Lords Sitting of 4 July 1975

Preamble
The House met at eleven of the clock: THE LORD CHANCELLOR On the Woolsack.
Prayers—Read by the Lord Bishop of Salisbury.

AIRCRAFT AND SHIPBUILDING INDUSTRIES BILL
The Earl of KINNOULL: 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 restrictions are now imposed by Clause 31 of the Aircraft and Shipbuilding Industries Bill (which it is now proposed to introduce next Session) on the investment policies and decisions of directors of companies affected by the Bill.
The MINISTER of STATE, DEPARTMENT of INDUSTRY (Lord Beswick): My Lords, the purpose of Clause 31 is to prevent transactions which seek to dissipate the assets of companies before vesting. It is certainly not intended to restrict investment and other commercial decisions taken in the normal course of business and in good faith. We have made clear our willingness to discuss any particular difficulties with the companies concerned.
The Earl of KINNOULL: My Lords, I thank the Minister for that assurance. Will he agree that as the clause is worded at present any directors of the companies involved who take an investment decision lay themselves open to subsequent claims under this clause? Will he confirm that point? And if it is not the intention of the Government to take such action, and, indeed, to have talks, can he indicate whether the Government will make a Statement?
Lord BESWICK: My Lords, I have made it clear—and I hope that we made it clear elsewhere—that any investment decision, taken in good faith, which does not dissipate assets does not lay anyone
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open to anything. But if there is a borderline case about which there is any doubt, we are always ready to discuss it.
The Earl of KINNOULL: My Lords, again may I thank the Minister for his reply? However, it seems to be one thing for the Minister to make it clear in this House now, and another thing to look at Clause 31 and see how it is worded. The two do not seem to be parallel. Could the Minister also say what are the Government's intentions regarding the timetable for introducing this Bill in the next Session?
Lord BESWICK: My Lords, on the first part of the noble Earl's question, what is intended by Clause 31 has been made clear in this House and also in discussion with the companies concerned. If the noble Earl has reason to believe that they are under any misapprehension, I shall be glad if he will tell me which case he has in mind. So far as the timetable is concerned, it is intended to introduce this Bill at the beginning of the next Session.
Lord SLATER: My Lords, is it not a rather strange procedure that Questions relating to a proposed measure that is to be introduced in both Houses of Parliament can be tabled before it is debated: that is, after the First Reading but before the Second Reading? Therefore, I should like guidance from my noble friend if that is at all possible.
Lord BESWICK: My Lords, I greatly appreciate my noble friend's anxiety to protect me, but the fact is that this Bill has had a First Reading. Therefore it is open for discussion. May I also say that we have taken special care to ensure that it is properly discussed.
Lord HARMAR-NICHOLLS: My Lords, does the noble Lord suggest that the wording is not sufficiently specific so that we cannot tell exactly where we stand in thinking of investment? To talk of "borderline cases" and "in good faith" inhibits what I consider to be a fair decision about what one's future investments will be. It is this kind of uncertainty which makes it very difficult for people to enter with confidence into the investment which the nation needs.
Lord BESWICK: My Lords, if every Act of Parliament were so clear that the

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noble Lord opposite and myself could understand it, there would be no work for the lawyers to do! The intention is as clear as it can be made, but if there are difficulties we are perfectly prepared, as I have said, to discuss them.
Lord STRATHCONA and MOUNT ROYAL: My Lords, can the noble Lord tell us what he means by "good faith"? "Good faith" towards whom—towards the Government or towards the shareholders?
Lord BESWICK: My Lords, if it came to that it would be a matter for issue in the courts.
The Earl of KINNOULL: My Lords, is the Minister aware that there is worry about the compensation payments in the Bill? This is a worry not only to the directors but to the shareholders, and, indeed, to the banking world who have to put up the investment money. Can the Minister say whether the Government have powers to underwrite certain investments during this twilight period?
Lord BESWICK: My Lords, the compensation proposals are as fair as we can possibly make them, although different people may have different ideas about what is fair. Nevertheless, we believe that we have struck the right medium. So far as the second part of the noble Lord's question is concerned, it would be possible to do what he suggests.

PUBLIC LENDING RIGHT BILL [H.L.]
11.10 a.m.
Lord WILLIS: My Lords, I beg to move that this Bill be now read a second time. In doing so, I should like to declare a twofold interest. I am an author with books in public libraries and I intend to write more of them. Secondly, I use the public library system a great deal both for pleasure and as an aid in my professional work. For these reasons, I want to see the free library system prosper and this Bill will materially help towards that end. May I also say that I am grateful to the large number of noble Lords who have put down their names to speak in this debate. It is a great indication of the interest that there is in this important issue. I hope that we shall
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not cut too far into the Ladies' Singles Final at Wimbledon. The noble Lord, Lord Goodman, wrote to me and said he was making a great sacrifice by coming here today. In fact, he said in his letter that he has not missed a Ladies' Singles Final at Wimbledon for a hundred years! I must say that I admire his taste. At least we are sure of a varied, gracious and good game of tennis. It will be a little different from some of the boorish behaviour we get from the men.
The situation of literature is usually considered only in aesthetic terms. We tend to discuss only its artistic merit and its influence, to compare it with the great works of the past and assess the significance of new trends and so on. The extent of this interest in Britain may be gauged from the amount of space given to book reviews, and the number of specialist publications which are devoted to literature and its problems. That is fine. That is just as it should be. But, unfortunately, this concentration on the aesthetic or moral significance of books has led to a certain deformation of our attitude. We have developed a one-eyed approach. We tend to take the actual creation of literature for granted. We assume that it appears in our hands ready-made; that it grows like Topsy. We discuss and appreciate the foliage and almost completely ignore the roots from which it springs.
May I make a profound statement at the risk of disturbing this Friday morning? Books, my Lords, are made by the people who write them. Without them and what they produce there would be no books, no libraries, no bookshops, no booksellers, and no publishers. Yet the strange thing is that to the extent that writers have enriched our lives with their works, to that extent we reply by impoverishing them. Book writers are, without doubt, one of the poorest paid sections of workers in the community. And I use the word "worker" advisedly. Anyone who imagines that the life of an author is all sweet creative delight has never sat down in dark isolation from all other human beings and tried to climb that mental mountain which ends with a finished book. Believe me, it is back-breaking, mind stretching, exhausting both physically and mentally. The thing that angers authors most of

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all is when one is at some kind of reception or cocktail party and some nitwit of either sex comes staggering up and says: "I want to write a book. I just haven't had the time to do so."
People write books for the same reason that others become doctors, architects, engineers and so forth. It is the job they want to do and can do best, and they want the opportunity to make a profession of it. To some extent the real situation in this area has been disguised by the inevitable successes. Success is always a much better story than failure. So we have grown accustomed to reading of the fortunes made by writers such as Ian Fleming, Graham Greene, Frederick Forsyth, and others. These, of course, are only the upper top of the pyramid. The average writer has about as much chance of hitting that kind of jackpot as the average barrister has of becoming Lord Chancellor. It is not impossible—but the odds are against it.
The facts are as follows. In 1965, 51 per cent. of book writers who responded to a survey conducted by Richard Findlater on behalf of the Society of Authors were earning less than £10 per week. In 1972, seven years later, a similar survey revealed that the percentage had risen to 56 per cent. My Lords, £10 a week and under! The average sale of a hard-back book is 2,000 copies, mainly to libraries, at a purchase price of, say, £2·50. The author with a 10 per cent. royalty will receive something like £450 for something that may represent one year's work at least. If we paid nurses, doctors, or road sweepers this kind of money there would be riots in the streets. But nobody seems to care about writers. No one seems to think that theirs is a profession that should be paid. The strange thing, too, is that if one begins talking in these terms in certain company a frost descends on the conversation. Bring up the earnings of authors and one is looked upon as some kind of philistine. The creation of literature, it is assumed, is an artistic pursuit which should not be degraded by the discussion of anything so sordid as money. When the Arts Council hands out tiny and very modest grants to authors there is always a cynical reaction somewhere or another about handing out public
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money for authors to waste on writing books.
May I again make a profound statement? May I assure your Lordships that most authors of my acquaintance bear an extraordinary resemblance to other human beings. When they are not actually writing they like to eat, sleep, read, travel, go to the theatre and the cinema, watch football or tennis, make love, even marry and have children. And they would dearly like to earn enough money to enable them to do at least some of these things.
How, then, do authors survive? The short answer is that many of them do not. A great many young authors become discouraged and simply turn to other things. The more dedicated ones continue, but only by taking other work and writing in their leisure hours; or they may be indirectly subsidised by the earnings of their husbands or their wives. Either way, the loss of talent is tremendous. But there is another and perhaps even more horrific aspect to this story. We not only pay our writers miserably and shamefully; we rob them as well. We take the milk out of their tea and then go back for the sugar. We are quite rightly proud of our free public library system. It is an enormous force in the life of the community. Borrowing and reading books is our most popular national pastime. Your Lordships may not realise that it is at least 24 times more popular than going to a football match. We certainly outstrip other nations in this field. Taking the figures for 1971 we get the following picture. In the United States each household borrowed 13 books in the year and bought 14. In Holland each household borrowed 18 books in the year and bought 12. But in Britain in the same year we borrowed 38 books per household and bought only four. We are, in short, a great borrowing nation.
However, what is not generally realised is that every single one of those borrowings is indirectly subsidised by that worst paid section of the community to which I have already referred: the writers of books. Everyone in the libraries—the librarian, the assistants, the people in the town hall, the cleaners—is paid on a continuing basis for the continuing service he renders to the borrower. Everyone except the author—the

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person who actually created the book on which they depend. He receives a fee, a royalty, a once-for-all payment, for each of his books that is bought by the library. On an average novel this means he will be paid about 25p. Thereafter, his book may be borrowed and read by dozens, if not hundreds of people. It will be rebound and reissued and go on giving pleasure for many years to everyone except the novelist.
Each time you see a show in the theatre, the dramatist, if his works are still in copyright, will be paid something out of the ticket money. Each time you hear a song or a piece of music, the composer or lyricist benefits financially in some way if the work is still in copyright. But if you borrow a book from the public library, the author gets nothing. It is a strange anomaly, rather like asking a farm labourer to subsidise the farm on which he works. That is the nub of the Bill before your Lordships. It seeks to end this anomaly, to ensure that writers of books should have equal treatment with dramatists and composers. It does not attack the free library system, or ask that the borrower should pay for each book taken out. It simply asks that if the nation wants a free library system, then it should pay for it, and an author should not be expected to subsidise the public service, as they have been doing.
Nor does the Bill ask for any subsidy, or any sort of charity. Writers are a strange and independent lot, and are quite prepared to take a chance on their talents, to be novelists for richer or poorer. If they write a book and it is a failure, they do not expect the State or anyone else to pay for their mistake, but simply ask that they should be fairly paid for what they do and the pleasure they give—no more, no less.
My Lords, there is another side to this question to which I must come before I mention the detail of the Bill. It is something that takes on a wider aspect. I believe that by starving the creators of literature, we are in danger of starving literature itself. Fewer people, for all the reasons I have mentioned, are taking up literature as a profession. Can you blame them? Would you recommend your son or daughter to take up a career
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as a novelist, no matter how deprecated, knowing that he or she would be unlikely to earn more than £600 or £700 a year? In addition, fewer titles are being published each year. In the first quarter of this year, there was a cutback by the publishers of almost 15 per cent., and reprints were down by over 25 per cent.
Some of your Lordships may have seen an article in the Guardian this morning by Peter Owen. The article may be exaggerated in some respects, but it says that the costs of producing a book have gone up four times in the last two or three years. Put this together with the public resistance to the increasing price of books, and the fact that they have been well trained to borrow from our very excellent public libraries, and we have a situation leading to a weakening of the opportunities for new talent, and a consequent weakening of literature as a whole. In cultural terms, this is a decline that must be arrested. In terms of Britain's trading position and world influence we ought to do some hard thinking. In 1973, the British book industry brought in over £80 million from the direct overseas sales, and many millions more in invisible earnings from the sale of rights. So the bookwriter makes a fundamental contribution to our balance of trade. His books are not only ambassadors for Britain, but a basic prop of an important export market. I believe that the more we strengthen the position of the book-writer, the stronger our exports of books will become. That is a very important argument to consider.
My Lords, I am happy to say that the Bill before your Lordships has the support of all the principal writers' organisations—the Society of Authors, the Writers' Action Group, and the Writers' Guild of Great Britain. The principle of a public lending right for authors has received the endorsement of the three major political Parties. Mr. St. John Stevas, before he was so rudely swept from his position as Minister for the Arts, undertook to bring in legislation to establish public lending rights. The present Minister, Mr. Jenkins, gave a similar undertaking, and this promise was spelled out in the gracious Speech at the opening of this Parliament. It seems, then, that the battle has been won, and your Lordships may well ask why I am occupying your limited time with a Private Bill. The

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answer is a sad one, not unfamiliar to those of your Lordships with experience of Parliamentary affairs. We have been given the promise, but not the performance. We have been given the recognition, but not the actual right. We have been told that we are loved, but we are not given any legislation. We have been kissed, but there is no consummation.
My Lords, the authors who have been waiting in patience for years for this act of simple justice are afraid that the present economic crisis may be used as an excuse for further delay, and that they will be brushed aside once again. The Bill was promised for early this year, but did not come. It is now midsummer, and there seems to be no chance of it being introduced before we reassemble in the autumn. We have been told that we must wait while an investigation proceeds to see whether a public lending right scheme is workable, and if so, what kind of scheme.
I do not want to weary your Lordships with technical details, but I can assure you that modern computor technology has made it not only possible, but relatively easy to take a national sample of book borrowings from libraries, which will give a very accurate picture for a relatively low cost in administrative overheads. The Writers' Action Group, with its very limited resources, established this fact by its own researches. A new and prolonged investigation, which would only hold up legislation, is therefore not necessary. We have been told that the research now being conducted will decide whether authors should be paid a purchase right or a loans right.
Briefly, a purchase right would mean that the authors would receive a flat, once-for-all-payment in addition to their royalty, when the library buys the book, but they would get nothing for subsequent borrowings. This is not acceptable to the writers' organisations. It is wrong in principle, and we believe expensive to operate. It would rule out many thousands of books now in the libraries, and which may be there for years. Above all, it would excommunicate the hundreds of elderly authors whose books are still being borrowed, but who have ceased to produce new works. In many ways, because we are an independent profession and have no pensions and no superannuation in our old age, all we
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have to live on are the royalties coming in from the distribution of our books. It would be absolutely wrong if those elderly writers—and there are many hundreds of them—were ruled out of the scheme by the introduction of purchase rights. We are alarmed that this so-called purchase right should be considered in the light of evidence collected.
My Lords, we are grateful for the good will of Mr. Jenkins, who has publicly indicated his own preference for the loans right outlined in this Bill. We know that, basically, he and the Government are on our side. But, with respect, I believe that he is putting the cart before the horse, and has gone about the matter in the wrong way. Perhaps I am a simple soul, but I should have thought that when one is considering a piece of legislation, one should first decide on the basic principle behind it, in this case a scheme based on book loans, and then set up the machinery for the necessary investigation based on that principle. You do not decide on the principle after you have set up the machinery.
I have introduced this Bill on behalf of the writers' organisations, in the hope that it may prod the Government to speedier action, remind them of their firm promise to authors, and illustrate the sort of legislation needed. Of course, the simplest and most satisfactory thing would be for the Government to take over this Bill, make it their own, and steer it through the next Session. There may be some points, not related to the basic principle, which they would like to discuss. I do not claim that it is a work of complete perfection. But it must be in reasonable shape, since it passed the stern scrutiny of my noble friend Lord Goodman, and others. I should be happy to talk over the Bill with the Government.
I should like to put a question to the noble Lord, Lord Strabolgi, who will be replying, of which I have given him written notice. Could the noble Lord give your Lordships' House a firm assurance that the Government will introduce a Bill of their own into the next Parliament? Can he give the assurance that this intention will be outlined in the next gracious Speech, as it was last year, and that Parliamentary time will be allocated to the Bill? That is a specific

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question to which I should like an answer.
My Lords, I do not intend to go through the Bill clause by clause, because although it is rather long, I think the Bill is clear. In brief, it establishes a new right for the authors of books, distinct from copyright. It establishes the principle of payments to authors for each book borrowed. It sets up the necessary machinery under the control of a registrar and makes provision for payments to authors of reference books. It puts a top limit on payments to authors, allows an author's dependents to benefit while his books are still in copyright, and it places no immediate burden on the Exchequer, because if this Bill were passed public lending right would not take effect until 1977.
I hope, therefore, that the Bill will commend itself to your Lordships and you will grant it a Second Reading and speed it on its way. May I conclude by reading a message I have received from one of the most distinguished representatives of British literature, J. B. Priestley. He writes as follows:
"It has been agreed for some time that payments should be made to authors for the public service their books do through libraries. Moreover, it is important they should be paid for the loans of all their books still doing service, and not just for a library's purchase of any books they may publish in the future. This country is justly proud of its dead authors, but it might take a little more trouble to remember its living authors."
My Lords, I beg to move.
Moved, That the Bill be now read 2a.—(Lord Willis.)
11.31 a.m.
Viscount ECCLES: My Lords, I had not intended to declare my interest, but following the noble Lord, Lord Willis, I think I had better. I have just a few books on the shelves of public libraries, and I have never expected to get a penny more for them, but perhaps times will change. I fully endorse the impatience of the noble Lord, Lord Willis, at the years of delay in any Government producing a Bill to introduce public lending right. I think the noble Lord can be certain that his Bill and our debate today will add to the pressure, I hope effectively, to turn what has been much good will towards authors into positive action.
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As I have been partly responsible for the delays over the years in bringing in public lending right, it is all the more painful to have to declare my view that the Bill before us is in a form which cannot be satisfactorily amended, and which Parliament ought not to accept. In so far as authors would get anything if this Bill became law, it would be entirely at the discretion of the Secretary of State. Parliament, local authorities and authors would be left in the dark about the practical value of the legislation. For example, there is nothing in the Bill that tells them whether or not each author's share of an unknown sum can be arrived at at a reasonable cost; or, if it can, what would be the sum of money left over for division among the holders of a lending right.
I think I am constitutionally right in saying that this Bill cannot come into operation without placing a financial burden on the shoulders of the Government, and, in my opinion, to some extent on local authorities as well. As a result, it is the kind of Bill which your Lordships could send to another place only if the Government took it over from the noble Lord, Lord Willis, adopted it as their own and filled in the financial figures. I shall try to show your Lordships the reasons why the Government should not do so, and why we should wait for the Government's own Bill.
I have long been in favour of the principle of PLR. An author ought to have this right; that is to say, the property in his work which is reserved to him by law ought to include recompense when his books are borrowed by members of the public. As the noble Lord himself said, as things are today, anyone whose only occupation is writing books—unless he or she is among the small circle of the most popular; and, of course, with writers it is the same as with any other profession, when you attain eminence you command large fees—will earn no more than a boy delivering newspapers. How then do they survive? They survive mainly because now, as always in the past, most writers have other sources of income; they are teachers, journalists, broadcasters, civil servants, married women, dilettante husbands, mixed-up kids living on their parents, and so on. That has always been the case and it has

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to be the case, because that is the way the writer gains experience.
Why then are their royalties so low, when domestic sales of books in this country in the last year for which we have figures were £113 million, compared to £7 million in the years just before the war?—15 times greater. Even inflation cannot account for that. The simple answer is that there are now very many more writers and more of their manuscripts are published. A much larger cake is cut into many more slices, and the absolute value of the average slice, allowing for the decline in the value of money, is not enough for most authors to live on.
What should we do about this undeniably grievous situation? Since the public is unlikely to spend much more on buying books, the obvious remedy is to see that the public pays something for borrowing books, and that is the origin of the campaign for PLR, which, in my opinion, is fundamentally a just cause. But it is one thing to deserve and even to obtain this right, and another to turn it into cash. The difficulties are formidable the moment one tries to implement the right at a reasonable cost and with reasonable justice as between one author and another.
Let me put to your Lordships a few of the main problems. What is a library for the purpose of PLR? The Bill is not clear on this point, and I shall come back to it later. What kind of materials should be covered by public lending right? The Bill does not tell us whether or not, for example, articles in a journal or a pamphlet are to rank. On what principle is the right to be calculated? Should it be lending by libraries, stock on the shelves, or new purchases by libraries? Your Lordships will see a muddle in Clause 8 on that point. How do you treat the books which are taken from the library shelves and read in the library? We are not told about that. Who is to do the monitoring of loans or purchases or stocks, and how are the calculations needed to arrive at each author's entitlement to be paid for? Will the sum provided by the Government and/or local authorities be enough to make the whole exercise worth while?
My Lords, these are the main headaches, but there are many others, legal
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and administrative, quite a number of them in the area of copyright, which concern authors, librarians, local authorities and the Government. These problems lead to the inevitable conclusion that the closer the scheme comes to doing justice as between one author and another, the more expensive the cost of administration. It is a well known fact that the noble Baroness, Lady Lee of Asheridge, and I wrestled in turn with this dilemma. We could not discover a method of calculating each author's entitlement which did justice to the authors' claims, and yet did not cost so much that our Cabinet colleagues would not look at it. In the search for an acceptable scheme, many authors gave us their full and sympathetic collaboration. I was extremely glad to hear from the noble Lord, Lord Willis, that all the groups of authors are now combined on the same campaign; that is indeed a great improvement.
At this point, I think it would be useful if I said a word about the attitude of the libraries towards public lending rights. It is the librarians all over the country who would have to collect the primary data for the scheme. Their co-operation, although one can never expect it to be enthusiastic, is something which both the Government and the authors must try to secure. I am not now speaking for the British Library, which will reserve its opinion until the Government produce a worthwhile Bill, and when they do I undertake that we shall do our very best to make it a success. I am bound to say that the general run of libraries are against public lending right: first, because it would mean extra work, for which they have neither the staff nor the stomach; secondly, they fear that whoever pays for PLR their own budgets will be, if not reduced, at least less likely to be increased; thirdly, they cannot see that they owe the authors anything—rather the other way round.
I do not have the exact figure, but the number of books published in Britain today is certainly more than twice the number published in the last years before the War; in certain classes of books most interesting to libraries much more. Who is responsible for that expansion? The noble Lord, Lord Willis, has himself given us figures for purchases by households which shows that it is not they who

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are responsible. No, my Lords, it is public institutions and mainly the libraries. The libraries have multiplied their purchases of books, and publishers would agree that a large number of books issued in hard covers would never get published at all, unless the library purchases were estimated in advance to be sufficient to cover most of their costs. That is the basis of the libraries' claim that authors have done, and are doing, well out of them, and that if the practical results of—
Lord WILLIS: My Lords, if the noble Viscount will allow me to intervene, may I ask whether I understood him to say that there were more titles published now than there were in the last years before the War?
Viscount ECCLES: Yes, my Lords, there certainly are.
Lord WILLIS: My Lords, is the noble Viscount aware that in 1938, before the massive expansion in public libraries in Britain, there were 2,000 more fiction titles published than last year?
Viscount ECCLES: My Lords, I cannot answer for fiction titles; I am really answering for all books. Roughly speaking, the average of the three years before the War was 15,000; and, roughly speaking, the average of the last three years has been 32,000. I did not wish to waste the time of the House, but if you go into that it is quite clear that fiction is not the main business of most of the libraries. But I think I should press on.
The libraries feel that if the practical result of finding the money for PLR were to be a reduction in their budgets for buying books and journals, then both the public and the authors would suffer. That seems to me incontrovertible. For these reasons it is not going to be easy to carry the librarians with us unless they can be guaranteed against any diminution in their activities and resources. Therefore, I should like to put the direct question to the noble Lord who is going to answer: when the Government bring in their own Bill will they give this guarantee as part of the scheme of PLR? I feel I must warn him that if that guarantee is not forthcoming, it will
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be extremely hard to get the co-operation of the libraries, and I personally think that the guarantee is fully justified.
May I turn for a moment to the Bill itself. If ever there was an enabling Bill this is one. It allows the Secretary of State to do what he likes, provided he produces and pays for a scheme in which a dual principle is enshrined. Your Lordships will see from Clause 8 that the calculations for reference books are to be based on library stocks and purchases, and the calculations for other books are to be based on borrowings. So under this Bill librarians would have to make not one but two sets of calculations, and that is asking a great deal. On the other hand, it may be that a scheme based on purchases could be made fairly simple and acceptable. Whatever the noble Lord may have heard from his experts, I can assure him that it would be much cheaper than trying to calculate the number of issues from libraries.
Every library keeps accounts, every library could tell a central registrar how much it had spent and on what books. Books already on the shelves, of course, would have to be outside the scheme; but books are always going out of copyright and the total turnover is extraordinarily rapid in the local authority libraries. So it really would not take very long before a purchase based scheme was a reasonably fair one. But a purchase based scheme is not a public lending right, and I sympathise with the authors when they say that firmly. That is no doubt the reason why the Minister is now investigating, through sample of borrowings, to see how much a scheme based on borrowings would cost and whether it could be made reasonably fair for all authors. It would seem quite wrong to take up Parliamentary time on the Bill until the results of the Minister's investigations are known. If it turns out that the cost of what the Bill in Clause 8 calls "a fair and just sample" —and I shall come back to that phrase—would be an intolerable proportion of the money which the Department of Education and Science is prepared to put up for the scheme as a whole, then the Bill is a nonsense. If, on the other hand, the cost of calculating how many times a book is borrowed from the 5,500 local authority libraries, plus 600 mobile libraries, can be kept acceptable only when the result

