Lords Sitting of 15 April 1975

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

HOMELESS AND PUBLICLY-OWNED HOUSES
Lord SOPER: My Lords, I beg leave to ask the Question standing in the name of the Lord Bishop of London on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what steps they are taking to ensure that as many as possible of the empty houses owned by the Government or local authorities are put to full use to house homeless people.
The PARLIAMENTARY UNDER-SECRETARY of STATE, DEPARTMENT of the ENVIRONMENT (Baroness Birk): My Lords, my honourable friend the Minister for Housing and Construction has recently suggested various practical measures to secure that vacant or underused property owned by local authorities and the Government is more fully used for people in housing need. Interested bodies, notably the local authority associations, are shortly to be consulted on these and other possible measures. Some local authorities have already shown that many of these suggestions can be put into effect without any additional strain on resources.
Lord SOPER: My Lords, while appreciating that reply from my noble friend, and while also appreciating the urgency of a situation in which, for various reasons, there are probably 100,000 homeless people in the country, and at least 2,000 single homeless who were sleeping rough, or existing rough, on the streets of London last night, may I ask this question? Do the Government feel that it is necessary, or at least eminently desirable, to apply requisitioning powers to properties which have been vacant for
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something like two months or six months, in order to meet the pressing need which exists at the moment? If the Government feel somewhat hesitant about that, may I say that such powers were in operation during the time of warfare and do they not consider that the situation now requires similar urgent measures?
Baroness BIRK: My Lords, the Govment have considered the question of requisitioning, and have come to the conclusion that the compulsory purchase procedure which is in operation will do the job just as well. It could be used more fully than it is used at the moment, and would not involve great new administrative procedures such as those which would be involved in requisitioning. As for the comparison with wartime procedure, I think there is a difference here and the Government feel that the measures that were taken then would not be acceptable at the present time.
Baroness YOUNG: My Lords, would the Minister confirm, as the Question refers to empty council and Government-owned properties, that the majority of empty houses in London—which are believed to number nearly 100,000—are, in fact, owned by local authorities?
Baroness BIRK: No, my Lords, I would not agree that that is so. My information is to the contrary, but if the noble Baroness has any informaion that she would like me to have I shall be grateful if she will write to me.
Lord SOPER: My Lords, I should like to ask one further supplementary question. Is it not true that the application of compulsory purchase procedure is cumbrous, costly and liable to last something like 18 months, and is that not an unpardonable suffering to be inflicted upon people who need to be accommodated much more quickly? As an encouragement, might not the principle of penal rating be applied by local authorities in emendation of the 1974 Act, whereby those properties which are left without occupation for a period of time without good reason should be so penalised?
Baroness BIRK: My Lords, local authorities have power to put rating on empty properties and it is left to their discretion to use it. So far as the compulsory purchase procedure is concerned,

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this Question applies to local authority and Government buildings but, nevertheless, the requisitioning procedure would take just as long, if not longer. Finally, may I just say that the measures which are needed and which the Government are pressing local authorities to under-take are the quicker conversion of large, empty or under-occupied houses, encouraging tenants to take in lodgers, the use for short-term letting of property awaiting redevelopment and a rapid repair service. These are what we see as the immediate measures that are needed.
Lord BYERS: My Lords, may I ask the noble Baroness how one applies a compulsory purchase order to houses owned by the Government or by local authorities?
Baroness BIRK: My Lords, one cannot. I was being far too liberal in my answers.
Lord HAILSHAM of SAINT MARYLEBONE: My Lords, before the noble Baroness entirely endorses the draconian measures proposed by the bloodthirsty Christian opposite, will she take note that those of us who have read the Question still regard it as being limited to local authority or Government-owned houses which are empty?
Baroness BIRK: My Lords, I quite agree with the noble and learned Lord— and I was not endorsing the draconian measures. In fact, I was arguing against them.
Lord SOPER: My Lords, did I understand the noble and learned Lord to assert that I was bloodthirsty?
Baroness SUMMERSKILL: My Lords, while welcoming the proposition made by the noble Baroness, may I ask this? As this Question derives from the Church, would she not agree with me that in conjunction with these suggestions it would be an excellent idea if empty church halls could be used for community purposes for these people?
Baroness BIRK: My Lords, I am afraid that that is rather a different question. We are discussing empty houses.
Baroness ELLES: My Lords, does the noble Baroness consider, in view of the fact that encouragement is being given to landlords to take in lodgers, that there should be a repeal of recent legislation which can only have the effect of making it impossible for houseowners to have tenants?
Baroness BIRK: My Lords, I was referring to council house tenants taking in lodgers, because that is what the Question is concerned with.
The Lord Bishop of SOUTHWARK: My Lords, may I ask the noble Baroness whether there is a time limit during which these houses can remain vacant, in view of the fact that there are many houses in South London known to me which have been vacant for five, six or even seven years?
Baroness BIRK: My Lords, it varies considerably from place to place, but the Government have been pressing local authorities to do all they can to cut down the time that houses are left vacant. In fact, the percentage in London is lower than in many other places. If the right reverend Prelate has any examples I shall be happy if he will write to me, when I will try to help him.
Baroness YOUNG: My Lords, I welcome the fact that the Minister has been able to indicate the steps that the Government are taking in conjunction with local authorities to try to improve the situation. But would she not agree that the Government have made it very difficult for local authorities in that they have just sent out a Circular asking them to economise on both repairs to council houses and management, both of which are relevant to this Question?
Baroness BIRK: No, my Lords. The allocations for local authorities were designed to help them meet existing commitments, with something left over for improvement work of the kind that I imagine the noble Baroness, Lady Young, envisages. I must point out, on this afternoon of all others, that the country is in a very difficult economic situation. We should all like to do more. I would further point out that this Government have done far more on housing, and have made it a much higher priority, than did members of the Conservative Government.
Lord RAGLANs: My Lords, is it not the case that a great many of the homeless are, in fact, people who have been evicted by local authorities for non-payment of rent, and that local authorities do not really know what to do about them?
Baroness BIRK: My Lords, my noble friends are sometimes very helpful. Local authorities find temporary accommodation for the evicted. But the number of evictions in the public sector represent a very small percentage, and the working of the Rent Act has meant that evictions in the private sector have become almost non-existent.

SEYCHELLES INDEPENDENCE CONFERENCE
2.40 p.m.
Lord BROCKWAY: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what conclusions were reached at the conference on Seychelles independence.
The PARLIAMENTARY UNDER-SECRETARY of STATE, FOREIGN and COMMONWEALTH OFFICE (Lord Goronwy-Roberts): My Lords, copies of the Final Communique of this Conference are being placed in the Library of the House, and the Report of the Conference will be presented as a White Paper. The participants agreed on the principles of an Interim Constitution, on several points for an Independence Constitution and on the appointment of an Electoral Review Commission. Additionally, the two Seychelles political Parties agreed to form a Coalition Government.
Lord BROCKWAY: My Lords, while thanking my noble friend Lord Goronwy-Roberts for that reply, may I ask whether it was not expected that this Conference might lead to a date for independence? Can my noble friend indicate the reasons why that hope was not fulfilled? Now that the two Parties of the Seychelles have settled their disagreements and formed a National Government, will Her Majesty's Government be calling a further conference in order to allow independence to be achieved?
Lord GORONWY-ROBERTS: My Lords, the Conference held between 14th and 27th March in Marlborough House made very good progress. There was a diversity of view among the representatives of the Seychelles on a number of important points. However, they agreed on a number of equally important points. We expect that the resumed Conference in January 1976 will lead to independence, we think, before 30th June 1976.
The Earl of SELKIRK: My Lords, can the Government say whether any consideration was given to the problems of defence in the course of this Conference?
Lord GORONWY-ROBERTS: My Lords, all aspects of the future of an independent Seychelles were discussed. I imagine that more detailed discussions will follow on questions similar to the question raised by the noble Earl, Lord Selkirk.
Lord REIGATE: My Lords, is it the intention of Her Majesty's Government that independence shall be granted to the Seychelles only following a plebiscite, as was advocated by Her Majesty's Government when in Opposition, in the case of Grenada?
Lord GORONWY-ROBERTS: My Lords, we have not laid down any condition that there should be a particular form of consultation by the Seychelles authorities with their own people. They are about to operate an Interim Constitution in which the United Party and the Democratic Party are taking part. No doubt they will come to their own decision on how finally to consult their people about this important subject.
Lord SLATER: My Lords, would not my noble friend agree that, as the two principal Parties within the Seychelles have found it possible to come together to form a Government at this juncture, it would be advisable to leave this matter until a further conference is held, bearing in mind that there is every possibility— judging by the reply of my noble friend the Minister—that finality in regard to independence may be achieved?
Lord GORONWY-ROBERTS: My Lords, I fully agree with my noble friend Lord Slater who has expressed the position with precision. There are a number of points of difference between the two

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Parties—not least about the electoral system in the Seychelles—but they came together during the March Conference, some may feel as a result of the Conference. My noble friend Lord Slater is entirely right about the timetable we have agreed with them; namely, that they should operate the Interim Constitution during the rest of this year and then come to a reconvened conference in January 1976, with a view to securing independence in June 1976. I warmly welcome the intervention of my noble friend.
The Earl of MAR: My Lords, do the Government of the Seychelles realise that there is a large number of Seychelleois in Kenya and Tanzania? If rehabilitation goes on, the Seychelles will once again be thoroughly overpopulated, and there will not be enough jobs available.
Lord GORONWY-ROBERTS: My Lords, that is a matter of assessment and judgment. As always, we shall not confer independence—subject to the approval of Parliament—on this territory, but shall seek to consult, advise, guide and aid it with regard to outstanding economic and other questions.

COMPUTER-STORED INFORMATION
Lord GARDINER: 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 has happened to the promised White Paper on the safeguards to the public which are desirable in relation to personal information stores held in Government computers.
The MINISTER of STATE HOME OFFICE (Lord Harris of Greenwich): My Lords, work is proceeding urgently on the re-examination of certain aspects of the White Paper, to which I referred in answer to a Question by my noble
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and learned friend on 27th January; but I am afraid it has not yet been completed. I can assure him, however, that the Paper will be published as soon as possible.
Lord GARDINER: My Lords, while thanking my noble friend for that Answer, may I ask him whether I am right in thinking it was in 1972 that the right honourable gentleman Mr. Maudling said he had completed his Working Party Report and anticipated turning it into a White Paper; that it was 1973 when the right honourable gentleman Mr. Carr promised a White Paper for that year, 1973, and that it was on the 22nd May 1974 that my noble friend said that the Government regarded this as a matter of urgency and the White Paper would be published quite soon? On the 31st October of last year my noble friend said that he hoped to do it by Christmas. We are now in April and getting into May, and after all this time is it really not possible for the Government to say, first, in what approximate month they anticipate publishing the White Paper, and, secondly, in what approximate month they anticipate declaring their views on the Younger Committee's Report as a whole?
Lord HARRIS of GREENWICH: My Lords, I recognise that my noble and learned friend has had to be very patient —patient at the hands, I fear, of a number of Governments. The problem is, as I think he recognises, that we are dealing here in a field of extremely complex issues, but I recognise entirely the justification for a great deal of what he has said. Certainly my right honourable friend the Home Secretary is anxious to make an announcement of his policy on this matter as soon as possible. However, in view of the fact that I was unwary enough at the end of last year to say that we hoped it would be published by Christmas, my noble and learned friend will understand my hesitation in giving a precise time for when it will be published.
Lord HAILSHAM of SAINT MARYLEBONE: My Lords, the only question is, which Christmas!

