Lords Sitting of 17 May 1973

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

TATE GALLERY EXTENSION SITE
LORD BEAUMONT OF WHITLEY: My Lords, I beg leave to ask the first Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether a final decision has been made on erecting an extension to the Tate Gallery on the site occupied by Queen Alexandra's Military Hospital.
THE PAYMASTER GENERAL (VISCOUNT ECCLES): My Lords, the site, which was offered to the Trustees of the Tate Gallery by the previous Government, will not be available until 1976. Consideration of the Trustees' proposals has begun but the timing of a scheme will depend on how the requirements can be translated into plans and on the resources available.
LORD BEAUMONT OF WHITLEY: My Lords, while thanking the Minister for that Answer, may I ask whether there is yet any hope that this particular part of the riverside townscape will be preserved and that a new modern art museum, which is badly needed, will be built?
VISCOUNT ECCLES: My Lords, the question of the townscape is really for my right honourable friend the Secretary of State for the Environment, but I think the noble Lord will agree that when the two parts of the Tate Gallery are separated by Bulinga Street it is obvious that one part will become the modern art gallery and the other will house the collection of British Art over the centuries.
LORD STRABOLGI: My Lords, may I ask the Minister whether he is aware that already a year has been lost and
906
unless the Government make a decision soon it will not be possible to start work when the site becomes available in 1976?
VISCOUNT ECCLES: My Lords, my information is that the hospital will not be ready to move until the end of 1976; therefore there is ample time to do the planning. It is a matter of considerable complexity.

CONCERT HALL BUILDING AND REPAIR GRANTS
3.8 p.m.
LORD BEAUMONT OF WHITLEY: My Lords, I beg leave to ask the second Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will make a Statement on the allocation of money for capital projects for new and/or improved concert-giving facilities during the next few years.
VISCOUNT ECCLES: My Lords, grants for building and repair of concert halls are given out of the Housing and Arts Fund administered by the Arts Council. The Council are now studying a survey made by Mr. John May of the places where concert hall facilities are lacking. I hope to receive the Council's comments in due course. Additional to the grants from the Arts Council the Royal Albert Hall has received a matching grant for repairs and renovation, and my right honourable friends the Secretaries of State for Scotland and Wales are considering major proposals for Edinburgh and Cardiff.
LORD BEAUMONT OF WHITLEY: My Lords, while thanking the Minister very warmly for that satisfactory Answer, may I ask whether he can give us any time estimate of what is "in due course"? And may I ask whether, as a result of all this, there will eventuate an overall scheme for the improvement of concert halls and concert giving facilities in England?
VISCOUNT ECCLES: My Lords, I cannot say when the Arts Council will have finished their study of the plan, but in the meantime they are considering

907
Poole for a grant, where the Bournemouth Symphony Orchestra will have its home, which is most desirable. I agree with the noble Lord that if we could have a long-term plan to deal with concert halls, which have rather been left behind because theatres have come first, it would be a good thing.
LORD AUCKLAND: My Lords, bearing in mind the fact that many orchestras now come from other countries, as recently the Danish State Orchestra came, can my noble friend say whether top priority will be given to places like Sheffield, which is a keen home of music and where real facilities could be provided for major orchestras?
VISCOUNT ECCLES: My Lords, I can assure my noble friend that the requirements of Sheffield, and indeed of Yorkshire, are much in our minds, but it is for the Arts Council to establish the list of priorities.
LORD BEAUMONT OF WHITLEY: My Lords, since the Minister regards an overall plan as a good thing (and I am delighted that he does so), will he in fact see that it happens?
VISCOUNT ECCLES: My Lords, it requires other Ministers as well as myself to see that it happens.

EUROPEAN SOCIAL FUND AND WORKERS' HOUSING
LORD BESWICK: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what amount of money has been, or is being, allocated from the European Social Fund towards the building of houses for special categories of workers in the United Kingdom.
THE EARL OF COWRIE: My Lords, the kinds of assistance available from the Social Fund are listed in Council Regulation 2397/1971. They include aid for people who have to move to secure employment, but money is not available from the Fund towards the cost of building houses for workers.
LORD BESWICK: My Lords, I thank the noble Earl for that Answer, but am I not right in saying that 282 million units of account have in fact already been allocated to various members of the Community; and since we shall now be paying into the Fund ought we not to share in the allocations made from the Fund? In the last two or three weeks the Commission has suggested that funds should be made available for providing accommodation for immigrants, and since we have a number of immigrants who have recently arrived in this country, ought there not to be an allocation from that quarter?
THE EARL OF GOWRIE: My Lords, subject to checking, I accept the figures given by the noble Lord. What I can say is that we are of course eligible for reimbursement from this Fund to which we contribute, but my point was that we are not eligible for it on the grounds of housing.
LORD BESWICK: But, my Lords, allocations have been made specifically for housing, and presumably these have been made on application by member countries. Why does not the United Kingdom, as a member country, make some application—or were the Government not aware that this Fund was available?
THE EARL OF GOWRIE: My Lords, my information is that the only allocations which are specifically available for housing are made under the Coal and Steel Community rules and that they are designed with Coal and Steel Community workers in mind. The Government already have these lending funds very much in mind and are pursuing applications along such lines.
LORD BESWICK: My Lords, I am sorry I did not quite grasp what the noble Earl said at the end of his supplementary answer. Is he now telling me that the United Kingdom Government have made an application? If so, why was that not said in the original Answer?
THE EARL OF GOWRIE: My Lords, the original Answer was directed towards the original Question, and the noble Lord, Lord Beswick, asked me what amount of money was allocated from the European Social Fund. I told the noble Lord that no moneys had been allocated from the Social Fund towards housing. There

909
are, however, some moneys available from the Coal and Steel Community funds.

TUBERCULOSIS MORTALITY RATE
3.14 p.m.
LORD MAELOR: 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 is the average death rate from tuberculosis per 10,000 of the population in the United Kingdom and in Caernarvonshire in particular.
THE MINISTER OF STATE, DEPARTMENT OF HEALTH AND SOCIAL SECURITY (LORD ABERDARE): My Lords, the average death rate from tuberculosis per 10,000 population of the United Kingdom was 0·31 in 1971; in Caernarvonshire the comparable figure at that time was 1·06. Later summary figures for the whole of the United Kingdom are not yet available, but in 1972 the figure for England and Wales was 0–30 while the figure for Caernarvonshire had decreased to 0·49.
LORD MAELOR: My Lords, is the Minister aware that the information he has given has relieved and encouraged me very much indeed? Is he further aware that in a recent speech given widespread publicity the geriatric consultant for North-West Wales stated:
"Caernarvonshire's tuberculosis death rate was still the highest in North-West Europe."?
And further, said Dr. Jones—
"Despite this, Caernarvonshire County Council were spending less money on public health than any other county in Wales in 1938."
Would the Minister not agree that this medical officer should be reprimanded for the speech that he made, and that a tribute should be paid to the Caernarvonshire County Council, the medical staff and my right honourable friend the M.P. for Caernarvon, on the figures which the Minister has given this afternoon?
LORD ABERDARE: My Lords, I am very grateful to the noble Lord for allowing me to put the Record straight,
910
because the allocations made by the doctor to whom he referred are not accurate. The figure for Caernarvonshire is relatively high, but some other areas had still higher rates in 1972 and there is no truth in the fact that Caernarvon had the highest rate in North-West Europe. On the other hand, the Caernarvon-shire County Council has spent a great deal of money on this particular aspect of its duties, and the average that they spent per capita in the financial year 1971–72 was greater than the average for England and greater than the average for Wales.
LORD MAELOR: My Lords, I thank the Minister for that observation.
BARONESS SUMMERSKILL: My Lords, may I ask the Minister whether, in view of the increased incidence of bovine tuberculosis, he can say that this higher figure (he has given the figure for Caernarvon) for other areas, many of them rural areas, is related to infected milk?
LORD ABERDARE: My Lords, I usually have an answer for the noble Baroness, but on this occasion I am absolutely stumped. May I please look into the matter and write to her?
LORD SEGAL: My Lords, can the noble Lord explain why, even on the basis of his most recent figures, the death rate for Caernarvonshire should still be 60 per cent. above the average rate of the country?
LORD ABERDARE: My Lords, the fact is that in Caernarvonshire the problem has been serious, but it is rapidly dropping and we hope that the drop will continue. Notifications of tuberculosis in all forms have fallen from 34 in 1971 in Caernarvonshire to 28, which is the provisional figure for 1972. That is in line with decreases in other parts of the country.

LERWICK HARBOUR ORDER CONFIRMATION BILL
Brought from the Commons; reada and (pursuant to the Private Legislation Procedure (Scotland) Act 1936), deemed to have been read 2a; and reported from the Committee.
MALLAIG HARBOUR ORDER CONFIRMATION BILL
Brought from the Commons; read 1a;. and (pursuant to the Private Legislation Procedure (Scotland) Act 1936), deemed to have been read 2a; and reported from the Committee.

BUSINESS OF THE HOUSE
EARL ST. ALDWYN: My Lords, on behalf of my noble friend the Leader of the House I beg to move the Motion which stands in his name on the Order Paper.
Moved, That Standing Order No. 38 (Arrangement of the Order Paper) be suspended until the House rises for the Whitsun Recess for the purpose of giving Government Business, except with the consent of the Government, precedence over other Business; and that Standing Order No. 44 (No two stages of a Bill to be taken on one day) be suspended during the same period.—(Earl St. Aldwyn.)
On Question, Motion agreed to.

SPECIAL ORDERS COMMITTEE
3.20 p.m.
THE CHAIRMAN OF COMMITTEES (THE EARL OF LISTOWEL): My Lords, I beg to move the Motion standing in my name on the Order Paper and I should like to explain its purpose. The Regulation of Prices (Tranquillising Drugs) Order 1973 which has been under consideration by the Special Orders Committee for two whole days this week, will expire on Saturday, May 19. Its effect will, however, I understand be extended by a new Order, the No. 2 Order, which is to be made and laid before both Houses on Friday. Although the No. 2 Order will, in effect, be merely an extension of the original Order it would be necessary unless this Motion were passed by your Lordships this afternoon, to begin the proceedings before the Special Orders Committee over again, and the work we have done on the present Order would thus be wasted. My Motion, therefore, provides that the No. 2 Order should be treated, for the purposes of Standing Order 216, which governs the working of the Special Orders Committee,
912
as though it were the original Order so that our proceedings in this way can continue next week from where they have left off. My Lords, I beg to move.
Moved, That if the Regulation of Prices (Tranquillising Drugs) (No. 2) Order 1973 is made on the expiry of the Regulation of Prices (Tranquillising Drugs) Order 1973, then the No. 2 Order shall be substitued for the original Order for the purposes of the current proceeding under Private Business Standing Order No. 216 as modified by the Order of the House of the 20th of February last.—(The Earl of Listowel.)
On Question, Motion agreed to.

