Lords Sitting of 6 April 1976

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

EQUAL PAY ACT
Baroness YOUNG: 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 progress has been made in implementing the Equal Pay Act.
Lord JACQUES: My Lords, the Equal Pay Act came into operation on 29th December 1975. It is too early to make an assessment of how it is working in practice, but we can say that discrimination has been removed from all collective agreements on the Department's register.
Baroness YOUNG: My Lords, I thank the noble Lord for that reply, but is it not a fact that the regional employment premium scheme gives to an employer a larger sum for employing a man than for employing a woman? Would the noble Lord not agree that this seems to be contrary to the spirit of the Equal Pay Act and the Sex Discrimination Act?
Lord JACQUES: My Lords, I imagine that that is another Question. If the noble Baroness cares to put down a Question on that matter I will give a considered Answer. It is not a question that I should want to answer without consideration.
Baroness YOUNG: My Lords, would the noble Lord not agree that in fact it follows from my original Question, as this is the first example and opportunity which the Government have had of showing their bona fides on implementing this Act?
Lord JACQUES: My Lords, that is not true. The Government had the opportunity of showing their bona fides much earlier. They provided the con-
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ciliation officers and the industrial tribunals to deal with individual cases. They provided the central arbitration committee to deal with all doubtful cases of collective agreements. They provided the Equal Opportunities Commission which has to review the Act and make recommendations on amendments, if required. The Commission has been given the following powers: first, to inquire in any case where it has reason to believe that there is discrimination; secondly, to give notice to the recipient of the notice that the discrimination must cease; and thirdly, if that power does not succeed it then can go to court and get an injunction. I think that that shows that the Government went into this matter very fully, determined to make the Act work.
Lord LEE of NEWTON: My Lords, is my noble friend aware that in very many industries equal pay has been interpreted as giving women the same rate as the lowest paid man, the labourer? Will my noble friend both ensure that all the facilities for training are available in order that women can obtain skilled rates—in other words, the higher rates of pay—and agree that we should base our equality on that kind of income, instead of on the law?
Lord JACQUES: My Lords, under the Act there is no excuse for giving women the lowest rate paid to men. As for training, we shall deal with that tomorrow when the noble Lord moves his Motion.
Baroness WARD of NORTH TYNESIDE: My Lords, will the noble Lord be kind enough to tell the House when he thinks he could answer the Question of my noble friend and give a full Statement, so that we would all know where we are?
Lord JACQUES: That is easy, my Lords. I should be very pleased to answer the Question when the noble Baroness sets it down on the Order Paper.
Baroness EMMET of AMBERLEY: My Lords, will the noble Lord in due course let us have a report of the number of complaints that have been made, as I think that would be of great interest to the House?
Lord JACQUES: My Lords, in the first three months of this year there were 1,250 applications to the industrial

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tribunal, but by far the greatest number of those were dealt with by conciliation officers and did not need to go to the tribunal. I have worked out some figures for the benefit of the House. On the figures submitted to me for the first three months, I find that 19 per cent. of the cases were settled by conciliation; 8 per cent. were settled by private settlements; 66 per cent. were withdrawn; 2 per cent. were successful at tribunal, and 5 per cent. were unsuccessful at tribunal. The total is 100 per cent., I hope.
Baroness EMMET of AMBERLEY: My Lords, I wish to thank the noble Lord very much for the trouble he has taken in answering my supplementary question.
Lord LEATHERLAND: My Lords, now that my noble friend has given a long list of the things done by this Government in the interests of sex equality, can he tell us what the previous Government did?