G.P. COURSES: MILEAGE ALLOWANCE
2.52 p.m.
Earl FERRERS: 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 mileage allowance which general medical practitioners may claim when they attend courses which are arranged through universities.
Lord WELLS-PESTELL: My Lords, the allowance is equivalent to that payable generally in the National Health Service when cars are used in place of public transport. At present, as the noble Earl no doubt knows, it is 2·9p per mile and this is due to be increased slightly very shortly.
Earl FERRERS: My Lords, I am very grateful to the noble Lord for that reply. When his right honourable friend does increase it, will he ask her to increase it by more than the sum by which it was last increased, which was 0·1 of a penny?
Lord WELLS-PESTELL: My Lords, I cannot hold out any hope that it will be a substantial amount. I think I must remind your Lordships that the whole purpose here is to try in some part to compensate those doctors who wish to attend courses and prefer to use their own cars as against public transport. The real purpose is to encourage people to use public transport.
Earl FERRERS: But, my Lords, if one Government Department considers it appropriate to pay 7·7p or 9p. or even sometimes 12p, what can possibly be the justification for paying doctors only 2·9p, or what is so remarkable about their cars that they run so economically?
Lord WELLS-PESTELL: My Lords, I can only advise the noble Earl that this also applies to civil servants. It not only applies to the Department of Health and Social Security but to civil servants. There seems to be a very good reason why the compensation should be what it is having regard to the fact that one wants to
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encourage people in this sort of matter to use public transport.

SHEFFIELD CITY COUNCIL BILL [H.L.]
Read 3a, and passed, and sent to the Commons.
AIR TRAVEL RESERVE FUND BILL
Brought from the Commons earlier this day and printed pursuant to Standing Order No. 48; read la.

HOUSE OF COMMONS DISQUALIFICATION BILL [H.L.]
The LORD CHANCELLOR (Lord Elwyn-Jones): My Lords, this Bill and the next three Bills on the Order Paper are consolidation Bills which have been reported on by the Joint Committee. I understand that no noble Lord has indicated a wish to move a manuscript Amendment or to speak in Committee on any of these Bills. Unless, therefore, any noble Lord objects, I intend to move that the Order of Recommitment on each of the next three consolidation Bills be discharged as soon as each Bill is called, without making the usual introductory statement. I beg to move that the Order of Recommitment in respect of this Bill be discharged.
Moved, That the Order of Recommitment be discharged.—(The Lord Chancellor.)
On Question, Motion agreed to.

NORTHERN IRELAND ASSEMBLY DISQUALIFICATION BILL [H.L.]
The LORD CHANCELLOR: My Lords, I beg to move that the Order of Recommitment be discharged.
Moved, That the Order of Recommitment be discharged.—(The Lord Chancellor.)
On Question, Motion agreed to.

MINISTERS OF THE CROWN BILL [H.L.]
The LORD CHANCELLOR: My Lords, I beg to move that the Order of Recommitment be discharged.
Moved, That the Order of Recommitment be discharged.—(The Lord Chancellor.)
On Question, Motion agreed to.

MINISTERIAL AND OTHER SALARIES BILL [H.L.]
The LORD CHANCELLOR: My Lords, I beg to move that the Order of Recommitment be discharged.
Moved, That the Order of Recommitment be discharged.—(The Lord Chancellor.)
On Question, Motion agreed to.

MALTA REPUBLIC BILL [H.L.]
Read 3a, and passed, and sent to the Commons.

TRADE UNION AND LABOUR RELATIONS (AMENDMENT) BILL
2.58 p.m.
The LORD PRIVY SEAL (Lord Shepherd): My Lords, I beg to move that this Bill be now read a third time.
Moved, That the Bill be now read 3a. —(Lord Shepherd.)
Lord HAILSHAM of SAINT MARYLEBONE: My Lords, I do not want to detain the House for any length of time at this stage of the Bill, but before we part with it—
Lord SHEPHERD: My Lords, may I intervene? I do not know whether the noble and learned Lord intends to make what might be called a Third Reading speech. There are a number of Amendments on the Order Paper. I wonder whether the noble and learned Lord would think it right to take these Amendments and then to have the debate on the Motion, That the Bill do now pass.
Lord HAILSHAM of SAINT MARYLEBONE: My Lords, I am perfectly willing to comply with the wishes
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of the House in that respect. If it is more convenient to take the Amendments first, I will take that course. I was intending to make a short speech on Third Reading, but I will not do so on the understanding that I will rise when the noble and learned Lord on the Woolsack puts the second Question.
On Question, Bill read 3a with the Amendments.
Clause 4 [Amendment of the principal Act]:
Lord GOODMAN: My Lords, all these Amendments are minor textual Amendments. I beg to move Amendments Nos. 1 to 6 en bloc.
Amendments moved—
Page 5, line 22, leave out (" and such ") and insert (" or ").
Page 5, line 28, leave out (" code") and insert (" charter ").
Page 6, line 5, leave out (" code of practice ") and insert (" charter ").
Page 6, line 19, leave out (" that subsection ") and insert (" subsection (1) above ").
Page 6, line 20, leave out (" code") and insert (" charter ").
In the Title, line 4, leave out (" code of practice ") and insert (" charter ").—(Lord Goodman.)
On Question, Amendments agreed to.
Lord SHEPHERD: My Lords, I beg to move that this Bill do now pass.
Moved, That the Bill do now pass.— (Lord Shepherd.)
3.0 p.m.
Lord HAILSHAM of SAINT MARYLEBONE: My Lords, I do not intend to detain the House very long, but there are one or two points which I should like to place on record. In doing so, let me say at once that I do not wish to cause any pain to noble Lords opposite, and indeed I should like to say that I recognise at once that they have had a difficult and possibly even a disagreeable task. They have had to face criticism not only from those on this Bench but from those on the Cross-Benches, from those on the Bench above me, and even occasionally in rather courageous speeches from behind them.
I think we may look back upon a civilised and, I hope, reasonable debate on the matters which divide us. I believe that we have improved this Bill since it came before us. It is not an attractive

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Bill even now, and I would not describe it as such, but I think that we have improved it. I should only like to point a contrast in the terms of the Bill as it is now before your Lordships at its last stage, and the Bill which we received. When we received it, I will not say the only honest but at least the only completely accurate and, I think I could go so far as to say, the only absolutely frank defence of it which was made came from below the gangway on the Government Benches from the noble Lord, Lord Houghton of Sowerby, when he said that the reason for the Bill's being proposed in that form was that it was a political necessity for the Government and for the Labour Party. That is an intelligible explanation of the Government's conduct, as it was of Pontius Pilate's, but it is not one which generally commands respect.
The Government's own explanation of the original form of the Bill was that it was in their Election Manifesto. I do not think it was, and I do not recollect, if it was, that it was at any time explained to the electorate. But if it was in the Government's Manifesto it certainly contained an untruth because, as I understand it, the Labour Manifesto contained a pledge on the part of the Government to repeal the Act of 1971. That they had already done by the Act of 1974. If, as they have since claimed, what they were referring to was Section 5 or Section 6 of the Act of 1974, and those two sections owed their origin to the Act of 1971, that may be so. But so also did Schedule 1 to the Act of 1974, all 22½ pages of it, even containing sections of the Act of 1971 which the 1974 Act purported to reenact. So either that defence is a fraud or the Manifesto promise has been broken. But even that defence was not respectable, because it did not go to the merits of what was proposed to be done.
On the Government side, the Back-Benchers tried to console themselves with the argument that labour or industrial relations are not best improved by resort to the courts; a proposition which, so stated, no one would feel much disposed to deny. But the fact is that the Bill had nothing directly to do with industrial relations. It was at that stage basically not a Bill to give trade unions greater power in their negotiations with their employers or in relation to the Govern
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ment; it was a Bill to put individuals and minorities, who are virtually helpless, at the mercy of the trade union establishment; that is, to put the weak at the mercy of the strong. It was a Bill to free employers from the obligation to give compensation to such individuals or minorities as might be affected if the trade unions used their licence to oppress given in the clauses of the Bill. It was not a Bill to subject industrial relations to judicial scrutiny; it was a Bill to deprive individuals and minorities of judicial protection when their basic freedoms were infringed.
The opposition to it did not come primarily from these Benches; it came from the Liberal Benches—and rightly, if I may say so, in view of the high traditions of that Party; it came from the Cross-Benches, and many of us will remeber for a long time the powerful condemnation of it which fell from the lips of the noble and learned Lord, Lord Salmon, who frankly admitted that if the Amendments in relation to Section 5 which we supported at the instance of the Liberal Party were carried, some at any rate of his criticisms would not be as well founded. We also remember the loud "Not-Content" which fell from the noble Lord, Lord George-Brown, at Second Reading.
As I say, we have improved the Bill since then. It would be a travesty of truth if it were ever suggested that either I or the Party of which I am a member desired in any way to have a confrontation with the Government on this subject, or with the House of Commons or the Labour majority in the House of Commons. On the contrary, there have been those in my Party and outside it who have thought, and have plainly said to me and to others, and in public, that we have gone too far the other way. If we have gone too far the other way, I believe that it has been a fault on the right side. But, at the end of the day, this House has a Constitutional duty to perform, and I do not think that we would be here in such numbers if it was not our intention to perform it honourably, so far as we may, and without seeking to provoke anyone else.
That duty is not performed, in my judgment at any rate, by remaining absolutely passive when we see serious and successive erosions of basic freedom and