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is seriously unjust on any author, will the authors accept it, the libraries agree to operate it, and how often and at what cost, and with what further anomalies, must the rough sample of borrowings be reviewed? I cannot believe that Parliament would pass legislation until these questions are firmly answered. Nor do I believe that it is possible to answer them by reference to experience in other countries. I hope that the noble Lord, Lord Strabolgi, might give us the latest information on these comparisons, and especially how the Germans are getting on with their scheme.
There are many other problems, but I wish to pose only one because it is of extreme importance to the library world. What is to be the definition of a library whose stocks, purchases, or lending of books, are to rank for the calculation of an author's public lending right? Clause 1 states that the Bill is concerned with public libraries, but it does not define what is a public library, and considering the vital importance of a definition this is far from satisfactory. But then, to make confusion worse, in Clause 8 (3) we have this sentence:
" The Secretary of State may authorise the computations … to be made by means of a fair and just sample of public libraries and in so doing shall have regard to the existence of specialised libraries, regional and other preferences for certain authors or types of work and the need for periodic revision of the sample."
What does that mean? First of all, what is a "fair and just sample "? Is it 1 per cent. of error either side, 5 per cent., or 10 per cent.? Something of the kind must be put in the Bill. Other libraries exist besides local authority libraries. There are school libraries, university libraries, cathedral libraries, industrial libraries, national libraries, and so on. To some extent many of them are public libraries. But because the samplers are to have regard to those other libraries in terms of subsection (3), is it the intention somehow to bring them within the Bill and somehow to take account of their lending of books?
I regret to have to say that either the author of the Bill has not inquired into the consequences of bringing educational libraries within the scope of PLR, or he has drafted Clause 8 in such a way that no one will be able to make head or tail of it, and therefore the Secretary of State,
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whoever he may be, must somehow decide which type of library—either wholly or in part, or not all—comes within the scope of the Bill.
I hope that this Second Reading will encourage the Minister—whose heart is in the right place—to press on with his investigations into the cost and efficiency of calculating the number of times books are borrowed from the vast network of local authority public libraries. We must wait to hear what he has to say, when the results of his experiments have been evaluated. In the meantime, without this information, and because Parliament cannot be expected to grant a right that requires public money to implement without being told how that money is to be spent, I hope that the noble Lord, Lord Willis, will withdraw his Bill. I do not think that the noble Lord need be at all disappointed. He has brought a very important issue before this House and the debate will help to keep it alive. With a bit of luck the Minister is to give him exactly the assurance he asked for, that a Bill will be introduced in the next Session; no one would be more pleased than myself. I hope he will add to that assurance that the position of the librarians of this country will be safeguarded.
11.52 a.m.
Lord GOODMAN: My Lords, I earnestly hope that the noble Lord, Lord Willis, who introduced this most valuable matter today in what I thought was an absolutely exemplary speech—moderate, rational, witty and making cogently all the points which needed to be made—will not withdraw the Bill until he has a specific and precise assurance of what is to happen. If I may say so, I do not believe that the speech of the noble Viscount, Lord Eccles—who had a very distinguished record as a Minister of the Arts—will encourage any Minister to do anything except commit suicide or resign.
It is very necessary that we should make absolutely clear in this House today that the history of public lending rights, so far as any Government are concerned, is one of the most shoddy and shabby stories that is to be told in the whole history of artistic administration. It would be a scandal indeed if something specific did not emerge from this debate. The noble Viscount, Lord Eccles, has a tremendous record in relation to the advancement of the Arts in this country,

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reflected principally by the astonishingly generous sums of money he extracted from the Government on behalf of the Arts; and it is right to pay this tribute. But his speech indicated the sort of difficulty that people who have been trying to promote this right have encountered over the years.
Legalistic quibble after legalistic quibble emerged and are manufactured into supposed points of substance. What possible difficulty is there in determining what is a library? A very simple method of doing it is to have a regional list of what is a library that is included in the category which benefit from any scheme that comes into existence. That would be the simplest method. If the noble Viscount goes to his own home and asks his own children where they have been, and they say they have been to the public library, they will be in no doubt at all about where the public library is in the area of Chelsea or Westminster where the noble Viscount lives.
The other libraries to which he referred are totally irrelevant in terms of income to authors. Therefore this point has no substance at all. But some of the points made by the noble Viscount are important points of principle—but points of very bad and rather wicked principle. For instance, the notion that this question should be determined by librarians is preposterous. Nobody has the slightest complaint against librarians; they are a very worthy category of the community. But that they should determine how authors should be rewarded seems to me an idea so remote from sanity that it should not be countenanced for a second by the serious deliberations of the Houses of Parliament.
Of course the librarians have set their face against anything which gives them a great deal of extra work without the slightest promise of extra payment. What has gone wrong over the years is that whenever anything is presented to the librarians in relation to the public lending right nobody says to them: "But be sure if you undertake this work you will be supported by extra colleagues and you will get extra money." If that had been said, there would not have been a whisper of complaint from the librarians. But naturally, as it is, there are loud complaints from the librarians that
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they are being asked to assume heavy additional duties without any additional payment.
For the librarians to say, "We are apprehensive that, if we give justice to the authors, there will not be enough money for us to buy books, which would involve the continuation of injustice to all other authors ", is a proposition which should not commend itself to this House. There is a confusion of principle. At one stage the noble Viscount, Lord Eccles, and I were working on this together, and we both agreed—I think rightly—that one of the faults of the matter was that it had been approached in the way it is being approached in the Bill today.
I think it is being so approached for good reason; that the right way to approach it was simply by a variation of the law of copyright. The appropriate thing to do was to add to the rights of an author under the Copyright Act the lending right, so that if anyone lent the author's book for payment it would infringe his legal rights. That was not done for a very simple reason: that it would have placed in the hands of the authors a right and a power so large that they could have contrived very substantial sums of money—possibly beyond the resources of the libraries—which would be exacted in return for the lending right. Hence it is probably right, though not just, that the amount of money to be paid to the authors should be pre-controlled by legislation to ensure that it does not create a situation which cannot be immediately financed.
Justice would demand that authors should be given the right and that they should negotiate, as musicians negotiate with the assistance of the copyright tribunal, how much money is to be paid by the libraries for securing this lending right. That would have been a simple solution. It cannot be done; and possibly should not be done because at this moment it might cost too much. But there is no legal problem. There is no problem in principle that suggests that because authors cannot have their full rights, they should have no right at all.
We came to the other very interesting question of what books should be included. Over the years I have sat in, suffering purgatorial torment, listening to officials of various Ministries producing

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the most immense legalistic complications about what books should be rewarded. "How", they say, with joy and delight as though they had picked a plum out of a pod "would you deal with an anthology?"—looking triumphant. What, if I may use such a word in your Lordships' House, the devil does it matter whether you do or do not deal with an anthology? It is a matter of total unimportance whether you deal with anthologies, dictionaries, or whatever. The suggestion appears to be that unless you can contrive a scheme of total Olympian justice, you should have a scheme of total Stygian injustice. That is total madness; nobody will be able to produce a public lending right scheme that is perfect. Nobody would be able to devise a scheme that does not involve injustice. But the authors are satisfied with this.
But, my Lords, I am not going to dwell on the question raised by the noble Lord, Lord Willis, about the difficulties of authors, because in one sense they are irrelevant. If you are claiming justice for a man, if a man is asking for the return on his property on any scale, I do not think it is relevant for him to have to establish that if he does not get it back he remains poor. It is his own property, he is entitled to it, whether he be poor or rich. This is not a question of whether you reward rich authors or poor authors. It a question of whether you despoil all authors. That is why I believe this House should be emphatic in giving a Second Reading to the Bill, unless what is secured from the Government is a sufficient assurance that something will be done, and done soon.
It is absolute nonsense to say that a scheme cannot be devised; that the wit of man cannot devise a scheme which has been operating for years in relation to composers—across a much more difficult field in many respects—whereby there are paid to the composers the rewards for the situation in which their works are played publicly. Those rewards are distributed to them from a fund collected by the Performing Rights Society. A comparable situation could be created for authors if the will exists. It is because the situation creates such an atmosphere of academic delight, because such delicious intellectual difficulties can be posed, that people of the high intellectual resources of the noble Viscount, Lord Eccles, find
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it such a problem to deal with. They will not part with a single problem until it is fully resolved. That is why a Bill of this kind that takes a broad rush to the matter is absolutely right.
I would commend to your Lordships' House a small book, published two or three years ago, which contains an anthology of essays on the public lending right. If that does not establish that this right should justly be created and that it is monstrous to suggest that because there might be inadequate money for the purchase of books the authors should suffer, nothing will. The noble Lord, Lord Willis, made the point that no one would suggest that repairs to a library roof should be carried out at the expense of the builder. If any man went to a builder and said, "We cannot pay for this roof because it will mean a reduction in our book purchasing programme", he would be removed to a mental institution, and quite rightly so. If you go to the author and say, "We cannot pay you for your unchallengeable right, your inarguable right, not to have your books lent at will to everyone when only one copy has been purchased for private reading ", then you are told that it is an injustice to the library that you should demand your rights.
One of the problems in this matter is a legal one. It is that laymen on the whole are incapable of understanding that by an invisible thread there can remain attached to a chattel an incorporeal right that when you buy a book there is a copyright in the book which you do not own and do not acquire: somebody else's rights go with it, and you have on your shelves something that belongs partially to you and partially to someone else. That is a very difficult conception for those who have not had the splendid training and do not have the sharp perception of lawyers to realise that that is one of the problems. People do not realise that a book is not just a chattel; that it is something which contains rights which attach to a third party. It is the recognition of those rights for which we are pleading today.
I could go on for hours, but a personal motivation for not going on for hours is that I want to see the Wimbledon final. But that would not keep me from staying here if I thought that extra verbiage would be of the slightest use. The story

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of the public lending right is a discreditable one and it should be rectified by sweeping away all the quibbles, all the legalities, all the various points that are made. It should also be rectified, not by sweeping away the various officials who over the years have found delight in frustrating it because I believe they do so in good faith and honourably, but by procuring that they are removed to different duties. They ought not to be engaged in anything to do with the welfare of creative thought and the people whose livelihoods depend on it.
I would urge the Government to give the most generous reply possible, and I would urge upon my noble friend Lord Willis—and I hope to return in time to vote in any Division which may take place—that if he does not get the appropriate assurance he should press this matter to a Division, and I would ask the House to have no hesitation in voting on it. There will be plenty of time to iron out the difficulties, but if we do not get something on to the Statute Book we shall get nothing at all. At this moment the Government, which have a splendid record in relation to the Arts and which, when they first came into power, started the revival in the artistic interests, have a discreditable record in this matter. They are in breach of faith and of trust, and this is something which should weigh very heavily on their consciences.
12.4 p.m.
Lord BEAUMONT of WHITLEY: My Lords, I rise to speak very briefly on this matter, because I think the noble Lords, Lord Willis and Lord Goodman, between them have said most of what needs to be said; briefly also because I think almost everyone is agreed in principle on this matter, although in some cases principles may be rather highly qualified. My noble friends and myself entirely support the aims behind this Bill and, like possibly everyone else who takes part in this debate, I must in fact declare my interest, although at the moment it is not enormous.
It is rather a pity that the Government have not chosen to put up a speaker early in the debate as well as at the end. It would have helped us a great deal if we had been able to talk about what the Government are actually saying with reference to the Bill proposed by the
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noble Lord, Lord Willis. But no doubt, if what they say is not satisfactory, we shall have considerable opportunity to consider their views at the Committee and later stages. The aim is generally agreed. On the method there is now much more agreement than there used to be, and on the whole I am convinced that the method, as outlined in the Bill, of establishing and paying for public lending right, is in fact the best one there is.
The point made by the noble Lord, Lord Willis, about the decline in fiction is extremely important. I accept that it is true—though I have not checked the figures myself—that the number of books being published has doubled since before the war—and so, I would say, has the complexity of life. It is not surprising that the amount of non-fiction which is published is much greater than hitherto, but fiction is another matter. Fiction is not a small matter to be swept aside and to be regarded as frivolous and unimportant. Fiction is one of the great creative forces of our civilisation. When I was at theological college, my principal, the present Bishop of Edinburgh, used to say that after works of theological study and devotional works the next most important thing for his students to read was fiction. By "fiction" he did not mean just the great classics of the past, though of course he included them: he meant good fiction as it is written today. Although not solely, it is chiefly through reading fiction that we enable ourselves to develop that quality of empathy which I talked about in a different debate earlier—the quality of being able to see ourselves in other people's shoes and understand what they are feeling. It is largely from that that we are able to cultivate this quality of empathy which is tremendously important in any humane society.
Of course there are difficulties and we have probably heard them all today; but difficulties are there to be overcome, and it is by their ability to overcome difficulties in a position where the ideals and aims are clear that we judge Ministers and Departments and Governments. My colleague in another place, Mr. Jo Grimond, tells a story of going to see President Kennedy. He said to President Kennedy, "What are you going to do about the colour problem in the

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United States?" Jo Grimond leaned back in his seat and expected to hear what he described as the usual English Ministerial answer lasting half an hour and explaining all the difficulties about doing practically anything. Instead, President Kennedy said, "Give them the vote". That was the end of that conversation and Jo Grimond had to think rather hastily of something else to ask him. It was not because President Kennedy underestimated the difficulties and the snags—no one could possibly have underestimated them less than he did—but because he knew that where there was a real aim which had to be achieved the difficulties were minor considerations and were there to be got rid of.
This is a case of infinitely less importance, but nevertheless it is a matter of principle. The principle is clear and the difficulties are there to be done away with. Of course it is a difficult time, in the economic situation, to ask for any more money for the Arts or for anything else. But, again, as I ventured to suggest the other day when talking about voluntary services, there are certain priorities which can be established, and I believe that one priority is when there is quite definitely a case of injustice, which is the case here.
My Lords, I cannot close my speech without paying tribute to the National Library Service, as other noble Lords have done before me. It is quite superb. I myself rely on it to a very high degree, both for work and for entertainment. I believe that we should be very proud that we have it in this country. However, we must not let pride in this admirable institution take away from the justice which we owe to authors—the people who produce the books. I believe that we need to pass a Public Lending Right Bill through both Houses of Parliament within the next year. I hope that the Minister will give an undertaking to that effect. If he does not, I certainly suggest that the noble Lord, Lord Willis, should continue to ask for a Second Reading for the Bill and that we should get together on some of the problems which we are told are so difficult at a Committee stage. I do not believe that your Lordships would grudge the time that would have to be given to that. Moreover, even if the Minister does undertake to
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give us a Bill, I believe that there might be a case for devoting some of our time to ironing out some of the problems in a Committee stage, possibly in a Select Committee of your Lordships' House. That might be a way forward. In any case, I sincerely hope that the noble Lord will not withdraw the Bill.
Baroness GAITSKELL: My Lords, may I ask the noble Lord a question? I was very interested in what he said about the decline in fiction reading. Has he noticed, as I have, that young people today do not read novels with the same avidity as did people of my generation when they were young?
Lord BEAUMONT of WHITLEY: No, my Lords, I am ashamed to say that I had not noticed that. If it is true, I join with the noble Baroness in deploring it. I think it is a great pity.
12.13 p.m.
Lord SNOW: My Lords, what I wish to say can, as usual, be said very briefly. First of all, I support the noble Lord, Lord Willis, in his Motion and, if it is carried to a Division, I shall without question vote for the Bill. Secondly, I suppose I should declare an interest for, if the Bill is ever passed, I shall be slightly better off. I shall, however, make one mild, disapproving noise. I do not believe that we ought to declare an interest when we speak in this House. An elderly Member has told me that this is quite a modern custom. Here, we speak on our honour and that should be enough.
My Lords, in general, I am totally in sympathy, as I am sure are nearly all your Lordships, with the noble Lord, Lord Goodman. The matter presents itself to me in a slightly different way, however. My initial impulse, like that of most writers who have been lucky, is to have a certain sense of guilt. Writing is either a feast or a famine, and if one has good fortune one can do very well materially. Most writers have bad fortune and do materially very badly. That is a fact, and nearly all writers who are commercially successful are only too painfully conscious of it. As a result, my motive for a good many years has been to find some way of getting hold of some money to distribute to those who need it. I took some persuading that I public lending right was the right way of

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doing that. Unfortunately, no one has ever found another way.
The Americans solve the problem largely by attaching writers to various colleges and universities all over their great country. That works. It keeps most writers contentedly alive, but I doubt if it has a good effect on literature. It means that everyone is writing campus novels and academic poetry. However, it is a method of solving the problem. We have not that option. Other countries have tried other methods. The method of direct subsidy of writing will, I am sure, almost always fail. It happens to an extent through the generosity of publishers—a generosity which, I must say, sometimes does more credit to their hearts than to their heads. We know a little of this from the Arts Council, upon which I have been privileged to sit. Subsidising and helping theatre, opera and ballet seems sensible and raises no great problems. Giving even quite small sums of money to writing seems benevolent in intention but extraordinarily unsatisfactory in result. I do not know any answer to that, so that eventually I was driven, rather unwillingly, as I say, to public Lending right.
One reason for my unwillingness was that I was for a year President of the Library Association. I know librarians rather better than do most writers, and I am slightly better disposed towards them than is the noble Lord, Lord Goodman. They are an excellent body of people, and extremely hard working. One of their motives for resisting public lending right so strongly and for so long was entirely honourable. It was that the concept of the truly free library, where people could take a book and where there was no other complication at all, is very deeply ingrained in many of the librarians with whom I was associated. Their second motive was also perfectly reasonable: they thought that it would mean an enormous amount of labour. They believed that they would be spending their whole time counting up how many times a book by, for instance, C. S. Forester, went out of the library, and so on.
Here, I believe that everyone has been, not bamboozled, but ignorant of what modern statistical techniques and computer probes can do. They have totally transformed the way in which we assess
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opinion about almost anything, and they nearly always do it remarkably accurately. Take the rather dramatic example of the prophecies about the referendum. They were accurate almost beyond the limits of accuracy, and that against the feelings of many people in the country who could not believe that the forecasts were right.
Although the library problem is more complicated, it would be perfectly easy to deal with it by the use of statistical techniques together with computers. One would only have to choose four or five libraries a year to get a result which was entirely sensible. Four or five different libraries would be used the next year, and so on, so as to scatter the investigation. One would get a perfectly decent result. One point which is borne in on most of us as we study statistical findings is how remarkably uniform opinion nearly always is. People expect local variations of staggering size, but that seems not to happen. Everyone who tries this sort of inquiry (at least in a country this size) finds that opinion—and presumably library borrowing—stays astonishingly uniform over the whole country.
So one is not worried about that problem. That method could work quite well enough. We shall not achieve absolute justice. Here, I feel that the noble Viscount, Lord Eccles, who we all know to be capable of the most benevolent, vigorous and nonsense-cutting action, gave an astonishing display of what, in the war, we called the "technique of the intricate defensive ". Absolute justice will never be achieved. It is nonsense to think that it can be achieved. The only absolute justice in this matter would be if no books were ever published or bought. We have to do our best with a fair chance of a reasonable finding.
There is one unfortunate consequence of all this and it was that which made me unwilling to think that public lending right was the proper answer, starting as I did from the basis that I was anxious to give money to commercially unsuccessful writers. This system will, of course, not do it. Imagine that the State produces a sum in the small millions, which is presumably what we are thinking of. That money is distributed by some fairly easily-arrived-at method according to the loans of books taken from libraries, public or any other. I am quite certain that one

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will find that the distribution of those subventions will be almost directly proportional to the original commercial sale, just as paper-back sales are also almost directly proportional to the original commercial sales; that is, successful writers will get quite large sums unless the Secretary of State intervenes.
The people whom we should like to help will effectively get nothing—a few pounds a year. I can see no answer to that. Nevertheless, I think that this method is better than nothing. It is desirable in itself. When people talk about justice in itself or rights existing, I do not like that sort of language. It is perfectly sensible; it is done in many countries, including the most sophisticated ones. It will give needed encouragement to the literary arts which, as various noble Lords have stated, can do with a shot in the arm; and we shall all feel better for it. I for one shall vote this afternoon and continue to vote on this matter until we can get some answer. We do not want evasive, legalistic answers of the kind which this matter has far too often provoked. It seems to be a happy hunting ground for every amateur lawyer in the Civil Service; and that is not good enough.
My Lords, I want to make one other simple statement. The sales base scheme, the scheme based on the actual sales to libraries, is totally unacceptable. I entirely agree with what the noble Lord, Lord Willis, said—and here I speak for every writer I know; I cannot speak for bodies of writers as Lord Willis can. No writer in England who I know thinks that scheme remotely sensible. What infatuated mind produced it, I cannot think. It does not do anything that we want. It is grossly unfair to everyone who is not immediately producing. Too many writers in this country with reputations beyond our shores are living on social security pensions. It is they who could do with a little money.
Lord STRABOLGI: My Lords, I am sorry to interrupt, but the purchase basis scheme was originally advocated by the Society of Authors. Now I believe they have come around to the other scheme, having been persuaded by the Writers' Action Group.
Lord SNOW: I am aware of that, my Lords. The members of the Society of Authors include many people whom I
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mentioned, who would now say that this scheme was totally unacceptible. I repeat—and I will go on saying this—that I shall vote against any Bill, in all its stages, which contains such ludicrous provisions. The Writers' Action Group were right all along. With that I recommend this Second Reading.
Lord GOODMAN: My Lords, there is one thing that should be said. I do not think it should be on the Record that the purchase scheme was advocated by the Society of Authors. I know the background of this subject. The Society of Authors accepted that scheme with the utmost reluctance; they thought it was the only thing they were likely to get. They were reluctant and unhappy about it. It was not advocated by them.
Lord STRABOLGI: My Lords, all I can say is that when I was in Opposition a few years ago I went to a meeting in a Committee Room in the other place to meet the representatives of the Society of Authors. At that time they were certainly advocating the scheme.
Lord WILLIS: My Lords, if the noble Lord will look at the literature of the Society of Authors, he will find that the noble Lord, Lord Goodman, is right. The Society of Authors was convinced not by the WAG, but by the evidence.
12.25 p.m.
Lady KINLOSS: My Lords, every author will feel obliged to the noble Lord, Lord Willis, for introducing this Bill which seeks to do justice to authors. In the preface of his famous Dictionary, Dr. Samuel Johnson said:
" The chief glory of a people arises from its authors."
cannot think of any better compliment than to repeat this to the noble Lord who is so distinguished an author himself. In the same Dictionary, Dr. Johnson defined himself more modestly:
" lexicographer: a writer of dictionaries: a harmless drudge."
If I do not follow what other noble Lords have said today, it is because I wish to speak chiefly on some problems of the "harmless drudges" who are responsible not only for dictionaries, but also for other reference books.
My Lords, I have to declare an interest in this Bill, not as an author but as what