ASIAN WOMEN: ANTE-NATAL CARE
2.41 p.m.
Lord AVEBURY: 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 action the Secretary of State will take regarding the allegation by the chairman of the Catholic Racial Justice Group in Leicester, that 185 Asian women attending the Leicester General Hospital's ante-natal clinics have been asked to produce their passports, and that one woman who refused to do so having previously had a confinement at the hospital, was refused ante-natal care.
Lord WELLS-PESTELL: My Lords, the Government do not accept that it is right for the production of passports to be made a routine requirement for one particular group in the community. The Leicester Area Health Authority will be asked to consider the use at the hospital concerned of methods of checking eligibility to receive National Health Service
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treatment as used elsewhere in the National Health Service.
Lord AVEBURY: My Lords, I am extremely grateful to the noble Lord for that favourable Answer. Is he aware that, so far as I have been able to ascertain from inquiries I have made of the Community Relations Commission, this is the only hospital in the country which follows the practice of requiring passports to be produced by women of Asian ethnic origin? Is the noble Lord also aware that a doctor who inquired of the hospital authority why this was done was told that it was on the instructions of the Home Office? Would the noble Lord care to check that? Would he also tell the House whether this procedure is considered to be illegal under both the racial discrimination legislation and the Sex Discrimination Act, since apparently only women are required to produce their passports?
Lord WELLS-PESTELL: My Lords, in reply to the comment of the noble Lord, I should say that we are glad that it is the only hospital that does something of this kind and we hope that from today—or, at least, very soon—the hospital concerned will not be doing this again. I cannot tell whether or not the idea came from the Home Office. My personal view—and I ought not to have such a view on this matter—is that it is most unlikely, because I have made some inquiries to find out, if possible, how, why and where it originated. My information is that some hospitals—and Leicester is one in particular—often have difficulty in establishing whether people are resident or non-resident, and sometimes there is difficulty of communication. They have chosen this method, but we deplore it, as I have already said.
Lord HAILSHAM of SAINT MARYLEBONE: My Lords, since the matter seems to me to be one of considerable obscurity, can the noble Lord tell us in what circumstances it is legitimate for anybody to demand anyone else to show his passport inside the bounds of the United Kingdom, other than at a port?
Lord WELLS-PESTELL: My Lords, I would not know whether it was proper or improper in the sense in which the

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noble and learned Lord is speaking. All I can say is that rightly or wrongly—and the Government feel, wrongly—this was some type of effort to try to establish whether people were correctly using the National Health Service, and whether they were entitled to use it. I do not think that I can take the matter beyond that point.
Lord AVEBURY: My Lords, I appreciate that the noble Lord has not had very much time to make the inquiries, but would he consider that this case warrants a fuller investigation to ascertain how the practice first came into use, since the district administrator says that it has been followed for the past 10 or 15 years? Will he also consider the issuing of circulars to other hospitals to prevent this happening elsewhere?
Lord WELLS-PESTELL: My Lords, I shall certainly do what the noble Lord says. However, I think that the noble Lord has achieved his purpose of drawing attention to this matter. I understand that it has been going on for some time. But I hope that, as a result of this question being raised, and following the communications which will go from the Department concerned to the Area Health Authority, the practice will stop and the matter will be drawn to the attention of other hospitals, although I understand that there is no need to do so.

GALLIPOLI: WAR CEMETERIES RESTORATION
2.45 p.m.
Lord DAVIES of LEEK: 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 progress is being made in restoring the cemeteries of our War Dead on the Gallipoli Peninsula in Turkey since the devastation caused by forest fires in 1975.
Lord WINTERBOTTOM: My Lords, the two disastrous forest fires, followed by
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the freak whirlwind, in the autumn of 1974, caused major damage to the planting in nine war cemeteries and lesser damage in others. Flowers within cemeteries were replanted last spring and the replacement of shrubs and trees was completed in the autumn and winter. A few stones in the surrounding ha-has, cracked by the heat, are being replaced.
Lord DAVIES of LEEK: My Lords, while thanking my noble friend for that careful reply, may I ask whether he is aware that my Question had behind it no ulterior motive but, that first and foremost, it was asked to thank Turkey for its co-operation and to thank the War Graves Commission for all the work that they do all over the world?—the horticulturalists, gardeners and dendrologists who keep these lovely and lonely places, which many of us have seen, serene and verdant. Is my noble friend aware that I should like this comment to be passed on to those people so that they may know that this House and the other place are aware of what they do?
Lord WINTERBOTTOM: My Lords, I will certainly ensure that my noble friend's courteous and sensitive message is passed on to the right quarters.
Lord WALLACE of COSLANY: My Lords, is my noble friend aware that the words of my noble friend Lord Davies of Leek will be deeply appreciated by staff at all levels of the Commission? Speaking as one of those who has been honoured to serve with the Commission, may I tell him that I know of no other organisation in the world with such a dedicated band of workers serving, as they do, people of the entire British Commonwealth?
Lord WINTERBOTTOM: Yes, my Lords; and I will ensure that my noble friend's message is passed on to the workers in the cemeteries.