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of the rule of law and Constitutional principle, and when we see by a side wind —possibly unintended, but still a side wind—the threat to the freedom of the Press and freedom of expression. Noble Lords will have seen only today a letter of powerful support in The Times newspaper, which gives effect to the doubts which are felt about the intentions of the Party opposite.
We have no personal interest to defend in this matter: we have a Constitutional duty to perform, and a Constitutional responsibility to carry out. We have sought to discharge that duty and that responsibility. The Government have all the power today. They have their majority in the other House—docile at least for this purpose, if for no other—they have the right to create new Peerages, which they are not slow to exercise, and they have the Parliament Act, as amended in 1949, to support them. So that they may put on the Statute Book virtually any Statute they please, provided they do it by and with the consent of the Commons, and not by and with the consent of the Commons and the Lords Spiritual and Temporal in Parliament assembled. What they cannot do is to say that we have acted irresponsibly, immoderately, or unconstitutionally. What they cannot do, or at any rate what they have not done, is to defend their policy in terms which have convinced anyone who is not already a committed Member of the Labour Party.
The Bill will no doubt go back to another place now. I hope, and I say it as quietly as I can, that the Government will not act precipitately in this matter. I hope that they will consider carefully the weight of public opinion which has been ranged against them outside Parliament, and will realise that we have sought to do what we can to give effect to that public opinion. I hope very much that when they have reflected upon these matters we shall not be met with an obdurate or some absolutely unbending attitude. I have no desire to detain or delay the House any further.
3.10 p.m.
Lord HOUGHTON of SOWERBY: My Lords, the noble and learned Lord, Lord Hailsham of Saint Marylebone, referred at the beginning of his speech to some comments which I made to your
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Lordships at an earlier stage of the Bill, when I said that the Bill, in its unamended form, was a political necessity to the Labour Government and to the Labour Party. The justification I have for saying that was that a firm pledge was given by the Labour Party, in an agreement which has now become known as the Social Contract, to repeal the 1971 Act completely. This is what it was intended to do in the Act of 1974; but that Bill, when before another place and when before your Lordships' House, was amended in several forms which were unacceptable to the Government. Owing to the Parliamentary situation at that time, the Government were not able to reverse the Amendments which had been made to the 1974 Bill, but they said that it, after a General Election, the Labour Party came back with a majority they would seek to reverse the unacceptable decisions made by both Houses in the summer of last year. That explains why we have the Bill before us today. Had those Amendments to the Bill of 1974 not been passed, we should not be asked today to pass a Bill which substantially reverses what was done last year. The reason why this Bill is a necessity to the Labour Government is because it is indispensable to the fulfilment of the pledge given in the agreement reached before Labour came to Office in February, 1974, and again last October.
My Lords, I do not want to go over the past proceedings in your Lordships' House in respect of this Bill, but I feel impelled to delay your Lordships for a few minutes to say a little more about my own position on this Bill. The last time I spoke to your Lordships, on the 25th March, I became a little overheated. I hope I can put my point of view a little more coolly today; but I felt strongly then, and I feel strongly now, that the majority of your Lordships are ill-advised to return this Bill to another place in its present form.
Among a number of comments that I wish to make, the first is that I think it is regrettable how much mistrust of the policies and possible intentions of the National Union of Journalists has been spread around in earlier debates in this House, in the other place and elsewhere. There are few grounds and little evidence

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for asking the House to legislate on surmise, speculation or against fear. On the contrary, the National Union of Journalists' Executive Committee have gone out of their way, while the Bill has been debated in this House, to dispel the fears upon which Lord Goodman's case rested so heavily. He has put it frankly and fearlessly to your Lordships. But I want to say quite strongly that he cannot rely on substantial evidence for the fears which he asks us to take into account.
My Lords, I draw your attention to a letter which appears in The Times this morning from Mr. Eric Winter, who is the Father of the Chapel of the magazine section of the International Publishing Corporation. In it, he says that no difficulties have arisen between the N.U.J. Chapel under his responsibility and the publishers in reaching agreement on a number of matters which would appear in a code of conduct or a charter proposed in the Amendment accepted by the House earlier on. I think that it augurs ill for the future of industrial relations when a majority of your Lordships are persuaded to endorse the spirit of mistrust which has been translated into the Bill. By contrast, I think that, despite all that we have heard and read about the safeguards needed to strengthen the rights of editors and others, the NUJ has refrained from making any provocative statement whatsoever in this controversy. I think that what they have said has been dignified and helpful, and I wish to repeat that at no stage has the NUJ or the Secretary of State asked for or hinted at my own intervention in this matter.
I was invited to an informal meeting with editors and proprietors of leading national newspapers to see whether their apprehensions could be met by an Amendment to this Bill. I was not alone; I was there with other Members of your Lord-ships' House. It was in consequence of that, and under no other influence, that I applied my mind to the problem with a genuine desire to find some accommodation which might be acceptable to the Government, to the editors and to the other interests concerned. I do not think there is anything reprehensible in trying to find an acceptable means of overcoming difficulties of this kind. But I find
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that those whose cause I tried to serve now reject me and that the Amendment your Lordships wrote into the Bill at the Committee stage is now said by influential editorial and management opinion in newspapers to be totally unsatisfactory. My Lords, there is another letter which appears in The Times this morning from very responsible editors of national news-papers. There is, of course, one name missing: it is that of Mr. Alastair Hetherington, the Editor of the Guardian, who put his own point of view—a different one—in a very informative and temperate article that he wrote in the Guardian last Friday.
I must try only to remove the impression that I am seeking to imperil the freedom of the Press. That is absolute nonsense. I go a long way with the aims of the Amendments of the noble Lord, Lord Goodman, but I differ from him in the method of achieving his purpose. That is the substantial difference between us. I must deny that I am some obstacle in this matter, that I have attempted to put impediments in the way of the freedom of the Press. Must I go from being a would-be benefactor, a compromiser, if you like, who attempted to find an agreeable compromise, to become the culprit in this situation? I sincerely hope not. But as it is, and 1 make no complaint, the noble Lord, Lord Goodman, now carries the torch of the freedom of the Press. He bears the light and flame of the truth that editors want to publish without let or hindrance from the NUJ. I hand it to him. If the paper is to be stopped, it may be the fault of SOGAT or of the National Graphical Association, or even of the electricians; but, God save us from the NUJ!
Reading some of the newspapers the day after the previous debate one would have thought that the historic roles of David and Goliath had been reversed. It was Goliath who single-handed fought the enemies of the light and vanquished them in the end. It is that victory which we are asked to celebrate today with pleasantries and votes of thanks all round for co-operation in seeing the Bill through to be transmitted to another place. The message of freedom apparently is to resound down the corridors of power and the message must go that we in this House stand alone, if need be, in upholding one of the cardinal freedoms of a free

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society. But, my Lords, let us be a little more realistic about this matter. We bear witness yet again to the determination of the Opposition and the lawyers and the editors to lean yet again on the broken reed of the law in situations where bitter experience has shown that the law cannot be enforced. While the Bill as amended on Report does not propose to make breach of the charter a criminal offence, it does propose to make observance of it a statutory duty "owed to any person who may be affected by a contravention of it". And any breach of that duty by industrial action or otherwise would be actionable. That could put five journalists instead of five dock workers into prison; it could result in the National Union of Journalists instead of the Amalgamated Engineers being fined £70,000; it could produce the Official Solicitor to release the men and the anonymous benefactor to pay the fine imposed on the union.
We have all been here before. By then history will have repeated itself and the law could look more ineffective and more foolish than before. Has not the blockade of the ports by offshore fishermen shown how futile it is to apply for and to obtain an injunction against collective action? Those who did not defy that injunction took evasive action, and the law was made to look ridiculous as well as ineffective. While we were discussing these matters on the Trade Union and Labour Relations Bill the staff of the Houses of Parliament were on strike. Had an injunction against them been possible would it have been applied for? Would it have been granted? Would it have been effective? Surely it is wise to face the facts of democratic life which are based on self-government, self-discipline and a sense of responsibility, rather than upon Statute Law where the conduct and behaviour of organised workers is concerned with what is called industrial action.
No law should be passed in Parliament which cannot be enforced, and those who cherish the precious possession of the sovereignty of Parliament should inquire whether it exists even at home in many areas of our public life today. Today, under conditions so different from the past, we have to acknowledge the fact that measures taken to enforce the law sixty or seventy years ago are not accept
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able now—the Riot Act, the troops, the baton charges, the use of force. Who, fifty years ago had heard of the stay-in strike, of the sit-in, of the take-over, the squatters, the lightning strike and all the other manifestations of industrial discontent that we have witnessed in recent years? And whenever were proceedings taken against unlawful strikes in public utilities? Yet for a very long period of years, from 1875 in certain of the utility services (from 1919 in the case of the electricity services) strikes were unlawful; and never within my recollection has any injunction been sought to restrain workers in those utility industries from taking industrial action. In fact those laws were repealed in 1971.
My Lords, we need a new concept of law and order in the relationship between organised groups of citizens and the statutory powers of Parliament. The writ of Parliament no longer runs and the order of the courts is no longer obeyed where the arm of the law is not strong enough to prevail. The feeling in the trade unions at the present moment about the imprisonment of the Shrewsbury pickets —and there are only two of them—is causing the Home Secretary, the trade union movement and the Government a great deal of anxiety. There is wide-spread talk of a one-day general strike to endeavour to coerce the Government and Parliament to release these two men. What would it be like if there were 22, or 32, or 62 of them? Would the prison gates then be opened under the strong pressure of mass opinion and mass action?
These are the dangers which we face today and which we must try to overcome. But this Bill is not the way to do it. I am not satisfied with trade union law as it stands now. I shall not be satisfied with trade union law even though this Bill is passed in its original, unamended form. The unions have not yet summoned enough moral and institutional strength to govern themselves wisely and with tolerance, and this is the great danger to our community today. Yet the paradox is that the more we try to invoke the process of Statute Law to regulate their affairs and conduct, the more we lessen their capacity to put their own house in order. This must be accepted as one of the counter-productive elements in an attempt to put trade unions within the

