spoke about desalination. Of this, I would only say in passing that it is likely to be of very great importance in this country in 20 or 30 years' time even if it is not so to-day. Recently there was a Paper read before the Society of Patentees and Inventors in this country which suggested that we and successive Governments were slow in thinking about the advantages of desalination, bearing in mind the very great expansion we have seen not only in other parts of the world but in this country over the last ten years. The eminent scientist who read the paper made one pertinent remark. He was explaining how in this country it is becoming more and more difficult to put into practice really far-reaching schemes because of the number of Government Departments and different public organisations which are involved. He ended by saying:
"It appears that we have developed a mechanism of democratic government which is

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incapable of making a sound assessment of any ambitious proposal."
I would not go so far as that; but we are approaching that situation because Parliaments last a maximum of five years only and the investigations stage of some of the schemes that we are thinking about to-day extend beyond the maximum life of one and sometimes of two Governments.
I do not want to go on at any length. All I want to do is support my noble friend. I end with a quotation from a book, a classic, with which I think the noble Lord who is to reply is probably more familiar than I:
"…the race is not to the swift, nor the battle to the strong, neither yet bread to the wise, nor yet riches to men of understanding, nor yet favour to men of skill; but time and chance happeneth to them all."
"Time and chance happened' to them all"—a comment on all Governments from the days of King Solomon onwards. But I should like to think that we here could do better than that.
8.14 p.m.
LORD SANDFORD: My Lords, it is entirely fitting for my noble friend Lord Ridley, Chairman of the Northumberland County Council, to be drawing our attention to the industrial development of the North-East with which he is closely involved, to the importance of assured water supplies in that connection and to the need for early decisions on how water supplies in the North-East can best be augmented. The Kidder water scheme was put forward by the Northumbrian River Authority, who made applications for planning permission, compulsory powers of acquisition and the necessary licences under the Water Resources Acts. The applications related to the construction of a major reservoir in the North Tyne Valley, to be known as Kielder Water, to provide a yield of some 200 million gallons per day. The applications also related to the construction of an aqueduct linking the Tyne with the Wear and the Tees, so that the yield from the reservoir could be used to regulate all three rivers and meet the demands on them which could be foreseen to the end of the century.
The applications were considered at a public inquiry from February to March last year. In his report to my right honourable friend, the inspector did three things. He accepted the need for
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further inland water storage in the North-East, and considered that the site was physically suitable for the construction of such a reservoir, and reported that it would solve the water problems of the North-East to the end of the century. He also found, however, that there were two main areas of objection to the scheme. First, he said—and I quote—
"the greatest objection…is the hardship which will be suffered by the 58 families who will have to leave their homes".
He went on to say—again I quote—
"the second big objection to the scheme is the environmental loss—the complete loss of the flooded area with its special vegetation and wildlife, its quietness and opportunities for study".
The inspector also found that—if the House will permit me to quote again—
"the next best solution which arose from the inquiry appeared to be the construction of Tailing with about a third of Kielder's yield followed by three other reservoirs".
While this solution would offer less certainty than the Kielder proposals, he thought the objections to Irthing were not as strong as at Kielder. There was, however, no application before him relating to Irthing and it was therefore not possible to test the full strength of the case for and against it at that inquiry.
In considering the inspector's report, my right honourable friend attached considerable importance to the personal hardship and environmental implications of the Kielder proposals. He accepted that the need for measures to augment water resources to meet the growing demand for water within the area of the river authority was established and that the North-South strategy of linking the rivers Tyne, Wear and Tees was preferable to what was then known as the West-East strategy. He went on to say that, on the evidence of the inquiry, he was not convinced that the need for the scheme and the physical suitability of the reservoir site did outweigh the objections to the formation of Kielder Water. My right honourable friend was of the opinion that the degree of hardship, particularly for those who would have to leave their homes and the damage to the environment which would result from flooding the site ought not to be accepted without first testing more fully the case for and against constructing a reservoir on the River Irthing as a first stage in the development of the resources likely to be required over the 30-year planning period.