HOUSING (AMENDMENT) (SCOTLAND) BILL
Read 3a, and passed.

FATAL ACCIDENTS AND SUDDEN DEATHS INQUIRY BILL [H.L.]
2.48 p.m.
The MINISTER of STATE, SCOTTISH OFFICE (Lord Kirkhill): My Lords, I beg to move that the Commons Amendments be now considered.
Moved, That the Commons Amendments be now considered.—(Lord Kirkhill.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
[References are to Bill 51 as first printed for the Commons]
[Nos.1 and 2.]
Clause 3, page 3, line 36, after "and" insert "in a case where the inquiry is being held in respect of such a death as is referred to in section 1(1)(a)(i) of this Act, to"
Clause 4, page 4, line 9, at end insert", in a case where the inquiry is being held in respect of such a death as is referred to in section 1(1)(a)(i) of this Act,"
Lord KIRKHILL: My Lords, with the leave of the House, I beg to move that the House doth agree with the Commons in their Amendments Nos. 1 and 2 together. The effect of Amendment No. 1 is to ensure that intimation of the holding of the inquiry to the employer of the deceased person need only be given in cases where the death appears to have resulted from an accident in the course of employment. Under the original wording of the Bill, intimation to the employer would have been necessary in every case, even when the death had no connection whatever with the employment. In the case of the death of a person in custody under Clause 1(1)(a)(ii) or other sudden deaths inquired into under Clause 1(1)(b), the employer will normally have no connection with the death. Clearly, it would be inappropriate to require notice to be given to him in such cases. The need for this Amendment was initially drawn to the Government's attention by Members of the Opposition in the Commons, and the Amendment received general support there.
The effect of Amendment No. 2 will be that the employer of the deceased will have an automatic right to appear at the inquiry only in cases where the death appears to have resulted from an accident in the course of employment. In
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any other case the employer will, like anybody else, have to satisfy the sheriff that he has an interest. Under the original wording of the Bill, the employer would have had an automatic right to appear in every case, even where the death had no connection with the employment. The Government now feel that this was clearly anomalous; indeed, this very point was made to the Government in the other place. My Lords, I beg to move that this House doth agree with the Commons in their Amendments.
Moved, That this House doth agree with the Commons in the said Amendments.—(Lord Kirkhill.)
Lord CAMPBELL of CROY: My Lords, this Bill was considerably amended and improved during its passage through your Lordships' House before it went to the other place, and, as the noble Lord has said, these Amendments make a further improvement which has been acknowledged on both sides. I am sure your Lordships should accept them.
On Question, Motion agreed to.
2.51 p.m.

COMMONS AMENDMENT
[No. 3.]
Clause 6, page 6, line 7, leave out "was entitled by virtue of this Act to appear at" and insert "has an interest in"
Lord KIRKHILL: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 3. This Amendment makes it clear that any person who has an interest in the subject matter of the inquiry may obtain a transcript of the evidence, on payment of a fee, whether or not that person appeared at the inquiry. The original wording of the Bill stated that "any person who was entitled to appear at the inquiry" had the right to obtain a transcript. To be entitled to appear at the inquiry a person must (unless he is the nearest relative, the employer or a safety inspector) satisfy the sheriff that he has an interest in the inquiry. It is arguable, therefore, that under the original wording people interested in the inquiry could obtain transcripts of evidence only if they had actually made an appearance at the inquiry and satisfied the sheriff of their interest.
Clearly it is not desirable that this interpretation be put on the Bill. People

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who have a genuine interest should be able to obtain transcripts of evidence whether or not they actually appeared at the inquiry. The Bill as amended will be in line with the existing situation under the Fatal Accidents Inquiry (Scotland) Act 1895. The need for this Amendment was drawn to the Government's attention by honourable gentlemen on the Opposition Benches in the Commons, and the Amendment received general support in that place. I beg to move that this House doth agree with the Commons in their Amendment No.3
Moved, That this House doth agree with the Commons in the said Amendment.—(Lord Kirkhill.)
On Question, Motion agreed to.
2.53 p.m.