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framework of the law. I know that in Europe trade unions regard the law as their friend, as establishing their right; but in this country, whether we like it or not, trade unions regard the law as restricting their rights, as shackling them in their freedom of activity and movement. We have to understand that difference and try to meet it if we can. I believe that but for the 1971 Act we should now have been enjoying better industrial relations than we are at present. Millions of people will not be coerced. If, however, they reject the disciplines of Parliamentary law, they must find some self-discipline to take its place or we shall sink into anarchy or the perils of the dictatorship of a trade union State. Some people think that a showdown with the unions is inevitable, even if it brings us near to the brink of civil war. I profoundly hope that that is not a likelihood; I do not believe it is. But the situation has certainly been aggravated by the 1971 Act, and this Bill endeavours to remove the last traces of that unacceptable Act of Parliament.
Now, by the facile and silver tongues of lawyers and the naïvities of Conservative politicians, we are asked to set the stage for a miniature mock battle between editors and their journalists. What I and my noble friends say today may be brushed aside, but our words I think will be heeded rather more when the chips are down and when we get the message from another place. I profoundly hope that if it cannot prevail today then later the wise judgment of this House will understand some of the things I have been trying to persuade it to accept.
3.29 p.m.
Lord LEATHERLAND: My Lords, there have been many references today, and in the earlier stages of this debate, to the National Union of Journalists and to the Fathers of editorial Chapels. I have been in the National Union of Journalists for 54 years and now enjoy the dignity of being one of its life members. On the daily newspaper where I spent a great deal of my working life before I rose to executive roles, I was for several years Father of the editorial Chapel so I do not speak exactly as a virgin. My Lords, if brevity be a virtue, I shall be very virtuous this afternoon. I have only
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one point to make and that may be something in the nature of a minor point—a procedural or a Committee point. However, I feel that this House and the news-papers generally have been misrepresenting the position when they have pretended that the battle over the Bill is a fight for the freedom of the Press, when it is in fact a fight for the freedom of trade unionists to defend the interests of their members.
The point to which I wish to draw attention is contained in Clause 4(8) on page 5 of the Bill. This is a Government Bill, so I must perforce direct any remarks I have to make upon it to my noble friend on the Front Bench. If I have any criticisms, I must direct them to him and if I have any condemnation of slipshod drafting, I must direct that to him. Perhaps, however, he may have an alibi and will be able to shift the responsibility to someone else on the Cross-Benches. Clause 4(8) says that industrial action is actionable and then goes on to define in subsection (9)(a) that industrial action means,
a concerted stoppage of work … whether … the stoppage … is carried on during or on the termination of their employment …"
My Lords, let me put myself once again in the position of a working journalist. How would this affect me? The clause makes it clear that a stoppage of work is actionable—
Lord CARRINGTON: My Lords, I wonder whether I may interrupt the noble Lord? I apologise for doing so, but there has been a tendency recently in your Lordships' House to forget what is the purpose of the various stages of a Bill. We are now moving that the Bill do now pass, but the noble Lord is going into considerable detail on what, in ordinary circumstances, would be a Committee point or a point which should be made at Report stage. Of course I would not wish to stop the noble Lord, but I suggest to the noble Lord the Leader of the House that perhaps in the future we might all pay a little more attention to the purposes of the various staees of a Bill.
Lord LEATHERLAND: My Lords, my purpose was to draw attention to something that is wrong and improper in the Bill, which it is too late for this House to remedy but of which the other place might take note.
Lord HAILSHAM of SAINT MARYLEBONE: With respect, my Lords, the other place cannot do that. Nothing can be done to remedy Clause 4(8), because the only thing the other place can do after it has sent the Bill up to us with that clause in it is to consider our Amendments. It is perfectly proper for the noble Lord to draw attention to any weaknesses of drafting, although it may be rather a late stage, but I suggest that he should do so by letter to the noble Lord the Leader of the House, because this House can do absolutely nothing about it at this stage except refuse to pass the Bill, which I do not think anyone would wish to do.
Lord SHEPHERD: My Lords, I cannot disagree with what the noble Lord, Lord Carrington, has just said in terms of what we should be doing on Third Reading, though I shall not go as far as he in terms of making it a general criticism of your Lordships' House. I think, however, that I should say to the noble and learned Lord, Lord Hailsham, that the subsection to which my noble friend is referring is a new part of the Bill which was put in at Report. If it is imperfect—and I indicated to the noble Lord, Lord Goodman, at Report stage that there were some imperfections in his Amendments—I believe that it will be possible, if my noble friend draws our attention to an imperfection in an Amendment made by your Lordships' House, for another place to bring it to our notice and make the necessary Amendment which we would then consider. However, I hope that my noble friend will treat this as a Third Reading debate and make his point very briefly. If it is to be of any length, perhaps he will speak to me outside and I will see that the matter is communicated to my friends in another place.
Lord LEATHERLAND: My Lords, I thank my noble friend and noble Lords on the other side for drawing attention to this matter. I believe that there is a real imperfection in the clause and hope that some steps can be taken to remedy it, either here or elsewhere; or, if not, it must be known to those in the newspaper industry that this imperfection exists.
Subsection (8) says that a stoppage of work is actionable. If a stoppage of work takes place during the employment of a person, that is perfectly understand
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able, but if the employment of that person has been terminated how on earth can he continue to work? Is the law to compel him to organise a "sit-in" or a takeover of the plant? He has already been sacked by his employer. How can he then continue to work, and how can it be held that his stoppage of work has constituted what is equivalent to an offence under the clause? That is all I have to say. I feel that if Clause 4(8) is passed in its present form it will lead to a very great deal of complication. I sincerely hope that at some stage and in some place this matter can be remedied.
Lord GORDON-WALKER: My Lords, I should like very briefly to make three points. The Bill is going to another place containing the Amendment for which the noble Lord, Lord Goodman, was primarily responsible. It seems to me that noble Lords who supported that Amendment did so on the basis of rather contradictory and inconsistent arguments. First of all, it was said that it would be a great danger to the Press if the Secretary of State were entitled to impose a code upon them. At the same time, it was argued that what was called the "Lord Houghton Amendment" was so toothless that it was not worth having. It does not seem to me that one can maintain both those points and argue that it is an absolutely hopeless Amendment which no one could enforce, and also that it is an extremely dangerous Amendment which will go to the very root of the liberty of the Press.
Secondly, it seems to me that, in effect, the Amendment of the noble Lord, Lord Goodman, reimposes the worst aspects of the Industrial Relations Act upon one single industry, and, indeed, upon one single union. If the Amendment remains in the Bill, I believe that it will poison industrial relations in the Press in a way which would not happen if the Amendment had not been included. My third point relates to a remark made by the noble and learned Lord, Lord Hailsham, when he spoke of the use of the Parliament Act, from which I infer that he may have it in mind to use the majority behind him in this House to challenge the other place twice on the same issue.
Lord HAILSHAM of SAINT MARYLEBONE: My Lords, I said nothing of the kind. I only said that the

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Government had the ultimate power and that they could use it if they wished, provided that in the last resort they were prepared to adopt a different formula from that which accompanies most Acts of Parliament. It may be that it would more accurately reflect the real opinion of Parliament if they did so. That is all I said. I said nothing about future intentions, and I think that the noble Lord was trying to read an interpretation into what I said which it certainly was not intended to bear, and I can assure him that it does not bear it. No decision has been taken about what we should do in a certain eventuality.
Lord GORDON-WALKER: My Lords, I did not say that the noble and learned Lord had said such a thing. I said that his words had given rise to fears in my mind that that was what lay behind what he said. I am very glad to hear that he does not intend it, but I must say that other words have come to my ears about this intention of the Conservative majority in the House to consider challenging the other place twice on the same issue. As a very recent Member of this House, I have learned greatly to respect it, to respect its powers and the use it makes of them, and to respect its influence. However, I have very grave fears that, if the intention is to challenge the other place twice on the same issue, this House will not come unscathed out of such a confrontation.
3.40 p.m.
Lord SHEPHERD: My Lords, this Bill has now been before your Lordships' House. It has been considered here and it now goes to another place. I do not intend to say a great deal about the Bill itself. It was part of our Manifesto, in which we said that we would deal with the 1971 Act, and it was a consequence, shall we say, of some misadventure in another place which made it necessary— or created a necessity—for this Bill in this Parliament. I personally regret it because I should much prefer to have dealt with the labour relations situation —which my noble friend, Lord Houghton of Sowerby, stressed so much—in the Employment Protection Bill which will be introduced shortly in another place, when we can deal with labour relations as a whole, and in a constructive way.
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I can only say to the noble and learned Lord that I enjoyed his speech. Perhaps one day, when he has a few moments of quiet, he will come and tell me what it is like to be part of a docile majority. I have been in your Lordships' House for twenty years and I have never had that pleasure. I do not think that my right honourable friend the Parliamentary Secretary to the Treasury—or the Chief Whip—would suggest that his majority in another place is exactly docile—
Lord HAILSHAM of SAINT MARYLEBONE: I said, "docile" if only for this purpose.
Lord SHEPHERD: The noble and learned Lord as always has a qualification. The Bill goes to another place, and we shall then have to consider whatever may be the message from there. I am very sorry that the constitutional issue has arisen at this stage. I think that we are a long way away from that situation, and I hope that it is the wish of your Lordships' House that such a situation will not be created—certainly it will not be created lightly by one side or the other.
I will therefore leave that aspect aside. What has been said about this Bill will be considered by another place—certainly the speeches that have been made in support of the Amendments have been drawn to the attention of my right honourable friend; and I shall certainly be having further discussions with him. But I should not lead the House to believe that the issues which have been created are in any way easy for the Government. It is not that we have anything between us. I believe that in what we are seeking— the rights of an individual, to which the noble and learned Lord attaches great importance, as do the noble Lords on the Liberal Benches, or in the question of freedom of the Press—there is nothing between us. In fact, throughout our debates I do not believe that that has ever been questioned. What is open is the method of achieving it; and here there is a fundamental disagreement between us. There will be another opportunity for this to be considered. Therefore I suggest that we let the Bill go to another place; let another place consider the matter, as we have done on many occasions in the past; and when the Bill returns with the message from another

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place, it will be for us coolly, calmly, and, I hope, with a sense of responsibility, to consider what is sent to us, and then for us to make our decision. My Lords, I commend that action to your Lordships' House—
Lord GOODMAN: My Lords, before the noble Lord sits down, would he be good enough to dissociate himself from the remarks of the noble Lord who indicated that if this House did decide to take a particular course, that the most terrible things might happen to it? That does not seem to me consistent with an attitude of leaving the matter to be determined by cool objectivity.
Lord SHEPHERD: My Lords, I do not think that I am called upon to dissociate myself from any speech made by my noble friends, or any speech made in any other part of the House. As to what dreadful effect might fall upon your Lordships' House—well, it might be that the bar and the guests' room and the lounge would become more crowded. That would be, as the noble and learned Lord himself suggested, a way of dealing with the situation. The Liberal Party, I believe, consider this as a means. I hope that this will not arise. I think that it is still a long way away and I think that cool and wise heads should now prevail.
On Question, Bill passed, and returned to the Commons.

MENTAL HEALTH (AMENDMENT) BILL
3.45 p.m.
Baroness BACON: My Lords, I beg to move that this Bill be now read a second time. This Bill was introduced into another place by Mr. William Whitlock who was successful in the ballot for Private Members' Bills. There it was an agreed non-controversial Bill, and it passed all its stages, not only without amendment but without any Amendments being moved. The Government support this Bill—perhaps that is an understatement, because I feel quite sure that had Mr. Whitlock not introduced this Bill as a Private Member's Bill, the Government themselves would have had to introduce it at some other time.
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The Bill amends the 1959 Mental Health Act in order to restore the position that the Government thought was the case until a High Court judgment in July 1972. Often Parliament passes Acts of Parliament believing that those Acts mean one thing, and subsequently a court rules differently. In this case it is desirable to make this amendment, otherwise a few patients might be discharged before they are fit to be discharged, with danger to themselves and others.
Perhaps I should explain that under the Mental Health Act 1959 patients compulsorily admitted to hospitals must suffer from one of four classes of disorder. These are: mental illness; severe subnormality; psychopathic disorder; and subnormality. A person aged over 21 and suffering from either, or both, subnormality and psychopathy, may be compulsorily admitted for treatment only if ordered by a court or transferred from prison. A psychopathic or subnormal patient, admitted under 21, can continue to be detained after the age of 25 only if the responsible medical officer considers that he is likely to act in a manner dangerous to himself and others, if discharged.
As time goes on, the diagnosis of a patient may change. A patient admitted suffering from mental illness or severe subnormality may be reclassified as suffering from psychopathic disorder and/or subnormality and no other disorder. Before the High Court's decision, it was thought that a patient reclassified in this way after the age of 25 could continue to be detained; but the High Court ruled otherwise. It ruled that if a patient— other than one subject to a court order— is reclassified as psychopathic and/or subnormal after the age of 25, that patient cannot be detained, no matter how dangerous he or she may be. This judgment in the High Court also cast doubt upon whether there is authority to detain a person so reclassified between the ages of 21 and 25. It also cast doubt in relation to some patients detained under a court order.
The purpose of this Bill is to provide for the examination of all such reclassified patients to see whether they would be likely to act in a dangerous manner if discharged. If so, the medical officer would make a report recommending