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Schedule 1 describes as a "qualified dependant", or at least potentially so, should my husband who writes reference books predecease me. I shall have something to say of this Schedule later on. My only personal literary activity has been as my husband's proof reader—and there are one or two printed errors in the Bill which I am sure have not escaped the noble Lord The heart of this Bill is Clause 8. I listened to the noble Lord, Lord Willis with great care and I am sorry to say that I am still not entirely happy. The clause distinguishes clearly between the reference sections of public libraries and the loan sections; although of course a small number of an individual author's works may be found in both.
It seems easy enough to find out how often an individual work is loaned. But in the case of reference books it will be on the number of copies of each reference book held by libraries. But I am puzzled as to how the multiplier will be arrived at in both cases; and particularly with regard to reference books. Could the noble Lord say how the public lending right payments will be divided between the reference and loan authors? It is how this will work which puzzles not only myself but a number of friends who are authors to whom I have spoken. They are sure that the intention of the Bill is to be fair, but could the noble Lord in his reply give some examples so that it can be seen to be fair?
My Lords, there are a number of works in print which do not have named authors. It is a common practice for publishers to purchase the copyright and all other rights in what an author has written, and to have no further obligation towards him. Clause 1(4) states clearly that public lending right is incapable of assignment. But what is to happen in these cases? Could the noble Lord who is to reply give an assurance that such authors, although they may be anonymous, will still be able to register under Clause 6, even if their names do not appear anywhere in the works? Would it not be wise in such cases to make it obligatory for publishers to confirm such claims to the Registrar?
I must confess that I do not feel at all happy about the proposals made in
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Schedule 1 for an author's dependants. As I have said, Clause 1(4) precludes an author from assigning his public lending right, whereas one would have thought it was a form of incorporeal property like copyright. Schedule 1(b)(i) allows the deceased author's public lending right to a surviving spouse but extinguishes the spouse's right should he or she remarry. An enactment of this sort would be an enactment in restraint of marriage, which I had thought was quite contrary to the ordinary principles of English law.
Earlier this year, many of us rejoiced when the present Government abolished estate duty formerly payable by a surviving spouse. No longer is a widow taxed when her husband dies or vice versa. Yet this subsection appears to embody a totally contrary principle: the public lending right that a widow or widower can enjoy will be extinguished by a remarriage. Indeed, this subparagraph might make it advantageous for some widows or widowers who might be affected to live in adultery rather than remarry. I would ask the noble Lord most earnestly to look at this subsection again. Could the noble Lord, Lord Willis, tell me why dependants are limited to those mentioned in Clause 1(1) of the Inheritance (Family Provision) Act 1938? Why should an author be precluded from assigning his public lending right among his children or others as he pleases?
So far I have only mentioned this Schedule in relation to authors who may be survived by dependants. But it is wholly possible for an author to die and to leave no dependants. Precluded from assigning his public lending right under Clause 1(4), such an author's public lending right would presumably revert to the Exchequer. This is the gist of the matter, that it should be possible for an author to leave his public lending right as he can his royalties or any other effects; and I think my next remark illustrates this point. I have in mind the case of a deceased novelist of most eminent distinction, the late E. M. Forster. There will be many noble Lords who have read his works. Late in life he was given rooms in his old college, King's College, Cambridge, to whom, having no immediate relatives, he bequeathed his royalties. I have no figures, but I understand that King's College has been able

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out of these royalties to finance the writing of an official biography.
I quite fail to see why this public lending right, which would be brought into existence by this Bill, should be immediately extinguished because, to the best of my knowledge, he had no dependants. I should have thought an author should enjoy exactly the same control over his public lending right as that at present enjoyed over his copyright; and that in the case of deceased authors, whose wishes for the disposal of their public lending right cannot obviously be ascertained, their public lending right should be distributed in the same manner that they themselves determined in their wills for the disposal of royalties arising under their copyright. I think that Clause 1(3) should be deleted and Clause 1(4) amended in this sense at Committee stage. My Lords, I have deliberately not discussed the general principles of the Bill. They have my full support. I am sure the noble Lord, Lord Willis, has done his very best, and that he will not take amiss a few small criticisms of detail.
12.31 p.m.
Lord IRONSIDE: My Lords, first I should like to give a welcome to the Bill of the noble Lord, Lord Willis. This Second Reading gives your Lordships an opportunity of debating the whole question of public lending right. There is general agreement on all sides of the House about its introduction. I do not think that your Lordships need to be reminded—the Government least of all—it is one of the gracious Speech commitments, and the Government place great emphasis on these commitments and I hope that they will be able to live up to this one which concerns a section of the population which are not only just as creative as any other part of the community, but also give us pleasure, contentment, knowledge and a freshness of outlook which is essential to our lives. In parts of the world we have seen the influence that authors have on public opinion and world opinion at large. I hope that authors in this country can have the same influence on public opinion, Parliament and Government here.
I am one of the fortunate few who are members of the Society of Authors and
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although my contribution to the literary world is modest and insignificant by comparison with Lord Willis's contribution, I am sure all authors are very much indebted to him for introducing this Bill and for the work he has put into its drafting. The Bill has been introduced at a time when many of us are keyed up to accept the basic right of public lending. I would be very happy to see the Bill enacted, although I recognise straight away a number of Amendments are needed in order to make it acceptable to the Government. The noble Lord, Lord Beaumont of Whitley, said that he felt that in Committee, and by discussion with the Government, the Bill should be made workable. We are treading new ground, and provided there are various safeguards, the Bill would be workable. Lord Willis's drafting has embraced most of the principles which the Society of Authors, and others, are seeking. This right (or perhaps it is better stated as an entitlement) is best described as an extension of Common Law property rights which have always existed in this country, and we are now crossing the boundary from Common Law to Statute Law to enact this PLR.
Has this right ever existed in Common Law? I am not expert enough to tell. No doubt the noble Lord, Lord Goodman, and others, could advise the House on this. It probably has, though it was never thought to be important enough to be brought to the Statute Book formally. If copyright, which dates from 1911, is described as an Act of negative prevention, then PLR, in my view, would be a positive enablement. My noble friend Lord Eccles has referred to this Bill as being an enabling Bill. I should like to quote the following passage from a book on copyright:
"Nothing can with greater propriety be called a man's property than the fruits of his brain.
" The property is any article or substance accruing to him by reason of his own mechanical labour is never denied him. The labour of his mind is no less arduous and consequently no less worthy of the protection of the law."
This was said of copyright by Copinger, and it applies as much to the subject we have under debate at the moment as to copyright.
In this Bill the right is described and defined, the Government Registrar is

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established and the method of administration described. The advisory machinery is incorporated, the process of sampling is declared. The method of payment is described and the range of libraries is also defined. We have in this Bill all that is necessary in principle for this right. As I said, my Lords, we are feeling our way on this subject, and a great deal of preparatory work has been undertaken by the Government and the Society of Authors, and many people have expressed their views. As chairman of the Advisory Committee for the Science Reference Library, which is one of the major collections of the British Library—and I am speaking personally and not expressing any opinions of the British Library, which are being reserved for a future moment—I am particularly interested in the way public lending right might be established, and the way in which it might possibly affect the operation of the major and most comprehensive scientific collection in the country upon which industry depends. The collection is designed on an open access principle but would not generally be known as a public library.
If we look at this Bill, it covers work held in any public library and this phraseology is borrowed from another Act. The word "works" or "work" is defined in the Copyright Act 1956, and therefore immediately one can see that by definition there is a relationship between this Bill and the Copyright Act. I do not think that we can divorce ourselves from this fact, but I do not wish to labour the point. To my mind, there is no doubt that the two rights are interrelated, even though they will be treated and operated quite separately.
I want now to come on to the point of definition of a public library to which my noble friend Lord Eccles drew attention. It is of concern to us, but I rather assume that the noble Lord, Lord Willis, has in mind those libraries which form part of the public library service provided by local authorities in England and Wales under the 1964 Act. This obviously excludes libraries to which selected members of the public have access, which therefore excludes from this Bill national collections, university collections, institutional collections and even certain private collections. If these libraries are included, then I think that
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life will be made very difficult for all those concerned. To be satisfactory the legislation would have to prevent some libraries from escaping from the net of control on the grounds that they were not lending, but only authorising their readers to have access to what they already own in part. There is a lot of evidence to show that libraries are owned by the readers. The London Library is in this category, where the members own the collection and the managers of the collection cannot sell it or dispose of it without permission of the members.
From the point of view of the Science Reference Library, I am concerned about two things: first, that any form of Pub-lice Lending Right which is enacted shall not prevent the industrial and scientific community from having unqualified access to the scientific and technological material in the collection; and, secondly, that a public lending right as such shall not add to the cost of industry in using the facilities provided by the library. To my mind, these are two most important factors in considering this Bill. I do not see, at the moment, that it would affect the Science Reference Library in either respect, but I do notice in Clause 12(2) that the Secretary of State is given powers to define any library as a public library for the purposes of this Bill. So, as the Bill stands at the moment, the Secretary of State could declare the British Library or the Science Reference Library, in particular, as a public library. Clearly this point needs to be looked at in Committee so that a way may be found of qualifying these powers by reference to the Advisory Committee or the establishment of other guidelines to safeguard the position of such libraries as the Science Reference Library.
Clause 1(4) makes the point that public lending right should not be capable of assignment. This is something raised in the speech by the noble Lady, Lady Kinloss. I think I am right in saying that, generally speaking, rights, whatever they may be, are always worth something to the owner or the title holder, and they are always capable of assignment. Therefore, it is probably wrong in principle to put this restriction on public lending right. For example, it may well be that an author may wish to assign his right to a charity, a trust or even an individual, and I know that this has been done already in the case of copyright. Because

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of the inter-relation between public lending right and copyright, it would seem sensible to follow the same course so that an author not only has the right to register his entitlement but also the right to assign it.
Also, under Clause 1(3), the right is extended to the dependants of the deceased author as defined by the Inheritance (Family Provision) Act 1938, which your Lordships will notice is about to be repealed. In its place will be introduced a new and I would say more complex Act, the Inheritance (Provisions for Family and Dependants) Act, which will introduce complications for the proposed Registrar of a Public Lending Right. I believe that we in this House should give close consideration as to whether the right should be extended to dependants of the deceased, in this way, or whether we should simply allow the right to continue in the name of the heirs and successors, if any, of the deceased author for a limited period of time, at the end of which the right is extinguished. This would not prevent dependants claiming against the deceased author's estate because the Registrar decides entitlement to payment. Thus one can see that dependants may be able to benefit, even though they are not the lawful heirs and successors. This again, is a point which should be examined in Committee.
Turning to the definition of "author" in Clause 2(1), there is a residential or a citizenship qualification. Many people will have different views on how an author should be defined from the point of view of public lending right, but surely we should be careful here not to preclude those authors who are making a substantial contribution to the English language where the original work is in such a form. I do not want to dwell on this point, but it seems to me that we should scrutinise the definition of "author" as provided by this Bill. Incidentally, the phraseology used in this clause is at variance with that used in the Inheritance Act 1938.
I think it is most important to establish an advisory committee in a case like this where we are introducing a new system which is based on the best knowledge avilable to us at the present time but which, in the light of future developments, might be capable of improvement. The advisory committee will therefore be a very necessary factor in the administration
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of the Act. I should like to congratulate the noble Lord, Lord Willis, for not falling into the trap of nominating members in statutory fashion as has been the custom in the past in many cases, and for persons being appointed as individuals because of their knowledge, expertise and professionalism. I feel, however, that we should not be dogmatic about the number on the committee but that we should specify "sufficient numbers" only.
A great deal has been said about the method of calculation of the entitlement. I do not want to say too much about this because there are many others present who have expert knowledge. I believe that at this time the sampling method is probably the fairest one available to us at reasonable cost. It is one which is capable of being extended to take account of both reference and lending, as distinct from lending only. If any other scheme were adopted, it would be less fair to authors and would probably be more difficult to administer, bearing in mind the extent of present knowledge and practice.
I should like to make one point in connection with lending, as it applies to reference libraries. A reader will sweep through the doors of a reference library in order to browse, and during the course of half an hour he might borrow from the shelves for short periods of time a large number of books from which he may finally select one book for detailed study. I should think there is a very good case for considering whether the sampling procedure used to test "lending" in a reference library should take this situation into account. There is an analogy here with the Copyright Act, whereby a person is allowed to make use of very short extracts from original works without permission provided that he makes acknowledgement where appropriate.
My Lords, that is almost all I wish to say about the Bill at this stage, except for one final point. If we study the Public Libraries and Museum Act 1964, we see that the public library service provided by local authorities in England is indeed a very full one. It requires a library authority to ensure that facilities are available for borrowing or for reference; and if it cannot keep adequate stocks it must make arrangements with

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other library authorities, or use other appropriate means. Nowadays, with local authorities cutting down on their stocks, they will have further recourse into making use of national collections, and particularly of the British Library Lending Division.
I think it is worth making the point that librarians often think they are subsidising authors when they buy their hardbacks and there is a guaranteed sale to libraries; but in fact no librarian would consider buying a paperback because it would not last more than 24 hours in the library. In fact, if you examine the orders from distributors to publishers you will find that they say at the bottom: "If there is a hardback edition, please supply it, as opposed to the paperback edition ". Therefore I do not think that the point concerning the subsidising of authors in the sale of hardbacks is a valid one. The library which is used as a sampling reference might be found to be paying an increased fee to the British Library for loan of material which is not held. These facts may not show up in a sample, but from the author's point of view this situation should be taken into account.
I believe that the national collections, and particularly the British Library, will be playing a more important role in future and that greater reliance will be placed upon them for maintaining adequate access for the works of many different authors. Therefore, the role which this great institution can play in advising the Secretary of State as to the development of public lending right because of its unrivalled reference lending and bibliographical services, must be taken into account. I hope that its consultative role will extend to developments in the international field when it may be necessary to consider reciprocal arrangements with other countries at some future time.
As I said, I think that the Bill of the noble Lord, Lord Willis, is largely right, and I wish him all success with it. However, I hope the Government will introduce their own Bill in the near future, and only then will the noble Lord feel able to withdraw his Bill. I, for one, hope that this Bill gets a Second Reading and if it goes to a Division I shall vote for it.
12.49 p.m.
Lord RITCHIE-CALDER: My Lords, in spite of the injunction of my noble friend Lord Snow, I for my part insist upon declaring an interest—because I notice that when speakers in your Lordships' House declare an interest it is not out of contrition, but represents a form of boasting. So I declare an interest, having written 32 books and having been in business for over 40 years as an author trying to get into public hands.
It is now many years since I used to go into public libraries to look at the dispatch list and the lending list to see why, in terms of publishers' royalties, my books were not selling, but were obviously being read in public libraries. I was greatly encouraged by the latter fact. The point is that when you are young and hopeful, this is all very encouraging. You write books to be paid for them, but you also write books in order that people will read them if you have a message to put over. But as my noble friend Lord Willis pointed out, this attitude of the dedicated author has been so unscrupulously exploited over the years that I think it is high time that we should try to remedy this situation through this House and through this Parliament, using any pressure that we can put on the Government to get the position of the working author improved I repeat that I mean "the working author". We are not dilettantes. There are many amateur authors who may write as a hobby, but most people—and certainly those with whom we are concerned here—are in fact hard-working authors.
When people speak about writing and about divine afflatus and inspiration, I do not believe anybody in this House has any illusions. The only way you write a book is to put your bottom on a hard seat and get on with it. It is hard word work, it is withdrawal work, and usually it is done at the expense of your family and your other activities; but if you are writing a book that is your sole aim and purpose while you are doing it. Nine out of ten of the books I have written have been subsidised by my other work. I have written something like 28 or 30 books "on the hoof", by working as a

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journalist and so on, and writing in that rare spare time I may have had.
There is no question here but that there exists a desperate need, which has been recognised by three Ministers of the Arts, by Governments, by the Parties and in the Queen's Speech, and in point of fact what we are really complaining about today, if I may put it quite crudely, is the attitude which is reflected by the noble Viscount, Lord Eccles. The complaint we have to make, the complaint that the noble Lord, Lord Willis, is making and the complaint that is implicit in the Bill, is the fact that we have been listening to this kind of thing for too long. We have accepted the principle; everybody says that they love us dearly and that we ought to be looked after, and then nobody does anything about it. They find every reason to do nothing.
My noble friend Lord Snow quoted what we used to call this during the War. I am glad to see that the noble Viscount, Lord Eccles, is now back in his place because there was another saying during the war—Winston Churchill's famous injunction to the Chiefs of Staff, which simply said:
"Piers for use on beaches: They must float up and down with the tide. … Let me have the best solution worked out. Do not argue this, the difficulties will argue for themselves".
We have been discussing all this time and the difficulties have argued for themselves and by no stretch of the imagination have they been resolved by the people who were charged and instructed, certainly by public sentiment and by Governments and by the Queen's Speech, to get on with the job.
We must have an answer to this. It is not merely that we are trying belatedly to recover what should have been recoverable, not only in terms of what you earn through your copyrights, your royalties and direct publishing, but I realise, as do all authors, that for something like 40 years of my life I have been a public benefactor simply because I have been subsidising the public lending service by not collecting what should have been my due. I am pleased to have been priviledged to have that function but for others, and particularly those who are trying to struggle into writing (and they are going out very fast) there is no way, so far as I can see—and I deal with publishers at every level, both here and in America—whereby publishers nowadays
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are exercising the kind of function which they used to exercise, which was to invest their windfalls from best sellers at least in encouraging young authors to come forward. In the United States there is no encouragement of young authors; there is no way, except through the accountants and computers, to arrive at a best seller, and the result is not being re-invested in the writers.
My noble friend Lord Snow pointed out that we can get over that by subsidies and so forth through pseudo-academic functions. I notice that in this country we give out poetry prizes but we rarely print or publish poetry. It is a substitute for publication. We recognise merit but we do not finance it. I am not asking—and none of us here is asking—for charity for writers. I must not be quoted in contradiction of myself, but a writer usually gets a great deal of satisfaction out of his craftmanship and his achievements. But this is not enough. This is not what we are talking about. We must ask ourselves how the function of literature, which we all recognise and accept as one of the great cultural values in the world, is to be maintained if we discourage the people who are creative—indeed, not even creative; I do not regard myself as being creative. I have written no fiction. I regard myself as one of the producers of factual and non-fictional books. But the point is that we still have to get ideas across. We have to be the vehicles, and we ought to have our intake secured through encouraging the recruitment of people by carrying on what has been done by a good deal of indulgence on the part of authors themselves.
Of course there are difficulties; we have been talking about them for years. I was on the Management Committee of the Society of Authors when we first raised this subject, and I ask my noble friend on the Front Bench at least to qualify what he said, because this is not what we were aiming at in the sense of payment on purchases. We have been working on it for all these years. I commend the Writers' Action Group, in that they have at least demonstrated what the noble Lord, Lord Snow, and the noble Lord, Lord Willis, have emphasised, that the ways in which we could produce a method of recovery are not so difficult now. The computers can be used. Also, I want to

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say most emphatically that no one here is more concerned about the public library service and librarians than I am. They are wonderful people, and as an author I pay my tribute to them as one who has to rely on them for a great deal of help in securing books and references. But we are not asking them to behave like 'bus conductors and collect the pennies for us. That would be an impossible and impracticable demand. What we are asking is that through the understanding and the calculations we shall arrive at certain figures which will make a meaningful contribution to the authors who have produced the works, and who, as has been said repeatedly, have invested themselves in those works and have a continuing right to secure the benefits from them.
I do not see why we should be expropriated any more than anybody else who has made a contribution of this kind. As has been pointed out, we are the owners of property which is borrowed systematically from the public library shelves. I believe that the people who appreciate what writers do, certainly the readers, endorse this Bill and, like so many other noble Lords, I hope my noble friend Lord Willis will not withdraw it until we get the security we want. I am not saying that we cannot trust our friends on the Front Bench or the Minister, but we have now reached the stage where we want something much more concrete than anything we have had so far.
12.59 p.m.
Lord GIBSON: My Lords, it seems to me—though I may yet be proved wrong—that everything which can usefully be said about the principle of public lending rights in general, and indeed at this stage about this Bill, has been said in the debate. Therefore, I shall be very short in my speech and the only point in my rising is to remind your Lordships of the full support for the principle of public lending rights which the Arts Council, of which I am chairman, has always shown.
Despite what the noble Lord, Lord Snow, said about it not being necessary to declare interest—a principle with which I have a good deal of sympathy because of the honour which it implies on your Lordships' part—nevertheless it is sometimes of interest to declare at least the background against which one speaks.
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Therefore, I should say that I am the chairman of a group which includes the Houses of Longman and Penguin. However, it is not on behalf of the publishers that I want the public lending right to be introduced; it is on behalf of authors. Publishers can look after themselves.
May I remind your Lordships of the part played by the Arts Council during the early stages of the campaign for the public lending right, because the report which was produced in 1967—eight years ago, when my noble friend Lord Goodman was chairman of the Council—was produced by a Working Party of which Mr. Cecil Day-Lewis was chairman. Those of your Lordships who have not read it will not be surprised to learn that it was a report of remarkable clarity and was beautifully written. I have to read far too many reports and this is one of the few reports that I have really enjoyed reading. You cannot put it down. It is a national scandal that, eight years later, the principles which the report advocated and which have been universally accepted have not been translated into law. Accordingly, we are grateful to the Arts Council—and I personally am grateful to the noble Lord, Lord Willis—for bringing this matter to national attention today.
The plain fact is that the Government have not thought the matter important enough to find legislative time for it in a crowded programme, despite their undertaking to introduce it at some point. Not unnaturally in the circumstances, the Minister for the Arts has made a virtue of necessity by using the delay forced upon him by his colleagues to institute further investigations into the possible techniques of administering the public lending right. That is natural enough. Indeed, it may even have its uses. It is a complicated matter, but it must not be allowed to obscure the fact that such investigations are not in themselves a reason for delaying the Bill. It is important that your Lordships' House should be assured today that Parliamentary time will he found for the Bill and that we should be told precisely when that time will be found.
Speaking for myself, if this assurance is not given in categorical terms I shall vote for the Bill of the noble Lord, Lord Willis. His Bill may have gaps, and in my opinion the most satisfactory solution

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would be for the Government to take it over and ensure that those gaps are closed. But if that does not happen we should vote for it as it is. There seems to me to be no need for further investigation about a modus operandi before this or any other Bill passes into law, because that modus operandi would no doubt have to be altered in the light of later experience. I beg the Government to realise that authors, who by the nature of their craft are not without influence on public opinion, are deeply incensed by the delay. Simple justice demands action now, and I beg your Lordships to demand nothing less.
May I make one more point before I sit down. In my opinion, this act of justice has nothing to do with the support for literature by the State. It is simply the righting of an injustice as between one group of citizens, the writers, and another group of citizens, the borrowers of books from libraries. Nobody is suggesting that the borrowers themselves should be made to pay. The country very properly takes a pride in its free libraries. They should be free at the expense of the community as a whole—not at the expense of the writer any more than at the expense of the individual borrower. It is a payment for a service done, and how much service is determined by the amount of borrowing done. Therefore, the criterion has nothing to do with quality; it has everything to do with use.
The question of State support for literature to which the noble Lord, Lord Snow, referred—I entirely agree with the remarks that he made—is a very difficult and quite different problem, which I do not think it is appropriate to air in your Lordships' House today, although I should be very glad to do so on another occasion.
1.5 p.m.
The Earl of CRANBROOK: My Lords, I should like to stress the point which has been made by the noble Lord, Lord Willis, and supported by the noble Lord, Lord Gibson, that an author's rights to which we are referring arise only because of the service he has rendered to the public, although I must confess that in my own case the public has been extraordinarily unresponsive to such effusions as I have ventured to put before them. But no doubt I am unique in that way.
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The point that is made—and justly, I think—is that the author is not fully paid for the services which he has rendered to the public by reason of the admirable library service which we have in this country. However, I think that the Bill is too narrowly drawn, particularly in one respect; namely, the way in which the definition of "work" in Clause 12 seems completely to exclude scientific publications. The Government have already promised that they will introduce their own Bill. However, I shall certainly vote for this Bill, because I feel that it will be a useful way of stimulating the Government to do something about the subject, and I must confess, with due respect to the noble Lord, Lord Willis, that to amend his Bill will be such a difficult task that it will take a great many hours. When the Government introduce their Bill, I hope that they will bear in mind the point I have made about the scientific societies which publish journals containing articles which are essential for the dissemination of knowledge, and which can be disseminated only in that way.
In general, the author's copyright is transferred to the society. The author's objective is to disseminate the knowledge which he has acquired and I believe it is absolutely essential that once the copyright has been transferred to the society, the members of which bear very largely the cost of the publication and perform the same service for the public as does the author with his individual publication, there should be provision for the transfer of lending rights to the society, together with the copyright to which my noble friend Lord Ironside referred. These journals are not bought by the general public. They are not even bought by workers in the same discipline. They go to libraries where, as my noble friend Lord Ironside reminded us, authors can obtain individual items under the fair copying clauses. This is as important a service for the general public as that which is rendered by the individual author, and I feel that the Government would be failing in their duty if they did not take this into consideration when they introduced their own Bill.
1.9 p.m.
The Earl of LONGFORD: My Lords, I rise to join ail the other speakers who, with the possible exception of the