EDUCATION (WORK EXPERIENCE) BILL [H.L.]
3.20 p.m.
THE PARLIAMENTARY UNDERSECRETARY OF STATE, DEPARTMENT OF EDUCATION AND SCIENCE (LORD BELSTEAD): My Lords, I beg to move that the Commons Amendments be now considered.
Moved, That the Commons Amendments be now considered—(Lord Belstead.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
[References are to Bill 97 as first printed for the Commons]
[No. 1]
Clause 1, page 1, line 21, leave out "and" and insert "(3)".
LORD BELSTEAD: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 1. This is a paving Amendment for the next Amendment.
Moved, That this House doth agree with the Commons in the said Amendment.—(Lord Belstead.)
On Question, Motion agreed to.

COMMONS AMENDMENT
[No. 2]
Clause 1, page 2, line 2, at end insert "and where a child is employed in pursuance of arrangements so made, then so much of any enactment as regulates the employment of young persons (whether by excluding them from any description of work, or prescribing the conditions under which they may be permitted to do it, or otherwise howsoever) and would apply in relation to him if he were

913
of an age to be treated as a young person for the purposes of that enactment shall apply in relation to him, in and in respect of the employment arranged for him, in all respects as if he were of an age to be so treated".
LORD BELSTEAD: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 2. The effect of the additional words of this Amendment is to apply the statutory provisions regulating the employment of young persons to children employed in schemes of work experience. The result is that if a pupil is employed in breach of any of these provisions the employer will be guilty of an offence, and if the pupil suffers injury as a result of the infringement he will have a right of action against the employer for damages for breach of statutory duty. This simply reproduces the situation as it affected pupils of 15-plus employed in schemes of work experience before the school leaving age was raised on September 1 last. Those persons were then young persons by law and had the rights and remedies of young persons. Pupils of that age will continue to have those rights and remedies, although now they are in law children.
I think your Lordships would wish me to point out that the Bill that was passed by your Lordships did not in fact produce this result, because the passage beginning at line 21, on page 1 did not apply the statutory provisions regulating the employment of young persons but merely prohibited the making of arrangements which would have been contrary to them. This was something which I think it is fair to say we did not spot as the Bill was going through in your Lordships' House; the House of Commons did, and put the matter right.
Moved, That this House doth agree with the Commons in the said Amendment.—(Lord Belstead.)
On Question, Motion agreed to.

COMMONS AMENDMENT
[No. 3]
Clause 1, page 2, line 10, leave out "1971" and insert "1973".
LORD BELSTEAD: My Lords, I beg to move that the House doth agree with the Commons in their Amendment No. 3. This is consequential on the passing of the Education Act 1973.
Moved, That this House doth agree with the Commons in the said Amendment.—(Lord Belstead.)
On Question, Motion agreed to.

COMMONS AMENDMENT
[No. 4]
Clause 2, page 2, line 17, leave out from first "and" to "as" in line 21 and insert—

"(a) in relation to England and Wales, this Act shall be included among the Acts which may be cited together as the Education Acts 1944 to 1973; and

(b) in relation to Scotland the Education Acts and this Act may be cited together".

LORD BELSTEAD: My Lords, I beg to move that the House doth agree with the Commons in their Amendment No. 4. This is consequential on the previous Amendment.
Moved, That this House doth agree with the Commons in the said Amendment.—(Lord Belstead.)
On Question, Motion agreed to.

PROTECTION OF WRECKS BILL
3.25 p.m.
THE EARL OF CORK AND ORRERY: My Lords, I beg to move that this Bill be now read a second time. I do not think your Lordships will wax into a ferment over this measure, especially judging by the length of the speakers' list. The Bill is a modest affair, Government drafted and of no earth-shaking significance, which has already passed without opposition or amendment through another place. So far as wrecks are concerned it falls into two parts, which I will deal with one at a time.
The first part deals with old wrecks. I have no interest to declare. Even if I should personally end up at the bottom of the sea I doubt if any Secretary of State would declare my last resting place a restricted area, as the Bill allows. The intention is to protect from unauthorised interference ancient shipwrecks of a particular class, namely, those that are declared to be, in the words of the first paragraph of the Explanatory Memorandum, of "historic, archæological or artistic importance". The general law on such matters is contained in Part IX of the Merchant Shipping Act 1894, which so far as salvage is concerned is briefly this. Anyone is entitled to bring

915
up anything from a wreck but not entitled thereafter to keep it or to dispose of it as he thinks fit. He must hand it over to the receiver of wrecks of the district, unless he should happen also to be the owner. If he is the owner he may keep it, but he must still report it to the receiver. The property so recovered and handed over is kept for a year, and if at the end of that time nobody has come forward and established a claim to ownership then it is sold and from the proceeds a salvage award is paid to the finder. That procedure is not in any way changed or affected by this Bill.
What is affected is the right of diving and salvage, and the necessity for something that probably was not even thought of 90 years ago is simply a result of progress. What I suppose would be most likely to be thought of as progress in this particular case, for example, is the mask on the face, the cylinder on the back, the flipper on the foot—in short, the frogman or skin diver and his aqualung. These have brought into being both a profession and a sport that have spread widely and deeply all over the world since the end of the Second World War. In this small, particular paragraph of our island story the modern diver is at once the hero and the potential villain, the hero because he is the chap who finds hitherto undiscoverable treasure, and the potential villain because, even though he operates with the purest of intentions and within the law, he may none the less deliberately or unwittingly cause great damage or loss.
Naturally, explorers and salvors of historic wrecks vary greatly in their archaeological knowledge, interest and skill. At one extreme are the careful well-equipped experts, and at the other reckless treasure seekers, and through the activities of the latter sort valuable information on ship design and the like of the period may be lost for ever. Knowledge of the construction of ancient ships is still scanty, and the remains of a vessel lying on the seabed may tell us much. In one way a shipwrecked vessel is rather like a clock that has stopped, particularly a clock that had a calendar embodied in its movement. It records the moment at which it stopped—at least until tampered with it does. The contents of such a ship, if undisturbed, may provide a complete collection of artefacts of a
916
date not later than the date of the shipwreck, and such collections are rarely come upon on land.
The careless and unskilled methods of those seeking solely for souvenirs, or for something they can sell, and their ignorance of conservation and recording techniques, can destroy the archæological value of such a wreck. In the Mediterranean, many such wrecks were destroyed before the countries concerned introduced protective legislation. Many countries have now done that, and some have even declared ancient wrecks to be State property. Such procedures will surely be seen as wise by anyone who does not subscribe to the late Henry Ford's theory that "History is bunk". An ancient wreck, then, may be both an object for salvage and a site for archeological exploration, with all the requirements for painstaking and patient search that that implies.
There is, for example, the "Mary Rose", Henry VIII's flagship, lost by foundering in 1545, of which the hull and the contents appear still to be largely intact, and which lies in the sea bed at Spithead; there is the Dutch East Indies ship, the "Amsterdam", which lies off Hastings; and there is the Spanish Armada galleass, "Girona", which has now yielded up much archaeological treasure off the coast of Antrim. Then there were five ships of Admiral Sir Cloudesley Shovell's squadron, which were lost near the Scillies in 1707; and cannon and gold and silver coins have been recovered from the wreck of the flagship, H.M.S. "Association"—possibly, the worst name ever given to a flagship. Some things have been recovered, also, from the wrecks of H.M.S. "Romney" and "Eagle", while the other two ships have still to be found. Near Anglesey, there lie the remains of Charles II's Royal yacht, the "Mary", from which cannon, coins, and jewellery have already been recovered; and there are doubtless others yet unknown.
The problem of how to give protection to such wrecks is a remarkably complex one, involving consideration of such matters as owners' and salvors' rights, the definition of a "historic wreck" by reference to its age, the vesting of ownership of such a wreck in the Crown, the disposal of a historic wreck, and the necessity of interfering, or not interfering, with other private or public interests. This Bill does

917
not purport to answer all these problems. For that, more time is needed and there exists a Committee for the purpose which was set up three years ago by the Board of Trade which includes representatives of interested Departments, the Council for Nautical Archæology, the British Sub-Aqua Club and other relevant concerns. The task continues, but there is a certain element of urgency and as an interim measure this Bill has been produced. It has been discussed in the Committee and with the interests concerned, including commercial salvage interests, to all of whom, I am told, its proposals are acceptable. The best way to see just what these proposals are is to turn directly to the Bill.
Clause 1(1) provides that the Secretary of State, if satisfied that a site in United Kingdom waters is, or may prove to be, that of a vessel lying wrecked on or in the sea bed, and on account of the importance on historical, archæological or artistic grounds, of either the vessel itself or of any objects contained or formerly contained in it which may be lying on the sea bed in or near the wreck, may by order designate an area round the site as a "restricted area". "United Kingdom waters" is defined in Clause 3(1) to mean any part of the sea within the three-mile limit and to include the tidal part of a river. "The sea" is defined to include any estuary or arm of the sea.
References to the sea bed include any area submerged at high water of ordinary spring tides. Thus, the power to designate areas does not extend beyond the territorial waters of England, Scotland, Wales or Northern Ireland, but it does extend to areas of what is generally termed "the foreshore". The site of the "Amsterdam", for example, lying close to low water mark in the sands of Hastings, could be designated if necessary. I might mention, in parenthesis, that the "Amsterdam" was a Dutch East Indies ship which was lost in 1749, and lies buried in the sea bed close to the shore. The hull and contents remain reasonably intact and some artefacts, including cannon, have been recovered. The vessel is accessible at very low tide without diving equipment. The expressions "on the sea bed" and "objects contained in it" take account of the fact that a vessel lost perhaps centuries ago may well have broken up and its contents become scattered or
918
buried. And "contents", it may be noted, may mean anything from an anchor or an astrolabe to a set of dentures or a gold moidore. Subsection (2) also takes account of this possibility of scattering, and requires a restriction order to define the area to be restricted.
Subsection (3) lists the acts that will constitute offences if done in a restricted area, otherwise than under the authority of a licence granted by the Secretary of State. These are as follows: first, tampering with, damaging or removing any part of a vessel lying wrecked on or in the sea bed, or any object formerly contained in such a vessel; secondly, carrying out diving or salvage operations directed to exploring any wreck or to removing objects from it or from the sea bed, or using diving or salvage equipment; thirdly, depositing, so as to fall and lie abandoned on the sea bed, anything which if falling on the site of a wreck would either wholly or partly obliterate the site, or obstruct access to it or damage any part of the wreck. For example, it is quite in order to tow a dumb barge full of dredged-up mud through a restricted area, but highly improper to dump the mud. This subsection also makes it an offence to cause or permit such things to be done by an unlicensed person. It places no restriction on what may be done on the surface, including bathing and anchoring, so long as there is no obstruction of authorised diving or salvage operations. This point is covered in subsection (6).
Subsection (4) requires the Secretary of State, before making a designation order, to consult persons he considers appropriate, unless he is satisfied that the making of the order is a matter of immediate urgency—and it may well be. This may be the case where, as has occurred in practice, disorder has followed the discovery of an ancient wreck both of historic importance and with contents of commercial value and the site is threatened with damage. This occurred in connection with the wreck of the "Association", where there was a good deal of unpleasantness among various concerns who were trying to get at it. In normal cases, it is proposed that prior consultation should take place with archaeologists, representatives of museums, the British Sub-Aqua Club and