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continued detention. Both the patient and the nearest relative would be informed of the contents of such a report, and the patient would of course have the right to apply to the Mental Health Review Tribunal. If the medical officer does not make a report saying that the patient will be likely to act in a manner dangerous to himself or others if released, the authority for detention will lapse and the patient will be released. If the patient is detained, there will also be the two-yearly reports by the doctor, and if not considered dangerous the patient will be freed.
The number of patients affected in this way is very small, and of these the number thought to be dangerous is of course even smaller. Even so, there could be a tragic incident. I hope, therefore, that this House will give a Second Reading to this useful Bill amending the Mental Health Act. It does not disturb the existing philosophy of striking a just balance between freedom of the individual, on the one hand, and protection of the public, on the other. My Lords, I beg to move.
Moved, That the Bill be now read 2a. —(Baroness Bacon.)
3.51 p.m.
Lord ABERDARE: My Lords, we are all grateful to the noble Baroness, Lady Bacon, for having explained very lucidly what is, on the face of it, an extremely complicated little Bill. But, as she says, it is a non-controversial Bill. Its objects seem to me to be wholly desirable and indeed, as she said, it only puts into effect something we always thought was meant to be the effect of the relevant Act. It seems to me to be quite right, and indeed to the advantage of both the patient and the general public, that this amendment should be made. After all, it would be highly undesirable if somebody who was thought to be dangerous to himself and to others were allowed to be released from a mental hospital on what is something of a technicality. The safeguard of appeal to the Mental Health Review Tribunal remains. Therefore, so far as we on these Benches are concerned, we are pleased to support this Bill.
3.53 p.m.
Baroness ROBSON of KIDDINGTON: My Lords, from these Benches I am
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equally pleased to support the amendment Bill, particularly as the case that gave rise to it arose in my predecessor's time in the South-West Metropolitan Hospital Board area. There are one or two points which we should consider. Obviously, it is right that the person who is a potential danger to himself or herself, or to the public at large, should be detainable within a mental institution. I am a little concerned about the safe-guards for the person suffering from a psychopathic complaint. Apart from the medical officer's report, I believe it could be necessary to introduce the same safe-guard that exists for a person before he is detained in a mental institution at all; in other words, to have two medical opinions recommending detention under the changed diagnosis.
Secondly, I believe we have here an opportunity to amend the Act even further. I further regret that the Bill deals only with Clause 26(2)(a)(i) and does not attempt to make an alteration to sub-paragraph (ii). Once we admit that it is perfectly reasonable and correct to detain within a mental institution somebody over the age of 25 who is suffering from a psychopathic disorder, which is what we are doing by this amendment, it might be correct to remove the age limit of 21 years in paragraph (ii), adding instead at the end of the paragraph, "who is considered to be a danger to the public". I should like, if possible, some assurance from the Government that the person being reclassified and detained within an institution will have the right of two medical opinions. Furthermore, unless I am assured by the Government that there is some possibility of detaining a person over the age of 21 if he is considered a danger to the public, without a reference from a penal institution, I give notice that I may put down an Amendment at the Committee stage.
3.56 p.m.
Lord ST. JUST: My Lords, I also should like to support this Bill. I am certain it is closing a loophole in the Mental Health Act 1959 and is definitely necessary. I personally think (and this is not in any way a Party political point) that that legislation is probably one of the greatest advancements in the treatment and legal position of people suffering from mental illness, or of those in

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mental institutions, bearing in mind the legislation that has gone through Parliament within the last 30 years. It strikes me as right that these patients over 25 should be able to be reclassifled. I personally have always been much concerned about patients suffering from any form of mental illness classified by this very vague term "psychopathic".
On that, one could quote a remark made by Dr. McGrath, who, as many of your Lordships will know, is medical superintendent of Broadmoor. Not long ago he said that if four psychiatrists around a table were asked for a definition of "a psychopath" one would receive five different answers! This is probably true. It is one of the most difficult diagnoses to make unless the patient is under closed conditions. It is most difficult for the medical profession, taking into account all branches of the psychiatric field, to come to a conclusion as to what a psychopathic disorder really is. However, one thing we do know is that people with these disorders are liable to be very dangerous to the public, and quite often to themselves. So, like others of your Lordships who have spoken on this minor adjustment to the Mental Health Act, I give it my full support.
3.59 p.m.
Lord WELLS-PESTELL: My Lords, if my noble friend Lady Bacon does not mind my saying so, we are indebted to all noble Lords who have spoken in this debate for their support of this Bill. I would express Government support for this measure. We are grateful to my noble friend Lady Bacon for giving it her sponsorship. She made it perfectly clear that this Bill in no way changes the spirit or intention of the Mental Health Act 1959, but simply seeks to provide protection, not only for the community but for the patient himself, from the unfortunate consequences that can result from a premature discharge. We have all been aware over the years of what has happened in instances of that kind.
It is important in a measure of this kind to ensure that the decision to continue the compulsory detention of a patient in a few small categories described by the noble Baroness is taken only when it is absolutely necessary. If
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one looks at the statistics over the years, one sees that the number of people who have been detained in our various institutions has fallen very dramatically. The Bill includes safeguards: in particular, that the patient or nearest relative—I want to emphasise this notwithstanding the fact that it has already been mentioned—has the right to apply to the Mental Health Review Tribunal for discharge, and the patient can continue to be detained only if the Mental Health Review Tribunal, having considered all the facts, is opposed to his discharge.
Viscount AMORY: My Lords, I think I heard the noble Lord say just now that the total number of these poor people in institutions has fallen substantially. That is very good news indeed. Can the noble Lord amplify that situation with one or two more sentences which would tell us how it has come about?
Lord WELLS-PESTELL: My Lords, I have tried to come to your Lordships' House fully informed on these matters. The short answer is that we would be surprised at the considerable advancement that there has been in recent years in the understanding of mental disorder, and that has been followed by a great deal of advance in the treatment of mental disorder.
Viscount AMORY: My Lords, I was certainly not trying to trip up the noble Lord; but it seemed to me a piece of rather encouraging news.
Lord WELLS-PESTELL: My Lords, I served for some years on certain Mental Health Review Tribunals and saw this, and I am sure the noble Baroness, Lady Robson of Kiddington, has seen the dramatic reduction in the number of people who are in our mental institutions. My honourable friend the Minister of State for Health in another place said that in 1955 70 per cent. of the patients at any one time were detained, while 30 per cent. were voluntary patients. Today, only 10 per cent. are detained and the rest receive treatment and care informally. When I used the word "dramatic" I meant it was rather a dramatic change. The noble Baroness, Lady Robson of Kiddington, mentioned that she felt there should be two medically competent people to be responsible for a reclassification. If

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I may express a personal opinion— although I am sure I ought not to do so— that seems to me to be very reasonable. I am informed that the 1959 Act already provides that, whenever a patient is re-classified, he shall be told and can apply to the Tribunal if he is dissatisfied. It would appear to be inconsistent with other provisions in the Act to require reclassification in these cases to be certified by two doctors, but this is a matter which, if I could make this point to the noble Baroness, is one I could ask my honourable friend the Minister of State for Health to have in the forefront of his mind when consideration is to be given to the Mental Health Acts in the immediate future.
I think I am right in saying that my honourable friend promised in another place that a review would be undertaken of the Mental Health Acts, and he hoped something would emerge before the end of this year. I should not like to hold him to that statement but, if it results in a White Paper, there is no reason why it should not be debated in your Lordships' House. The noble Baroness may feel that this is a way of dealing with it, and I will certainly undertake to bring this to the notice of my honourable friend because the point she raised seems reasonable to me. If, on the other hand, the noble Baroness, Lady Robson of Kiddington, feels this is a matter which the House ought to deal with much sooner, then, of course, there is a Committee stage, but perhaps it ought to be considered by a larger group, bearing in mind what is involved and the necessity of it. This could be done in the way I suggested originally.
The noble Baroness, Lady Robson, of Kiddington, mentioned Section 26(2) (a) (ii) of the 1959 Act. This might be a proper undertaking for the review of the Mental Health Acts which the Minister of State has announced, and, again, if it will satisfy the noble Baroness, I will give an undertaking to bring this to his notice. It seems to me they are both matters which ought to be looked at, and if the noble Baroness feels there is no undue haste required in this matter, I will see that his attention is drawn to it.
My Lords, I do not think I need say any more; I hope the House will agree
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to this Bill because it is necessary to close a small gap in the 1959 Act which was revealed by the High Court judgment in 1972. I am very grateful, as I often am, to the noble Lord, Lord Aberdare, for giving it his approval, because I know of his experience and knowledge in this field.
4.8 p.m.
Baroness BACON: My Lords, I should like to thank all the Members of your Lordships' House who have spoken and supported this Bill. The noble Baroness, Lady Robson of Kiddington, raised two points. The first was she wanted the Bill to go a little wider than it does regarding Section 26(2) (a) (ii) of the Mental Health Act of 1959. I hope we will not widen this small Act too much because, as the noble Lord, Lord Wells-Pestell, has said, there will be opportunities to consider this when we discuss the various reviews which are taking place.
In another place the Minister of State, Dr. Owen, said that the Committee on Mentally Abnormal Offenders, under the Chairmanship of Lord Butler of Saffron Walden, which had been reviewing these provisions relating to offenders, had completed its Report which would probably be published in the summer. In addition to that, as my noble friend Lord Wells-Pestell said, at the present time a review is being undertaken of the working of the Mental Health Act. As he pointed out, the Minister of State, Dr. David Owen, said that there would be a Consultative Document setting out the provisional conclusions of those various bodies which had been considering the matter, to be published, perhaps, by the end of this year. The Government would then consider any Amendments which might be necessary to the Mental Health Act.
The noble Baroness, Lady Robson of Kiddington, also raised the question of the two medical opinions instead of one. I was not clear whether, as my noble friend Lord Wells-Pestell understood it, she thought there ought to be two doctors in reclassification, or whether there ought to be two doctors once reclassification had taken place, in order to decide whether or not the patient was potentially dangerous.
This is something which could be considered. My first reaction to it is that, first of all, we might be putting in opera

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tion different procedures for a few patients as compared with the procedures for the majority of patients in the hospital. The only time I had experience of this was when I was at the Home Office, and those patients who were there by court order, or had been transferred from prison, came before us to see whether or not they could be released. I have the greatest admiration for a doctor at one of the special institutions—I will not mention names—for the wonderful way he dealt with those problems.
It was almost uncanny to see the way he would recommend whether patient A should be retained or patient B released. He hardly ever made a mistake. Of course, we know one or two mistakes have been made but, in view of the hundreds of cases considered for release—I am speaking here of release not reclassification—I think the doctors deal with them magnificently. This is something which my noble friend has said he will bring to the notice of the Minister of State. I can only thank, once again, those who have contributed to this debate, and hope that the Bill will be passed.
On Question, Bill read 2a, and committed to a Committee of the Whole House.