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noble Viscount, Lord Eccles, have so strongly welcomed the Bill. I dissent on this one point from my dear friend the noble Lord, Lord Snow, who seems reluctant to recommend noble Lords to declare their interests. May I speak for a moment from the wider standpoint? It would be absolutely disastrous in this House if people did not declare their interests, because so many people have occupations which are much more important in their lives—frequently but not always, money-making occupations—than their political work. If noble Lords came to this House and spoke—as I am afraid they sometimes do—on behalf of their businesses without declaring that fact, we should all be very much bewildered. So on that one point I must disagree with my noble friend, who spoke so well.
I would declare one or two interests, possibly in the spirit of the noble Lord, Lord Ritchie-Calder, who vanished when he saw me getting up to speak. At any rate, I am a publisher. The noble Lord, Lord Gibson, is a much larger publisher, or rather controls much larger publishing interests than I do; but I am a publisher, having come to it rather late in the day. There are publishers, I believe, who are very hostile, but publishers as a whole, I think the noble Lord would confirm, have not taken up an attitude. Some have been very helpful; some less than helpful. Therefore, nobody can come down here and say that publishers take up a particular attitude in regard to this matter. But, unless I am mistaken, publishers are not mentioned in the Bill, which is quite correct. It would be a mistake to mention publishers one way or the other. So we can leave them out of the discussion, although we recognise that they are of importance in this affair—of an importance second only to that of authors. As my noble friend Lord Willis said at the beginning of the debate, if there were no authors there would be no publishers, no booksellers, no literary agents, no anything. So publishers come in next to authors, but I think it has been wise to leave them out of this Bill.
Then, I am an author. I do not quite take the view of the noble Lord, Lord Ritchie-Calder—had he not left the House at all? I apologise to him: I thought he had left the House because he has moved his place. However, Lord
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Ritchie-Calder mentioned the fact that he had written 32 books and concluded from that, I think, that he had been a benefactor 32 times. I have written a number of books, but I have never been quite so clear that I have conferred this priceless benefit on the community every time I write a book. The idea of being a benefactor is not so clear to me as it is to the noble Lord.
Lord RITCHIE-CALDER: My Lords, unlike the noble Earl I have never written a book on humility.
The Earl of LONGFORD: My Lords, I think that after the speech today the noble Lord should possibly make a preliminary investigation of that subject. Then I suppose I should speak as a family man—what is sometimes called the head of a family, but that phrase is rather out of date these days as applied to a father. At any rate, I speak as the father of a family which has produced more books in one year than any other family. There was one gentleman who threatened our record. He wrote as many books in one year as the whole of us put together. That seemed to be rather a dangerous trend. But I am sorry to say that he then died. We read that he had collapsed under a strain, which bears out the point of the noble Lord, Lord Willis, that authorship is a very exacting profession. So I am not suggesting that anyone should again try to challenge our record single-handed.
However, in that capacity and these other capacities I do not speak with any certainty that my views will recommend themselves to other members of the family. Two members of my family, at least, are by any standard what are called "best sellers". I do not know whether my noble friend Lord Ritchie-Calder is. I would describe myself not as that, but as a good, work-a-day author, a run-of-the-mill kind of figure. But I know a best seller when I see one, and most of all when I see the resulting cheque; even if the tax man gets most of it. Therefore, from that point of view I am in a position to comment on something that my noble friend Lord Snow said about our desire—his desire particularly, but the desire of all of us in our hearts—not to see most of this money (and it would be a very limited sum) moving

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into the pockets of those who are already receiving large rewards. That is absolutely right.
My noble friend Lord Willis, however, has included in his Bill at least one reference to that point. On page 6, in Clause 8(4), it is said:
" The Secretary of State may by order prescribe a maximum amount which may be paid to any one author in respect of any specified period."
I absolutely follow the line taken by my noble friend Lord Snow in attaching great importance to this provision. It would be quite ludicrous if this relatively small sum of money passed into the hands of those who are already so well endowed. I say that in reply to that point. But I do not, as I have said, speak therefore on behalf of my family, although I am glad to think that one member of my family who is particularly successful in all kinds of ways as an author is the chairman of the Society of Authors and is working very hard for the proposals we have at heart. So, being a successful author is not the same as demanding the pound of flesh on every occasion; in fact, far from it.
My Lords, I do not want to take up time. We all have our various occupations, whether at Wimbledon or elsewhere, but we agree the principle. The principle of having public lending right is agreed by everybody. That is what is called the principle—the public lending right. But, as has been emphasised so strongly by my noble friend Lord Snow, if this was really a purchase-based right—indeed, I think the noble Viscount, Lord Eccles, admitted this—it would not be public lending right at all. So when we are speaking of the public lending right, nearly all of us will exclude the purchase idea and base ourselves on lending.
So, then, it comes down simply to this: When will the Government produce their plan, and why have they not produced it already? The idea that there were so many Bills in the pipeline cannot be a genuine reason. It must be because they are still unable to make up their minds, or it may be, as the noble Lord, Lord Goodman, said, because the technicians are still playing about with the problems. I thought he had a marvellous phrase—I may have got it wrong—when he said they cherished a kind of intellectual loathing of the idea of giving up their prob-
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lems; these problems become part of them. I remember that Churchill in reference to writing books said that a great book you are writing is a great friend. Obviously, a great problem is a great friend to some of these gentry, and I am afraid that I agreed with the noble Lord's suggestions.
Viscount ECCLES: My Lords, will the noble Earl excuse me?
The Earl of LONGFORD: Yes.
Viscount ECCLES: I should like just to defend the officials in the Department. I can tell the noble Earl that they were longing to do other kinds of work rather than go on investigating these problems. I was encouraging them to get through the problems. It is unfair on the officials. I saw no, what might be called, negotiators' mania. This is a very difficult topic and they would be glad to be rid of it with a successful solution.
Lord STRABOLGI: Hear, hear!
The Earl of LONGFORD: My Lords, am very glad to hear that. I gather that all those who are satisfied with what has been done up to now and feel a good job has been done will sympathise with what has been said. But those of us who think that this is a lamentable story will not be able to echo the words of the noble Viscount, although I know he said them out of a very much to be respected loyalty. In any case, if that is so—and I am sure it is so—if they would like to be relieved of these problems, I gather that they would be the happiest people in the world if Lord Goodman's suggestion were adopted and they were translated to higher or at any rate other spheres.
When we come down to the technical difficulties, I am certainly not going to spend time on those now. Yesterday I went into a public library and asked in an egotistical way, so familiar to so many authors, whether they had many of my books on the shelves. They had a few, half a dozen or so—they may have had 32 of Lord Ritchie-Calder, but I was not inquiring about those. I said: "How many times have they been taken out?" In the old days one used to be able to go into a library and find out how many times a book had been taken out. "Oh", they say now; that is quite out of date. One cannot find out that sort

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of thing nowadays ".In the past, perhaps in the provinces, I have asked:" How is the book going in the library? "But now one cannot do that; or at least one cannot do it in the more enlightened libraries. I say that just in passing because noble Lords may not be aware of that fact. It is not strictly relevant, however, because under the new arrangements I gather that that aspect will be taken care of.
So we come down to this question. Will it be possible to find a scheme that is reasonably fair? I agree with all that has been said about the impossibility of finding absolute fairness. But in the last resort, who are to be the judges of fairness? I would say that the authors must be the judges of fairness. It is no good legislators and bureaucrats and other estimable citizens coming along and saying: "Our hearts bleed for the authors. We should be so unhappy if this money wasn't distributed in the way that was fairest ". The authors are the best judges, my Lords, and for that, and for a hundred other reasons. I have great pleasure in supporting the Bill.
1.20 p.m.
Lord PAGET of NORTHAMPTON: My Lords, I have listened to all the speeches in this debate and have found myself most in agreement with that made by the noble Viscount, Lord Eccles. The noble Viscount dealt with the technical difficulties of this case, and I thought that what he said was quite unanswerable. I would go rather further than he in finding myself in considerable disagreement with the principles advanced in favour of the Bill. It seemed to me a little like a trades union meeting in which everybody has agreed on one thing—that the wages of their particular trade should go up. I do not find the reasons for that are well-founded.
The Earl of LONGFORD: My Lords, may I interrupt the noble Lord, Lord Paget of Northampton, on one point? He talks as though this is a trade union meeting. Of course, he is entitled to that view, but is he aware that, apart from myself, the noble Lord, Lord Snow, and possibly the noble Viscount, Lord Eccles, the majority of noble Lords who have spoken are not authors?
Lord PAGET of NORTHAMPTON: My Lords, we will do some adding up
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afterwards, but for the moment I do not want to waste time by going into that. The first argument advanced by the noble Lord, Lord Willis, was in the main based on the proposition that an author should be entitled to a living wage. I certainly do not follow that. I do not see why an author should be a full-time writer. In a great majority of instances, he is probbly better not being a full-time writer. I do not see any reason why, just because they write books, people should not earn their living in some normal way.
As everybody has declared an interest, I think I must, too. I have not written nearly so many books as other authors but some of mine are on the shelves of public libraries. Unlike nearly all the other noble Lords who have spoken, I feel nothing but the greatest gratitude to those libraries. I know that my books would not have been published if the libraries had not been there to buy them, and I know what they bought them for—they bought them in order to lend them out. I should equally like to say how grateful I am to the relatively few people who borrow my books. I can assure noble Lords that on the quite rare occasions when I have found someone reading my books, it has made my day for me.
Since I retired from the Commons, I have been working very hard on a book. So far I have put in two years' work on it, and most probably there is another year to go. I hope someone will publish it, but I shall feel no sense of resentment if they do not. I think one writes because one has that particular fox under one's cloak; it is an urge that you have to express yourself. It is something you have to do. If you find that you are paid for it, how lovely! If you find that your hobby can become your living, you are a very lucky man. The great majority of authors cannot expect that, in the same way as the great majority of footballers cannot expect to earn their living that way. One is very lucky if one does. I am not at all certain that if one becomes a professional writer, one finds that it improves one's writing. Indeed, I should have thought that the lowest level of writing one sees on the bookstalls is written by professional writers churning it out to a deadline.
The wife and daughter of the noble Earl, Lord Longford, have written two

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enchanting and brilliant books—they have written far more than two, but I have in mind two that I happen to have read. I doubt whether they would have been nearly so good if behind them there had been the drive of a person who has become a professional writer who has to meet a deadline in order to deal with the grocer's bills. It is by no means certain that the necessity to become a professional writer improves the quality at all. The late Ian Fleming was a friend of mine, and we spent most of our schooldays at the same desk. His writings made him a millionnaire, but nobody expressed more forcibly than he what deplorable writing he considered it to be.
My Lords, I then turn from this idea that a writer has a right to be treated as a journeyman requiring a wage, to the argument of the noble Lord, Lord Goodman, based on the idea of justice. I always enjoy very much listening to the speeches made by the noble Lord, Lord Goodman. I delight in his play with words, with his "weaving", even when I think he is "weaving" deplorable nonsense, as today. I cannot see that justice has anything whatever to do with this argument. No author need sell to a library if he does not wish to, or through his publisher if he does not wish to. If he does not want libraries to distribute his books, he can restrain them by injunction. In point of fact, the author does want the libraries to distribute his books; he sells to them for that purpose, so what is unjust in this? I do not know.
Lord GOODMAN: My Lords, I am very reluctant to interrupt the noble Lord, Lord Paget of Northampton, in his most interesting speech, but may I ask him a question? Has he ever tried to negotiate a publishing contract with a publisher in which he excludes the right of the publisher to sell the books to a library? Has he found any author who has contrived to do this? If so, we should be glad to have the name, as that author would have achieved a new line of attack which we could follow.
Lord PAGET of NORTHAMPTON: My Lords, I am sure the answer is "No", because no publisher would surrender the tremendous advantage of selling the books to a library. That is the only reason why. If it pays the producers of a book
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—the author and the publisher—not to sell it to a library, they need not do so. It pays to sell books to a library, and therefore they both do it. However, that has nothing to do with justice. It just happens to be the commercially desirable choice.
This Bill proposes to introduce two restraints of trade. The first is a restraint of trade on the buyer (that is, the library) trying to restrain him from using the book for the purpose for which he wants it; that is, to lend it free. Secondly, there is a restraint of trade on the author by forbidding him, unlike his copyright, to sell this new and absurd right proposed here. These are two restraints of trade which I think in fact would operate only to the disadvantage of literature generally, first because what you do has to be paid for. It has to be paid for in the addition which we are seeking for the authors and the administrative machinery necessary to produce that addition. Within the existing ceiling that could come from the book firm, in which case it will mean that fewer books are bought. It will mean also that fewer books are published. In other words, you will advantage the established author to the disadvantage of the person who will probably have considerable difficulty in marginally worthwhile publishing, the new author and the novice.
The other alternative would be a public grant. There are economic reasons why perhaps this is not quite the time for that, but even if these were not, I would regard a public grant for this purpose as deplorable. If we want a public grant, it should be directed to improving the quality of opportunities for writing, not for rewarding any kind of tripe that may be turned out by a professional writer. I would want it in terms of purchase. I certainly would not want a general kind of grant for the purpose. I will certainly join Lord Eccles in this Lobby, and hope that the Government do not give any assurance that they are going to launch out on this scheme, which I think from the general point of view of literature will only result in mischief.
Lord DIGBY: My Lords, as chairman of a library committee, I am particularly concerned with the administrative costs of a loan-based scheme. We have been told that a purchase-based

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scheme is unacceptable, and I understand from this debate that this may be because there will be no rights for books already purchased. May I ask the noble Lord, Lord Willis, whether, if a royalty was paid on books already in public libraries, a purchase-based scheme might then be acceptable? It could be based on existing data such as invoices and would not require extra staff, which is a very vital consideration in the present climate.
1.32 p.m.
Lord ELTON: My Lords, I believe that the whole House owes a debt of gratitude to the noble Lord, Lord Willis, as do the various societies of authors, for bringing this matter to the forefront of the public mind in the way he has done. I ought at the outset, since we are all so keen on declaring interests this afternoon, to declare a miniscule and almost risible interest myself, as little more than an aspiring author with a manuscript which was once in the possession of a publisher who subsequently got into what are known as financial difficulties and, being transferred from him, the subsequent publisher unfortunately died before the signing of the contract. I am thinking of changing the name of the book to Jonah.
That aside, I think we can understand the impatience with which the noble Lord, Lord Willis, and those whose interests he has at heart view the present situation. I know that he has been under pressure from various of his colleagues who I see waving encouragingly at me whenever I open a door, a window or a letter. This is an impressive aid to him, as no doubt he appreciates, as do I. Let us consider the reasons for their enthusiasm. They were encouraged by the acceptance in principle of such a Bill as this by the last Conservative Administration before it retired from Office. Buoyed up in hope were they by the favourable response given by the new Minister to a delegation of authors, led by the noble Lord, Lord Goodman, when it called upon him on 9th April 1974.
They were confirmed in this hope by the Press release and the Parliamentary Statement made by the Minister on 9th May 1974. How could they be otherwise when he declared his firm intention of introducing legislation, if possible, in
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1974? Although they may have felt unease at the slow progress of the Technical Investigation Group, or Tig—which I may add is the Anglo-Saxon word for the God of War, seen in Tew and Duns Tew and other place names—and been discouraged due to the slow progress of this deity, they were encouraged again when a deputation of authors to the Minister reported on 19th May that he had assured them that legislation would be introduced before 31st December—be it noted—1974.
Authors are uneasy people and they were not entirely satisfied, strange as it may seem, by this undertaking, and on 4th October, in the persons of Dame Veronica Wedgewood and 10 members of the council of the Society of Authors, they wrote to The Times requiring reassurance, superfluous as it may have been. On 7th October, The Times carried the reply of the Minister to the effect that legislation would be introduced before 31st December—be it noted—1974, if he and his Party were returned to Office. That, I may say, was three days before polling day and on 10th October he and they were returned to Office. Perhaps this return was assisted in part by the votes of the members of the Society of Authors and others, who were understandably encouraged to help him so as to feel secure and to benefit from the performance of the undertaking so given to get legislation before the end of that year. Any groundless and reprehensible doubt they may have had about delivery of the goods was dispelled by the including of public lending rights for authors in the Queen's Speech when they were able to read it in the Hansard of 29th October.
But by 11th December doubts were again nibbling at the edges of their coats, and they were faced with the beginnings of disillusion. At a Press briefing on that day, the Minister could state only that he planned to publish the Long Title of the Bill before the end of the month, and although a Long Title may not look like legislation to ordinary mortals such as authors, it does at least fulfil the intention of getting some statutory indication published in some form—more like a declaration of intent, one might think. Of course, there had already been a number of declarations of intent, but the Minister could at least regard it as the fulfilment of his

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pledge given in The Times during the Election campaign. At least he could have done, had he published the Long Title before 31st December 1974. But he did not and, as far as I know, has not yet done so. So it is perhaps an unpalatable, but none the less truthful, statement that a small, vulnerable, but very important section of the community had been, however unintentionally, very successfully misled. That is the background to the impatience of which we are all well aware.
It used to be said that only fools lend books. On applying to borrow a book from a distinguished gentleman, a friend of mine was greeted with the statement that only fools lend books and looking him straight in the eye the gentleman in question swept his arm around his well-filled library and said, "All these books once belonged to fools." But that is no longer the case, because local authorities do it, too, over 600 million times a year. This amounts—and perhaps the noble Lord, Lord Paget, will take note of the fact—to 10 lendings per head of the population per annum, and I do not regard that as "elatively few."
I agree with my noble friend Lord Eccles that there is a right and just cause for the payment of a recognition to authors for what could be described as the exploitation of their works in lending them at no charge to the public. Our sympathy is rightly enjoined by the statistics which the noble Lord, Lord Willis, gave us at the beginning of his speech. I understand that 56 per cent. of authors are now expected to live, if they live by not bread but ink alone, on £10 a week. I would say to those who regard this as incidental rather than crucial to the life of the author, that however one may envy fame it is no substitute for food, and you cannot get very fat on £10 a week. What is more, as the noble Lord, Lord Paget, himself implied, those who really need help, the deserving and talented authors who are not recognised, do not get £10 a week. Therefore, it is right that something should be done.
I think I should now turn, since I am up against the combined attraction of Wimbledon and lunch, both of which expect to miss, to contemplating briefly the general objections which have been made in public to this Bill, as well as
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those which have been raised in this Chamber. First, it has been said that the ratepayer, since he subscribes to the library book fund, is in a sense the buyer as well as the borrower of the book. Of course, he is only the buyer in a miniscule proportion. But I should like to draw to your Lordships' notice the circumstances which now pertain in Buckinghamshire. I shall be glad to be told if I am wrong, but, as I understand it, the Buckinghamshire public library book fund, which formerly stood at the, I suppose, satisfactory figure of £265,000, has been cut for the current financial year to £65,000. This is a formidable cut of 75 per cent. bearing entirely on works produced by authors and publishers. What is more, I am also given to understand that no fiction will be bought there in the foreseeable future. That bears heavily on a large number of authors. Even if the motto, "No books in Bucks" is not copied elsewhere in the country, it is a sinister straw in the wind.
This example is relevant also to a second objection, which is that public library purchases alone give viable print runs to publishers. Your Lordships will be aware that if you print one book it is astronomically expensive; if you print 1 million the unit cost is negligible, and there are points in between on the graph which the publisher aims to occupy according to the quality of the market at which he aims. The Technical Investigation Group assumes as a sort of central target a purchase by the public libraries of about 3,000 copies of an individual title. That is a viable basic print run depending on the size of the volume and other considerations. It is a start, it is a springboard. It is not a profitable print run in most cases, but I should be interested to know whether the people who advance this argument really suppose that if the libraries were closed and all these 3,000 purchases were rubbed out tomorrow, the borrowers who at present borrow, I think I said, about 60 million times a year, would not buy any books? Would they be able to share them as effectively? Not having a public library, would they not be forced to buy more? We are perhaps in the realms of philosophy here because the libraries are not going to be closed, God willing, but it is an argument that should be looked at with great suspicion.