COMMONS AMENDMENT
[No. 4.]
Clause 9, page 7, line 12, leave out "accident" and insert "any accident from which death has resulted".
Lord KIRKHILL: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 4. This is a purely drafting Amendment to avoid any misunderstanding of Clause 9. It makes no difference to the effect of the Bill. Clause 9 as previously drafted was technically correct. Its effect was to extend the meaning of the expressions "death occurring in Scotland" and "accident occurring in Scotland", used in Clause 1 of the Bill, to include, in appropriate circumstances, deaths and accidents occurring on the Continental Shelf.
Both noble Lords in this House and honourable Members in another place have, however, during the passage of this Bill, expressed concern that Clause 9 might require inquiries to be held into accidents occurring on the Continental Shelf even when no death has resulted from them. There is no substance in these fears. I hasten to assure your Lordships. However, to avoid such misunderstanding it appeared desirable to the Government to amend Clause 9 to make it quite clear on the face of it that the accidents referred to are accidents from which death has resulted. I beg to move that this House doth agree with the Commons in their Amendment No. 4.
Moved, That this House doth agree with the Commons in the said Amendment.—(Lord Kirkhill.)
Lord CAMPBELL of CROY: My Lords, we are grateful to the Government for having made this Amendment. Indeed, it was my friend Lord Selkirk who first pointed out this matter, and I joined him in suggesting that clarification was needed because otherwise there would be doubt in this important section of the Bill, which extends the system to the Continental Shelf.
On Question, Motion agreed to.

BAIL BILL [H.L.]
2.54 p.m.
The MINISTER of STATE, HOME OFFICE (Lord Harris of Greenwich): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, that the House do now resolve itself into Committee.—(Lord Harris of Greenwich.)
On Question, Motion agreed to.
House in Committee accordingly.
[The Earl of Listowel in the Chair.]
Clause 1 [Meaning of "bail in criminal proceedings"]:
On Question, Whether Clause 1 shall stand part of the Bill?
Lord GARDINER: I attended the Second Reading of this Bill, and I had the pleasure of hearing the speeches of my noble friend Lord Harris of Greenwich and of the noble and learned Lord, Lord Hailsham, but only part of the speech of the noble Lord, Lord Wigoder, because then, unfortunately, I had to keep an appointment as Chancellor of the Open University and I was therefore unable to take part in the debate on Second Reading. So, as Clause 1 starts off the framework of the Bill, may I say that this is of course a Bill I greatly welcome. Indeed, I have been asked sometimes in the past few years, "If you could choose one reform in the law to put through, what would it be?", and I have always said, "Legal aid for bail". But may I raise two possible omissions

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from the Bill, not necessarily expecting my noble friend to deal with them today?
The first is that we know that now, in London, a man on remand will ordinarily be tried within, I think it is, 11·8 weeks—just on three months—but there is a certain number of cases in which the period involved is very much longer. I have known a year, I have known 18 months. Week after week, month after month, the police go on saying, "Our inquiries are not yet complete", or "We are not yet ready". This is very difficult, I think, for justices of the peace to deal with. So far as I know, this Government are still the Government of Scotland, and therefore they must be aware that since 1711 it has been the law in Scotland that unless a man's trial is completed within 110 days he has to be released. This is peremptory, mandatory and unqualified except only for illness or if the prosecution can satisfy the court that it is in no way their fault. If this works so well in Scotland, ought we not to consider it here in order to put some pressure on the police to bring a case to trial by a certain date, which at present in a certain number of cases they do not do?
The second omission on which I would ask my noble friend to comment if he would is that nowhere does this Bill provide for compensation. Of course, in this House we can extend the Long Title of the Bill. Last night, according to The Times, the Prime Minister made a speech, and in the course of his speech he said this:
"Let us set ourselves some aims. Let us root out injustice and put it right wherever we can".
Suppose a man who is a completely innocent man is remanded—ordinarily, in London, as I say, for three months—and then, when he comes up for his trial, the police say, "Sorry, Chum; we have got the wrong man—we offer no evidence." It is, I think, a crying and manifest injustice that at the moment this man gets no compensation at all. First of all, in most cases he loses his job. Where work has to be done, you cannot really expect employers to keep a place open for three months. Then he finds himself in great difficulties in that he gets behindhand with his rent; as he has not been earning anything, he gets into debt—so far as I have been able to ascertain
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it is not a practice of the Supplementary Benefits Commission to provide supplementary benefits because the husband is in prison—and in some cases he loses his home.
Is this not a crying injustice in the case of a man who is completely innocent? I am not talking of cases where lawyers say, "He was lucky to get off", but of those cases where the prosecution themselves agree, "This man is innocent, always was innocent and ought not to have been prosecuted", and where, as a result, the man serves three months in prison, he loses his job, and perhaps his home as well. Is it not a crying injustice that he is denied any compensation at all? The police do not have to say anything; they just shrug their shoulders and go away. Can my noble friend say something on those two points?
Lord HARRIS of GREENWICH: My noble and learned friend has raised two questions. One relates to the practice in Scotland, and I will gladly go into this. I think it would be difficult to move immediately in the direction that my noble and learned friend desires, but, nevertheless, he has raised a question which I cannot pretend to be competent to deal with today, and I will certainly look into the matter.
So far as compensation is concerned, as my noble and learned friend rightly says, this raises major issues concerning justice done to individuals finding themselves in a predicament of this sort. Clearly a provision of this kind goes rather wider than the Bill, as my noble and learned friend has indeed pointed out. I will look into the matter with even greater vigour, given the fact that the words of my right honourable friend the Prime Minister were called in aid. At a time like this it is appropriate to pay even more attention to the words of Prime Ministers than is normally the case.
Lord SHINWELL: I am sorry to intervene in a matter which seems to concern the legal fraternity more than an ordinary layman like myself; but I am bound to say that I was astonished far the observation of my noble and learned friend Lord Gardiner. If what he has stated is consistent with the facts, then a very serious act of injustice appears to continue in the United Kingdom—or, at