919
commercial salvage interests. It is proposed that the chairman of the advisory group should be available to give prompt advice if there is a need for immediate action so that designation, if required, can take place immediately.
Subsection (5) deals with the grant of licences for diving and salvage in a restricted area. These licences are to be in writing and to be granted only to persons who appear to the Secretary of State to be competent, properly equipped and generally suitable, or to have legitimate reason for carrying on within the area activities that would otherwise be unlawful. This might cover, for example, a different salvage job in the same area, the tending of submarine cables or the raising of lobster pots. The subsection goes on to provide that licences may be granted subject to conditions or restrictions, and for their variation or revocation on not less than one week's notice. It also provides that any breach of a condition or restriction in a licence is to be treated as done otherwise than under the authority of the licence; that is to say, it is an offence under subsection (3).
Subsection (6), which I have already mentioned, makes it an offence to obstruct any person operating under licence, or to cause or permit him to be so obstructed. There is, however, a saving proviso, in Clause 3(3), which provides that nothing is an offence if it is done with the sole purpose of dealing with an emergency, or if done in exercising, or seeing to the exercise of, functions conferred on the doer by or under an enactment (local or other), or on the body for which he acts, or out of necessity due to stress of weather or navigational hazards. My Lords, that covers the provisions for what I have described as the first class of wrecks covered by the Bill.
Then we come to the second class. These are dangerous wrecks. This section should be of interest particularly to the good people of Sheerness. Off the Thames Estuary there went aground in 1944. in shallow water, the American cargo ship "Richard Montgomery", laden with 7,000 tons of ammunition; and there still she lies, with half her lethal cargo removed but still containing 3,500 tons of menace to the roofs, windows and citizens of Sheerness. The
920
danger of trying to remove the explosive that remains is judged to be much greater than that of leaving it to be slowly neutralised by nature. That vessel is not a danger to shipping, which does not pass close by, but there are, despite prominent "Danger" notices, day-trippers and fishermen, and a good deal of consequent peril. Rather surprisingly, I think, there exists no statutory power to keep people away from this wreck, or from others which may exist, now or in the future. This Bill will put that situation right.
Clause 2(1) empowers the Secretary of State to designate around a wreck an area, not this time restricted but prohibited. This he would do if he were satisfied that a wreck represented a potential danger to life or property and ought on that account to be protected from unauthorised interference. Subsection (2) provides for a definition and for the size of a prohibited area in just the same way as was done in the case of restricted areas under Clause 1(2). Subsection (3) makes it an offence to enter a prohibited area either on or under the surface without the authority in writing of the Secretary of State. Like the offences created in Clause 1, this offence is made subject to the provisions of Clause 3(3), which specifies the circumstances in which an act that would otherwise be an offence shall not be regarded as being so; that is to say, an act to deal with an emergency or in the exercise of statutory powers, or on account of stress of weather or navigational hazards. My Lords, that concludes the section dealing particularly with dangerous wrecks.
Clause 3 contains supplementary provisions common to both historical and dangerous wrecks. Subsection (1) defines "United Kingdom waters" and "the sea", as I have already explained. Subsection (2) provides that orders made under Clauses 1 or 2 shall be made by Statutory Instrument subject to the Negative Resolution procedure. Such an order shall be revoked—and this is mandatory —if in the opinion of the Secretary of State it is no longer necessary for the purpose for which it was made. Subsection (3) is a saving provision to which I have already referred, and subsection (4) deals with penalties and provides:
"A person guilty of an offence under section 1 or section 2 above shall be liable on summary conviction to a fine of not more

921
than £400, or on conviction on indictment to a fine"
of an unspecified amount; and that
"proceedings for such an offence may be taken, and the offence may for all incidental purposes be treated as having been committed, at any place in the United Kingdom where he is for the time being."
That, then, is the Bill which is before your Lordships. There is quite a lot more that could be said about it in the way of both its past history and its future. If I were to embark on any of that I should, I feel, be stepping out of my own small restricted area, and I have no doubt that my noble friend Lord Ferrers will be telling us, when he comes to reply, something about the probable effect that the Bill will have. In the meantime, it is my pleasure to give way to the doubtless more interesting and well-informed remarks of the noble Lord, Lord Kennet. I beg to move that this Bill be now read a second time.
Moved, That the Bill be now read 2a;. —(The Earl of Cork and Orrery.)
3.45 p.m.
LORD KENNET: I profoundly doubt that, my Lords. On behalf of my noble friends on this side of the House I want to welcome this Bill and say that I hope we shall get it expeditiously into law, because the diving season, and consequently the under-water piracy season, has virtually already begun, and it would be good if the protection which this Bill affords can come into effect before the height of this summer. I think that Parliament as a whole, and indeed the people, must be grateful to Mr. Sproat for introducing the Bill in the House of Commons, and to the noble Earl for introducing it here. The noble Earl has described it very fully, and I want to make only three comments on the Bill. In doing so, it is not my intention to put the wind up the Government about what they are taking on. Far from it! As I have said, I hope that this Bill goes through, and I think it is as well framed as it could be. But I hope the Government realise the extent of the commitment which they are undertaking here, and I hope they realise how thick the other end of the wedge is.
Almost the first thing the Bill says—the Explanatory Memorandum says it very loud and clear—is that it will not
922
involve any increase in Civil Service manpower or in public expenditure. Mr. Cranley Onslow, speaking for the Government in the House of Commons, explained that that might not be strictly true: there would be a little extra work, and maybe a few more people to pay, some expenses for typing and travelling, but the sums involved would be so small that they could easily be digested without raising any identifiable ceiling on Government expenditure. That is good. When he was asked about how many wrecks he expected to be designated and protected as historic, he gave the answer that it was probably six or seven immediately and that then perhaps one might build up to 24. This was his figure, and he said that it ought to stay about level there because as wrecks were explored and archæologised, and as their valuable cargoes were lifted, then they would be de-protected; the protection order would be taken off them. So he hoped that there would never be more than 24 wrecks protected in this manner at the same time.
Now as we look at how he said the wrecks were going to be protected the question which must of course be uppermost in everybody's mind is, "O.K.; you lay down a law that this wreck must not be touched without a licence. But who is going to see that it is not?" Let us remember that an aqualung diver needs no equipment except a boat to flop over from and a little ladder to climb up again, and that in calm weather he can use a very fast motor boat which can get away extremely quickly. The answer the Minister gave to that question in the House of Commons was that he did not propose to recruit any special marine police force for this work but was going to leave it to the Receivers of Wrecks, many of whom, he said—though not all —are in any case Customs officers and coastguards; so one assumes that they will be around at the scene of the crime, if the crime is committed, in any case. That appears to be the Government's limit on this: that this is just an extra duty for the existing marine police force, which is only the Coastguard and the Customs. The figure was quoted in the House of Commons, I do not know with how much justification, of 5 million wrecks around our shores; and if I correctly understood my right honourable friend Mr. Roy Mason, who made this

923
remark, there is also a figure of some 10,000 wrecks which might be of historic interest in the Western Approaches alone.
When I was reading this Bill and thinking about it, and was reading the Report of the debate in the House of Commons, I was constantly reminded of the 1913 Ancient Monuments Act. Let me remind the House what that said. It said, for the first time in our history, that certain buildings on dry land might not be changed or destroyed without permission, and a Schedule of those buildings was attached to the Act. I think there were something like 15 or 20 buildings on that Schedule; and every single protection order was to be subject to Negative Resolution of Parliament. In other words, it was very close to this Bill: a tiny number of specified historic objects, each one subject to an individual order and each order subject to Parliament.
That was 1913. What did it lead to? It has led on now to a situation in which we have a quarter of a million buildings listed and no question of individual orders or appeals to Parliament about it at all. The listing of historic buildings and their protection is very big Government business now, 60 years after that first little Schedule appeared. I wonder whether we may not expect a parallel development of some sort in the case of the wrecks, of which to-day we propose to protect only up to 24. I think we may; and I hope the Government and what one might call the sub-aqueous community as a whole, including the British Aqualung Club and the Nautical Archeology Council, and all those concerned, will be looking ahead to the day when this thing spreads and spreads. If the noble Earl, Lord Ferrers, can tell us anything about how he actually sees a coastguard who is also a receiver of wrecks executing his function of policing this law, given the existence of fast motor boats and very nippy divers with bad intentions, I think the House will be grateful to him.
If I may look outside the provisions of the Bill for a moment, it says that all this shall be done "in United Kingdom waters". I think I am right in saying that that means territorial waters, which is out to three miles only. Why only three miles? Of course, there are historic wrecks outside three miles and in water shallow enough for divers to work
924
in, and as diving technology improves so it will be possible for people to dive to greater and greater depths.
Another question occurs to me. Why does the Bill say, "United Kingdom waters"? These things lie on the seabed. They are touching the seabed and are very often embedded in the seabed. I may be wrong—and perhaps the noble Earl, Lord Ferrers, can tell us about this —but I thought the Government already controlled all the rights of exploration and exploitation on the seabed, because if you observe the blithe extroversion with which they issue licences to people to explore and exploit for oil and gas on the Continental Shelf right out to halfway across the North Sea, I wonder whether the powers under which they do that are not already sufficient for them to designate wrecks and protect them in the way proposed by this Bill. I am sure they could not be, because no Government ever introduce unnecessary legislation, but it would he interesting to know why that is not the case. Here is a very detailed question. Does the Bill apply to Rockall? I think it must. Rockall is now part of the United Kingdom and one assumes the seabed will have to be policed off Rockall, if there are wrecks of any interest there, which I do not know.
My last point, my Lords, is that although this is a good Bill and we wish it to go forward quickly, I hope it will not hold up the introduction of a major Bill to make sense of the law of the sea and the seabed around our coasts, not only within 3 miles, but within 12 miles, within 50 miles, and to the submarine frontiers which we have with Norway, Denmark, Germany, Holland, France and so on, all the way round, half-way across the Continental Shelf. The law is in a state of total chaos, and if we are to continue going about the task of introducing order by introducing legislation to cover each little sector, one after the other, there will be no end to our work.
There is in existence a list which has become rather famous in circles which study these matters, compiled by Mr. Norman Humphreys and published in the winter 1972 edition of a periodical called The Council Surveyor. It is a list of 41 things which are done in the sea and on and in the seabed below normal spring low water mark and which the ordinary