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It has been said—and repeated in this Chamber—that the Bill is in some respects unbalanced because it excludes particular categories of libraries. I think if your Lordships look at the Bill you will see that a great deal of the crucial ground is outside the Bill altogether, and that is a mote of criticism. I shall revert to this subject shortly. But the technical difficulties of monitoring reference libraries, and specialist university libraries particularly, only a sample group of which we are talking about (and the sample can be rotated when methods become more sophisticated) justify the exclusion; the onus is on the Promoters of the Bill to find some acceptable formula by which the supposed borrowing and uses in these libraries can be extrapolated and related to the magical figure in Clause 8 by which the Minister decrees that everything shall be multiplied to arrive at the sum the author should gain.
Unless the lowest paid authors are to benefit by hand-out, they inevitably will not benefit, as we said before, if only because of the extreme expense of clerking individual payments. Your Lordships will be familiar with the gross expense involved in dictating and sending a letter from the office, or in signing and mailing a cheque; in small payments this can become a very large item. These items will gross up and, as I understand, the Bill suggests they will gross up and be released when they reach a satisfactory amount.
The Bill sets up machinery for registering books and authors due for public lending right. There is to be a Register with a Registrar and Advisory Committee, and a fund provided by Parliament. Clause 1(3) gives the dependants of a deceased author an entitlement to public lending right subject to Schedule 1, and that Schedule removes that entitlement, as the noble Lady, Lady Kinloss, rightly observed, on the marriage of the widow. I will not expand on this theme, but although you cannot follow copyright law in almost all details of public lending right, I do not see why this should not be an assignable right and why the rights should not pass to the executors as at the moment copyright passes at decease. However, this is a Committee stage point. The public lending right paid on works in Clause 12(1), we find, means any
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literary, dramatic, musical or artistic work. There is a need for clarification here.
This brings me to the matter of lack of definition throughout the Bill. Are we talking about resources packs for schools? Do we include film strips, moving films to be projected? And what about recordings? I looked through the Bill and I could not find a definition nor a reference to a previous Act on which these would be defined. There could be difficulties in sampling the varied stock of this sort.
Lord IRONSIDE: My Lords, would not the noble Lord agree that a good description might be contained in the British Library Act 1972 where it says that the collection consists of a—
" comprehensive collection of books, manuscripts, periodicals, films and other recorded matter whether printed or otherwise."
Lord ELTON: My Lords, I am obliged for that suggestion. It is one that might be examined at Committee stage, if we are to go to a Committee stage. I take his point that it is often possible to get a workable definition by reference to a previous Act of Parliament. We should also pay attention to my noble friend's earlier remarks on the definition of an author. The principal area of concern in this Bill lies in Clause 8. My noble friend Lord Eccles has pointed out with great force the extraordinary lack of definition in almost every field. It is, in a sense, handing to the Minister the duty of doing all the things that we find either contentious, difficult, or distasteful to do ourselves at this stage. There is an argument for doing that which I think resides in the opening phrases of my speech. There is an argument for saying that unless we do this nothing will be done. But it would not be sufficient to let the Bill go further without very radical amendment in the Schedules elsewhere to include definitions. As the noble Lord, Lord Goodman, suggested, the definition of a library has to be included. I think that should not be left entirely to the Minister unless it is a subject which cannot become contentious, and I detect a feeling of contention in the air on this subject.
Again, in Clause 8(2)(b) the Minister is to:
" regulate the method of computation "

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of numbers of copies of works held or lent by libraries. We are not told in the Bill whether it is by loan sample, purchase, or whether it is a mixture, which would be most practical, of the two. Yet this is a matter to which your Lordships have devoted a good deal of time today although it is not in the Bill, and this is an implicit criticism of the Bill as it is now.
Then there have been criticisms about the fact that there is no delimitation of the upper and lower cut-off points necessary for the fair operation of the Bill. I gather that the authors en masse hope for about ½p a read. The Minister could say ½p a read, he could say £100 under this Bill and bankrupt the nation, or perhaps say nil and invalidate the Bill. Your Lordships should consider whether such a breadth of discretion should be allowed to a Minister with whom we are not always in agreement.
No basis of calculation is given, no guidance as to the relative rewards to be given to works of reference, and works to be perused at home. On this, briefly I think there is a genuine difficulty, in that I suspect that the authors would like to arrive at their ½p and multiply it by the number of loans and divide that by the number of authors. And the Government—and I would agree—would say how much is available, and divide that by the number of loans, but the two answers will be very different.
The final objections advanced to this Bill in public have been that TIG say more research is needed. It is unfair at least to level criticism at that Working Party or those it has commissioned, because they have been fairly speedy, particularly in the light of the extraordinarily vague terms of reference which they were given (if these really were the original terms of reference) which were:
"To look into the statistical and automatic data processing aspects of setting up a PLR system based on counting loans from public libraries."
I take it that there must have been more to it than that.
The Bill enshrines a just principle. It leaves outside its provisions virtually all the details of administration which are fundamental not only to its working but to the enshrinement of those principles. We note that the investigating
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body wants more time to complete its research. I do not think that I should go into too much detail at this late stage this afternoon, but I believe that the Government have committed themselves to deadlines which they have not met. It is always open to the Secretary of State to delay, not the Bill but the naming of the appointed day, so that the Statute itself is on the books and will be brought into operation when the Statutory Instruments which have to be laid to make it work are prepared. That is one option, but what are we to do in this situation?
My noble friend Lord Eccles has said that the Bill could be unworkable if that which is outside it is not defined, delimited and carefully described. However, it should not be impossible to insert sufficient material into the Bill to make it, though a bad runner, a runner. As such, it would be something which the Government will have to accept if they cannot definitely and without prospect of evasion or delay, undertake to produce a real runner of their own. I take it that that is fundamentally the exercise upon which we are engaged this afternoon. We wish to say that injustice has been done for too long, that it is better to have rough justice than no justice at all and that, if we cannot have good justice, we should prefer rough justice. Therefore, I shall have to listen with the greatest attention to what the noble Lord, Lord Strabolgi, has to say about the Bill before feeling able to recommend the noble Lord, Lord Willis, to withdraw the present Bill without very serious reflection indeed.
1.53 p.m.
Lord STRABOLGI: My Lords, the Bill we have been discussing today is, I think, avowedly an attempt to spur the Government to action. My noble friend Lord Willis has spoken his mind most frankly, as indeed have other noble Lords, during the course of the debate. Even so, I am very grateful to my noble friend for initiating the debate and for introducing the Bill, for it gives the House an opportunity to discuss public lending right which, personally, I welcome.
Reference has been made by noble Lords to the long history of the campaign of authors to get a public lending right on to the Statute Book. I would add only that my noble friend's Bill is the

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third move to legislate by a Back-Bencher during the last 18 months. Three such attempts are themselves ample evidence—and there is certainly no dearth of other evidence, both in this House and outside—of the authors' deep feelings that their case has gone too long unheeded. It is natural to seek causes for the long delay. Up to 18 months ago or thereabouts, the authors had perhaps not succeeded in convincing Parliament of the justice of their cause, but there is now much more support on all sides in Parliament, as has been shown today. I believe that all speakers except my noble friend Lord Paget of Northampton were in favour of public lending right, as I am myself.
My noble friend Lord Willis and the noble Lord, Lord Elton, speaking for the Opposition, have criticised the Government for delay, but the fact is that it has not been an easy thing to find a workable way of giving practical effect to PLR. Legislation that will not work would be thoroughly bad. The noble Lord, Lord Beaumont of Whitley, said in, I thought, a rather sweeping way that difficulties existed to be done away with. But difficulties do not go away of their own accord. The noble Lord, Lord Gibson, in his interesting speech, said that investigations were not a reason for delaying the Bill. My noble friend Lord Longford talked about the intellectual loathing of officials for reaching a solution. It is really not as easy as that—
The Earl of LONGFORD: My Lords, I did not say that, though I know what my noble friend is trying to say.
Lord STRABOLGI: I am sorry, my Lords. I wrote down what my noble friend said.
The Earl of LONGFORD: My noble friend wrote it down wrong, my Lords.
Lord ELTON: My Lords, I think I should make it clear that the criticism which I was advancing was criticism not of delay but of holding out false hopes for deadlines which could not be met. The noble Lord must be aware that the predecessor of the present Minister undertook to provide a Bill by 1976 or 1977 at the earliest, whereas the letter
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in The Times written by the present Minister said:
" The day is not later than 31st December 1974."
I believe that to be quite a serious criticism. I have said nothing about the difficulty of resolving the problems which does take time.
Lord STRABOLGI: My Lords, I of course heard what the noble Lord said in his speech and what he has repeated. I was interested in what the noble Viscount, Lord Eccles, said when he very rightly leapt to his feet in defence of the officials of the Department. I feel that some of the remarks which have been made this afternoon about the Department have been less than fair and I hope to demonstrate in the course of my speech quite how much work has been and is being done not only by the present Government but by their predecessors. Of course the Government's commitment must be a twofold one and must be directed not only to the principle but also to the practical implementation.
I am glad to reaffirm the Government's acceptance of the author's just claim. It is one that I accept personally and so does my honourable friend. But it is right, too, that the essential role of libraries and their staffs should be fully recognised if any scheme is to he effectively implemented. The noble Viscount, Lord Eccles, asked for an assurance. He reminded us of the role of the librarians and of their misgivings. My honourable friend the Minister for the Arts has already made it clear that the expenses incurred by libraries in administering the right will be reimbursed to them from the Exchequer. In order to ensure that this is done, the Technical Investigation Group—TIG—has made very careful calculations as to the cost of the library operations, including the cost of employing any additional staff. I am glad to repeat my honourable friend's assurances.
It is also necessary to ensure that ways of carrying out the library operations involved are thoroughly explored and tested for workability so that no avoidable difficulties are placed on the staffs of libraries. Useful preliminary investigations were made by the previous Conservative Administration and also by my noble friend Lady Lee of Asheridge, the

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noble Viscount, Lord Eccles, and his successor Mr. Norman St. John Stevas. Also, since the spring of last year, substantial progress has been made with a detailed study of the various operations which would have to be carried out to give effect to the right and to discover what they would cost. This progress has been possible because of the work of a broadly based group including representatives of authors, publishers, librarians, public library authorities and Government Departments set up by the present Minister for the Arts. I should like here to pay tribute to them.
The Government published at the end of March the group's report on its work up to that time. It is called Public Lending Right: An Account of an Investigation of Technical and Cost Aspects, and copies of it were placed in the Library. I commend this report to those of your Lordships who have, if I may say so with great respect, rather tended to gloss over some of the difficulties. It is very hard reading, but it is rewarding, and it gives some idea of the complexities involved. The report covers three main areas. First, there is research into the operational procedures required to record by automatic data processing the use made of authors' books in public libraries, and to pay them on the basis of this use. Secondly, there is an account of a pilot survey done last summer of the book loans made from a selected sample of public library branches, and of the statistical considerations involved in a sample count as distinct from a total count. Thirdly, there are incorporated the findings of field work and other studies by a firm of independent consultants, under contract with the DES and with the general guidance of the group.
I do not intend to refer to the report in much detail, but we must, I suggest, note carefully its main findings in debating my noble friend's Bill. The group was asked to concentrate on finding out what would be involved in implementing as two main alternative schemes, one based on recording a sample of public library loans, and the other on recording all new books purchased by public libraries. Authors' entitlements would be measured and paid accordingly. The report shows, first, that some 113,000 authors might qualify under the first
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alternative, some 87,000 under the second; more of course under the first because authors whose books were already in library stocks could be eligible. Secondly, statistics are assembled to indicate that about 600 million books are loaned each year from about 6,000 public library branches, and that these libraries buy about 13 million books a year (including 600,000 reference books) and they have in stock about 113 million, including 13 million reference books. This gives some indication of the numbers involved.
It is indicated thirdly that, given a number of assumptions—particularly on the size of statistical sample taken—a loan based scheme involving such a sample and a purchase scheme covering all new book purchases, would not be likely to differ greatly in cost; which is an interesting point. Fourthly, and lastly, the report refers to the amount of work remaining to be done to establish actual systems and procedures even after a decision has been taken on the type of scheme to be adopted—it might be two to three years' work for a loan based scheme and a little less for a purchase based scheme. Lastly, and most relevant to today's discussion, the group reported that they still had some investigations to complete before they could be clear about the feasibility of the schemes they had examined.
The report listed seven matters which were being studied further. I will not go into detail on all seven—they are given in the report—since the studies for four of them are now virtually complete. But there are three areas remaining. First, practical trials are going on in a variety of actual situations in library branches to verify the feasibility and cost of the operations needed to record the issue of books, or the purchases of books, and given a preliminary investigation by the group. There may, for example, be practical problems in making the records of loans issued by the library vans which go round our country districts; problems which do not arise in urban library branches. But these trials are now well advanced. My honourable friend the Minister for the Arts recently visited two of the libraries concerned and discussed progress with the staffs concerned. Secondly, the group were quite explicit that they had not at the end of March

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been able to devise a workable means of recognising the claims of authors of reference books in the context of a scheme based on counting loans. Here I was very interested in what the noble Lady, Lady Kinloss, said. As they indicated:
" The problem of dealing with books in reference libraries in a loan based scheme was one of the most difficult we encountered and we are still examining possible methods ".
A survey of reference library stocks is now well under way.
Thirdly, the book recording operations investigated by the group were based on the assumption that it would be practicable for the publishing industry to print in new books on publication a numerical code in a form which will produce a machine readable record of books loaned or bought. Such a record could then be matched up with a similar record of authors, and the authors correctly paid. To verify the practicabilities of the operations concerned, or perhaps alternatives which would be equally effective, is involving a programme of practical trials by publishers, printers and equipment manufacturers; and I am very pleased to acknowledge their help.
My honourable friend the Minister for the Arts announced in another place last April that clear indications were expected from the remaining research by this autumn, so that the Government's legislation proposals could be finally shaped. This progress is being well maintained, and the representatives technical group has meetings fixed for later this month and early September to appraise the outstanding research results.
My Lords, the Government, my honourable friend and I, have been criticised for not having produced a Bill sooner. But in a foreword published with the technical report I have referred to, my honourable friend observed how it demonstrated that the implementation of any form of PLR was no simple and easy task. I do not think that the critics—either outside this House, or today in the debate—have done justice to the clearly-demonstrated complexities, or appreciate enough that it is in the authors' interests for the legislation to say clearly what type of scheme will be applied.
My noble friend Lord Willis asked for an assurance of the Government's inten-
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tions. I cannot of course anticipate the terms of the gracious Speech, but it remains the Government's intention to give effect to our undertaking to legislate to create a right, and we are preparing a Bill to this end. My Lords, those critics are being less than fair who charge us with needless delay or lack of decision. I am remembering here some of the remarks of the noble Lord, Lord Elton.
We thought it right to defer the introductory legislation so that we could bring forward specific proposals backed by practicability testing. In the three-months since my honourable friend's statement, progress with the trials and other research has been such that we have no reason whatsoever to believe that decisions on the type of scheme to be adopted cannot be reached early in the autumn. We are not however in that position just yet, though of course we are very well aware of the authors' strong feelings in favour of a loan-based scheme and their antipathy towards a purchase-based one. That I think, has been reiterated in every speech given by noble Lords today.
My noble friend Lord Willis, I thought rather unusually, did not take us through the Bill, although I think the noble Lord, Lord Ironside, did, and the noble Lord, Lord Elton, directed our attention to certain parts of it. I should like now to deal with some of the ma provisions in my noble friend's Bill. I have already indicated my thanks to him for having produced it and for having given us the opportunity for this debate, but in company with other noble Lord today, particularly the noble Viscount, Lord Eccles, I fear that I have some serious criticisms of it.
Clause 8(1) in the Bill, as has been said, would make a scheme based on loans, together with a particular method of dealing with reference books under a loan-based scheme, the only basis on which the entitlement of authors in respect of the use of their books in libraries would be measured. But this is to anticipate the results of the remaining investigations that I have mentioned. We cannot now, as this part of the Bill seeks to do, assume the practicability of this method to the exclusion of any others.
Second, by Clauses 8 and 12, the Bill would seek to extend public lending right

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not only to works in literary copyright but to a wide variety of other copyrighted works by means of a power of extension given to the Secretary of State. My Lords, I hope I have convinced this House of the great complexity in giving practical effect to a PLR even as applied only to the authors of books. No investigations have yet been made, and very little is therefore known, about the practicability and cost of extending the right in the way proposed, and I suggest it seems premature, to say the least, to take such a step at this stage. This is not to rule out later consideration of claims of other potential beneficiaries in the light of experience with the working of an initial scheme.
Yet further, the Bill appears on two counts to be defective as a practical instrument by which authors could be remunerated for the library use of their books. First, some provision would certainly be required under which the libraries concerned would be obliged to furnish the Registrar appointed under Clause 3 with the details of the books loaned or held for reference by them. There is no such provision in my noble friend's Bill. Second, as the technical researches have shown, some standardised way of identifying books—whether by code or otherwise—would be needed if records of several million book loans or purchases annually are to be accurately made at reasonable cost. The Bill is silent on how this is to be done.
I am advised that to enact the provisions of Clause 2, seeking to narrow the geographical ambit of the right, would put this country in breach of its obligations under the Berne and Universal Copyright Conventions. By the operation of Clauses 5 and 8, sums made available from public funds towards the scheme to remunerate authors would have to be submitted by the Government to the advisory committee established under Clause 4 before being put before Parliament under Clause 11 in a statutory instrument subject to Negative Resolution. My Lords, it is wholly understandable that the authors will be closely interested in those sums, and even concerned to see that they are large. But I do not think it is appropriate that the Government should be obliged by Statute to submit to an outside committee on this
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matter—especially one on which, under Clause 4, authors will be in a permanent majority.
My Lords, some of the difficulties about the Bill could no doubt be put right by Amendments made at Committee stage as the noble Lady, Lady Kinloss, and the noble Lord, Lord Elton, have mentioned, but as suggested by the noble Viscount, Lord Eccles, Clause 8(1) is at the very heart of the Bill and would establish the adoption of a loan-based scheme to the exclusion of any other possibilities. As my noble friend has confirmed in his speech, Amendments to provide some other scheme would be unacceptable to my noble friend and to his supporters, and other noble Lords have confirmed as well. Amendments to leave open the type of scheme to be determined later on would not bring the establishment of a workable public lending right any nearer. The Germans tried this. They brought in a type of legislation without having worked out the details; and no payments have yet been made. The Bill therefore, I suggest, would seem to stand or fall on Clause 8, a clause which would legislate for a particular type of scheme before we know how that scheme will work.
In conclusion, I wish to repeat on behalf of the Government the assurance that we shall bring forward detailed legislative proposals as soon as possible The time taken to enable them to be put forward as a result of the essential operational trials and other studies of practicability is time saved from the total time required to put a scheme in operation. I hope, therefore, that my noble friend will be able to withdraw his Bill in the light of the assurance that I have given.
2.16 p.m.
Lord WILLIS: My Lords, I should like to thank all noble Lords who contributed to the debate. I do not think they will expect me to reply now to every point that has been made. We owe a great debt of gratitude to the noble Viscount, Lord Eccles, who played a significant part in the early days of the campaign for public lending rights. But, like the noble Lord, Lord Goodman, I was rather disappointed with his speech which seemed to see all the difficulties without sufficiently emphasising the basic principle and the fact that we are not asking for charity but a right. It seems to

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me wrong at this stage to talk about the librarians when it is a case of simple justice for the authors. The librarians will not be out of pocket at the end of the day and I do not think we could possibly hold up any scheme on that basis.
Most of the debate this afternoon circled round the question of a purchase scheme or a loan right scheme and we are told that investigations are still going on in this area. But the fact is that the purchase scheme, plus payment of books already in stock, has been costed already. It costs probably more than a loan sample scheme based on about 70 library points. The work for the libraries, incidentally, would be just as much if we had purchase rights because they are taking in 12 million or 13 million volumes a year and there will be copies of invoices, and so on. to pro ess; whereas a computer data scheme at about 70 library points would probably be half as cheap again as the purchase right scheme.
Lord STRABOLGI: My Lords, I am sorry to interrupt my noble friend, but I pointed out in my speech that with regard to these very intensive investigations that have been made by the Technical Investigation Group, the cost of the two schemes are roughly the same. I do not know whether his unofficial investigations find something different.
Lord WILLIS: My Lords, I cannot be responsible for my noble friend's figures. I am talking about figures that were estimated on the basis of research done by the various writers' organisations.
The other main question which came up was the question of payment for reference books in libraries. We were virtually proposing—although, as was indicated this Bill is very much a "broad brush" and enabling Bill—that the basic principle of the rights of authors of reference books to be recognised. It would work out probably as in Sweden where the owner of a reference book would get about 3 to 3½ times the basic fraction of money allowed per loan of a fiction book. It would vary. But certainly the basic principle and the multiple—and this is too complicated to explain in detail now—has been worked out in Sweden. The purchase scheme incidentally would cut out about 13 million reference
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volumes which are now in stock and pay only for new reference volumes even if they stay in stock for 50 years and, as we know, reference books tend to stay much longer than fiction.
My Lords, I do not want to go into great detail about this. I hope the noble Lady, Lady Kinloss, will excuse me if I do not reply in detail to her point but I should be happy to talk about it to her afterwards. I hope, too, that the noble Lord, Lord Paget, will forgive me if I do not wander down the garden paths of elitism and amateurism with him. He was expressing a point of view that might have been popular in ancient Rome, but which I think is rather outdated.
Lord PANNELL: My Lords, ancient Rome and, indeed, more ancient Greece produced a literature that has lived rather longer and is likely to live longer than that which we are producing today.
Lord WILLIS: My Lords, I do not know about that; I think English literature might well match it. I have already covered some of the points which the noble Lord, Lord Elton, made. I must answer a point made by the noble Lord, Lord Strabolgi. We keep hearing about the situation in West Germany; the truth of the situation is that there was a difficulty not in finding a scheme that would work, but the perpetual argument between who should pay for it, the States or Federal Government. It is basically a financial argument in Germany not an argument about the nature of the scheme. I have considered carefully the firm assurances given by the noble Lord, Lord Strabolgi, in his reply. I hope he will correct me if I am wrong but he has said, first, a Bill is now in the process of being prepared, and, secondly, it is the Government's intention to introduce this into the next Session of Parliament. I do not see the noble Lord responding. Perhaps he would like to repeat the assurance of the Government.
Lord STRABOLGI: Yes, certainly, my Lords. I said that I cannot of course anticipate the terms of the gracious Speech, but it remains the Government's intention to give effect to our undertaking to legislate to create a right, and we are preparing a Bill to this end.
Lord WILLIS: My Lords, in the light of that very firm assurance, I think on

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the whole it would be best if we were to wait for that legislation and therefore I beg leave to withdraw the Motion for Second Reading.
Motion, by leave, withdrawn.
Bill, by leave, withdrawn.

INDUSTRY BILL
Brought from the Commons; read 1a, and to be printed.

CONSERVATION OF WILD CREA- TURES AND WILD PLANTS BILL FORMERLY WILD CREATURES AND WILD PLANTS PROTEC- TION BILL
2.23 p.m.
Report of Amendments received.
Clause 2 [Restriction on sale of protected wild creatures]
Lord STOW HILL Lord STOW HILL moved Amendment No. 1:
Page 1, line 20, leave out " without reasonable excuse") and insert (" knowingly ").
The noble and learned Lord said: My Lords, when this Bill was being considered at an earlier stage, I called attention to what I submitted was not very satisfactory drafting in the early clauses of the Bill. The burden of my argument was that the use of the words "without reasonable excuse" in some of those clauses created a great deal of uncertainty. It was difficult for the judges to decide in the circumstances of an individual case what would and would not constitute a reasonable excuse. Of course those words appear in a number of Statutes. In most cases I think those are unsatisfactory words. They require judges to legislate and determine by reference to circumstances whether within the clause they constitute a reasonable excuse, very little guidance being given as to what is to amount to a reasonable excuse and what is not so to amount.
It was suggested to me that in those circumstances I might try my hand at suggesting some slight improvement in the wording of the clause designed to remove to some extent the uncertainty which I thought lurked in the wording at present used and Amendments Nos.
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1 and 2 relating to Clause 2 are the result of my attempt. But your Lordships may also notice that in my name on the Marshalled List appear Amendments Nos. 5 and 6. It occurs to me that it might save your Lordships' time if I put the case now not only for the Amendments to Clause 2, but also for those to Clause 4; namely, Nos. 5 and 6.
To go back to the wording of the Bill, your Lordships will see that the expression "without reasonable excuse" appears in Clauses 1, 2, 4 and 5. I have selected, for the purpose of my Amendments, Clauses 2 and 4. I selected these two clauses out of the four in which the words appear, because it seemed to me that they were most devoid of any language which could give any indication to learned judges as to the kind of circumstances which they might regard as constituting a reasonable excuse. When construing words, learned judges are always told that they must consider the Bill as a whole and the wording as a whole, and do their best to interpret the language used in a reasonable sense.
Applying that test, it seemed to me that it could be said that in Clauses 1 and 5 there appeared language which gave some indication to a judge construing the clauses of what he might regard as constituting a reasonable excuse. Accordingly, as your Lordships will see, I have not sought to impose any change in those two clauses. I would seek to leave them exactly as they are. But it seems to me that Clauses 2 and 4 are wholly devoid of any language which could give any indication to a learned judge. Clause 4 is a short clause, three lines in length, and it says:
" If, save as may be permitted by or under this Act, any person other than an authorised person without reasonable excuse uproots any plant, he shall be guilty of an offence."
It is a serious offence and the penalties set out in Clause 11 are very heavy.
If one considers the language of Clause 4, what on earth is a learned judge who construes that clause to find which will give hint some indication of what night constitute a reasonable excuse for pulling down a young tree? I submit that he would be left completely and wholly unguided, and I should have though this was extremely bad drafting. It is bad legislative policy; it requires the learned judge, in effect, to apply his own canons