EUROPEAN COMMUNITIES COMMITTEE REPORTS
4.11 p.m.
Lord DIPLOCK Lord DIPLOCK rose to move, That this House take note of the Tenth, Thirteenth and Fifteenth Reports of the European Communities Committee on the direct applicability of Directives, on the amendment of United Kingdom Statutes by EEC Regulations and Legislation in the United Kingdom consequential on EEC proposals, and on the direct applicability of Articles 48, 52 and 59 of the Treaty of Rome. The noble and learned Lord said: My Lords, I beg to move that this House take note of three Reports of the European Communities Committee. Those Reports have a common subject matter: that is, the Community laws which are directly applicable in the United Kingdom.
Your Lordships will no doubt recall that there are two kinds of Community law. The first kind are those that are directly applicable, in the sense that they
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are capable of giving rise to rights and obligations directly enforceable in this country; and they are directly applicable because Parliament so enacted in Section 2(1) of the European Communities Act 1972 that they should have the force of law in the United Kingdom. They comprise some provisions of the Treaty itself but mainly Regulations made under the Treaty. The other class relates to those not directly applicable. They consist mainly of Directives which state the object to be achieved but have no direct effect until we make the necessary alterations in the United Kingdom law.
I am afraid that the problems raised by these Reports are dry and technical problems, but they are important in order to ensure the smooth working of the machinery of the Common Market. They do not involve any great question of principle, and in view of the strong feelings which are likely to be held at this particular time before the referendum, it is appropriate that I should put them into perspective by explaining what this debate is not about. It is not about that emotive issue of sovereignty. There are a few provisions of the Treaty which are directly applicable—in effect those that state some basic principles—and, as I say, Section 2(1) of the European Communities Act made them part of United Kingdom law. There is nothing novel in that. It is common to all commercial conventions into which this country enters. The effect is that those provisions cannot be amended except by a somewhat elaborate procedure of amendment of the Treaty itself. That is what happens when we pass an Act of Parliament which gives effect to an International Convention. One of the most conspicuous examples was the Carriage of Goods by Sea Act of 1924, which gave effect to the international Convention known as The Hague Rules.
The same applies to the Regulations and Directives made by the Council of the Communities before our accession to the Treaty—a Council on which the United Kingdom, naturally, was not represented. It applies, however, with an important difference. Again, Parliament had the opportunity of debating these in 1972. They involved some amendments in the existing laws or some new laws, and these were made in Part II of the European Communities Act 1972. The important difference between them and provisions of

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the Treaty is that these can be amended with comparative ease, and the flexibility of the amendment procedure is dramatically illustrated by the fact that all those changes which have come, or are about to come, about as a result of the renegotiation were made under that amending power and require no amendment of the Treaty itself.
In addition, there are those Regulations and Directives made after we acceded to the Treaty and those which are to be made in future, at a time when we are represented by a Minister on the Council. These present the only constitutional novelty in the Treaty of Rome, but they do not involve any abandonment of national or Parliamentary sovereignty: they affect only the method by which effect is given to that sovereignty.
First, as to national sovereignty, it is important to realise that institutionally the Treaty itself provides a skeleton structure. The conventions which have grown up as to its practical working give to it flesh and blood, flesh and blood which is capable of growing and which is flexible and adaptable to changing conditions. The Treaty itself provides for various classes of Regulations and Directives. All the important ones are made by the Council, and I shall restrict myself to them. The most important and far-reaching of them under the Treaty require the unanimous agreement of all the Member-States represented on the Council, the less important require a qualified majority and the least important a simple majority.
That is the skeleton provided by the Treaty. But in practice there is a convention under the Luxembourg Accord which provides to the United Kingdom, as it provides to every Member-State an understanding that it may exercise a right of veto on any proposed Community legislation where it considers that this would affect adversely its vital interest. The Luxembourg Accord is a constitutional convention. It is not contrary to the Treaty, for the Council is justified in considering that an action contrary to the vital interest of any Member-State is not in the interests of the Community itself; so far as possible accession regulations are concerned, none will be made in practice for the United Kingdom Government which the United Kingdom
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Government regard as contrary to the vital interest of this country. So much for national sovereignty.
Parliamentary sovereignty relates to the control which Parliament can exercise, over the way Government exercise national sovereignty in the Council of Ministers. That depends on our devising for ourselves adequate machinery for consideration and discussion by both Houses of Parliament of Community laws before they are made. This is important because, while there is a veto upon making Community laws, amendment of them does require support of other Member-States. This problem is a domestic problem. The solution lies not in Brussels, but here in Westminster. It is up to us to devise and operate effective machinery for doing that. On the European Communities Committee, we are feeling our way to improvements in that machinery; and this debate and the earlier debates which we have had of a similar nature on Reports of the Committee are examples of the way in which this House can consider and express to Government its views about Community legislation, and can express them before it is made. So this debate is not about great principles of national or Parliamentary sovereignty.
The other point I should like to make clear is that it does not involve any criticism of those judgments of the European Court of Justice which are dealt with in the Tenth and Fifteenth Reports. Any such criticism would, in any event, come ill from me; dog does not eat dog. But the rule of law requires the uniform application of written laws throughout the territory in which they are enforced. Because of the imperfections of language, it is inevitable that there will be, from time to time, some ambiguities in the way the law is expressed. The rule of law requires that there should be some judicial authority with ultimate power to resolve disputes as to the meaning of written laws and to say authoritatively what they mean.
United Kingdom laws are the function of the Judicial Committee of this House, but Community laws apply not only in this country but throughout the Member-States. It would obviously be as un-acceptable to members of other Member-States that United Kingdom courts should be the final interpreters of Community

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legislation as it would be unacceptable to us that the Courts of France, of very distinguished membership, should be the final arbiters. The Treaty confides this task to the European Court of Justice upon which the judiciary of all the Member-States is represented; and Parliament has accepted this by enacting in Section 3 of the European Communities Act that their interpretation of the Treaty shall be decisive. I may add that there is nothing very novel in this, either. The English courts would, under their present practice, follow the ruling of the International Court as to the meaning of a treaty which we have adopted into our English law, because they would take the view—and this is the authorities—that they will not give to it a meaning which would involve this country in breach of international obligation.
It is in the nature of things, because of the possibility of ambiguity in any written law, that Community institutions and Governments of Member-States may act on the assumption that the Community law means something different from what it is later held to mean by the European court. That is what gives rise to the technical problems referred to in the Tenth and Fifteenth Reports, which are the basic subject of the debate this afternoon. Again there is nothing novel in this. It happens frequently in the case of complex United Kingdom law that, maybe some years after it is passed, the Judicial Committee of this House says that it means something quite different from what everyone had assumed it meant before. This is one of the consequences of the rule of law, it is one of the disadvantages; but there are advantages which far outweigh them. In the interests of certainty, so that citizens, public authorities and Governments may know where they stand, it is important that a written law should not remain unrepealed upon the Statute Book when, in fact, it has been repealed.
An apparently valid domestic law may be in conflict with a directly applicable Community law. If it is certain at the time that the Community law is made whether or not it is directly applicable, there is no problem involved. If it is directly applicable, it has the same effect as an Act of Parliament. It may, and very much more often than not does,
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effect no change in our existing law. Then all its effect here is that it is declaratory of the law as it has been before, and the effect of such a directly applicable law is to bring the laws of other States into line with the Common Law or the Statutory Law of the United Kingdom. But it may conflict with a previous Act of Parliament or subordinate legislation.
If nothing were done, it would effect repeal of any inconsistent Act or subordinate legislation by implication and effect that repeal to the extent of the inconsistency; but in the interest of certainty we in the United Kingdom do not leave laws upon the Statute Book to be repealed by implication. We repeal them expressly, or we amend them to avoid the inconsistency. That is why the terms of reference of the Law Sub-Committee of the Select Committee require that Committee to consider what Amendments, if any, will be needed to our existing law as a result of the new, directly applicable Community law, and the only problem is to ensure that all the necessary repeals and Amendments are made. This is no different from the problem that confronts the Parliamentary draftsman whenever a new Act of Parliament is passed. I can pay this tribute to the efficiency with which Parliamentary draftsmen can, and do, discharge that task when I say that in the whole of my judicial experience, which now extends to nearly twenty years, I cannot remember a single case in which he has slipped up in that respect.
Let me again put this problem, the problem of the legislation which is known to be directly applicable, in focus. You will see in the Thirteenth Report that, since it was reconstituted in November 1974—since I have presided over it—95 proposals for Regulations have been considered by the Law Sub-Committee; 77 of them involved no alteration at all in our existing law; 18 required changes in subordinate legislation only, and none required any alteration to an Act of Parliament or an Amendment to an Act of Parliament. The Brussels steamroller is rolling only a very small proportion of our law.
What is the problem with Community law that is known to be not directly applicable? There it is up to us to pass any domestic legislation which may be needed to achieve the required result.

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Naturally, this is more likely to require domestic legislation than are Regulations. But again you will find if you study the Thirteenth Report that, of 50 Directives, only four required some amendment to our Statutory Law and 28 of them required only Statutory Instruments.
What is the difficulty that may arise here? The only difficulty is if the draftsman misinterprets the object to be achieved. If he does, the only result is that the United Kingdom as a Member-State would be inadvertently in breach of its obligations under the Treaty and could be brought before the European Court, as there is some suggestion that the French Government will be brought before the European Court in the case of the recent dispute with Italy about surplus wine. The risk of misinterpretation is limited by the requirement which most Directives now contain, that the Member-State should inform the Commission of what legislation it proposes to use to achieve the desired object. If, therefore, there is any difference between the Government draftsman here and the legal members of the Commission, that difference, and the risk of any misinterpretation, can be solved and, one would have thought, eliminated at that stage.
So long as it is certain that a particular piece of Community law is directly applicable, or is not directly applicable, so long as it is certain into which category it falls, there are no technical difficulties about our dealing with the problem which we have to deal with here at Westminster. The technical difficulties arise only when it is uncertain whether or not the Community law is directly applicable—that is, whether domestic legislation is necessary in order to give effect to it. That involves the risk that there may be two laws on the same subject which are in conflict, only one of which is sought by everybody to be the effective law.
This may happen in two sets of circumstances. The first is where Community institutions themselves, or Member-States, act on the assumption that a provision of the Treaty itself is not applicable and the European Court later rules that it is. That is a diminishing problem, because in the course of 17 years rulings have been obtained from
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the European Court on all, or nearly all, of those provisions of the Treaty which, on any view, could possibly be directly applicable. However, it happened in the case of three Articles dealing with freedom of movement, persons and services, which are dealt with in the Fifteenth Report, and it also happened when a provision, not in a Regulation but in a Directive, was held to be directly applicable. It was in the case that came from this country, the Van Duyn case, and that is the subject of the Tenth Report.
The practical problems which arise from an uncertainty as to whether or not a Community law is directly applicable are much more troublesome in the case of Directives than in the case of a provision of the Treaty, quite apart from the diminishing likelihood that there can be other provisions of the Treaty which the European Court has not already ruled on and might later rule to be directly applicable. Where it does happen, as it happened in the case of those three Articles dealt with in the Fifteenth Report, it may have repealed domestic legislation in a Member-State which the Member-State assumed would remain in force until a Directive or a Regulation had been issued. In the particular case referred to in the Fifteenth Report, the Court's ruling invalidated restrictions upon self-employed activities and services which were based exclusively upon nationality or residence.
Such restrictions are not uncommon in some of the other Member-States, but they are rare indeed in the United Kingdom, so that the practical effect of this ruling in this country is likely to be minimal. The Law Sub-Committee has been unable to discover any such restriction which would have been invalidated by this ruling of the Court, but I would suggest that it is worth while for Government Departments to double-check this. We do not have in the Committee all the resources at our command to be absolutely certain that we are right in saying that this will have no effect at all upon United Kingdom legislation.
But in the case of Directives, it is much more troublesome if one finds out afterwards that what was thought not to be directly applicable, is in fact directly applicable. Prima facie what Directives require Member-States to do is to pass any domestic legislation which is neces