925
layman might think ought to be subject to law in some way and most of which are not. I propose to read the list: beach recreation, swimming, power boating, water ski-ing, diving, angling, bait digging, sailing, canoeing, wildfowling, commercial shipping, navigational aids, rescue services, docks and shipyards, dredging, drilling, land reclamation, coast defences, promenades, slipways, piers, roads—yes, roads, my Lords—headroom under bridges, tunnels, cables, pipelines, offshore terminals, seabed oil storage tanks, beach construction sites, waste disposal, cooling water dispersion, desalination, water storage, pollution control, marine archeology, commercial fish hunting, fish farming, marine nature reserves, visual amenities, land drainage and gunnery ranges.
I hope that the day will soon come when the Government will take a deep breath, take their courage in both hands and introduce an omnibus Bill which says what is and what is not the law on all the 41 things. I think there is justification for picking out No. 35 on the list, marine archæology, as we are doing to-day, but if that is to be all it will not be enough. I repeat, we welcome this Bill, seeing at the moment, although we feel further study is needed, no need to amend any of the provisions beyond the purely factual questions which I have asked the noble Earl.
LORD FERRIER: My Lords, I must confess to some element of negligence, in that I never glanced at this Bill until I was listening to it in conjunction with the very interesting speech of my noble friend, Lord Cork, but I believe I should be failing in my duty to your Lordships if I did not inquire where the Secretary of State for Scotland comes in. One's mind goes, for instance, to the famous galleon in Tobermory Bay, and so on. I feel that the people of Scotland would like to be satisfied, with respect to negotiations in regard to that or any other wreck which is manifestly of interest to or connected with Scotland itself, that it would be dealt with by the Scottish Office. Perhaps the noble Earl would be able to answer that question.
3.58 p.m.
VISCOUNT ST. DAVIDS: My Lords, I do not want to say much. I welcome this Bill as a start, but it is only a start. To begin with, listening to my noble
926
friend, I could have added several other purposes to his list. I will not do that now, but there were several others, including various scientific purposes, which have to be considered.
LORD KENNET: Name some.
VISCOUNT ST. DAVIDS: Research, my Lords—and not only pure research but also a great deal of applied research, such as research into the quality of underwater paints and similar purposes which have been carried out at sea. But, apart from that, I do not think the Bill as it stands is by any means adequate for carrying out its purpose. There are all sorts of weird problems when you come to preserving wrecks, different from those of preserving, for example, ancient buildings. There is not usually more than one ancient building in one place—you do not usually have two or three on top of one another. But owing to the nature of wrecks and the way wrecks occur, when you have a place where it is likely that there will be a wrecked ship it is quite likely there will be a second wrecked ship, and the result is, as all underwater archæologists know, you quite often have to start out with wrecks A, B and C which are largely sitting on top of one another or inter-scattered with each other. So it might well be said by somebody who was accused of attacking one ancient wreck that he was not in fact dealing with that wreck at all but with another wreck on the same place. All this kind of thing has to be sorted out.
Another weird detail is that a number of wrecks are not at sea but on land. The sea coast is by no means a rigid things. It shifts about, as we know, and large areas which were formerly sea are now very frequently part of our agriculture. A number of historical wrecks, particularly the oldest now turning up, are turning up on shore among fields. I am not sure, and I should like to know, if the noble Lord who is to reply can answer the question, whether these are preserved by the Bill. If not, would it not he a good thing to have a clause in the Bill to provide that the preservation of ancient wrecks at sea includes the preservation of ancient wrecks on land? These are only two points that I can think of instantly. I can probably think of fifty more if noble Lords would wish it—but not to-day. Many of them are

927
Committee points. The important thing is that this is a very useful and valuable Bill but that it is a start, and a start only. Nevertheless, let us start.
4.1 p.m.
LORD BROCKWAY: My Lords, I want to say only a few words in support of what my noble friend Lord Kennet said in his concluding remarks. He listed an extraordinary number of issues which were involved. I think there were 41 of them. This indicates the complexity of this problem. I wish only to emphasise what he said: that this very comprehensive series of problems can be dealt with only by the International Conference on the Law of the Sea which is to be held. We already have our complexities with Iceland; we are driving deep into the North Sea; the Norwegian Government is suggesting that it should extend its territorial limits into the ocean; and some South American States even extend their area to 200 miles. Is it not obvious that all these complicated issues can be dealt with only by international agreement; and is not the proposed Conference on the Law of the Sea therefore immensely important? I say that while welcoming the somewhat limited Bill which we now have, but I hope that Her Majesty's Government in reply to this discussion may indicate that they are well prepared to go into international conference to settle the wider issues which arise from this subject.
4.3 p.m.
EARL FERRERS: My Lords, I should like to thank my noble friend Lord Cork and Orrery for introducing this Bill which, as he said, has already been considered and approved without amendment in another place. It is a fascinating subject and this fairly modest Bill has produced this afternoon a fascinating series of questions and suggestions of different avenues to be explored. Studying the circumstances which surround this Bill one cannot but be reminded of the rather romantic stories of Davy Jones' locker of pieces of eight and the search for dubloons and so on; but at the outset I should refer to the point made by the noble Lord, Lord Brockway, because he said that this is merely one example of the vastness of the subjects which need to he considered. Of course, the International Conference on the Law of the
928
Sea is very important and we hope to play our part in it. I should not wish, on this Bill, to go further than that in view of the more limited subject on which we are engaged, but I accept his point that it is a very important subject indeed.
The noble Lord, Lord Kennet, said that he did not want to "put the wind up" the Government but he rather "put the wind up" me when he suggested that the Government in this Bill had got hold of a massive tiger by the tail. That may be so; but if I explain to your Lordships what is behind this Bill I think you will find that although it covers only one small aspect of the situation, it will not be quite so alarming—although I accept that there are other problems which in due course will have to be considered.
The Government are the first to recognise that the wreck provisions of the Merchant Shipping Acts are in need of revision, both in relation to historic wrecks and in their general application. A review of wreck legislation is now being undertaken by the Department of Trade and Industry, but it will take some time to complete because of the complexity of the subject. In view of this and of the concern expressed both inside and outside Parliament, the Government agreed that a relatively short Bill should be introduced to give interim protection to selective historic sites pending the introduction of more comprehensive legislation. This Bill is the result of that modest consideration and I am grateful to my noble friend Lord Cork and Orrery and to Mr. Sproat for taking on the task. In framing its provisions there has been full consultation with the interests concerned, which include the Council for Nautical Archaeology, the British Sub-Aqua Club, salvage interests and others. All the views expressed by these people have been taken into account in framing the Bill's provisions, which have met with their general approval.
My Lords, the general freedom of divers to explore the sea bed and to recover artefacts is not restricted by the Bill except within specified restricted or prohibited areas around the sites of wrecked vessels. As my noble friend explained, these areas may be designated by the Secretary of State. Designation of historic wreck sites will be limited to those of special importance and they should not amount to more than half a dozen at the outset. The noble

929
Lord, Lord Kennet, said that he thought there were five million wrecks around the British Isles. I do not know who went down and counted them, but I could not confirm that figure; indeed, I should be suspicious of the total arrived at. I would only say the Bill refers to wrecks of historic and archaeological interest. Their number may increase above half a dozen if new sites are discovered, but it is not thought that it will exceed 24 in the first few years. If this figure is exceeded there will be consultation with the interests involved, including diving interests.
The main purpose of the Bill is to prohibit unauthorised interference with any wrecked vessel or its contents which have been designated because of its historic importance. In order to make this provision it is considered necessary also to prohibit unauthorised diving or the use of diving equipment within a restricted area surrounding the vessel. The noble Viscount, Lord St. Davids, asked why could not this refer to vessels on land. I take his point. I can assure him that the Bill does not refer to vessels on land but to vessels of archaeological interest. I think he will agree that the case of those that have been on land for some considerable time would be covered by legislation other than the particular Bill we are considering. There will be consultations with the British Sub-Aqua club regarding the extent of any restricted area.
LORD KENNET: My Lords, may I interrupt the noble Earl at this point in case there is no Committee stage on this Bill? It is a point of detail but one of importance about vessels on land. The Bill, if I remember rightly, speaks about low water mark, about operations up to low water mark—
EARL FERRERS: High Water mark.
LORD KENNET: I apologise. My Lords, it speaks of "high water mark". What about a wreck which is on the foreshore above the high water mark, on public property or the Queen's beach, whatever it may be? Is that covered by land archaeological legislation? Obviously, the noble Earl cannot answer now but perhaps he will look at that before we reach a later stage of the Bill.
EARL FERRERS: My Lords, I shall certainly have a shot at answering the question now, but if the noble Lord requires more details I will certainly look at it. The Bill operates within three miles of high water mark. Of course there is the possibility that some wreck might be involved in a storm and tossed above the high water mark. The noble Lord, Lord Kennet, will agree that if that happened in the future, or even if it had happened in the immediate past, it would not come under the category of being an historical or archaeological wreck. Such tossing as would have happened to the ship in order to qualify under this Bill would need to have happened many hundreds of years ago. It may happen, but the wreck would not be caught tinder this Bill. If such a wreck is found on land, I think that the normal process, when someone discovers a wreck, something of historical interest, is that the Department of Trade and Industry and other people involved put their heads together to decide on the best way to deal with such a find. If the noble Lord wishes for more detailed information with regard to the Acts that cover such discoveries, I will see that he has it.
LORD KENNET: My Lords, I am most grateful to the noble Earl.
EARL FERRERS: My Lords, I was saying that there will be consultations—and here I take the point raised by my noble friend Lord Ferrier—with the Scottish, Welsh and Northern Ireland Departments and with harbour authorities if sites are in their areas. It is not intended to designate a restricted area simply on the suspicion that an historic wreck may lie somewhere within it. We should require physical evidence of the existence of a wreck such as, for example, artefacts lying on the sea bed, before designation. There will be complications with fisheries departments if it is proposed to designate a site where diving for lobsters or scallops may be undertaken. Where necessary, licences will be granted for diving operations for this purpose on condition that there is no interference with the wreck itself. It may also be necessary in exceptional circumstances to grant a licence for the salvaging of a vessel which has foundered in a restricted area. As my noble friend Lord Cork and Orrery said, unauthorised dumping of materials which might obliterate,

931
obstruct or damage the wreck also is prohibited.
My Lords, the Bill does not prohibit navigation, anchoring, fishing or bathing within these restricted areas, except when those activities amount to obstruction of an authorised salvage operation. The noble Lord, Lord Kennet, asked why it was necessary that the provisions of the Bill should be restricted to three miles, and what about wrecks found—
LORD KENNET: My Lords, may I ask the noble Earl something about the last point he made before he goes on? It is about anchoring. Does the Order made by the Secretary of State not have the effect of prohibiting you from anchoring over a designated wreck? While the licensee is not operating you are not getting in his way; but if you put a thumping great anchor down through the middle of the wreck, and go away again the next morning, that would bust it up pretty effectively, would it not?
EARL FERRERS: Yes, my Lords. The noble Lord, Lord Kennet, is perfectly right. You may put down an anchor within the restricted area, but you may not put it down on the wreck because that would be interfering with the wreck and it is the purpose of the licence to prevent that from happening. The noble Lord, Lord Kennet, asked earlier why was this restricted to three miles; what about wrecks that were further than three miles out and as we have licences to get oil and minerals from the sea bed, surely we are covered. The answer is that there has been international agreement on the extraction of oil and minerals, and as a result of that we have been able to frame legislation to cover that point. There is no international agreement on wrecks found on the high seas. That is why the provisions of this Bill have had to be restricted to our own territorial waters.
My Lords, it is proposed that the Secretary of State should consult an advisory committee with regard to historic wreck sites which are designated, 'the person likely to carry out salvage operations on the designated site and the conditions to be attached to the licence for the protection of the archaeological value of the site. I am glad to be able to tell your Lordships that the noble Viscount, Lord Runciman of Doxford, who has great
932
interest in and knowledge of nautical history and who has been chairman of the Trustees of the National Maritime Museum, has agreed to act as chairman of the advisory committee. It is hoped that the chairman, or his deputy, will be in a position to give prompt advice when urgent action is called for. Subject to the chairman's views, it is envisaged that the advisory committee will include archaeologists, such as representatives of the Council for Nautical Archeology, representatives of national museums in England, Scotland, Wales and Northern Ireland as appropriate, the Hydrographer of the Navy, representatives of the British Sub-Aqua Club and salvage interests. It is proposed to advertise the Secretary of State's intention to designate a named historic wreck site in the Department's journal Trade and Industry and elsewhere, and to allow time for consideration of objections. When there is need for immediate action a designation order would be made immediately, but it could be revoked in the light of any representations which may subsequently be received.
My Lords, designation orders will give an accurate description of the site and the restricted area. They will be widely publicised and each site, where practicable, will be marked with a buoy, the form and installation of which is to be discussed with the lighthouse authorities. The Hydrographer of the Navy has agreed to issue notices to mariners and, where practical, to mark the designated sites on Admiralty charts. Of course a designation order would restrict the normal right of an owner of a wreck, or of a salvor working on the wreck, to recover property from the site. This, of course, is the purpose of the Bill. It is therefore right that such a person should have a prior claim to be allowed to inspect and salvage the wreck, provided he is willing and able to meet the conditions of the licence necessary for the protection of the archaeological value of the site. It is hoped that such conditions will not be unduly onerous. Some sites may be regarded as suitable for salvage operations without any serious loss of archaeological value provided that the appropriate conditions are met. A few sites, where the vessel and its contents might be largely intact, would probably need to be kept undisturbed