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as to what he thinks would be a reasonable excuse in any given circumstances. In other words, he is asked to make his own judgment about something which appears in a Bill, without being given the least guidance as to kinds of matters to be taken into account in forming his judgment.
As your Lordships see, I have proposed simple Amendments to Clause 2. I seek to leave out the words, "without reasonable excuse" and to substitute the word, "knowingly". Then I seek to add to the words in line 21 the phrase, "which to his knowledge is ". In other words, if that Amendment is accepted the person who is charged with an offence must first be shown by the prosecution to have been perfectly conscious of the fact that he had in his possession the matters which are described in the clause. Secondly, it must be established by proof against him that he knew that the wild creature in respect of which he was charged was a wild creature which appears as one of those listed in Schedule 1. Without that Amendment he is left without any such ground of exculpating himself, and I submit to your Lordships that it gives some kind of indication as to when the offence can be said to be made out and when it is not.
I make similar comments with regard to Clause 4. If the Amendments which I have proposed are accepted, it will not be so extremely wide as, in my submission, it is at the moment. At present it is extraordinarily wide in its scope. If we look at any tree, anything which can be said to be a plant, whether a protected plant or not, as Clause 4 reads at the moment you are not to uproot it unless you have a reasonable excuse for so doing. What on earth is "a reasonable excuse for so doing "? I have sought to limit the scope of the offence, and in the proviso which I have suggested in line 8 I have listed circumstances which would excuse the offender when he could establish them. In my submission, that considerably narrows the unjustifiably wide scope of Clause 4, and improves it so as to make it at least reasonably possible to construe judicially and to enforce in a court of law. I beg to move Amendment No. 1.
The Earl of CR ANBROOK: My Lords, when this Bill was prepared, as
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the noble and learned Lord, Lord Stow Hill, obviously knows, the wording of previous Acts was followed and, without wanting to set up against a professional the knowledge of an amateur, I must confess that if one of these people had appeared before me when I was younger and a magistrate I would much rather have had to listen to his excuses and decide whether or not they were reasonable, than try to put myself into his mind and decide whether or not he knew exactly what he was doing, particularly when what we are trying to meet is the accidental, ignorant action, and we are trying to catch the deliberate action by the person who tries to make a trade out of these animals. As the noble and learned Lord will appreciate, that is what is important.
I wonder whether he has thought what would happen to somebody who cared for a creature which he took under Clause 6, but which died. He did not want it but he knew it had a certain market value if it was sold as a scientific specimen. He would know he was doing it, he would know it was a rare creature and it would seem to me that he had a reasonable excuse. It is contingencies of that sort that that phrase is intended to meet. I think it is a fair and just one and. certainly speaking as one accustomed to sit in a magistrates' court, it seems to me that "without reasonable excuse" is the better definition. As the noble and learned Lord, Lord Stow Hill, knows, it has considerable antiquity and none of us has found any difficulty in administering laws in which it appears.
Viscount HANWORTH: My Lords, it seems to me that both these terms "without reasonable excuse" and "knowingly" vastly weaken the Bill. I thought there was a good old principle that ignorance of the law was no excuse, but of course when fixing a penalty an adequate reason is always taken into account. Moreover, I imagine that very few cases would be taken to court unless there was a good reason for doing so. I find myself completely at a loss to understand why this Bill should be hedged about by caveats which in my view render its value almost to vanishing point, except in those cases where on a consistent basis somebody is deliberately exploiting the creatures for gain.
Lord WYNNE-JONES: My Lords, I find it a little difficult to understand the reasoning behind the Amendment of my noble friend Lord Stow Hill. I agree also that the word "knowingly" weakens the Bill very considerably. Surely nobody unknowingly offers something for sale? He must know that he is offering it for sale, and I should have thought that it was up to him to know what he was offering for sale. It is a considerable weakening of the Bill to say "knowingly". I agree that even the words "without reasonable excuse" may weaken the Bill, but they do not weaken it to the same extent as the word "knowingly". When one comes to Clause 4 one sees that it would read:
" If … any person other than an authorised person knowingly uproots any plant, …".
I do not understand how he does it unknowingly. Unless he is sleepwalking it seems to me that he must know that he has uprooted a plant.
I should have thought that the words "without reasonable excuse" were as far as one could possibly go in giving any kind of permissiveness or leniency in this matter. At the moment I am not in the least convinced by my noble friend's arguments on this matter, and I hope that we do not introduce the word "knowingly ".
The Earl of HALSBURY: My Lords, it is with some trepidation that I venture to disagree with the noble Lord, Lord Stow Hill, because I am aware of how much more he knows about this subject than me. But the reason that we have human beings on the Bench instead of computers is surely because they are capable of acts of judgment. That is why we call them judges. We appoint them to be judges because they have spent their lives in the pursuit and practice of the law and are believed at the point when we appoint them to be competent to make this kind of act of judgment. It seems to me that the noble Lord, Lord Stow Hill, wishes to remove from the Bench the only excuse that it has for being there, which is that it is capable and competent to perform these acts.
So far as "knowingly" is concerned and what has been said by the noble Lord, Lord Wynne-Jones, I could not agree with him more. From practical
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experience I know that there are people who have a genius for being misinformed and for saying, "I am so sorry; I didn't know". Therefore, I support entirely the view taken on this matter by the noble Earl who is sponsoring the Bill, and I am afraid that I cannot vote for this Amendment.
Lord BEAUMONT of WHITLEY: My Lords, in dealing with Clause 4 the noble Lord, Lord Stow Hill, is possibly making a little heavy weather of a tiny case. We must remember that all the plants that we are dealing with in Clause 4 can be uprooted by an unauthorised person with or without reasonable excuse. Almost all of the things which are covered in Amendment No. 6 by the noble Lord, Lord Stow Hill, should be carried out by authorised people. They should be carried out by the owner or the farmer of the land or his servants. If I remember rightly—and the noble Earl, Lord Cranbrook, or the noble Lord, Lord Melchett, will correct me if I am wrong—the only reason for including the words "without reasonable excuse "is the protection of people undertaking statutory obligations such as drainage or where people have rights by Act of Parliament to go across someone else's land and maybe to do works of one kind or another.
Therefore, the number of cases, even assuming there was ever any prosecution under this clause, which I think highly unlikely, would be a tiny minority of all cases. Clearly, those cases which should be excluded are covered by our provision, "without reasonable excuse". But I do not think necessarily that we want to widen this provision further. The principle of the Bill is that people should not uproot plants that belong to other people. It is just as simple as that in the clause. We have put in the provision about "reasonable excuse" in order to protect certain cases, the main one being, as I say, people who are doing work under a statutory undertaking. These are tiny points and I should have thought that in this connection the Bill is perfectly all right as it is.
2.42 p.m.
Lord MELCHETT: My Lords, I am much fortified in having to take issue with my noble and learned friend Lord Stow Hill over these legal Amendments by the

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fact that I think I shall be in agreement with every other noble Lord who has spoken on the Amendments. The Amendments, as he said, would in effect substitute the word "knowingly" for the phrase "without reasonable excuse" in Clauses 2 and 4. In the Government's view, the effect of the Amendments would be to make it very hard for the prosecution to prove a case against the accused. A defendant would naturally tend to say that he or she did not recognise the protected creature or plant concerned, and it would be difficult to disprove this claim of ignorance.
The defence of "reasonable excuse" is intended to protect the person who is honestly mistaken without making the task of the prosecution impossible. I feel that the clause as drafted gives a better balance between prosecution and defence than would be the case if my noble and learned friend's Amendments were accepted. The use of the word "knowingly" in these Amendments seems to be especially unfortunate in the case of Clause 4, where all plants are covered and the question of recognition of protected plants does not arise. The defendant could surely only argue either that he or she did not know that uprooting was an offence, or that he or she did not know that it was a plant. However, a defendant may have a "reasonable excuse" for uprooting a plant; for example, it is possible that to repair a dam to prevent flooding would be a perfectly reasonable excuse for uprooting plants.
Occupiers, of course, are allowed to uproot plants on their own land. But someone else coming along and seeing some ragwort in a field would be perfectly entitled to uproot it to prevent the poisoning of cattle. I hope that that reply has given my noble and learned friend some idea of what we see as being a "reasonable excuse". Of course, nobody would have any excuse for pulling down a young tree; nor would anybody be liable to prosecution, as I understand it, under this Bill because he would not be uprooting the tree if he pulled it down.
I was not entirely sure whether my noble and learned friend was speaking to Amendment No. 6 at the same time as these other Amendments. If he was—and he has nodded to me—it might be of assistance to your Lordships if I also
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said a word about that. As I see it, the effect of this Amendment to Clause 4 would be to exempt anyone engaged in building, construction, forestry or agricultural operations from the general restriction on the uprooting of any wild plant. The Amendment is, in our view, unnecessary because authorised persons are already exempt; this is a point made by the noble Lord, Lord Beaumont. Your Lordships will be aware that authorised persons are defined in Clause 15 to include all owners and occupiers, their servants and anyone authorised by them. It seems to me unlikely that any of the operations described in the Amendment would be undertaken without the authority of the owner or occupier. I hope that in the light of the comments on these Amendments my noble and learned friend will see fit to withdraw them.
Lord STOW HILL: My Lords, having met with so little favour in my endeavours, I feel I should be churlish if I did not hasten to beg your Lordships to allow me to withdraw the first Amendment, and I do not move Amendment No. 2.
Amendment, by leave, withdrawn.
2.45 p.m.
Lord MELCHETT Lord MELCHETT moved Amendment No. 3:
Page 1, line 22. leave out from (" Act ") to (" whether ") in line 23.
The noble Lord said: My Lords, with your Lordships' permission I shall speak to Amendments Nos. 4 and 14 while dealing with Amendment No. 3. Your Lordships will remember that in Committee I accepted an Amendment moved by the noble Lord, Lord Somers, and the noble Baroness, Lady Berkeley, to restrict the sale of skins and skeletons. However, I reserved the position of the Government on the precise form of words used. I consider the wording now put before your Lordships as an improvement in drafting. This Amendment simply cancels the earlier one passed in Committee. Amendment No. 4 reintroduces the restriction in subsection (2). Amendment No. 14 would give the Nature Conservancy Council the power to license the sale of skins or skeletons for approved purposes. I beg to move.
Lord SOMERS: My Lords, I am perfectly happy about this Amendment. It

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does not do anything to alter the sense, but is simply better wording.
On Question, Amendment agreed to.
Lord MELCHETT: My Lords, I beg to move Amendment No. 4.
Amendment moved—
Page 1, line 26, at end insert (" and any reference to dead creatures shall be construed as including the skins or skeletons of such creatures ").—(Lord Melchett.)
On Question, Amendment agreed to.
Clause 7 [Variation of Schedules]
Lord MELCHETT Lord MELCHETT moved Amendment No. 7:
Page 2, line 29, at beginning insert ("1").
The noble Lord said: My Lords, I beg to move Amendment No. 7, and with your Lordships' permission, I will speak also to Amendments Nos. 8, 10 and 21. The Bill already allows the Secretary of State to add all members of a species to Schedule 1 or Schedule 2 by order. The Secretary of State is also empowered to confer protection in relation to particular provisions of the Act or in particular areas only. The effect of Amendment No. 10 would be to allow the Secretary of State, in suitable cases, in addition to confer protection on particular categories of creature or plant, or at particular times of the year.
Amendments Nos. 7 and 8 make consequential alterations to Clause 7. Amendment No. 21 would require the Nature Conservancy Council to offer appropriate advice. Your Lordships will remember that we discussed this concept of partial protection in Committee. When the noble Earl, Lord Cranbrook, eventually withdrew his corresponding Amendment, I said that I had been impressed by the arguments of your Lordships, and if appropriate would move Amendments at this stage.
My Lords, there are two changes of substance in the current Amendments as compared with the noble Earl's Amendment which merit discussion. One is that the term "category" in Amendment No. 10 is intended to encompass subdivision by size and sex, but to be simpler and to confer greater flexibility. The other is that we are not seeking to amend Clause 2 as did the noble Earl, Lord Cranbrook, on Committee stage I understand that the noble Earl had in
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mind that if, for example, only adult frogs were protected, it would be sensible to allow the sale of tadpoles. This would be sensible, but I am advised that the order in question could provide for this. The order could be made in respect of any particular provision of the Act as well as in respect of any category of wild creatures or plants, so the sale of tadpoles could be exempted without any elaboration of Clause 2. I accept that the powers are permissive. The Nature Conservancy Council need only recommend their use when this would be clearly advantageous. I am therefore happy to commend these Amendments to your Lordships, and beg to move.
The Earl of CRANBROOK: My Lords, I would thank the noble Lord, Lord Melchett, for the handsome way in which he met the suggestions I made in Committee. I regret that he had to use the word "eventually" in referring to the fact that I withdrew my Amendment at the end. I apologise for the fact that I strained him so far.
Lord BEAUMONT of WHITLEY: My Lords, I think this is a very considerable improvement in the Bill, for which we are extremely grateful to the noble Lord, Lord Melchett, and to the noble Earl, Lord Cranbrook, for having put it forward even at a late stage. I am sure it is absolutely right to make this Bill as flexible as possible and to give the Secretary of State as much power as possible. The objection to giving wide discretionary powers to Ministers exists in the possibility that these may be misused in any way. It is impossible to see how these powers can be used except for good, and I really think this is a major improvement in the Bill.
On Question, Amendment agreed to.
Lord MELCHETT: My Lords, I beg to move Amendment No. 8, to which I spoke on Amendment No. 7.
Amendment moved—
Page 2, line 32, leave out from (" order ") to (" add ") in line 34.—(Lord Melchett.)
On Question, Amendment agreed to.
Lord MELCHETT: My Lords, I beg to move Amendment No. 9. This Amendment simply rectifies a printing

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error which arose following an Amendment at Report stage in another place.
Amendment moved—
Page 2, line 36, leave out from first (" Act") to end of line 37.—(Lord Mclchett.)
On Question, Amendment agreed to.
Lord MELCHETT: My Lords, I beg to move Amendment No. 10, to which I spoke on Amendment No. 7.
Amendment moved—
Page 2, line 37, at end insert—
" (2) An order made under subsection (1) of this section may apply—

(a) to the whole or to particular provisions of this Act;

(b) generally or to a particular area;

(c) to wild creatures or plants in a particular category; or

(d) at all times or at particular times of the year;

and the order may make different provision for different circumstances."—(Lord Melchett.)
On Question. Amendment agreed to.
Clause 8 [Power to grant licences]:
Lord MELCHETT Lord MELCHETT moved Amendment No. 11:
Page 3, line 8, leave out (" or to offer for sale or to sell ").
The noble Lord said: My Lords, with Amendment No. 11, perhaps your Lordships would also consider Amendments Nos. 12 and 13. Your Lordships will also wish to note that unfortunately there are two misprints in Amendment No. 13: "section" should be "subsection" in the second line of the Amendment, and the "(c)" at the head of the Amendment should be "(bb)". This follows the convention of the labelling of new subsections.
Your Lordships will be aware that an Amendment was made at an earlier stage covering a loophole in the sale provision in Clause 2 of the Bill. It resulted in the expression "live or dead creature of a species specified in Schedule 1 to this Act" being inserted instead of "protected wild creature". We now need to make the corresponding alteration to the licensing provision in Clause 8. Amendment No. 13 achieves this by introducing a new paragraph, 8(1)(bb) which relates to licensing of sale. Amendments Nos. 11 and 12 are consequential Amendments which delete references to sale for para-
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graphs (a) and (b), which then refer only to licences to cover the offences of killing, taking and possession in Clause 1. I have to tell your Lordships, with regret, that I will also be moving a manuscript Amendment, No. 14A, as a consequence of the new reference to paragraph (bb), The manuscript Amendment will be to insert a reference to (bb) in Clause 8(2)(a) of the Bill. I beg to move.
On Question, Amendment agreed to.
Lord MELCHETT: My Lords, I beg to move Amendment No. 12.
Amendment moved—
Page 3, line 13, leave out (" or to offer for sale or to sell").—(Lord Melchett.)
On Question, Amendment agreed to.
Lord MELCHETT: My Lords, I beg to move Amendment No. 13. As I said when speaking to Amendment No. 11, there are two misprints in this Amendment, which I probably ought to reiterate to make sure we have it right. The "(c)" at the head of the Amendment should be "(bb)", and in the second line it should read:
(a) and (b) of this subsection to offer for sale or to sell.… "
I beg to move.
Amendment moved—
Page 3, line 15, at end insert:
(" (bb) for any of the purposes mentioned in paragraphs (a) and (b) of this subsection to offer for sale or to sell or to have in his possession for sale any number of specified live or dead creatures the sale, offering for sale or possession of which for sale would otherwise be an offence under section 2 of this Act;").— (Lord Melchett.)
On Question, Amendment agreed to.
2.55 p.m.
Lord MELCHETT: My Lords, I spoke to Amendment No. 14 with Amendment No. 3. I beg to move.
Amendment moved—
Page 3, line 29, at end insert (" and in paragraph (c) of this subsection any reference to dead creatures shall be construed as including the skins or skeletons of such creatures ").—(Lord Melchett.)
On Question, Amendment agreed to.
Lord MELCHETT: My Lords, I beg to move as a manuscript Amendment, Amendment No. 14A. I spoke to this on a previous Amendment.
Amendment moved—
Page 3, line 32, after ("(b),") insert (" bb,").—(Lord Melchett.)
On Question, Amendment agreed to.
The Earl of CRANBROOK: My Lords, the words "or body" are unnecessary because we use only the word "authority" in line 2 of the same page. This brings the wording into line. I beg to move.
Amendment moved—
Page 3, line 42, leave out (" or body ").—(The Earl of Cranbrook.)
On Question, Amendment agreed to.
The Earl of CRANBROOK: My Lords, I beg to move Amendment No. 16. This brings this line similarly into line with line 39 on page 3.
Amendment moved—
Page 4, line 5, leave out (" imposed on the grant of a licence ") and insert (" specified in a licence granted ").—(The Earl of Cranbrook.)
On Question, Amendment agreed to.
Clause 10 [Enforcement]:
The Earl of CRANBROOK: My Lords, I beg to move Amendment No. 17, which similarly brings this into line with line 34.
Amendment moved—
Page 4, line 29, leave out (" that person's possession ") and insert (" the possession of that person ").—(The Earl of Cranbrook.)
On Question, Amendment agreed to.
The Earl of CRANBROOK: My Lords, I beg to move Amendment No. 18, which is a tiny drafting Amendment.
Amendment moved—
Page 4, line 35, after (" and ") insert (" which ").—(The Earl of Cranbrook.)
On Question, Amendment agreed to.
Clause 11 [Penalties]:
The Earl of CRANBROOK: My Lords, I beg to move Amendment No. 19. This and the following Amendment are tidying-up Amendments.
Amendment moved—
Page 5, line 99, after (" anything ") insert (" which is ").—(The Earl of Cranbrook.)
On Question, Amendment agreed to.
The Earl of CRANBROOK: My Lords, I beg to move Amendment No. 20.
Amendment moved—
Page 5, line 10, at end insert (" and which is ").—(The Earl of Cranbrook.)
On Question, Amendment agreed to.
Clause 12 [Duty of Nature Conservancy Council]:
Lord MELCHETT: My Lords, I beg to move Amendment No. 21. I spoke to this with Amendment No. 7.
Amendment moved—
Page 5, line 23, leave out (" any area specified ") and insert (" a particular area or in relation to a particular category and either at all times or at particular times of the year ").—(Lord Melchett.)
On Question, Amendment agreed to.
Clause 14 [Orders]:
The Earl of CRANBROOK: My Lords, I beg to move Amendment No. 22. This is just to bring this line into line with line 37.
Amendment moved—
Page 5, line 44, leave out (" section 7 of ").—(The Earl of Cranbrook.)
On Question, Amendment agreed to.
Clause 15 [Interpretation]:
Lord MELCHETT: My Lords, I beg to move Amendment No. 23. This Amendment is to delete the words "reduced into possession" from the interpretation of "authorised person". All the other references to the offence of reduction into possession were deleted at Committee stage, so this Amendment simply removes from the Bill the remaining reference to this offence.
Amendment moved—
Page 6, line 17, leave out ("taken or reduced into possession ") and insert (" or taken ").—(Lord Melchett.)
On Question, Amendment agreed to.
Schedule 2 [Species of Protected Plants]:
2.59 p.m.
Lord MELCHETT Lord MELCHETT moved Amendment No. 24:
Page 8, line 21, leave out—
("Fingered Sedge … Carex digitata")
The noble Lord said: My Lords, this Amendment would delete the fingered sedge from the Schedule of Protected Plants. As noble Lords will remember, in view of the feelings of the noble Earl, Lord Cranbrook, at the Committee stage, I withdrew a similar Amendment. However, I said that unless further evidence in support of this plant's retention in the Schedule was forthcoming, I would reintroduce this Amendment at a later stage, and that is what I am now doing,
The sedges are a large group of plants with relatively unattractive flowers which are difficult to identify. There appears to be little evidence of the rarer species being collected. The fingered sedge is known to exist on 25 sites, many of which contain a large number of individual plants. Although the fingered sedge is rare I am advised that there are at least four sedges which are more rare and that this species could not even be regarded as falling among the rarest 300 species of British flowering plants. The Nature Conservancy Council have confirmed their advice that this species is not currently endangered. I should have liked to be able to agree to the retention of this plant in the Schedule. But I have been unable to find any further evidence that this species needs the special protection which would be afforded by the Bill. I must, therefore, advise the House to accept this Amendment.
Lord BEAUMONT of WHITLEY: My Lords, the sponsors of the Bill accept the Amendment with pleasure, though I am a little sorry that Mr. Hardy, who has played such a great part in putting this Bill through Parliament should not have his favourite plant from his own constituency included. However, I believe that we all recognise that it is extremely important to keep Schedule 2 to very rare plants if it is to have real meaning and if the law is to be enforceable. There is little doubt that the fingered sedge does not come into that category and we are happy to accept the Government's Amendment.
On Question, Amendment agreed to.
Lord MELCHETT Lord MELCHETT moved Amendment No. 25:
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Page 8, line 21, at end insert—
(" Ghost Orchid … Epipogium aphyllum ")
The noble Lord said: My Lords, with this Amendment I should like to take Amendment No. 26. These Amendments would substitute the more widely accepted common name "Ghost Orchid" for the name "Spurred Coral Root Orchid" and would insert the plant into its correct alphabetical position in this Schedule. When, in Committee, I accepted that this plant should be included in the Schedule, I did so on the understanding that I would probably move these Amendments at a later stage.
The Earl of CRANBROOK: My Lords, this is the last opportunity I shall have of once again thanking the noble Lord, Lord Melchett, for the great help which the Government have given the noble Lord, Lord Beaumont of Whitley, and myself as the original sponsors of the Bill. I should like to take the opportunity of doing so now and I cannot resist saying that we may perhaps congratulate ourselves that, as biologists, we are less prolix and repetitive than are those noble Lords who are attached to the humanities. This is brought out if we look at the clock now as compared with glances at it during the earlier stages of our proceedings this morning.
Lord SOMERS: My Lords, I am perfectly happy about the Amendment. I am no botanist myself and I took the name from a book by a noted specialist in orchids. It is not an old book and it is one of the most voluminous works on wild orchids that I have yet come across, but I am perfectly willing to accept the statement of the noble Lord, Lord Melchett, that the other name is more usual.
On Question, Amendment agreed to.
Lord MELCHETT: I beg to move Amendment No. 26.
Amendment moved—
Page 8, line 35, leave out—
(" Spurred Coral Root Orchid … Epipogium aphylutm ").—(Lord Melchett.)
On Question, Amendment agreed to.