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sary to give effect to all the provisions of the Directives. If that is done and we pass legislation, as we believe to be our duty under the Treaty, to secure a particular result, then all citizens are entitled to act, or feel at any rate that they should be entitled to act, on the assumption that the domestic law which appears to govern them, does in fact govern their activities and they ought to be safe in acting on that assumption. That is the requirement of certainty which is basic to the rule of law.
But if the Government act on the assumption that this Directive requires us to pass domestic legislation, it is possible that a long time afterwards—and in the Van Duyn case it was 10 years after the Directive had been made—the European Court may rule that the provision was directly applicable. The result might well have been that during those 10 years there had apparently been in force valid domestic legislation in this country, passed to achieve the object of the Directive, on which people had acted, changed their position, incurred liabilities and the like only to find, 10 years thereafter, that what was really the law in force in this country was a directly applicable provision of the Directive which it might be—and this is the risk one must avoid—was in some respects in conflict with the legislation that had been passed. That is a risk. I do not want to exaggerate its incidence; probably it could happen very seldom indeed. But it is a risk that we ought to take all possible steps to avoid, if we are to get this institution working smoothly so far as Community laws are concerned.
I venture to suggest for the consideration of Government that that risk can be avoided and, I think, eliminated. Whether or not a provision of a Directive is directly applicable depends on the intention of the Council when it made the Directive, as gathered by the words that it used. In the Van Duyn case, the European Court decided that the intention of the Council, as gathered from the words it used, must have been that that provision of the Directive should be directly applicable. So the solution is this. One must make certain ab initio, at the moment the Directive is made, whether any provision of it is intended by the Council—because it is their inten
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tion that matters—to be directly applicable, and the Council should adopt the practice, when making Directives in the future, of stating expressly whether any of their provisions are intended to be directly applicable, and if so which those provisions are.
There is a precedent for putting that kind of statement in Community legislation. Many of them contain an express statement—although this has up to now been confined to Regulations—that something is to be directly applicable. If a similar practice were extended to Directives, then those difficulties to which attention is drawn in the Tenth Report of the Committee could be eliminated. The probable result of that, in practice, would be that the Council would declare, as a matter of routine, that no provisions of a Directive were intended to be directly applicable, and would confine directly applicable provisions to Regulations as it had been understood they were confined.
I say that would be the practical result of this proposal for two reasons. One is the technical reason that a provision is capable of being directly applicable only if it satisfies certain criteria which have, till now, been laid down only on very broad lines by the European Court. At present it is not easy to determine in advance whether the European Court will ultimately say that this is a provision which is capable of being directly applicable. If the Council have said that it was intended to be directly applicable when it is not capable of having that effect, then it will not have the effect of direct applicability. So the Council avoid the risk of similar difficulties to those in which we find ourselves as a result of the ruling by sticking to Regulations for what they wish to be directly applicable, and to Directives for what they wish should not be so. That would restore the position to what it was before the decision in the Van Duyn case. It would leave clear cut the dividing line between laws that are directly applicable and those that are not.
My Lords, one sees a Regulation and one knows it is directly applicable; one sees a Directive and knows that it is not, and that it is up to this country to make its own domestic legislation to secure the result achieved. If that were done, then no difficulties would arise as a result of

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the decision of the European Court, which was the result of its interpretation of the Treaty that a provision in a Directive is capable of being directly applicable. It will still remain capable of being directly applicable, but at any rate one will be sure whether it is or not. If the policy which I have suggested is adopted, the practical result I think will be to restore the position to what it was before. Regulations directly applicable, yes; Directives directly applicable, no—then we know where we are. There are no technical difficulties in giving effect in this country to laws passed by the Community, by the Council of Ministers on which we are represented, and on which under the Convention we have the right of veto if we feel that our vital national interests are affected. My Lords, I beg to move.
Moved, That this House takes note of the Tenth, Thirteenth and Fifteenth Reports of the European Communities Committee on the direct applicability of Directives, on the amendment of United Kingdom Statutes by EEC Regulations and legislation in the United Kingdom consequential on EEC proposals, and on the direct applicability of Articles 48, 52 and 59 of the Treaty of Rome — (Lord Diplock.)
4.55 p.m.
The LORD CHANCELLOR: My Lords, at the outset, I should like to thank the noble and learned Lord, Lord Diplock, for his authoritative and lucid exposition of the matters raised in the three most valuable Reports that had been received from the Select Committee, and to congratulate the Select Committee on the quality of these Reports in a highly technical and difficult field. The Reports contain a careful and incisive analysis of important and legal developments in the Communities. It is of the greatest help to have placed before us their clear statements of the present position in Community law, and of the consequences for the internal law of the United Kingdom. I should like, as the noble and learned Lord has done, to make some comments on the Tenth Report, which seems to be the most important of the three documents.
My Lords, until recent years, the possibility of the direct application of the provisions in international treaties entered
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into by the United Kingdom, that is, the possibility of such provision operating directly as law in this country as legal texts which a person could invoke before the courts of this country to assert his rights and obligations, was exceptional. It has not been unknown for our legislation, however, to give the force of law in the United Kingdom to the provisions of particular international treaties—the Uniform Laws on International Sales Act 1967, is perhaps an example—but it has not been common.
It is undoubtedly the case that with our membership of the European Communities, direct applicability has assumed a new and different dimension. The direct application of some Instruments issued by the European Communities, the Regulations, as the noble and learned Lord pointed out, is a fundamental feature of the legal relationships created by the Community Treaties. The EEC Treaty expressly says so in Article 189. So the principle of direct application of Regulations has been known, too, and accepted by the House for some time past. We have also known that ever since 1963 the provisions of the Treaties themselves could be of direct application because the European Court has ruled to that effect.
The doctrine of the direct application of provisions in Directives, however, is more unexpected though, as the Tenth Report indicates, not a complete novelty. It was on the cards that something of the kind would be developed in the case law of the European Court since the series of cases in 1970–71 to which the Report refers. But the recent decision in the case of Van Duyn and the Home Office has taken the matter further. It is right, as the noble and learned Lord has just done, that we as a House should examine its implications with considerable care, and it is with some trepidation that I myself will proceed so to do.
My Lords, the House will remember that this case, the first case referred to the European Court by a British court, concerned a claim by a Dutch national, a scientologist, that she was entitled as of right under the EEC Treaty to enter this country to take up employment in the headquarters of the scientologists at East Grinstead, in Sussex. She was denied entry in accordance with the declared policy of Her Majesty's Government not

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to allow foreigners to enter this country to join scientological establishments which, as a matter of policy, we regard as harmful. The judgment of the European Court confirmed, as the Government had urged, that Member-States do retain a considerable measure of discretion in deciding on what grounds of public interest they may deny entry into their countries of nationals of other EEC countries. So, on the main issue which arose in the case, our right to deny entry to the claimant in the action, we were entirely successful.
But there was a preliminary question, as the noble and learned Lord has pointed out, whether the claimant could invoke some of the relevant Community provisions at all seeing that they were contained in Directives; could the relevant Directive contain directly applicable provisions. Previously such application had been attributed to a provision in a Directive only in very special circumstances; namely, where the Directive prescribed the date of coming into operation of another instrument which was of itself of direct application, rather like the commencement order in a United Kingdom Statute, and there are obviously special reasons for treating such a Directive in that way.
The court in the Van Duyn case has gone further and has reasoned that, since the Treaty makes Directives binding as to the result to be achieved upon Member-States, it would be wrong in principle to exclude the possibility that some obligation which they imposed may be invoked directly by individuals. But it is still very much open to argument how much wider the door has been opened. I venture to suggest that the extension is not as great as may appear at first sight and that its practical consequences for this country should not be overrated. A significant passage in the judgment reads:
" It is necessary to examine in every case whether the nature, general scheme and wording of the provision in question are capable of having direct effects on the relations between Member-States and individuals."
So the first limitation, as I see it, is this: as the direct application of provisions in Directives flows from the fact that the obligations imposed by them are binding on the Member-States, a directly applicable provision can be invoked only against a State. I do not think that it
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could be invoked by one private person against another. Secondly, the tests applied by the court in the only relevant case so far, the Van Duyn case, were so narrow that they would very rarely be satisfied. The court attributed direct effects to the relevant provisions in the Van Duyn circumstances because, first, the relevant provisions imposed a precise, definite and unconditional obligation on the Member-States, and, secondly, these provisions limited for the benefit of individuals the operation of the Treaty provision which derogates from one of the fundamental freedoms conferred by the Treaty. Very exceptional cases, which I mentioned earlier, apart, there is as yet no other authority attributing direct effect to provisions in Directives.
It may, however, well be that direct effect could in time be attributed more Widely. It is, as the court has said, necessary to examine the nature, general scheme and wording of each provision, and further tests will emerge only in the future decisions of the court. However, there is the possibility of difficulties arising of the kind indicated in the Report itself. But I believe and accept the view which is taken by the Select Committee when they say at the beginning of paragraph 14:
" It is not suggested that it is likely that there would be many actual cases of conflict between domestic law and a directly applicable provision of a Directive."
However, as the noble and learned Lord has pointed out, the risk is there, and it is imperative that, so far as possible, it should be eliminated. I can assure the House that the Government will wish to take all appropriate steps to minimise the risk that the problems to which the noble and learned Lord has drawn attention, and to which the Report refers, will ever arise. When a decision has been taken on our continuing membership of the Communities, we shall, if it is affirmative, certainly explore with the authorities in Brussels and with our Treaty partners the possible solution to the problem which is put forward at the end of the Report, and which the noble and learned Lord has described.
The relevant paragraph is paragraph 14, and perhaps the House will permit me to read it:
"It is not suggested that it is likely that there would be many actual cases of conflict