933
until a full-scale archaeological survey and recovery operation could be organised.
The noble Lord, Lord Kennet, said, "Ah!; but how is this to be done?" As one would expect of the noble Lord, he has put his finger on a very real point. The enforcement of the historic wreck provisions may be difficult. One accepts that, especially where the sites are in remote situations. It is not proposed to provide additional resources for enforcement and the police are being asked to accept the primary enforcement responsibility. But of course the Receivers of Wreck, most of whom are Customs officers, and Her Majesty's Coastguards, will be asked to report unauthorised interference or diving activities. This is one of the reasons why it is necessary to include around the wreck an area larger than the wreck itself so as to see who are diving within the area.
LORD KENNET: My Lords, I hesitate to keep interrupting the noble Earl who is being most generous about time, but in the House of Commons on March 2 Mr. Cranley Onslow said:
"We do not propose additional resources for enforcement, and the police will not be asked to accept the primary enforcement responsibility."—[OFFICIAL REPORT, col. 1870]
Has there been a change of tack since then? I am not saying that it is wrong if there has been, but if there has been, perhaps it is worth pointing it out.
EARL FERRERS: My Lords, I accept the noble Lord's point. If there has been a change, I will let him know. The real point is that although there are not going to be extra resources, people will be able to see what is going on within the area, and it is up to the diving interests and the coastguards to inform when they see any unauthorised attention being paid to the site. I am informed that the noble Lord is quite correct in suggesting that the police are not being given the primary responsibility for this. If I gave that impression, I was in error, and apologise.
With regard to the provisions concerning dangerous wrecks, it has been considered that the Secretary of State should have powers to prohibit unauthorised entry into an area which will be known as a prohibited area, immediately surrounding a wrecked vessel,
934
which because of its contents is potentially dangerous to life or property. The penalties which are provided in the Bill will be an additional deterrent and will reinforce the powers which harbour authorities may already possess for this purpose. The Bill of course provides powers which can be used outside the jurisdiction of any harbour authority. At present the "Richard Montgomery", which lies near Sheerness, is the only site which needs this protection. But the powers will be available for use in any similar future case.
I should perhaps mention that the powers are not available for use in prohibiting access to a vessel which is a danger solely because it is an obstruction to navigation because, in such a case, the danger does not arise from the vessel's contents and the vessel does not need on that account to be protected from unauthorised interference. Lighthouse and harbour authorities already have powers to mark or to remove such obstructions under the Merchant Shipping Act 1894, and under local legislation. Nor could the powers be used to protect swimmers against the danger of being sucked under or trapped in a wreck, since the danger does not arise from the vessel's contents. The powers are suitable, however, for use in a case where a wreck contains toxic or dangerous materials, which it might be impracticable to remove, and where it is clearly important that the public should be protected from the consequences of unauthorised interference with the wreck.
My Lords, I commend the Bill to your Lordships. I apologise again to the noble Lord, Lord Kennet, for misinforming him and saying that the police have the primary responsibility, when they have not. I hope your Lordships will give what I agree is a modest Bill a Second Reading.
LORD FERRIER: My Lords, before my noble friend sits down, he has not referred to the question that I asked about the Secretary of State for Scotland. Could he clear my mind about that? I may be a stubborn Scot, but I am also a fervent Unionist and by no means a Scottish Nationalist. Nevertheless, I think it might be prudent to add, say, a Clause 5 just to explain where the Secretary of State for Scotland comes in in respect

935
of wrecks in waters which are manifestly Scottish.
EARL FERRERS: My Lords, I know my noble friend is not a stubborn Scot, but perhaps at one period of my speech he was not paying quite the attention that he normally pays, because I did refer to this point and give him the assurance that there will be consultations with the Scottish, Welsh and Northern Ireland Departments when this is necessary, when wrecks are found within the areas over which they have an interest.
THE EARL OF CORK AND ORRERY: My Lords, it would appear that there is very little for me to say further, which will be a great relief to one and all. There is no danger of my working your Lordships up once more to the height of passion that you have reached during the last three-quarters of an hour. I am grateful to those noble Lords who have spoken in support of the Bill, notably the Lord, Lord Kennet, and I am greatly interested by many of the points that he raised. I agree that we should not be showered with orders for the preservation of millions of wrecks. However, that is outside the scope of this Bill.
I am sorry that my noble friend Lord Ferrers, who is known to be an authority on these underwater matters—on underwater biology rather than archaeology—when referring to lobsters and scallops made no mention of his particular speciality, which I believe to be upside-down jelly-fish, as he has mentioned on more than one occasion in the past. On the matter of co-operation, it is a pity that this Bill cannot operate round the whole of the shores of the British Isles. This, although not strictly relevant at the moment, might be a point for the Government to bear in mind. This is possibly an extremely suitable matter for co-operation between Her Majesty's Government and the Government of the Republic of Ireland. I have nothing further to say other than to commend the Bill to your Lordships.
On Question, Bill read 2a;, and committed to a Committee of the Whole House.

DOMICILE AND MATRIMONIAL PROCEEDINGS BILL
4.26 p.m.
LORD SIMON OF GLAISDALE: My Lords, I beg to move that this Bill be now read a second time. This Bill comes to your Lordships from another place where it was introduced by a private Member, though it was based on the recommendation of both the English and the Scottish Law Commissions and was supported by the Government. I have been asked to introduce it to your Lordships' House. I must make two apologies to your Lordships. The first is that the Bill is necessarily technical and complicated. Your Lordships will, I think, have the advantage of advice from the noble and learned Lord the Lord Chancellor, who of course speaks not only as being entitled to advise your Lordships on matters of law but on commanding personal authority. But I must do my best to try to explain, at least in outline, some of the proposals that are put forward in the Bill. My second apology is for the fact that I am afraid I have a cold, and I hope my voice will hold out until the end of this debate.
The Bill is concerned with a branch of the law known as Private International Law, which is concerned with very many rules of law governing transactions that touch a number of different systems of law. I remember that when I was a student one used to be asked a question something like this: What is the answer where a testator who is of nationality in the Sudan, at a time when it was under Anglo-Egyptian condominium, is resident in Syria and domiciled in Greece, makes his will in a Turkish ship in Yugoslav territorial water, in French form, because there is a French lawyer on board, has land in England and movable property in Scotland and his will touches only half of his estate, who then changes his nationality to Norway, his domicile to Sweden and his permanent residence to Denmark, and he dies when he is on a visit to the United States? I am glad to tell your Lordships that you will not be concerned with anything quite so recondite in this Bill. The Private International Law, however, is of importance in three respects. The first is in choosing which rule of law from which system to apply to the transaction. A

937
second is the jurisdiction municipally; that is to say, by the domestic law of the country, which can be invoked for any transaction touching a number of systems of law, and, complementary to that, the recognition which our courts should accord to decisions of foreign courts—in other words, recognition of jurisdiction. All those three matters are dealt with in this Bill.
Your Lordships will see that this Bill is primarily concerned with a particularly important matter, that is, personal law, because it is obviously desirable that a person's personal law should be governed by some legal system with which he or she has a close connection. Therefore the rules of law have been developed in various countries connecting the individual in question with the legal system in question. There are three main "connecting factors", as they are called. The first is nationality, which obtains in many Continental countries. It is obviously unsuitable in these Kingdoms because England and Scotland have different legal systems but are of one nationality. The second system connecting factor is residence. In the early days of Private International Law it was probably the principal one, but in the last century there developed the concept with which this Bill is somewhat concerned; namely, domicile. That can be a very recondite legal concept, but in essence I think it can be described fairly simply as being the legal relationship between the person whose law you are concerned with and a country or territory subject to some particular system of law, that country being his permanent home. For example, if there is somebody who has settled in Australia and regards that country as his permanent home, that is regarded as his domicile. He may come to work in this country and he may come to reside in this country for pleasurable purposes, but his domicile remains in the country which is his permanent home.
For the purposes of this Bill it is necessary to look at two classifications of the concept of domicile, both of which are mentioned in the Bill. One is the classification between domicile of origin and domicile of choice, and the other is the classification between dependent and independent domicile. Those are to a large extent overlapping concepts. In the eyes of English law everyone has
938
a domicile, because he must at any time be able to say that such and such a system is his personal law for such purposes, say, as divorce jurisdiction, his status, and so on. So from the moment of birth there is a domicile of origin, and that is derived from the father, under English law and under all the systems of law which derive from English law, and which largely—I think almost exclusively —have domicile as the connecting factor. But once a person is able, or in the eyes of the law has the capacity, to choose what will be his permanent home, he can make a domicile of choice. He can abandon his domicile of origin. He may be born in this country of an English father with an English domicile, so that his domicile is English; but if he goes to settle in Australia he acquires a domicile of choice in Australia. To some extent, however, he retains his domicile of origin. This takes some shaking off in the eyes of the law, in any event, because if he abandons his domicile of choice without acquiring any new domicile of choice the law says that he always has a personal law and that his domicile of origin revives. So there is the first distinction—between domicile of origin and domicile of choice.
Overlapping to some extent with that is the domicile of dependence as contrasted with an independent domicile. The law says that certain people derive their domicile from others. I have already given one example: a child derives his domicile from his father, generally speaking, although there are exceptions. Another very important domicile of dependence, which lies at the centre of this Bill, is the domicile of a married woman, which the law says is the same as her husband's domicile. I imagine that this goes right back to the Ecclesiastical Law of the Middle Ages, which regarded marriage as constituting a mystical union of husband and wife. The Common Law, building on that, regarded the wife's personality as entirely merged in that of her husband. The great institutional writer of the 18th century, Blackstone, said that was because the fair sex was a great favourite of the law of England. My Lords, I hardly think it would be looked upon in that light to-day.
As your Lordships will have seen, the principal purpose of this Bill is to change that rule as to dependency of a married