MOBILE HOMES BILL
3.5 p.m.
Report of Amendments received.
Clause 1 [Duty to offer agreements]:
Lord ELTON Lord ELTON moved Amendment No. 1:
Page 2, line 7, leave out from (" person ") to (" as") in line 8 and insert (" who is permitted to station a mobile home on a protected site occupies it ").
The noble Lord said: My Lords, I beg to move this Amendment which is designed to restore the intended content of Clause 1 as it was before the clause was redrafted. I must crave your Lordships' indulgence for a manuscript Amendment which should be included and of which I hope the noble Lord on the Woolsack has a note. The Amendment should read:
" Page 2, line 7, leave out from (" person ") to (" as") in line 8 and insert (" is permitted to station a mobile home on a protected site and occupies it ").
I hope that the noble Lord on the Woolsack will accept that. The effect of the Amendment is to prevent the unintentional application of the provision of the clause to occupants of mobile homes who are not the owners thereof, particularly those whose mobile homes are owned by the site owner. This was the intention agreed by all Parties in the other place and in this place in the earlier stages of the Bill. Therefore it is technically only a drafting Amendment.
Lord MELCHETT: My Lords, the noble Lord, Lord Elton, has spotted, at what is indeed the eleventh hour, a technical defect which could have had more than technical repercussions. I accept that the sponsors of the Bill intended this legislation to apply solely to those residents who own, or who are buying, their mobile home and who rent the space on which it stands. This was brought out in another place by the honourable Member for Bridgwater, when he moved both Second and Third Readings of this Bill, and the Government have never believed that any different interpretation was meant.
I think that the sponsors' intention is illustrated by Clause 1(1) which provides for residents coming on to the site after the Act takes effect. It is certainly desir-
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able in our view to make Clause 1(2) consistent with Clause 1(1) and thereby to remove any ambiguity which inadvertently may arise. I agree with the noble Lord's Amendment.
On Question, Amendment agreed to.
Clause 3 [Term of agreements etc.]:
Lord ELTON Lord ELTON moved Amendment No. 2:
Page 3, line 41, after (" occupier ") insert (" to require the owner ").
The noble Lord said: My Lords, this is a drafting Amendment. At present, the Bill gives the occupier the right "to extend" the agreement for three years (after the expiry of the original five year period) whereas it is of course the owner who will extend the agreement. This Amendment accordingly amends the occupier's right, to make it a right to require the extension of the agreement. I beg to move.
On Question, Amendment agreed to.
Lord ELTON Lord ELTON moved Amendment No. 3:
Page 4, line 6, leave out (" subsection (2) of section 2 ") and insert (" section 2(2)").
The noble Lord said: My Lords, I beg to move this Amendment, which amends the reference to a subsection of Clause 2, to bring the drafting into line with modern practice.
On Question, Amendment agreed to.
Clause 6 [Orders]:
Lord ELTON Lord ELTON moved Amendment No. 4
Page 7, line 34, leave out (" Act ") and insert (" section ").
The noble Lord said: My Lords, this also is a drafting Amendment to correct an erroneous reference in subsection (3) of Clause 6 to orders made "under this Act". I beg to move.
On Question, Amendment agreed to.
Clause 7 [Power to prescribe minimum standards]:
Lord ELTON:My Lords, I beg to move Amendment No. 5. This slightly longer Amendment brings the provisions of Clause 7, which sets out the procedural requirements for raising the Orders made under that clause, into line with the

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equivalent provisions in Clause 6 relating to Orders made under that clause.
Amendment moved—
Page 8, line 11, leave out subsection (3) and insert—
(" (3) The power of the Secretary of State to make orders under this section shall be exercisable by statutory instrument.
(4) An order under subsection (1) above shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(5) Any power of the Secretary of State to make an order under any provision of this section shall include a power to make an order varying or revoking any order previously made under that provision.")—(Lord Elton.)
On Question, Amendment agreed to.
Clause 9 [Interpretation]:
Lord ELTON Lord ELTON moved Amendment No. 6:
Page 9, line 1, leave out first (" a ").
The noble Lord said: My Lords, with the leave of the House I will take with this Amendment, Amendment No. 7. These are very small Amendments indeed and although trivial I think they are necessary. We are altering the Bill so that the definition of "a protected site" becomes the definition of "protected site" and "a site licence" becomes "site licence" as is normal in definition clauses.
On Question, Amendment agreed to.
Lord ELTON: My Lords, I beg to move Amendment No. 7.
Amendment moved—
Page 9, line 11, leave out (" a ").—(Lord Elton.)
On Question, Amendment agreed to.
Schedule [Modifications of the Act of 1968 for the purpose of extending that Act to Scotland]:
Lord ELTON: My Lords, I beg to move Amendment No. 8. This also is a small but significant alteration which is merely intended to put into its correct position a word which has strayed from it in the drafting of the Act.
Amendment moved—
Page 10, line 6, leave out (" subsection 17(3) (extent) of the Act of 1968 ") and insert (" section 17(3) of the Act of 1968 (extent)"). —(Lord Elton.)
On Question, Amendment agreed to.
Lord ELTON: I beg to move Amendment No. 9. This is a purely drafting Amendment on the same lines as that which we took earlier for page 10, Amendment No. 8.
Amendment moved—
Page 10, line 27, leave out (" Subsection (1) of section 12 ") and insert (" Section 12(1)").—(Lord Elton.)
On Question, Amendment agreed to.

GUARD DOGS BILL
3.12 p.m.
Earl COWLEY: My Lords, on behalf of the noble Lord, Lord Gordon-Walker, I beg to move that the Report be now received.
Moved, That the Report be now received.—(Earl Cowley.)
Clause 1 [Control of guard dogs:
Lord WELLS-PESTELL Lord WELLS-PESTELL moved Amendment No. 1:
Page 1, line 9, leave out (" or (b) ") and insert (" except while it").
The noble Lord said: My Lords, with the permission of the House I should like, on behalf of my noble friend Lord Gordon-Walker, to move this Amendment. My noble friend apologises for his inability to be here today. If I may have your Lordships' indulgence for a moment or two, I would remind your Lordships that last week in Committee we made very little progress, and I suggested that my noble friend and I should meet certain noble Lords opposite with a view to going into the matter of our differences. We had the pleasure of meeting the noble Earl. Lord Cowley, the noble Viscount, Lord Colville of Culross, and the noble Lord, Lord de Clifford, together with the Promoter of this Bill from another place, with the result that we were able to come to complete agreement. Because of that and subject to your Lordships' consent, perhaps I can formally move these Amendments, and I had better do so seriatim?. I beg to move Amendment No. 1.
Earl COWLEY: My Lords, I should like' to thank the noble Lord, Lord Wells-Pestell, on behalf of myself and of my noble friend Lord Colville of Culross for the extensive consultations that he arranged on this Bill after the

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Committee stage. They were extremely useful and constructive. We discussed the Amendments and the shortcomings of this Bill which were raised during the Committee stage last Monday. As a result the noble Lord's Amendments appear on the Marshalled List today. They have our full support. We went into all the questions and the doubts on the Bill, and the Amendments meet all our most serious objections, notably the question of the agricultural land being included in the Bill and the absence of any statutory right of appeal to the magistrates' court. These matters have now been put right. We are grateful to the noble Lord, Lord Gordon-Walker, and to the noble Lord, Lord Wells-Pestell, for putting these matters right and for their great magnanimity during the consultations.
There is one question which I should like to ask. Under Clause 3(2) the local authority has power to make conditions when granting the licence. I should like to ask whether the Government are considering including a requirement for third party insurance, notably since it appears in the voluntary code of practice issued by the Government last February. I think that the consultations arranged by the noble Lord were extremely worth while, and I believe that the Guard Dogs Bill is now far better than when it first came to this House. Perhaps the practice of consultation might now be extended to future Bills of a limited and expert interest, where they do not fall foul of Party divisions. Having said that, if I may give an assurance to the House and to my noble friends that the problems of the Bill have been fully gone into by all the people involved, perhaps I could agree with the noble Lord and recommend to the House that the Amendments on Report stage and the Report stage itself be taken formally.
Lord de CLIFFORD: My Lords, may I join with my noble friend in thanking the noble Lord, Lord Wells-Pestell, and the noble Lord, Lord Gordon-Walker, for their efforts to meet all the points which we raised. They were most helpful and, as my noble friend has said, we have a much better Bill. I am happy about it and I have to thank them.
On Question, Amendment agreed to.
Lord WELLS-PESTELL: My Lords, before I move Amendments Nos. 2 and 3, with the permission of the House I should like to answer a point raised by the noble Earl, Lord Cowley, with regard to insurance. The Home Secretary and the Secretary of State for Scotland approved a code of practice for the use of guard dogs which I will not now read out in detail. The third section of the first code of practice lays down that there should be adequate insurance against all claims. This represents the Government's point of view and it went out with Government approval. I hope that the noble Earl will feel that that is adequate in the circumstances. I beg to move Amendments No. 2 and 3 en bloc.
Amendments moved—
Page 1, line 10, leave out (" chained up or otherwise ")
Page 1,line 16, leave out (" chained up or otherwise ").—(Lord Wells-Pestell.)
On Question, Amendments agreed to.
Clause 3 [Guard dog kennel licences]:
Lord WELLS-PESTELL: My Lords, I beg to move formally Amendments Nos. 4 to 13 inclusive.
Amendments moved—
Page 2, line 22, leave out first (" or ").
Page 2, line 22, leave out second (" or ").
Page 2, line 23, leave out (" or ").
After Clause 3, insert the following new clause:
(" .—(1) The applicant or, as the case may be, the licence holder may appeal to a magistrates' court or, in Scotland, a sheriff court, against—

(a) the refusal of a local authority to grant a licence; or

(b) the conditions (other than the prescribed conditions) to which the licence is subject; or

(c) the authority's refusal to vary the conditions; or

(d) the revocation of a licence.

(2) On an appeal the court may, if it thinks fit, give directions to the local authority with respect to the licence or the conditions and it shall be the duty of the local authority to comply with such directions.").
Clause 4, page 2, line 33, at end insert—
(" (2) The provisions of this Act shall not be construed as—

(a) conferring a right of action in any civil proceedings (other than proceedings for the recovery of a fine or any prescribed fee) in respect of any contravention of this Act or of any regulations made under this Act or

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of any of the terms or conditions of a licence granted under section 3 of this Act; or

(b) derogating from any right of action or other remedy (whether civil or criminal) in proceedings instituted otherwise than by virtue of this Act.").

Clause 5, page 2, line 38, leave out paragraph (b).
Clause 6, page 3, line 17, at end insert—
(" "agricultural land "has the same meaning as in the Dogs (Protection of Livestock) Act 1953; ")
Clause 6, page 3, line 18, after second (" dog ") insert (" which is being ")
Clause 6, page 3, line 31, after (" than ") insert (" agricultural land and ").
Clause 7, page 3, line 39, leave out (" prescribe ") and insert (" appoint ").—(Lord Wells-Pestell.)
On Question, Amendments agreed to.

DIVORCE (SCOTLAND) BILL [H.L.]
3.15 p.m.
The Earl of SELKIRK: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(The Earl of Selkirk.)
On Question, Motion agreed to.
House in Committee accordingly.
[The Lord Alport in the Chair.]
Clause 1 [Irretrievable breakdown of marriage to be sole ground of divorce]:
Lord SIMON of GLAISDALE Lord SIMON of GLAISDALE moved Amendment No. 1:
Page 1, line 14, after (" shall ") insert (" not, though ").
The noble and learned Lord said: May I take Amendments Nos. 1 and 2 together. In sneaking to these Amendments I have two apologies to make. One is that an English lawyer is poking his nose into the affairs of Scottish law. My only excuse is that there is a large common area between the English and the Scottish matrimonial law and such judicial experience as I have had has mostly been as a matrimonial judge, as indeed was that of my noble and learned friend Lord Hodson who has been good enough to put his name to the Amendment, but who unfortunately cannot be here today.
I have felt it right to take advantage of the privilege perhaps I might claim
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thereby because I feel, based on such experience as I have had, that the Bill has an inbuilt bias against wives. The second reason why I have cause to apologise to the Committee is that I could not take part in the Second Reading debate. That was because the date was changed at the last moment; I had arranged to keep clear the original date. I recognise that your Lordships have approved the principle of this Bill, and it would be wrong of me to press any Amendment which would have the effect of wrecking the Bill and undermining the principle which has been approved; nor indeed would I wish to endanger any opportunity of the discussion of this Bill in another place, raising as it does very important issues indeed. I have had an opportunity of speaking to the noble Earl who is in charge of this Bill and I hope that, in view of our discussion, it will be possible for me to raise shortly what I regard as serious issues arising from this Bill without endangering its further prospects.
It is an important Bill. It introduces a new principle into the law of Scotland; namely, that the law should lend its aid to a person who has defaulted on the most solemn of all obligations, for him to take advantage of his own default, even though it causes hardship—and possibly grave hardship—to the person to whom that obligation was owed and who has substantially performed her own reciprocal obligations. It seems to me a pity that a matter of that importance should have to be discussed at this time and at this stage of the Session, although I fully understand the noble Earl's position.
The other matter closely connected with that is that, in my respectful submission, it is principally wives who will suffer from this Bill. Indeed, I think this represents serious potential injustice to married women. When the English Bill, which ran very much on the same lines, was being debated my noble and learned friend Lord Hailsham of Saint Marylebone felt it was unjust to wives, and the feeling was shared by the noble Baroness, Lady Summerskill. The noble Baroness has sent me a message of support today, regretting that she cannot be present. Perhaps I might read a passage from a book which was written after the English Bill passed. It was written by one of the most experienced of all divorce solicitors in London—a man

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of very great ability—Mr. David Morris. His book was called The End of Marriage, with a punning title. The last words were:
" I cannot help thinking that the champions of women's rights have been asleep during the last two years and will wake to find that the male has won the last battle in the hundred years' war."
It is because I share these fears that I have ventured to table some of these Amendments so that the matter may be considered. The general background to all the Amendments perhaps I might mention. I ventured to mention this when the Inheritance Bill was before your Lordships recently: it is that the upbringing and creation of children for the continuity of society involves a division of co-operative labour between men and women. And the woman, in that division of labour, inevitably suffers an economic disadvantage. It is she who has to bear the child and, as society is organised at the moment, it is she who has the principal task in the rearing of the child during its early years. It is by her assumption of that burden that the man is released to pursue his own economic advantage and, as he is freed by the wife's assumption of her role, to be the breadwinner. As always with a division of co-operative labour, there is a moral obligation on the man to share the loaf with the woman and, indeed, with the children whose upbringing is necessary for the continuity of society. The institution within which those various obligations are worked out is the institution of the family and that, in turn, is created by the institution of marriage.
This Bill is concerned with the termination of the relationship, the termination of the institution of marriage; and what is part of the essence of it is that not only has the wife a moral right to share in the financial reward which the husband is released to gain, but increasingly nowadays part of that reward is postponed in the shape of a pension, increasingly a vocational pension. Anything that deprives a wife, who has substantially performed her own obligation in the marriage, of the pension which her husband has been enabled to earn by her self-sacrifice, she being substantially blameless, is very hard, to say the least, to reconcile with justice. I am bound to say that this Bill seems to me to be
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better than the equivalent English Bill. Because this Bill allows for the wife to be put at that disadvantage in certain circumstances—a perfectly blameless wife—to see her widow's pension (vocational, not National Insurance) carried away to another woman when she has made the sacrifice to enable that pension to be earned, seems to me to be a matter of injustice.
The first two Amendments that I ventured to table I certainly do not propose to press. They are really designed to show that the irretrievable breakdown which is supposed to be the basis of the new divorce régime is, to put it mildly, a sham. The English matrimonial law has certainly suffered a good deal from humbug, but this is the merest humbug, as one can easily see. It is perfectly easy to put a quite nonsensical word like "abracadabra" in the place of "irretrievable breakdown" and the clause would have no different effect. For example:
"In an action for divorce the court may grant decree of divorce if, but only if, it is established in accordance with the following provisions of this Act that abracadabra of the marriage has occurred "—
and then subsection (2):
" The abracadabra of a marriage shall, subject to the following provisions of this Act, be taken to be established in an action for divorce if "—
(a), (b), (c) and (d).
As if that were not enough, of course the breakdown of a marriage is not a triable issue. One party has only to say, "I am unwilling to be reconciled" and the marriage has irretrievably broken down. I think the noble Earl has been realistic in not making the irretrievable breakdown of the marriage a triable issue, as it was sought to be made under some of the earlier proposals: Lord Walker's dissent on the Morton Commission and the Bishop of Exeter's Committee in Putting Asunder.
Thirdly, the words "irretrievable breakdown" might have some meaning if the Bill included, or our matrimonial law in England and Scotland extended to, certain attempts at reconciliation. I know that there is a clause in this Bill which purports to deal with reconciliation and it is mentioned in the Long Title, but the only way of seeing whether a marriage has irretrievably broken down is to see

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whether the parties can be reconciled. I will not detain your Lordships at this hour by expatiating on this theme. It was admirably discussed in the Report of the Committee on One-Parent Families headed by the late Mr. Justice Finer, in which he put forward a scheme for a heirarchy of family courts.
I venture to add that on the model of the Conseil d'EÉtat in France such courts ought to have an administrative side concerned with reconciliation and conciliation if the parties cannot be fully reconciled, and a judicial side to determine those issues with which the administrative conciliatory side has failed to deal. I can well understand the noble Earl saying that what I propose goes beyond the provisions of the Bill. But this Bill does not deal with that. Therefore, for that reason as well, "irretrievable breakdown" is a meaningless phrase.
The fourth reason why it is not real to talk about "irretrievable breakdown" is that by Clause 1(3) the old Scottish law of connivance and condonation has been imported—although there are modifications of that law—whereas in the English Bill, more logically but less justly, in my view, they were not imported. But the fact that condonation of adultery has occurred, the fact that adultery has been connived at—that is to say, there has been consent to it or encouragement of it—has nothing at all to do with the breakdown of a marriage. The marriage may well have irretrievably broken down, notwithstanding that the adultery has been condoned or connived at.
Although this Bill uses the words "irretrievable breakdown"—probably in deference to a trend of intellectual fashion that was potent a few years ago—it restates the grounds of divorce, three of them being modifications of the existing ones; namely, adultery in Clause 1(2)(a); a modification of cruelty in paragraph (b). or virtually what was arrived at by judge-made law in this country in the form of constructive desertion which I do not think is known to the law of Scotland; and desertion in its ordinary sense in paragraph (c). Adding to those traditional matrimonial offences, there is divorce by consent in paragraph (d) and divorce by repudiation in paragraph (e). I venture to suggest that if we are to
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look realistically at this Bill we should realise that it is that which the Bill does, and that talk of "irretrievable breakdown" has no significance at all when it is analysed. As I have said, I put down these first two Amendments without intending to press them, in order to pave the way by way of introduction for the following Amendments. On that basis, I formally beg to move.
Lord STRABOLGI: The noble Earl, Lord Selkirk, has known for some time that my noble friend Lord Hughes would for good reason be prevented from being here today. I have to say that a request was made to the noble Earl to move the Committee stage, but he felt unable to do so. In these circumstances. I should make clear that we shall sit with a watching brief during this Committee stage, but that it is not my intention to take any part.
3.40 p.m.
The Earl of SELKIRK: I appreciate what the noble Lord, Lord Strabolgi, has said and I will not go into the reasons why I was reluctant to change the date. I must admit that I am sorry that the noble and learned Lord, Lord Simon of Glaisdale, did not take part in the Second Reading debate on this Bill. We have now had a very interesting Second Reading speech from him. However, although I would not reply to it in detail, there are one or two things he said which are so wide of the mark that I feel it would be a pity they should go out without being at least (shall I say?) criticised to some extent.
First of all, he says there is a bias against women. I would absolutely deny that, for this reason. The purpose of this Bill is to abolish the matrimonial offence, and, so far as I am aware, matrimonial offences are committed about as often by men as by women. I think this is shown by statistics. The financial arrangements following divorce are now open according to the means of the party and according to the needs as seen by the court. That is a very big difference and goes a long way. From what the noble and learned Lord, Lord Stow Hill, said on Second Reading, the experience of England in operating very similar legislation has been that it is working well. I cannot say more than that, but I believe it to be true.

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Lord Simon brought up the question of the upbringing of children. The main purpose of this Bill is to maintain those marriages which were working well and to allow those marriages which are not working to disappear in as seemly a way as possible. That is a big change and one generally welcomed on most sides. I do not think it is fair to say that "breakdown" is really meaningless, because it has changed the whole attitude towards what happens after divorce. I believe this can be of far-ranging significance. Of course, where there is no money it is always difficult to make arrangements. But the attitude that the so-called guilty party must always bear the cost has now disappeared completely.
I know that Lord Simon wanted to say these things and it is probably of value that these ideas should be properly put forward. But I think it is right to add that both the Church of England and the Church of Sctoland, which are, after all, deeply concerned with the welfare of their members, agree that the irretrievable breakdown of marriage should be the basis. That they have accepted. What they have found more difficult is what situation of fact should justify it. This is what we are examining on this Bill.
I think the first two Amendments of the noble and learned Lord are unnecessary. As to the provision he read out, the peremptory requirements which are imposed by Amendments Nos. 1 and 2 are, I think, effectively covered by the words
" degree of divorce if, but only if, it is established …".
That provides the peremptory requirement which I believe is intended by the words the noble and learned Lord would insert into subsection (2). I hope he will agree with that. I do not think the Amendment adds anything to what is already in the Bill, and I should be grateful if he would withdraw the Amendment.
Lord SIMON of GLAISDALE: I venture to agree with the noble Earl that these words do not really make any difference. As I said, I put down the Amendment in order to point out the unreality of the test of irretrievable breakdown. The noble Earl says that the Bill is to abolish the matrimonial offence. One has only to look at Clause 1(2)(a) to see that the matrimonial offence of adultery is still
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there. Paragraph (b) certainly subsumes the matrimonial offence of cruelty, and paragraph (c) states the matrimonial offence of desertion. So that however much various groups may have wanted it, and however much this Bill may purport to found a divorce law on the irretrievable breakdown of a marriage, and to get away from the matrimonial offence, it simply does not do that.
As for the bias against married women, the crucial case is the one I mentioned of the vocational pension being carried away from a woman who has performed her matrimonial obligations, to another woman who has found greater favour in her husband's eyes. The noble Earl was justified in saying that to some extent the remarks I ventured to address to your Lordships were Second Reading points. I think he was perfectly fair in making that observation, and that being so the proper thing for me to do is to ask the leave of your Lordships to withdraw this Amendment.
Amendment, by leave, withdrawn.
3.45 p.m.
Lord SIMON of GLAISDALE Lord SIMON of GLAISDALE moved Amendment No. 3:
Page 1, line 20, leave out (" whether or not ") and insert (" not being ").
The noble and learned Lord said: This is quite a short point. It arises on Clause 1(2)(b) which, at the moment, reads:
" Since the date of the marriage the defender has at any time behaved (whether or not as a result of mental abnormality and whether such behaviour has been active or passive) in such a way that the pursuer cannot reasonably be expected to cohabit with the defender; ".
As I ventured to submit to your Lordships, that subsumes the matrimonial offence of cruelty, and in effect states the English matrimonial offence of constructive desertion as it has been developed by the judges.
The words to which this Amendment is directed are in the last line of the first page:
" … (whether or not as a result of mental abnormality …)".
I recognise that since 1937 in England, and I think since 1938 in Scotland, incurable insanity has been a ground for divorce, and I think it is probably too late now to go back on that. What

559
worries me is that while the promise made at marriage is to take
for better, for worse, in sickness and in health ",
the Bill goes much further than the present law. What I fear may he the situation is that a woman suffering mental abnormality as a result of the change or life may, to her prejudice, find herself divorced. That is the point to which this Amendment is directed. If the noble Earl can reassure me about that I shall not hesitate to withdraw it.
The Earl of SELKIRK: This clause applies more than any other clause to the matter of an irretrievable breakdown. It has to be established to the court that it is no longer reasonable to expect the parties to cohabit. To some extent, I agree that may involve an inquisition, but if it cannot be accepted that the parties should cohabit, then surely the marriage quite clearly has broken down. The noble and learned Lord has raised the question of mental behaviour. If we accepted his Amendment, any form of mental abnormality would be a complete defence to an action brought under this subsection. I do not really think he can mean that. I do not know whether he wants to go back to incurable insanity.
Lord SIMON of GLAISDALE: No.
The Earl of SELKIRK: There are varying degrees. In the first place, cruelty may in a sense be associated with some degree of mental abnormality. That would mean that however cruel a person was he could claim mental abnormality, and that would be a complete defence to any possible action brought against him that the marriage had in fact broken down.
Lord SIMON of GLAISDALE: If the noble Earl will forgive me, I do not think that can be right in view of the decision of this House in Williams v. Williams, which I imagine would be accepted in the Scottish courts, too.
The Earl of SELKIRK: I am afraid I am now at a great disadvantage, not having read Williams v. Williams, and not having had anything like the experience in this narrow field of the noble and learned Lord. I do not know whether the effect of Williams v. Williams would be
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accepted. Speaking virtually as a layman in this matter, I should have thought the words are quite clear, "not being … mental abnormality". If you establish mental abnormality then that is a complete defence. I find it very hard to put any other normal interpretation on those words.
The noble and learned Lord has raised what is undoubtedly a narrow case, that of the woman having change of life. I would think courts would take this very fully into consideration, and that medical evidence on this point could easily be obtained. Perhaps I may remind the noble and learned Lord that these cases are all taken not at the county court but at the Court of Session, before men of really high standing and experience. I do not think they would regard that condition as being something so serious that it would be quite unreasonable to expect someone to put up with it. I think it is a proper point to be borne in mind. I believe it would be quite unusual—or shall I go further and say it would never happen?—that on grounds of this sort an action could be successfully brought.
I admit there must be a certain number of marginal cases of difficulty as to what exactly constitutes this point. One must remember that one party has already said for good or bad reasons that the marriage is at an end, that it is unreasonable for the parties to live together, and there are grounds for assuming that that is so. Those two things have to be established. Then the court has to judge whether they are established. I am told by those who know far better than I that this is a very much better clause to operate than the clause dealing with this aspect in the 1938 Act. That is the view of those who may have to operate this clause. I hope, therefore, the noble and learned Lord will not press this Amendment.
Lord SIMON of GLAISDALE: I am very much obliged to the noble Earl for his explanation. I agree with him that the Amendment goes too far. I tabled it in order to draw attention to the specific case of the woman suffering mental abnormality due to change of life. Having done that, I can only hope that the noble Earl is right and that the word "reasonably" will be construed in such a way as to avoid hardship to the married woman in such a situation. I have drawn attention