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As my noble friend has already pointed out, the letter suggested that
"the best means of providing a formal opportunity to test the strength of the case for and against development of the Irthing site would be for the Northumbrian River Authority to make formal applications to the two local planning authorities concerned for planning permission to develop a reservoir on the Irthing and for the transmission links for carrying water into their area".
My Lords, from what I have said, I think you will agree that we are not here to discuss the merits of the applications. Indeed, as they are still before my right honourable friend, if that was being done, it would be improper for me to enter into it. My noble friend's question relates to the urgency of the need for a decision, and the timing implications of delay. We are discussing timing procedure, not merit.
My Lords, I think we are all agreed that this issue does not brook delay. We all recognise the importance of attracting industry to the North-East and the part which guaranteed water supplies can play in doing so. No one has challenged that, and, as I pointed out, my right honourable friend has accepted the need for water, but not necessarily this scheme for providing it. He wants further evidence on the alternative sites before reaching his decision. I think we all agree that the objective now must be to see that the evidence is obtained and tested in public as quickly as possible.
As my noble friend said, the river authority did not readily accept my right honourable friend's suggestion that they should seek planning permission for the Irthing site. They have asked whether alternative ways could be found to bring the evidence before him more quickly. My Department has been considering this very carefully and there seem to be four possible courses open. One would be the planning application for Irthing which my right honourable friend has already invited; the second would be to reopen the Kielder inquiry itself; thirdly, my right honourable friend does have power to hold inquiries under Section 109 of the Water Resources Act; and fourthly, it would, in theory, be practicable to proceed by way of written representations. But in practice, my Lords, I think the choice lies between the first two of the four courses and perhaps it would be helpful if in answer to my noble friend's
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Unstarred Question I explained some of the implications.
If the river authority were to accept my right honourable friend's original invitation, there would be a specific application relating to the Irthing site before him. The inquiry rules would apply, and those who might be affected would be able to give evidence at the inquiry. He could consider the report of that inquiry alongside the existing report of the Kielder inquiry and could reach a decision of principle on both sites. If he were then prepared to approve the Kielder applications he would be able to give all the necessary permissions, orders and licences in one decision. If, on the other hand, he were to prefer the Irthing site, outline planning permission could be given, though further applications relating to compulsory purchase, Water Resources Act licences et cetera might be necessary. This course, therefore, has the merit of some degree of certainty, and it was for this reason that my right honourable friend suggested it.
The river authority, however, said that further investigations are necessary before they can make formal applications for planning permission and these would take some months to complete. Secondly, they have suggested that, if the issues of hardship and environment are to be fully weighed, further information needs to be obtained on the sites which might follow Irthing, on which engineering investigations have not been carried out. Thirdly, they doubt the appropriateness of a solution which would require them to promote an alternative to their own scheme which they prefer. In view of the comments of the river authority, it might be possible to move more quickly by reopening the Kielder inquiry. My right honourable friend could issue a statement of the further evidence he considered to be needed and ask the river authority to produce their evidence on the items concerned. Notice, together with a copy of that evidence, could then be served on all the people likely to be affected.
There are, however, two drawbacks to this procedure. First, there would be no formal application before him in relation to Irthing. On receiving the inspector's report on the reopened inquiry, my right honourable friend's decision would, therefore, be limited to a "Yes" or "No" for

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Kielder. If, for example, he preferred the Irthing scheme he could give no formal approval at that stage. A further inquiry into formal applications would therefore be necessary if it were to be pursued. Secondly, it would not be possible to guarantee that all the evidence had been obtained from those who might be affected by an alternative strategy. For example, if a subsequent application were made for approval of Irthing, new evidence might be brought forward, which had not been considered at the reopened Kielder inquiry. But I think that much of this difficulty could be avoided by the procedure I have outlined.
My Lords, I do not think it is necessary to spend very long on the other two possibilities. While the powers under Section 109 of the 1963 Act could be used, they do not seem to us to be very helpful. 'There would be no specific issue before the Secretary of State, and this course has all the difficulties I have mentioned about reopening the Kielder inquiry but none of the advantages. And the "written representations" method would also not be particularly suitable. As I said, my Lords, I think the choice lies between the planning application for Irthing and the reopening of Kielder inquiry. I have to admit to your Lordships that we have taken some time in considering this point. I can only apologise for the fact that we have not yet been able to tell the river authority whether my right honourable friend can accept the difficulties I have outlined in relation to the reopening of the Kidder inquiry. But I hope I have said enough to make clear to your Lordships the implications of the alternatives, and I can assure my noble friend that we will be getting in touch with the river authority about it as quickly as possible.
The question remains, my Lords—and it is up to mc, I think, to say something about this—how much difference all this makes to the timetable, because that is the real issue which concerns my noble friend and the effect it has on the development of his region. It may be helpful if we start by considering the timetable which might have followed had my right honourable friend been prepared to approve Kielder at the beginning of this year. I understand that the river autho
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rity hoped that in that event it would have been possible to place contracts in time to allow a start on the actual work to be made this summer. On this basis, by the construction of a subsidiary dam, some water might have been available to the Tyne by 1975. The scheme as a whole, however, would not have been completed until 1978, and in particular, the augmentation of supplies on the Wear and the Tees depends on the construction of the aqueduct which it is estimated would take five years to construct. So even if my right honourable friend had approved the scheme earlier this year, water would not have been available in any case to the Tees until 1978.
I cannot tell the House precisely when water will be available in the present situation. It will depend not only on the procedure which is now adopted, but also on the decision which my right honourable friend takes when that procedure has been completed. Whichever course is adopted, however, it seems likely that the dates I have mentioned would now need to be advanced by at least one year; that is to say, augmented water supplies to the Tyne by 1976 and to the Tees by 1979. I hope that with that explanation the situation is clear to my noble friends.
My Lords, may I end by saying that we all agree on the urgency of the need for water, but there are other objectives in the minds of the Government and, I am sure, of the House. These include the effects of substantial works of this kind on the individual—the very subject we have been talking about earlier this afternoon—and the effect on our environment. These are subjects to which we all attach increasing importance. That is the reason why the Bill on which I moved the Second Reading this afternoon has been introduced. I am sure the House would agree that it would be wrong to sweep them aside without carefully considering all the alternatives. We simply have to find the time needed to obtain the further evidence to enable us to be sure that we have taken the right decision. To take a decision, any decision, and particularly a decision on such a vast project as this, on incomplete evidence simply because a decision is needed urgently, is a recipe for mistakes which we should all live to regret. I want to assure the House and my noble friends that we will not use this is an excuse for unnecessary delay.
LORD INGLEWOOD: My Lords, before my noble friend sits down, may I ask whether he would answer one question arising out of his speech with reference to the possible reopening of the Kielder inquiry? Could he give an assurance that if that happens the Government will pay all the costs, including those concerned with the Irthine, scheme, of those who appear for the scheme and those who wish to make objections to it?
LORD SANDFORD: No, my Lords, I cannot give that assurance; but I will give the assurance that the matter will be considered.