939
woman's domicile. That is done by Clause 1(1) and also to some extent by the other provisions, except in the last part of the Bill, which to a certain extent (sometimes more and sometimes less) depend upon that provision. I think that the abolition of the wife's dependent domicile has been very widely welcomed. A number of judges, including my noble and learned friend Lord Denning, have criticised the inconvenience that can sometimes accrue from the dependent domicile of married women, but I should not myself like to put the reform primarily on that ground, because there will undoubtedly be some problems that arise from the abolition of the dependency. I would simply say that in these days the idea that a married woman should not be capable of acquiring an independent domicile—a domicile independent of her husband—when unmarried women and widows can, is simply derogatory of the status of married women. It is on that principal ground that I venture to commend Clause 1 to your Lordships.
Clause 2 carries through the repercussions of Clause 1 into the field of recognition of foreign decrees of divorce and separations. In line 11, on page 2, there is a reference to "the common law rules". They are really twofold in this connection. The first might be called the Le Mesurier rule because it was laid down by the Privy Council in a case of that name but adopted subsequently as a rule of English law. By that, as we ourselves assume jurisdiction in divorce and separation on the ground of domicile, it follows as a matter of reciprocity and comity that we recognise decrees granted by the court of the common domicile abroad. The second common law rule is laid down in a case called Armitage v. Armitage, and by that the Le Mesurier rule is applied at one remove; that is to say, we recognise the foreign decree not only when it is a decree of the court of the foreign domicile, but when it is a decree which would be recognised as valid by the court of the foreign domicile. Those two rules are carried out in the new context of separated domiciles of married men and married women in the new Section 6, subsection (3), that is substituted by Clause 2 for Section 6 of the Recognition of Divorces and Legal Separations Act 1971.
940
Clause 3 deals with the other class of dependent domicile that I ventured to mention to your Lordships; in other words, the dependent domicile of children, which are given their technical names "minors" and "pupils". "Pupils" relate to Scots law, to which Clause 4 applies. At the moment the law says that an independent domicile can be acquired at the age of majority, and although the age of majority was lowered to 18 for many purposes as a result of the recommendations of the Latey Committee, it was not for the purposes of domicile. So the present rule is that an independent domicile can still only be acquired at the age of 21. Obviously with the changes in social conditions, and in view of the changes consequent on the Latey Report, there must be some lowering of the age. The age of 16 has been questioned, but I would venture to recommend it to your Lordships on these grounds: first, it is the age at which a person can marry, both by the law of England and by the law of Scotland. Secondly, it is the age at which a child can live independently of the wishes of the father by English law. Since domicile is closely associated with the home, that seems to be the logical age; it is the age which was recommended by both Law Commissions.
Clause 3 does not apply to Scotland, as your Lordships see by line 30 on page 3. The reason is that the age at which a young person can acquire a domicile independent of the parent by the law of Scotland is already below the age of 16. I have taken the precaution of asking my noble and learned friend Lord Kilbrandon to sit beside me and tug my coat if I say anything too silly about the law of Scotland, but I understand that by that law there is a classification of young people whereby they are either pupils —that is to say, a girl up to the age of 12 and a boy up to the age of 14—or minors—that is to say, a girl between 12 and 18 and a boy between 14 and 18. An independent domicile, as I understand it, can already be acquired under Scottish law by a minor: in other words, below the age of 16. That seems to me an additional reason for adhering to the age of 16 rather than advancing the age to 18, as has been urged in some quarters.
I ought to say, in relation to Clause 1, dealing with the dependent domicile of

941
married women, that so far as I know that is the only provision in this Bill which has aroused any adverse comment, and that comment has been fairly narrow. It has been put forward mainly by a highly respectable and respected body, the Scottish Law Society. They do not like the abolition of unity of domicile, as they prefer to call it, on the ground that that unity of domicile reflects the unity that ought to exist between married people. The argument goes even further: that the abolition of the rule of unity will lead to increased breakdown of marriage. I can only say, with all the experience that I had as a matrimonial judge and naturally turning over in my mind frequently the causes of breakdown of marriage, that it never occurred to me for a moment that the abolition of the dependent domicile of married women could possibly have any effect. I cannot believe that any marriages are saved through unity of domicile, or that any marriages would be endangered by its abolition. There is also the analogy of nationality. For many purposes we already recognise dual nationality in our law, and nobody has suggested that that is derogatory of the unity of the marriage state.
May I go, then, to Clause 4. That puts the wife, the mother, in a more favourable position and a more reasonable position so far as the child's domicile is concerned than does the existing law, and in my respectful submission improves the existing law. Under the existing law, as I venture to remind your Lordships, a child's domicile remains that of the father until the child is capable of acquiring an independent domicile. The mother and father may be separated; the father may have gone away to a far country and acquired a different domicile. There may even have been a separation deed or an order of the court separating the parties. The child may be long resident with the mother. But the law at present says: "But nevertheless the child's domicile remains that of the father"; and of course that is a very considerable inconvenience. The child is living in one country and his personal law will, or might, be that of a widely different country with a widely different system of law.
942
What Clause 4 does is this. The operative subsection is subsection (2), which says:
"The child's domicile … shall be that of his mother if he … has his home with her and has no home with his father".
That seems to me not only to have the advantages which I ventured to mention to your Lordships but also to bring the English law closer to that recommended by the Council of Europe whereby the child's domicile is that of the person with whom the child has his or her home irrespective of whether that person is a parent or not. So I recommend Clauses 3 and 4, too.
Part II and Part III is largely a translation into Scottish terms of the provisions I have already described to your Lordships. Part IV does the same for Northern Ireland. I do not think I need trouble your Lordships with the details of it which could be more conveniently, in all these matters, dealt with in Committee when we shall have the additional advantage that I hope to have my noble and learned friend Lord Kilbrandon constantly at my side and ready to intervene. Part V is "Miscellaneous and General". Clause 15 extends the Recognition of Divorces and Legal Separations Act 1971 to Northern Ireland. There is no reason why it should not apply to Northern Ireland; and extending it in that way enables this country to adhere to The Hague Convention on Recognition, it being a rule of English public international law that we do not sign a contravention without bringing our municipal law into line; and this is a matter for which we legislate for Northern Ireland.
The last provision which I need tell your Lordships about, I think, is Clause 16. Now that arises out of a decision of my own and your Lordships would, I know, think it improper for any Member of your Lordships' House holding judicial office to discuss any decision of his own by way of discussing the merits or demerits before your Lordships sitting in senatorial capacity. But I must explain to your Lordships what the problem is. That was a case where the husband had a domicile of origin in India but a domicile of choice, which he had retained, in Pakistan, and he was a Pakistani national and a Muslim by faith. The wife was an

943
Indian national but on marriage of course acquired by dependence her husband's Pakistani domicile. They were both at the time permanently resident in this country. The marriage came under strain and the wife took maintenance proceedings, and indeed took them successfully. The husband then took refuge in the Islamic law as modified procedurally only by Pakistani law and pronounced what is called Talak; that means that he said, three times: "I divorce you. I divorce you. I divorce you." And according to the law of his domicile that was an effective divorce.
The question arose whether the courts of this country should recognise it. I hope I can without egotism read your Lordships a short passage from the judgment because it will show your Lordships the problem that arose. I referred there to a decision of an Australian Judge, Mr. Justice Lowe, in which he in comparable circumstances had recognised the extrajudicial divorce; and it was said:
"I confess that I share the misgivings implied by Mr. Justice Lowe at the possible mischief that might accrue if the safeguards inherent in judicially pronounced divorce can be bypassed in this country. But courts of law have no means of judging the possible extent of any such mischief or the repercussions of attempting to deal with them by judicial lawmaking. The court already has adequate power to refuse to recognise the legal rule of the domicile where it would cause injustice in a particular case. It seems to me to be preferable for the courts to proceed generally on legal principle and to leave any necessary modification called for by public policy to other organs of the Constitution."
There was an additional reason for leaving the matter to the Executive and Parliament in that case, because there are two possible ways of dealing with the problem. I need not elaborate on them because in fact the one that is proposed by this Bill was the one I myself ventured to put forward by way of Amendment to the Polygamous Marriages Bill. I then, at the request of the noble and learned Lord on the Woolsack, withdrew the Amendment so that the matter could be considered by the Law Commission; and the clause embodies their recommendation. I am not satisfied that it is entirely satisfactory yet, but perhaps that matter could be considered by the Law Commission and by the draftsmen and the officers of the Lord Chancellor's office
944
before the Committee stage. In the meantime, I commend the clause in principle to your Lordships, as I now commend the Bill. My Lords, I beg to move that the Bill be now read a second time.
Moved, That the Bill be now read 2a.—(Lord Simon of0 Glaisdale.)
5.0 p.m.
BARONESS SEROTA: My Lords, may I first congratulate the noble and learned Lord, Lord Simon of Glaisdale, on his initiative in introducing with such thoroughness and skill what appears at first sight to be a highly technical legal measure. Having listened to him carefully I really doubt whether he needed the support of the noble and learned Lord, Lord Kilbrandon, by his side in case he needed to be prompted, even in the very complex field of Scottish law.
On closer study it becomes clear as one reads through this Bill that its provisions take us another pace forward in the long march towards obtaining elementary justice and equal legal status for women by removing, at long last, what are now generally agreed to be totally unacceptable and archaic anomalies and attitudes in relation to the domicile of married women and minors, and of certain aspects of matrimonial proceedings which are dealt with in Parts II, III and IV of the Bill for the whole of the United Kingdom. I am therefore delighted to welcome it from these Benches and to pledge our full and wholehearted support to the noble and learned Lord for its speedy passage through this House as part of our wider objective of removing all discrimination against women from the laws and practices of this country, economic and social as well as legal, for one is quite meaningless without the other, as we all know.
I believe your Lordships will also agree that this Bill, albeit primarily a legal measure, owes much to the persistence of the determined campaigners in the women's movement, like my noble friend Lady Summerskill, over the long years when these views were much less widely accepted and much less popular than they are to-day; to my noble and learned friend Lord Gardiner, who also raised this matter in the debate on the gracious Speech at the opening of the present Session of Parliament. We would all like to pay our tribute on this occasion