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to this matter. The Bill will be considered elsewhere. I feel that I have done all that I can properly do. As I said, I do not want to destroy the chance of this Bill being considered further this Session. In those circumstances, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Lord SIMON of GLAISDALE Lord SIMON of GLAISDALE moved Amendment No. 4:
Page 2, line 3, leave out (" cohabit ") and insert (" resume cohabitation ").
The noble and learned Lord said: With this Amendment may I take Amendment No. 5, because Amendment No. 4 is purely a paving Amendment to No. 5. As I ventured to mention to your Lordships, paragraph (b) in effect restates the English law on constructive desertion. In order for the constructive desertion to operate in English law there had to be a period of separation for what was then three years. That gave to the offending spouse a chance to make amends. In a great many cases that it was my duty to try, the marriage had gone astray due to excessive drinking, and it would be perfectly possible for a promise of amends to be made in such a case if the erring spouse could assure the offended spouse that there was a genuine cure.
Another frequent cause of breakdown of marriage that I came across was meanness by the husband about housekeeping money. That sort of case could legitimately drive a wife away, but could legitimately be put right by a properly framed assurance that the wife would have a secure and adequate source of housekeeping money for the future. It was, in other words, to use the technical term, a locus pœnitentiœ, an opportunity to repent. As this paragraph is drawn, there is a danger, it seems to me, that there is no opportunity to repent. I have clearly in mind Clause 2(1), but I do not think that that is adequate. The matter may well turn on a subject on which I must certainly bow to the noble Earl's expertise, as to whether the evidence in Scotland in this sort of situation is assessed at the date of the action being started or at the date of proof. If he can assure me that it is at the date of proof, then I think that gives time for repentance between the time of action brought and the time of proof taken. It is because I was not
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certain of that that I ventured to put down these Amendments.
3.58 p.m.
The Earl of SELKIRK: I am at a slight disadvantage, because we do not have constructive desertion in Scotland, but I have a vague idea what it means. The difficulty about the Amendment, "resume cohabitation", is that it at least appears to assume that there has been a separation. This may not happen at all. There may be a case of bad behaviour, cruelty, and it may be that the wife cannot leave the husband. It is a serious disadvantage if she cannot leave the husband because she has nowhere to go. If the noble and learned Lord were to insist on resuming cohabitation, she would have to leave the husband before she could bring the action. That is not necessary under this Bill. I think, therefore, that resuming cohabitation is not necessary, and I think it is wrong. The word cohabit "covers everything whether it is cohabiting now or resuming cohabitation in the future.
With regard to the second point which the noble and learned Lord brought forward, I think several points arise. He asked me specifically the position at the moment when the matter comes under the review of the court. The moment is, I am assured—and I believe that it is the common-sense reading of this subsection—the moment of proof. It is not the moment of summons nor the moment when the action took place. It is the time when the proof takes place in court. As I believe the noble Lord is aware, even after the record is closed it can be amended. That means it can be amended right up to the moment when proof takes place. That is the moment when it counts as to whether or not it is reasonable to expect the parties to live together.
The difficulty about a promise is that a promise is really no good. If someone has behaved in a manner which is intolerable and it is not reasonable to expect anyone to live with him or with her, it is no good promising to do better. The answer there would be, as the noble Lord has referred to Clause 2, to continue the case and the power under the clause. That means that the case could be continued indefinitely and, if the promise changes the behaviour, there is ample opportunity for reconciliation. I feel that this

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meets the point better than putting too much faith in a promise of amendment. There may be many of us in this House who have promised to amend our characters and have failed to do so. This probably happens from time to time in marriage, too. It means that, if the spouse has not only promised but has shown that he has amended his character—he has been to Alcoholics Anonymous or for psychological treatment or has subjected himself to training—that could be established at the time of proof. If it is not established, I do not think a promise is adequate. I feel we must go further than that. Otherwise, one would be compelling the wife to remain with someone who had promised to do better but whose current conduct makes it unreasonable to expect them to live together. I feel that the main point which the noble Lord wants is established: it is at the moment of proof that the conduct is taken under review. I hope that that satisfies the noble Lord.
Lord SIMON of GLAISDALE: So far as "promise" is concerned, I agree with the noble Earl. Certainly, the English courts have always taken that as requiring the sort of promise that can be relied on. However, as regards the point on which I wish for assurance, I have been reassured by the noble Earl, namely, that it is the moment of proof, not the moment of action brought, when the conduct will be considered. That gives an opportunity for a promise that can be relied on to be considered both by the spouse and by the court. I am grateful for the assurance given by the noble Earl and I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Lord SIMON of GLAISDALE Lord SIMON of GLAISDALE had given Notice of his intention to move Amendment No. 7:
Page 2, line 17, leave out from (" divorce; ") to end of line 21.
The noble and learned Lord said: This Amendment is at the very heart of the Bill and, as I said at the start of the Committee proceedings, I should not think it right, the House having given a Second Reading to the Bill, to move so drastic an Amendment. Therefore I do not intend to move it.
Lord SIMON of GLAISDALE Lord SIMON of GLAISDALE had given Notice of his intention to move Amendment No. 8:
Page 2, line 28, leave out (" the ").
The noble and learned Lord said: This Amendment raises a very difficult and technical point on the law of condonation. I do not think it a suitable occasion to move it and I believe that the matter is better left to the court. Therefore I do not intend to move the Amendment.
Lord SIMON of GLAISDALE Lord SIMON of GLAISDALE moved Amendment No. 10:
Page 2, line 28, at end insert—
(" ( ) The irretrievable breakdown of a marriage shall not be taken to be established in an action for divorce by reason of subsection (2)(b) of this section if the behaviour mentioned in the said subsection (2)(b) has been condoned by the pursuer's cohabitation with the defender in the knowledge that the defender has behaved in the way alleged or proved.").
The noble and learned Lord said: This Amendment deals with condonation. The Committee will see that Clause 1(3) of this Bill, unlike the English Bill which runs parallel, imports a doctrine of condonation. I imagine that that means the same in Scottish law as it does in English law; namely, a conditional forgiveness, or, more accurately, a conditional remission of a right to complain of an injury, the condition being, that there shall be no repetition of the conduct complained of. It is not limited—certainly so far as the law of England is concerned—to matrimonial law. One finds it in the law of master and servant where, for example, a servant has stolen from the till and the master continues him in service, so that, relying on his services and taking the benefit of them, the master cannot complain.
It is the same in military law which, I apprehend, is Great Britain law, if not United Kingdom law. A military offence can similarly be condoned by the military authorities relying on the continued service of the soldier after they know of his offence.
It is exactly the same in the matrimonial law. It would be unjust to allow a spouse who has been offended to approbate and reprobate, to take advantage of the marriage and then disclaim it. It is for that reason that the law of both England and Scotland has imported

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the concept of condonation. It is applied to adultery in subsection (3). The proposal of this Amendment is that it should equally apply to the intolerable conduct which is referred to in subsection (2)(b). It already applies both in the law of England and in the law of Scotland to the offence of cruelty, which I venture to point out is subsumed in paragraph (b). For example, if a wife has been guilty of intolerable conduct, but the husband nevertheless continues to live with her and has her domestic services, so that she is prejudiced thereby, it seems to me that the doctrine of condonation ought equally to apply in those circumstances as to where the offence is adultery. I beg to move.
The EARL of SELKIRK: The difference between paragraphs (b) and (a)—which is concerned with adultery—is really quite substantial. Normally, adultery is one act—although there may be more; I cannot say about that—and condonation of that act is quite clear and understood, and absolutely right. But this is an entirely different proposition. We are not dealing with a single act. We are not dealing with one act of cruelty which you can condone or not condone. We are talking about a different situation. We are taking the situation at the time of proof and whether it is reasonable to expect the parties to live together at that moment. There can be no condonation. There is no act to be examined. It is merely whether at that moment it is reasonable to expect people to live together. They cannot condone it, because the moment is there; they can condone it only in the future. There are provisions which enable the case to he continued, if necessary. But I do not think that at that time the word "condonation" would have any meaning at all.
May I take a case in point? Let us suppose that there had been a very bad act of cruelty, and the parties had lived together for some time. It would not be a question of whether or not that act of cruelty had been condoned. It would be a question of whether on a given date, when the case was being heard, it was reasonable for t hem to live together. Whether or not the cruelty had been condoned is, in that sense, quite irrelevant. What matters is whether the conduct
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would make a marriage wholly vacant and meaningless. In those circumstances, the point which the noble and learned Lord has in mind is met by the point of proof. Condonation is not necessary and indeed, I would say, impossible. I hope this meets the point. It is different from adultery. So I do not think this would add anything to what the court can do, and I believe that the kind of condition which he has in mind is covered.
Lord SIMON of GLAISDALE: I am very grateful to the noble Earl, but I am bound to say that I found his answer less than convincing. In this country we have, for a long time, had the task of dealing with conduct that would fall under paragraph (b), and we have had no difficulty in applying the law of condonation to it. Nor, indeed, is an act of cruelty necessarily a single act. It may well be a course of cruelty, and neither the courts in England nor those in Scotland have had any difficulty in applying the law of condonation to those circumstances. I therefore still venture to disagree. It has no kind of meaning in the context of paragraph (b). However, I take the point made by the noble Earl about the word "reasonably" and his assurance that the moment of proof is not the moment when action is brought which is relevant to paragraph (b). That may well take care of my point about condonation and injustice to the wife in the circumstances which I have described. In view of that, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Lord SIMON of GLAISDALE Lord SIMON of GLAISDALE moved Amendment No. 11:
Page 2 line 39, leave out (" be bound to ").
The noble and learned Lord said: This and the next Amendment are by far the most important that I venture to table before your Lordships. It deals with divorce by repudiation under paragraph (e) and goes thus far to deal with what I regard as the crucial case of injustice to a wife under this Bill; namely, when the vocational widow's pension which she has enabled the husband to earn is carried away, willy-nilly, to some new wife of the husband to her detriment and impoverishment. The Bill goes only thus far to meet it:
" … the court shall not be bound to grant decree in that action if in the opinion of the

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court the grant of decree would result in grave financial hardship to the defender."
I venture to ask why a wife who has done no more than merely cease to find favour in her husband's eyes—possibly because another woman finds greater favour—should be required to suffer any hardship, much less grave hardship. If she suffers any hardship which is less than grave, the court has no discretion at all—it must pronounce a decree of divorce. If it is grave, the court has a discretion, and there has been at least one case in England under the parallel provision where the court pronounced a decree of divorce notwithstanding that it would cause financial hardship to the wife. I think the words in the English Act are "financial or other hardship". The point is exactly the same; in other words, that a formula such as this, a provision such as this, has a built-in injustice to a wife.
I should prefer to take out the words "be bound to" so that where there is grave financial hardship, it is mandatory on the court to refuse a decree of divorce. Alternatively, I should be content (although I should like both) with the next Amendment, to leave out the word "grave". There may be advantages in accepting this Amendment rather than the next because I gather that the Scottish courts, unlike the English courts, are reluctant to exercise discretion. In English law we are very ready to load on to the courts the exercise of a discretion; and judges are ready to assume that, for that is part of their duty. Scottish law, as I understand it, has developed differently. It endeavours to circumscribe narrowly the circumstances in which a court shall be required to exercise a discretion, preferring to proceed by definite rules where the result falls from the given facts found judicially. So I should be content if the noble Earl would accept this Amendment, in which case I would not press the next one. But this is the most important Amendment because it involves a built-in injustice, a potential injustice, to married women. I beg to move.
The Earl of SELKIRK: I am grateful to the noble and learned Lord for not moving out paragraph (e) because that is absolutely fundamental to the Bill. I think I must remind the Committee of the basis upon which the Bill proceeds.
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It is the support of marriages which have a chance of survival and the decent burial with the minimum of embarrassment, humiliation and bitterness, of those indubitably dead. So far as the ladies are concerned, the noble and learned Lord did not mention that second part which he knows has quite a large rose. At the present time in Scotland (and in England, too, for that matter) the position is very disagreeable for the ladies. This is remedied. I think that his constant reiteration of bitter bias against women is not justified. If the noble and learned Lord were to take out both of these Amendments, that is Nos. 11 and 12, the situation would be that the court should not grant a decree in an action where a case of financial hardship existed.
Since we started the discussion today the noble and learned Lord has constantly repeated the hardship of divorce. I agree with him in believing that no divorce goes through without hardship. But that would mean that the court would have to refuse a decree under paragraph (e) in any case in which hardship was shown. I believe that there are very few divorce cases in which one of the parties does not suffer hardship. To accept the Amendment would in effect virtually make inoperative, or completely wash out, paragraph (e).
I think the noble and learned Lord greatly underestimates how important paragraph (e) is in maintaining what we believe are many illicit but stable marriages. The most recent figures, which I quoted on Second Reading, show that in the first three years of the operation of the English Act 55,000 people took advantage of paragraph (e). I have no particular reason to believe that there are not a substantial number of people who are reluctant to enter into the devious processes which are demanded of divorce. They are scrupulous people and have taken advantage of paragraph (e) to relieve themselves from a bond which is wholly and completely empty. I can see no point in stopping the use of this paragraph. It would be a grave disservice to many people in this country and not promote stable marriages. The noble and learned Lord is not arguing about marriage, he is talking about money.
Lord SIMON of GLAISDALE: The noble Earl is doing me an injustice. I

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did not seek to remove paragraph (e) in Committee; what we are here concerned with is grave financial hardships. It is wrong to make me appear to be only interested in the financial side of the marriage. On the contrary, I regard this Bill as causing general misery; but at the moment we are on the financial question.
The Earl of SELKIRK: If I have done the noble and learned Lord an injustice I willing withdraw my remarks. I obviously had the wrong impression. In this case you have a married couple who have lived apart for five years. I do not know how the woman has lived during that time; presumably she has had alimony of some kind, possibly from the sheriff court or the Court of Session. The act of divorce will make no difference to her so far as that is concerned. Clause 5 of the Bill says that either party to the marriage may ask for financial provision and, in granting that, the court has complete discretion to make any order which it thinks fit, taking into account respective means. Normally what was considered proper as alimony would be considered perfectly proper as financial provision, so there should be no change. I agree that the noble and learned Lord has taken into account certain further and wider considerations. I do not pretend that this is a complete answer. This Bill does not deal with general provisions for husband and wife, because it cannot do so. State pensions would have to be altered in some way to deal with this.
Lord SIMON of GLAISDALE: It is for that reason that I confined my observations to vocational pensions. It must meet that point.
The Earl of SELKIRK: If anybody has a large vocational pension, there is no reason why he should not make some provision for his wife. I was taking the State pension because it was important. The only time the lady would suffer would be if her husband died before she was sixty and his executors had no assets. He would be obliged to go on paying her financial provision so long as he lived. At sixty she would get the old age pension. I do not say it is generous, but it is something. There is a gap from the moment he dies without any executory matters and the time
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she is sixty. There may be difficulties regarding private financial vocational pensions, and there are always difficulties when there are not enough assets. People who make extensive life insurance provision could be made to pass on some of this, either in capital or periodical allowances, to the other party if the court decides that is appropriate. It is fully in their power to make any arrangements that they think fit and proper.
What I suggest should happen is that after five years' separation the husband asks for a divorce. The court can say: "What provision are you making?", because Clause 5 says quite clearly that:
" Where an application under the foregoing subsection has been made in an action, the court, on granting decree … shall make with respect to the application such order, if any, as it thinks fit …".
In other words, when the decree is granted they will see that some provision is made, and I imagine that what is being said is: "If you don't make proper provision you won't get a decree." That is well within the power of the court. There may be cases when people might find it difficult, but I am bound to say that after five years' separation I do not think that they can expect absolute provision for life. That is going too far, when you consider the great number of people who may be able to build up an illicit liaison, an illicit marriage, in which their children can be legitimated—which I think many people consider to be important—as against the comparative few who may be damaged. If you have been apart for five years your marriage has quite clearly broken down, and the court can do no more than make the best possible provision for you.
Here we have two provisions. One is whether or not a decree would be granted if in the opinion of the court the granting of a decree would result in great financial hardship. This would mean that you had a very small measure of discretion for the courts—and I am bound to say that I think they should have some discretion.
Lord SIMON of GLAISDALE: Does not the noble Earl think that there would be a discretion in assessing the gravity?
The Earl of SELKIRK: There would be theoretically an objective discretion; the other would be a subjective discretion.

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There is a distinction between the two, and I do not know which the noble and learned Lord would look at. This is possibly something which might be looked at more closely in the further stages of the Bill. Frankly, at this stage, I should not like to accept either of these Amendments because, as the noble and learned Lord will be aware, a Bill of this sort, which has taken years to mature, is built on a balance and I am not absolutely certain whether these Amendments would throw the balance out somewhat. If the noble and learned Lord were to agree to withdraw these Amendments, I would certainly undertake that they would be brought up for full consideration later, either here or in another place. I am reluctant to appear discourteous to the noble and learned Lord, but I saw these Amendments only at twelve o'clock yesterday morning, and there has been little time—
Lord SIMON of GLAISDALE: We only had the Second Reading last Thursday.
The Earl of SELKIRK: The Bill has been before your Lordships for a fortnight and more, and there were 18 Amendments put down in the noble Lord's name just before lunch yesterday. It has not given me as much time as I should like to inform myself fully about them. I welcome the fact that the noble and learned Lord has made these varied points, because it is important that they should he voiced. But I hope he appreciates that I should not like to accept these Amendments without taking a little more than 24 hours for consideration. That is what I should like to make clear.
Lord SIMON of GLAISDALE: I confess that I am very disappointed by the noble Earl's reply on this crucial matter. When he is asked, "What did you do in the great sex war. Daddy?", he will be able to say, "In International Women's Year. I brought in a measure so that a woman who had done nothing worse than find disfavour in her husband's eyes could be deprived of her widow's vocational pension, even though it caused her grave financial hardship ". Having said that, I must be content with the noble Earl's offer to consider this matter further, and although he has not gone as far as
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I would wish I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 1 shall stand part of the Bill?
Lord SIMON of GLAISDALE: This clause is the essence of the Bill and it has been fully discussed on Second Reading and on the various Amendments today, so I do not propose to detain the Committee on it. However, I just want to say this. The noble Earl has said on several occasions that we are concerned with dead marriages and he has accepted that divorce causes hardship. Why do marriages die? In many cases, it is through the misfortune of the spouses who have looked for felicity with each other and have been disappointed. But a crucial factor is also the support that society gives to a marriage.
It is remarkable how one can find a divorce law, say like the Muslim divorce law, operating quite differently in its incidence in different countries, because the various societies give different support to a marriage. One of the dangers of a Bill of this sort—indeed, of the specific steps we have made to facilitate divorce—is that we are encouraging a decease of marriage. The figures must be looked at and no doubt will be carefully considered. In England, the number of decrees has more than doubled since 1969. In 1969, there were just over 55.000 decrees, whereas the provisional figure for 1974 is 131,500-odd.
Then there is the matter that will undoubtedly have to be considered in another place. I do not ask the noble Earl to answer this, because I have not had an opportunity of giving him notice and I am not sure that I have discovered the right figures myself. But there is the question of the cost of the increased divorces under this Bill. As I have said, the number of English decrees has far more than doubled. and I should think there would have to be an assessment of the cost of this measure in terms of legal aid and payments made by the Supplementary Benefits Commission, to women who are thrown on the community as single parents or who are divorced without means.
So far as I could see, the cost of divorce in this country in 1973–74 was about £6£ million and, undoubtedly, one

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of the things that would have to be considered is whether the greater cost occasioned by the increased divorces which this Bill sanctions is the first priority, in a time like this, on our payments for social services. The recommendations of the Finer Committee's Report on one-parent families are still unaccepted. Which comes first—an allowance for a ore-parent family or the increased cost of divorce by repudiation? As I say, that will have to be considered in the House which is primarily concerned with finance, but it is not a matter which should go unmentioned.
Lord STOW HILL: On the Question, Whether Clause 1 shall stand part—and
apologise again, as did the noble and learned Lord, for intervening in a field of law to which I do not belong—I rise to say that I am very glad that the noble Earl made no concession at all to the noble and learned Lord. He said that he wanted to consider one change that has been proposed by the noble and learned Lord. I hope that he hesitates a very long time before he makes any change at all. I should have thought that Clause I went a long way towards civilising our concept of divorce. Of course, divorce is always sad. Of course, people who enter into the state of marriage hope to gain felicity from it and everybody hopes that they will. But if the marriage bond breaks down and they cannot go on together, for goodness sake let us make their parting civilised and decent and get rid of this archaic, antiquated idea of matrimonial offences. That is what Clause 1 does, and I am very glad that the noble Earl has not agreed to any changes.
Clause 1 agreed to.
Clause 2 [Encouragement of reconciliation]:
On Question, Whether Clause 2 shall stand part of the Bill:
4.37 p.m.
Lord SIMON of GLAISDALE: I intervene merely to point out the inadequacy of these provisions, in view of the claim that is made in the Long Title of this Bill. If society is really serious about reconciliation, it will do much more than is done in this clause. I have mentioned already the possibility of having tribunals
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that are separate from but connected with the courts—a conciliation service attached to the courts which would do something to promote reconciliation. This is good so far as it goes, but it goes almost nowhere. The English Bill has such provisions and other provisions for reconciliation and I am assured that they have been virtually a "dead letter".
Your Lordships may have seen the other day a report of a conference that was presided over by the learned President of the Family Division. That report brought out the utter failure of the reconciliation provisions. It is not true, as the noble Lord, Lord Stow Hill, has claimed, that we have done away with the matrimonial offence. I have already pointed out that it is there in paragraph (a); it is there in paragraph (b); and it is there in paragraph (c). So it is pure fancy to claim that it has been done away with.
They, and all the other provisions of the Bill, make it more than ever necessary, if we are to spare particularly children the misery of divorce, that we should have an adequate reconcilation procedure. I have had to try many cases of this kind, and I was left entirely convinced that children can stand a great deal in the turmoil of a marriage, but that it is the break-up of the marriage that is really disastrous for them. It is at that moment that you find quite dramatically the speech disorders, the bed-wetting and the various failures at school. Therefore, I venture to draw attention to the inadequacy of Clause 2 and to the need to implement the Finer Committee Report on family courts and use them purposely for reconciliation.
The Earl of SELKIRK: I agree with what the noble and learned Lord says about reconciliation. He mentioned what I believe the present President of the Family Division said, but of course failure of recognition only shows how difficult it is. I do not think anyone would deny that an enormous amount of skilled labour is put into this matter—perhaps not enough, but it is exceedingly difficult. I should have thought that the idea of having an adjunct to one of the courts as a reconciliation centre would not be of much use. Once one gets into the courts—
Lord SIMON of GLAISDALE: The noble Earl may know that it has been

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done successfully in some of the American States.
The Earl of SELKIRK: I am grateful for the advice; I do not know. When the noble and learned Lord says that so many divorces take place, and suggests that the divorce laws make this possible, he should remember that divorce rate in Scotland is rising steadily and rapidly under the present law, almost as rapidly as it is in England. What one cannot calculate—and this is what really matters—is whether or not this makes more happy families. That is the purpose of the Bill, and that is what we hope will be the result; but, alas! it can never be presented statistically.
Clause 2 agreed to.
Remaining clauses and Schedules agreed to.
House resumed: Bill reported without Amendment.

BRITISH TRANSPORT DOCKS BILL
Reported without Amendment.
SHARD BRIDGE BILL [H.L.]
Reported with Amendments.