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between domestic law and a directly applicable provision of a Directive, but the risk is sufficiently real to make it desirable to take steps to eliminate it. The risk arises from the existence of a doubt as to whether a particular provision of a Directive is directly applicable, or not. To remove the doubt would be to remove the risk. It is suggested that in order to remove the doubt caused by the ruling of the European Court the Commission and the Council might adopt the practice of stating expressly in a Directive which, if any, of its provisions were intended to be directly applicable."
I assure the House that we shall pursue the possibilities of forwarding that solution with the relevant authorities in Brussels and with our Treaty partners. Whether or not we shall succeed remains to be seen.
I should like to add a few words on the Thirteenth and Fifteenth Reports. Noble Lords will welcome the clear exposition in the Fifteenth Report of the recent decisions of the European Court in the Reyners case and the Van Binsbergen case, to which the noble and learned Lord referred, and I am sure it will help the House in appreciating the extent of the rights which are now enjoyed by all persons in the Member-States in regard to the exercise of their professions or the pursuit of their work in other Member-States. I should perhaps express some reservations about the tentative conclusion suggested in paragraphs 8(6) and (12) of the Report, which, I suggest, may go a little further than the cases justify. But these are matters which will require further examination when other Directives come before the Council of Ministers. Meanwhile, I can assure the House that the examination of the existing law and administrative practices, to make sure that gainful work or professional activities of EEC nationals in the United Kingdom are not improperly restricted, to which reference is made at the end of the Report, is already being undertaken.
I do not propose to comment extensively on what is said in the Thirteenth Report about amendments to Statutes by EEC Regulations. It seems to me, with respect, to summarise the position admirably. I should, however, like to add a special word of appreciation on the statistics on European Proposals which appear in Part IV of the Report to which the noble and learned Lord has referred. They seem to me to provide evidence of
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a most valuable kind to dispel fears, which I confess many of us felt and which are still being expressed in certain quarters, about Community legislation inundating the country in a flood or overwhelming the law to which we are accustomed. In the statistics, there is evidence of a practical kind, covering probably the greater part of the two and a half years of our membership of the European Communities, which indicates that the total impact on our Statute Book has been very small. As the noble and learned Lord pointed out, only a handful of occasions for amendments of Statutes have arisen so far, and it is indeed a reassuring picture. What is more, the list of subject matters on which there have been Community proposals is no less illuminating.
In the 1967 White Paper on the legal and constitutional implications of United Kingdom membership of the European Community, the previous Labour Administration said this:
" By far the greater part of our domestic law would remain unchanged. Nothing in the Community law would, for example, materially affect the general principles of our criminal law or those of the laws of contract or tort, or its Scottish equivalent. Nor would it affect the landlord, the relations of land-lords and tenants, housing and town and country planning law, matrimonial law, or the law of inheritance."
So far, the sample taken by the Committee in its assiduous study of the matter fully bears out what we then said. I commend the Reports to the House, and again thank the Select Committee for the herculean task that it is continuing to undertake, and which is clearly displayed so well in these three Reports.
5.11 p.m.
Lord HAILSHAM of SAINT MARYLEBONE: My Lords, I hope that the House will forgive me if I add only a few words in support of the two noble and learned Lords who have spoken so far. I have in fact lost the large wad of technical notes which I had prepared against this occasion, which I hope will greatly encourage those noble Lords who have endured so far, for the subject is, as they will by this time know, excruciatingly technical and, it may be, to those who are not eager and keen academic lawyers, somewhat dull.
I wish to confine my remarks almost entirely to the Van Duyn case, and to

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endorse some of the things that have been said, because there is a real danger of an inconvenience arising by reason of the decisions which have been made by the European Court. Before I do so, I should like to thank the noble and learned Lord, Lord Diplock, who has performed a very real service to the House and to the country by the work that he has done and is continuing to do on this highly technical subject. The fact that it gives so little trouble is really a mark of the success and importance of his work, and no indication whatever that it is of no interest to the community. I should also like to thank the noble and learned Lord on the Woolsack for his lucid speech in defining the Government's attitude.
The reason I wanted to say something about the Van Duyn case can be simply stated. When I gave the House during the course of, I think, the Committee stage of the Bill which enabled us to accede to the Common Market, a kind of preliminary inspection of what I then ventured to call "Eurolaw", I made a generalisation which is now becoming decreasingly true. I said that, broadly speaking, there were two sorts of Community subordinate legislation: Directives, which were designed to make Governments pass either legislation or Regulations of their own to conform with the European law, and Regulations and parts of the Treaty—but particularly Regulations—which required no action but which had automatic effect, and would be given effect to in the courts of this country. This was rooted in the very plain language of the Treaty itself, and although I indicated, because it was already becoming apparent, that there would be exceptions and that there were possibilities of Directives which had direct application like Regulations, these were at that time very exceptional and very few, and I advised the House at that stage to disregard them as unduly complicating the situation.
This doctrine of the direct applicability of some Directives has been developed since we joined the European Community. I am glad that both noble and learned Lords have indicated that this is a really very small matter, small in dimensions, and relatively unimportant in comparison with the great issues which will be dis
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cussed in the country in the next few weeks. But on the assumption which I make at any rate for this purpose, and certainly which I hope I make correctly, that we remain in the Community, there is none the less a real possibility of inconvenience arising from what has happened, and I want to explain to the House that inconvenience as I see it.
The business of the European Court is to enforce the law of the Community and to declare the law of the Community, and to prevent evasion. Like the noble and learned Lord from the Cross-Benches, I do not want to impugn the validity of any of the decisions that have been passed. This is not because of any doctrine of dog not eating dog—on the contrary, "dog" is almost my favourite diet—but because to impugn the only court which has jurisdiction in the matter is a somewhat airy and unprofitable exercise (except for academic lawyers who make their living by it) and also because they have different objectives in view to those which I want to discuss before the House this afternoon.
What has really happened is this. A Directive is supposed to tell a country what it ought to do to make its own law conform with that of the other countries in the Community. Suppose it does not do what it is told to do. The Court said quite early on that if there was a definite, definable obligation, and if there was a time limit and nothing whatever happened, the law was to be considered as directly applicable, so that it would not be any good if any country did not do what it was supposed to do. That was fairly all right, because at a given moment of time if one was advising one's client one would know that that time limit had expired, and from that moment onwards the law would be directly applicable. But it has now gone much further than that, and it is said that even if the country does not default in its obligation there are some Directives so plain in their nature that they have operation from the time when they are passed or given by the Council.
This is what might give rise to considerable inconvenience. As the noble and learned Lord on the Cross-Benches pointed out, supposing the country does do, or thinks it has done, or tries to do, what is expected of it in the Directive and there happens to be a botch-up by the

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Parliamentary draftsman—he gets it slightly wrong—it is then that the inhabitants of the country concerned will act upon the Regulation which purports to be in compliance with the Directive, will make their own arrangements, enter into commercial transactions based upon the faith of it, and may later find retrospectively the European Court declaring that, as from the beginning, the Directive itself was what you had to look at as a text, and it is different from the Regulation which has been imposed by the country.
This is a very small and technical matter, but it is ultimately the kind of mistake which ought not to be allowed to happen, because it is intolerable to the very few people who might find themselves in that situation. The fact that they are very few is really of small importance if the difficulty is one which can be avoided. 1 think that it can be avoided more or less on the lines which the noble and learned Lord suggested without in any way impugning what the European Court has decided.
It really is important that if the Council decides that it intends to make a Directive effective and of direct application ab initio it should say so. It should also in its Directives make it quite plain if it does not want it, and if it does want the Regulation to be imposed by local legislation it ought to say that. That is something which has nothing to do with the validity or otherwise of the decisions of the European Court, which are made in the interests of enforcing compliance with European law, with which I perfectly sympathise, but it is something that can be done by the Council of Ministers by a little careful draftsmanship. They have only to address their minds to the problem at the time when they issue the Directive, and answer the problem in such a way that nobody should be left in any doubt.
Personally, I think that there are a great many subjects which are best left to the local legislation of the countries concerned. It is not something which will need to be done on a great number of occasions; but when it is done let there be no doubt about it. I think that the noble and learned Lord on the Woolsack has given the assurance for which the noble and learned Lord, Lord Diplock, asked, and I am sure that when—I was
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going to say the "nonsense" of the Referendum is over (and I hope it will be and a favourable result obtained), the Government, led by the noble and learned Lord on the Woolsack—if they still remain in Office and if they are still united on every other subject, which does not look very likely—will then set about doing what the noble and learned Lord promised to do.
5.21 p.m.
Lord DIPLOCK: My Lords, I am very grateful to my noble and learned friend on the Woolsack for the very sympathetic reception which he has given to the three Reports of the Committee which have been the subject of the discussion tonight. I am particularly grateful to him for his assurance that the Government will consider, with the Council of Ministers and with the authorities in Brussels, the possibility of applying the solution to the problem which has been the main subject of discussion.
I hope that nothing that I said in opening this debate gave rise to the impression that I considered that the risk to which I referred in my speech, and which has been elaborated with much greater clarity by my noble and learned friend Lord Hailsham of Saint Marylebone is a risk which is of substantial size; that it is likely to occur on more than a minimum of occasions. But there is the risk; and if it can be eliminated let us eliminate it for the reasons given. It is not all that easy to say that the risk may not extend. My noble and learned friend on the Woolsack quoted a passage from the judgment of the court in the Van Duyn case, where they said it is necessary to examine in every case whether the nature, general scheme and wording of the provision in question are capable of having direct effects on the relations between Member-States and individuals. There is—and this is the difficulty at the moment and why one wants to get the solution enforced now— no case law beyond the Van Duyn case itself which sets down how the criteria are to be applied. This is a topic which it is in the nature of judicial decisions to develop. If anyone had been asked in 1972, when we were debating the European Communities Bill, whether a Directive could in any event (apart from the kind of Directive which simply puts

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a time limit to something which was already directly applicable) be itself directly applicable, I at any rate—and, I think, everyone in this House and everyone I know familiar with the Treaty— would have said, no. It has developed one step, as case law does develop, in the Van Duyn case. Let us make sure that it does not develop further. So long as there is a risk of its developing further, the uncertainty is made the greater. That is why I am grateful to my noble and learned friend on the Woolsack for the assurance that the matter will be looked into.
May I say one thing in ending? I ventured in my introductory remarks, when I tried to get the matter into perspective, to say that the way that Parliamentary sovereignty operates depends on us; the control which Parliament can have upon the way Ministers exercise national sovereignty depends on the machinery which we create ourselves in Westminster to ensure that there is an opportunity for discussion and for making known to Government the views of the Members of this House. This debate I think has shown that if this House uses the machinery which has already been set up, it is possible to convey to Government
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the views of this House and to bring those views to their attention so that they may pay regard to them when exercising sovereignty on behalf of the United Kingdom.
On Question, Motion agreed to.

COAL INDUSTRY BILL
Brought from the Commons; read la, and to be printed.

BRITISH WATERWAYS BILL
Examiners' Certificate that no further Standing Order is applicable: Ordered to lie on the Table.
FRIENDS' PROVIDENT LIFE OFFICE BILL

LONDON TRANSPORT (ADDITIONAL POWERS) BILL
Brought from the Commons; read la, and referred to the Examiners.
House adjourned at twenty-seven minutes past five o'clock.