945
to the excellent work of both the Law Commissions in recent years in this very complex area of jurisdiction, where their Reports have had a major influence on our whole body of family law.
Having studied all the debates in another place that followed the introduction of this Bill by the honourable Member for Perth and East Perthshire, I do not intend to take up the time of the House to-day either to question or to enlarge further on any of its specific provisions, which were so very fully described by the noble and learned Lord, Lord Simon of Glaisdale. Many of the highly technical legal issues inevitably involved in changing the deep-seated attitudes to the status of women which have become embodied and reflected over time in our law were examined there in great detail and satisfactorily resolved in the Bill which is before us to-day. My main concern, which I hope will be shared by all noble Lords, is that it shall now pass through this House as expeditiously as possible. We shall therefore give it our full support through all its stages so that it may receive the Royal Assent as rapidly as possible, and certainly before the end of this present Session of Parliament.
5.5 p.m.
BARONESS ELLES: My Lords, like the noble Baroness, Lady Serota, I, too, should like to join in expressing my gratitude both to the Law Commission for all their work on this subject and particularly, if I may, to the noble and learned Lord, Lord Simon of Glaisdale, for the very clear and simple way in which he explained a most complicated subject with the clarity and simplicity that only an expert can achieve. So, being no expert and having paddled on the edges of this subject for many years, having taken one step I now find myself in very deep waters. Therefore I am only too delighted to think that the noble and learned Lord, the Lord Chancellor, will come after me and either leave me silently to drown or, possibly, bring me to the shores and rescue me.
For many years I have been very moved by the case of de Reneville v. de Reneville, having known one of the protagonists in this case and realised the hardship and frustration which the law of domicile as it affected married women could cause. We saw in 1949 and 1965,
946
partly as a result of this case, extensions of the jurisdiction in relation to matrimonial causes, and I am the first to appreciate—as indeed many of us on all sides of this House who have been fighting for an improvement in the conditions of women within the law appreciate—that the position has been very unsatisfactory. I ask your Lordships to consider, however, whether the solution put forward in this Bill is the right one. It seems to me that we have unleashed a dog and rather let it run away into unknown territory. In the work we did on the Cripps Committee we recommended that a married woman should have the same domicile as her husband while living with her husband, but should have the right to acquire a separate domicile when she was living permanently apart from her husband. In 1969 this was almost considered quite daringly advanced, but we find already, in 1973, that it is no longer acceptable and is very "old hat".
If we remove dependency, on which I think all of us will agree, is it in fact at the same time necessary to remove the rule of unity? We are told that the concept of unity flows from a dependent domicile of the wife, but is there any reason why, if the dependency were removed and some satisfactory alternative method found of establishing a common domicile, the principle of unity of domicile during marriage should not be retained? Abandoning the rule of unity is designed to put us in line, apparently, with The Hague Convention on the recognition of divorces and legal separations. I absolutely agree, in all humility and with respect, with the noble and learned Lord, Lord Simon of Glaisdale, that domicile has never been a cause of breakdown of marriage, but in my limited knowledge and understanding I believe there are two features in Continental law which are very different from our own. One is the definition of domicile, which is based mainly on habitual residence, leaving out the question of the intention of where you are going to live. Secondly, does not the idea of domicile play such an important role in Continental law, and is not the personal law decided upon by nationality, domicile therefore being not of such importance in questions of matrimonial and allied matters? To my knowledge there is no

947
other aspirant signatory in Europe who ascribes such importance to domicile as we do in the United Kingdom. Therefore I should like to suggest that we might look at the meaning of the word "domicile", and if we are going to accept this Bill we should at least try to alter the definition of domicile within the terms of the Bill, so that it would be based possibly on habitual residence or where the permanent home is to be.
It has been said—and I, too, have read carefully the debate in another place —that no problem arises while a happy marriage exists. But it seems to me that there are problems, because supposing an Englishman marries a French woman and they live in France, they may not in fact have decided to remain in France: would the wife retain her French domicile of origin and would the Englishman necessarily acquire a French domicile of choice? You will therefore have cases of very happy marriages where people could quite easily have separate domiciles because they may not have decided at any one stage where their permanent home will be. It seems to me, therefore, that breaking the rule of unity will not help in situations of this kind because marriage will no longer automatically grant an accolade of common domicile.
Then there is the problem of the children. Clause 4 perpetuates discrimination. One of the main purposes of the Bill is that the children should take the domicile of the father except in very specific circumstances. Again it seems to me that this will cause more confusion and more anomalies. Children in the same family may possibly have different domiciles. It will be extremely difficult to decide what was the domicile of origin of a child. During the life of the child as a child, that may not be important, but as the noble Lord, Lord Simon of Glaisdale, has so clearly explained, a domicile of origin can be revived at any time during one's life when some unfortunate person finds himself without a domicile of choice. That again is a very important matter which we should look at before deciding that the Bill has found the right solution with regard to children.
We know of course that taxation will again be affected because married women are taxed with their husbands, and if we can acquire conveniently a separate domi-
948
cile, our income which we do not remit from abroad need not he aggregated any more with that of our husband. There will also be considerable difficulties over estate duty. With concessionary matters as between spouses, if you have a different domicile you will have succession rights. You will have the complications in adoption cases where you have a husband and wife of different domicile, and one may be prohibited from adopting a child if one has a different domicile.
I have indicated some of the points where I think there may be difficulties. I may be entirely wrong, but it seems to me that if the purpose of the Bill is to remove discrimination then it does not wholly succeed because it is retained in Clause 4 with regard to children. It certainly does not remove confusion or anomalies but, as I have attempted to indicate, although I admit I may be wrong, there seems to be more confusion and more anomalies than before. If it is intended to remove hardship and frustration, I am not sure that that will be achieved because there is nothing more frustrating or costly than uncertainty and insecurity in the relationship between an individual and the law. So, my Lords, much as I welcome that the dependency of a married woman's domicile should be removed, I am not wholly convinced that We have yet found the right answer in this Bill. I trust that it can be altered in Committee, that a new definition of domicile might be found, and that some form of common domicile during marriage can be retained.
5.14 p.m.
BARONESS SUMMERSKILL: My Lords, may I add one word of welcome. I have listened to the noble Baroness very carefully and I understand that she has some reservations. I have no reservations whatsoever. The women of this country have waited so long and so patiently for the law to be amended that I am quite prepared to accept this Bill without any criticism whatsoever. All I wish to do is to thank the noble and learned Lord. Lord Simon of Glaisdale, for whom I have had such admiration for so many years because of his support of women who find themselves in the most difficult situations in the world, such as divorce and so on. Now he has tackled the question of domicile. On their behalf —and I feel that I can speak on behalf

949
of the women's organisations of this country—I thank him for the fluent and brilliant exposition of this Bill which I hope will soon reach the Statute Book.
5.15 p.m.
LORD GEORGE-BROWN: My Lords, may somebody who is really in favour of all citizens being as near equal as it is possible to be say a word of worry about this Bill? May I preface that by saying that the great thing about being in this House—for which I have to apologise to myself every morning—is that one can come in almost every day and find a debate going on which interests and stimulates. I came in and I was interested and stimulated by the noble Lord, Lord Simon of Glaisdale, whom I knew in other days as I should think almost the most human Financial Secretary that has ever been, and the most human Law Officer I have ever known, Party notwithstanding.
But as I have listened to the debate, what bothers me a little (I hope that the noble Ladies, my noble friends, will forgive me for saying it; but if they do not it does not really matter) is that one could be, with respect, driving a point too far and too hard. There must be—we know there are—women who have been badly treated and who come out of the marriage contract very badly. But the marriage contract is more than a contract. There is something else involved, and if we abolish the rule of unity and give each party the right, and the children some rights, to do this or to do that, I respectfully suggest that we are driving the whole thing that makes life worth living on the rocks. Because we are trying to put right some wrongs that have happened in some cases we may well end up with a quite impossible situation.
There has never been a marriage—my own included—that did not have times of difficulty and times when it might have gone on the rocks, but it never did because we never got to the point of deciding to abolish the rule of unity, and exercising, each of us, our undoubted rights. That must be true of innumerable marriages; and in putting right those where people behave badly we can destroy the only institution that enables men and women to live together, to produce children, to excite the world, to invent. I say to my noble Lady friends, and to my noble friend who introduced
950
the Bill, that I worry about it. We are beginning to push it a little too hard and a little too far. By all means put right the law so far as the "aggressed-upon" party is concerned, but to try to say that either of us can claim rights could ruin it and could destroy the whole lot. I do not mind if I am called a rather old-fashioned person here—I am in a way. One could be, and I think we are, in terrible danger of pushing it too far. I shall therefore not congratulate my noble friend as fulsomely as did the noble Baroness on the way in which he introduced the Bill. I shall want to take a little time in Committee with some critical points in mind.
In a society where it looks to me as though pretty well everything in which I was brought up to believe, what in the end when things went wrong one held on to, is being destroyed, I am less than fascinated by this Bill, and I think we ought to be less than adulatory and congratulatory about it. The ladies who are so excited about it are themselves emancipated, anyway. My concern is with a great many (if I may say so without appearing to be arrogant) ordinary working-class, middle-class people, who have to learn to live together, to keep their families together when things go wrong. With great respect to all the learned ladies who support this sort of thing, I simply do not think it helps the people I know best. Every marriage goes wrong at some point, and if my friends go operating on this sort of basis a great many kids are going to suffer, a great many people are going to be divided. If you are a Christian or a Jew or a Buddhist, or you have a religious faith, it is extraordinary how you can hold on even when things are all against you. If we operate on this basis and abolish the rule of unity, many marriages are going to go wrong that otherwise would not do so.
5.22 p.m.
LORD WIGG: My Lords, I will not keep the House more than a few moments, but as my noble friend Lord George-Brown has subtracted some of the congratulations to the noble and learned Lord, Lord Simon, may I please put them back again? I do not know anything about the law, but I was struck by the brilliance and simplicity of his explanation, and I cannot understand how

951
Lord George-Brown, who has a clarity of mind which I often envy, could possibly have made the speech he did if he had comprehended what Lord Simon was trying to do. He was not making an attack upon some great moral principle, so strenuously and so devoutly exposed this afternoon by Lord George-Bown; he was dealing with exceptions. The majority of people do what Lord George-Brown has obviously done: when they get near the rocks they stick on the rocks or dodge them, and life goes on again. This is a Bill which does not in any way harm the principles which Lord George-Brown, clearly holds; it deals with the exceptions.
The only reservations I have, and I clearly do not understand them, arise from the brilliant speech—because it made clear to me some of the deficiencies—of the noble Baroness below the gangway; I thought she, too, made a real contribution to the debate, and the points she made have to be answered. But in no way does this detract from the clarity of thought and brilliance of exposition of Lord Simon, and I join with Lady Summerskill in paying my tribute to him. When he was a Law Officer of the Crown, he was not only a lawyer, he was a great human being; and as a Member of the other place, on the occasions when I went to him I was always treated with courtesy—but that is the rule in the other place, behind the Chair—and with human understanding. I am very glad to have the opportunity to put back the congratulations which have been taken away.
5.24 p.m.
THE LORD CHANCELLOR (LORD HAILSHAM OF SAINT MARYLEBONE): My Lords. I think I ought to say something about this Bill, although almost everything that could be said has been said by my noble and learned friend on the Cross-Benches. I am more grateful to him than I can say for taking on this burden. I do not know what we should have done, this being a Private Member's Bill, if he had not, with his incomparable experience and knowledge of the subject, undertaken to pilot it through your Lordships' House. I should like in passing to pay an unstinted tribute to my honourable friend in another place. Mr. Ian MacArthur, who piloted the Bill through there, without the incomparable experience and knowledge. How
952
he managed to get it through without the professional attainments my noble and learned friend has I do not know. But I am intensely grateful to both of them.
I hope your Lordships know by now that one of the things I have tried to do during the last three years is to get the programme of law reform continuing to roll, by one means or another, through Parliament, notwithstanding things like Northern Ireland and the European Economic Community legislation, which necessarily take up such an immense amount of the time of Parliament. One of the means that I have adopted has been to try to make use of the generosity of private Members. This Bill, as the noble Baroness, Lady Summerskill, will remember, is something we tried to introduce last Session, but it was blocked in the Lower House by one or two Members, for reasons I never fully understood. It has proved to be a great deal more complicated than I thought it was going to be when I set out upon this course, because I always thought that although very highly technical this is basically a relatively simple matter.
I would venture to put it in this way —and in doing so I hope to still some of the doubts expressed by my noble friend Lady Elles, and even more to dispel the worries expressed by the noble Lord, Lord George-Brown. This Bill has nothing whatever to do with the sanctity of marriage. It is to do with a very highly technical doctrine called domicile, the operation of which undoubtedly does a great deal of injustice. Domicile means your permanent home. I am over-simplifying; the House has heard the better and longer description of what domicile involves from my noble and learned friend. It means your permanent home, and basically this is, or ought to he, a question of fact. Where is a man's permanent home, or where is a woman's permanent home?
In relation to a man this is true, that it is a question of fact. It may be sometimes difficult to ascertain the fact, especially if a number of tax considerations lead one to have a number of homes. This may be difficult, but it is still basically a question of fact—where is the permanent home? Everybody has one in law. The question only is to find out. And nobody is allowed to have more than one, in the case of a woman this is not true. However much and

953
however long she may be separated from her husband, and however much she may have permanently settled anywhere else, or even if her husband has deserted her and gone to the far ends of the world and made a new permanent home, she is saddled with his domicile, whatever the facts may be.
Personally, I do not like legal fictions about questions which are basically questions of fact, and, at bottom, this law has nothing to do with the sanctity of marriage or the unity of happy marriages. It is simply about an artificial legal fiction which saddles a woman, for better or for worse—and, incidentally, she may gain as a result of the fiction, in some cases, though she loses in others—with an artificial permanent home which she does not have. There is the nonsense, and the object of this Bill is basically to get rid of the nonsense, because the nonsense causes injustice. That is why I have been surprised for three years that anyone has found the smallest difficulty about supporting this Bill without reservations. I have been surprised, indeed, that the complications in this Bill proved, as they did prove to be, necessary before we could get rid of a rather simple kind of nonsense.
LORD GEORGE-BROWN: My Lords, will the noble and learned Lord the Lord Chancellor allow me to intervene? The noble and learned Lord is very affirmative, very dogmatic and very much against legal fictions. He has said that this Bill has nothing whatever to do with the sanctity of marriage and that it deals with the plight of a deserted lady whose husband has gone to the ends of the earth. I, like the noble and learned Lord the Lord Chancellor, dislike legal fictions. May I invite his attention to the words of Clause 1(1):
"Subject to subsection (2) below"—
which does not really seem to affect it—
"the domicile of a married woman"—
that is, not a deserted women—
"as at any time after the coming into force of this section shall, instead of being the same as her husband's by virtue only of marriage, be ascertained by reference to the same factors as in the case of any other individual capable of having an independent domicile."
It seems to me, with great respect to the noble and learned Lord the Lord Chancellor, that that means that on
954
marriage, or at any time after marriage, a married lady may decide to choose some other domicile than that of her husband. Therefore—this is why we abolished the rule of unity—instead of being a married couple, they became two persons with different domiciles, each free to desert the other. May I ask the noble and learned Lord the Lord Chancellor why he is so certain that that does not affect the sanctity of marriage?
THE LORD CHANCELLOR: My Lords, the short reason why I am so certain is that I have studied this question for forty years, and have therefore acquired a certain knowledge about it. I do not think the noble Lord will understand it any better if I say it again, but for the sake of clarity I will say it again. Domicile is a question of fact. It has nothing whatever to do with the rights, or otherwise, of one party to a marriage to desert somebody else. I happen to think, as the noble Lord, Lord George-Brown, also thinks, that desertion is wrong, whether a wife deserts her husband or a husband deserts his wife, but it has no more to do with this Bill than the man in the moon. This Bill simply tries to establish this principle. A man's domicile is a question of fact: where is his permanent home? Why should it not also be a question of fact with a woman, whether married or unmarried, whether deserted or herself a deserter? It is not a question of rights, although of course it affects the kind of law which applies to a married woman. It may make it easier for her to be divorced; it may make it more difficult for her to be divorced. All that this Bill says is that, instead of an artificial rule, you should look at the reality of the matter. My noble and learned friend Lord Simon of Glaisdale has said it once, I have now said it twice and the noble Lord, Lord George-Brown, has read it out of the Bill a third time, so I hope that this is now adequately plain.
LORD GEORGE-BROWN: No, my Lords.
THE LORD CHANCELLOR: My Lords, I do not think I will try it again. Some of your Lordships may by this time wish me to go on to a new point.
My noble friend Lady Elles was also concerned in a different way with what she conceived to be weaknesses in the Bill.

955
With the greatest respect to her, I do not agree with her at all. I happen to think—although it is not relevant for the purposes of this Bill, but it is relevant to the point I am about to make—and I know, looking at the Cross-Benches, although I shall not reveal any confidences, that some of the lawyers think, that domicile ought to play a smaller part in law than it now plays, and that residence or, in some cases, nationality ought to take its place as a criterion for certain purposes. Domicile affects quite a number of things besides matrimonial jurisdiction, and there are perfectly respectable people who think that domicile ought slowly to fade out or else be given a different meaning. That it would not be possible to achieve with this Bill.
I beg my noble friend to believe that in order to get rid of the dependent domicile in this Bill we have had a great deal more trouble than I thought possible in negotiating with various people and with various interests, because domicile has tax effects. It also affects the legal profession in various countries, who are very jealous of the legal profession in others, remembering that there are three countries in the United Kingdom, each with a separate legal profession, or, rather, each with at least two separate legal professions. I would ask her to believe that if it is really important, as I believe it is, to get rid of dependent domicile, it is also necessary to legislate in this particular way. The choice is to do what is now being proposed or to accept the status quo. I fully accept from her that in some cases, though not, I think, in all of the instances she gave, there will be repercussions, probably in the tax field. She may probably leave that to the Treasury experts, who are sufficiently keen to save candle ends in any Government; and, of course, it is a matter of immense public importance that they should. But I do not think she need worry about the Treasury; they will look after themselves.
So far as domicile is concerned, of course in the case of a married couple who are living together it is probable that any tribunal of fact will find that the man and the woman are domiciled in the same place, because that is the usual condition in which married men and married women happen to find themselves. They make their permanent home
956
in the same place and not in two different places. But once they become separate, with different permanent homes, then the Bill will begin to operate, and the difference between the law as it is now and the law as it will be will come to be recognised. I fully recognise that my noble friend Lady Elles has made a number of perfectly valid points and this subject is not as easy as it looks, but I am perfectly satisfied in my own mind that we have chosen the only way by what is, at first sight, an easy road, but is, in fact, full of pitfalls of one kind or another.
If my noble and learned friend had embarked, as I do not intend to do either, upon the jurisdictional problems of Part II and Part III as between English and Scots law, I think the House would have begun to see how very complex this subject is, but I am sure that we have arrived at the right solution. As I have said, perfectly candidly, I have been struggling to get this rather small anomaly removed from our law for three years and I hope that the third time will be lucky. My Lords, I should like to reiterate my gratitude to those who have participated in this debate and particularly to my noble and learned friend, who has taken upon himself the heat and burden of this day.
5.40 p.m.
LORD SIMON OF GLAISDALE: My Lords, I should like to thank your Lordships very much for the way in which this Bill has been received, and I cannot be sufficiently grateful for the very flattering personal references that have been made to me. Fortunately for my conceit, I was able to discount practically all of them on the ground of old friendship. The noble Lord, Lord George-Brown, was, if I may say so, entirely characteristic: great personal friendliness with intense and quite misconceived opposition on principle. I should just like to answer one or two points, although before the Committee stage I will of course consider all the other points which have been made.
The noble Baroness, Lady Elles, referred to the concept of domicile in Continental law. She is of course completely right in saying it has quite a different meaning from that which it bears in English law, being virtually equivalent to permanent residence. I

957
think myself there is much to be said for permanent residence as a connecting factor rather than domicile, but this Bill is not the vehicle by which it can be achieved. As the noble and learned Lord on the Woolsack (for whose support I am most grateful) pointed out, this is a useful measure of reform, and there are very much larger questions that loom if we try to extend the concept of domicile or try to substitute permanent residence. As for nationality, which the noble Baroness suggested, I do not think that is possible as a connecting factor in this country because there is a common nationality in the United Kingdom but different systems of law; and I think that rules out nationality completely.
The noble Baroness mentioned taxation. I gather that the Law Commissions consulted the Inland Revenue. The provisions of the Bill will undoubtedly have some repercussions on estate duty, and probably on inland revenue, too, but as far as I can judge it is very much a matter of swings and roundabouts. The noble Baroness refered to Clause 4. If I may say so, she was quite right: it is an exception to the complete principle of equality. We have retained the child's domicile of origin as depending on the father and not on the mother. The reason for that is really contained in the words that the noble Lord, Lord George-Brown, used—"It will not do to carry the point too far." The child must have a domicile of dependence, and it must depend on either the father or the mother. It cannot depend on both because the child will then have two domiciles and two personal laws which might be different, and therefore all the practical advantages are in favour of continuing the present rule.
May I finally deal with the noble Lord, Lord George-Brown? I agree with the noble and learned Lord on the Woolsack: this Bill has nothing at all to do with the sanctity of marriage. I entirely agree with the noble Lord that marriage is much more than a contract, but I do not believe for a moment that abolishing the rule of unity of domicile—or, rather,
958
more correctly, the rule whereby a married woman takes the domicile of her husband—in any way impairs the stability or sanctity of marriage. Marriage as we think of it today is not really a merging of personalities, which is at the back of the legal rule with which we are concerned. It is far more a partnership, whereby personalities complement each other. May I remind your Lordships of the famous words:
"He is the half-part of a blessed man
Left to be finished by such as she;
And she a fair divided excellence,
Whose fulness of perfection lies in him.
It is in that spirit that I commend this Bill to your Lordships.
On Question, Bill read 2a;, and committed to a Committee of the Whole House.

FERTILISERS (UNITED KINGDOM) (AMENDMENT) SCHEME 1973
5.46 p.m.
EARL FERRERS EARL FERRERS rose to move, That the Draft Fertilisers (United Kingdom) Amendment Scheme 1973, laid before the House on April 17, be approved. The noble Earl said: My Lords, this Scheme continues to allow the payment of claims made by farmers and growers for a contribution towards the cost of their fertilisers. It extends the operation of the 1972 Scheme for a further year, to May 31, 1974, with the subsidy rates unchanged; and it is expected that the total cost of the subsidy for 1973–74 will be about £14 million. The only change provides for any value added tax to be excluded from the allowable cost of fertiliser which is used to calculate the maximum amount of subsidy payable. Because purchasers will normally be able to recover value added tax, this element is not part of the final cost of the fertiliser. My Lords, I beg to move.
Moved, That the Draft Fertilisers (United Kingdom) Amendment Scheme 1973, laid before the House on April 17, be approved.(Earl Ferrers.)
On Question, Motion agreed to.