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any rate, South of the Border. If I may be permitted to say so with the utmost restraint, I would not regard the reply from my noble friend the Minister as adequate. To say that he will look into a matter of this kind seems in the circumstances to be hardly the kind of answer that is satisfactory. At least we should be assured that as soon as is practicable there will be a satisfactory response to the observations made by my noble and learned friend. I have the feeling that what he mentioned is practically unknown in your Lordships' House to all but members of the legal profession, and in the circumstances perhaps my noble friend the Minister will give an assurance to the Committee that within the next few weeks your Lordships' House will be more fully informed on the intentions of the Government.
Baroness WOOTTON of ABINGER: If my noble friend Lord Harris is going to ask his right honourable friend to look into this matter, I hope he will look into what happens in other countries. I am referring particularly to compensation for the detention of people who are subsequently proved to be innocent. If he looks into what happens in Japan—from whom also we can learn—he will find that a person subjected to any kind of detention who is subsequently proved to be innocent is eligible for compensation.
Lord HAILSHAM of SAINT MARYLEBONE: I am reluctant to intervene in this debate, especially in view of the extreme eminence and wisdom of those who have participated in it. But, in the absence of the noble Lord the Leader of the House, I must draw the attention of the Minister to the fact that we are discussing whether Clause 1 shall stand part of the Bill, and the sale purview of Clause 1 standing part on the Committee stage of this Bill is the meaning of "bail in criminal proceedings". If we are now going to discuss what is done in Japan about compensating innocent prisoners who are subsequently found not guilty, we may be here until midnight. But I must say, with great respect to the Committee, that I shall not be here at midnight.
Lord HARRIS of GREENWICH: The first point I was going to make to my noble friend Lord Shinwell was a slightly
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less vigorous retort than that given by the noble and learned Lord, Lord Hailsham of Saint Marylebone. The point raised by my noble and learned friend Lord Gardiner goes—as he rightly pointed out—wider than the Long Title of the Bill. It goes a great deal wider than Clause 1. As he has raised the issue—and I know this is a matter which has concerned many people for a substantial period of time—I will look into it. I reply in similar terms to my noble friend Lady Wootton. The fact is that these matters go far wider than this Bill, which relates to bail and not to compensation. The point having been raised, I will gladly look into it.
Clause 1 agreed to.
Clause 2 agreed to.
Clause 3 [General provisions]:
3.4 p.m.
Lord FOOT Lord FOOT moved Amendment No. 1:
Page 3, line 24, leave out from ("custody") to end of line 25.
The noble Lord said: May I start by apologising to the Minister for putting down these rather numerous Amendments a very late stage, for he did not have notice of them until last night. That was due to reasons which were not really within my control, but I apologise for the late notice of them. Secondly, as the Minister will remember, I gave this Bill a very general welcome on Second Reading, and I think I was the only person who gave it an unreserved welcome from any part of the House, except the Minister himself.
I do not resile in any way from what I said then. I wholly approve of the general object of this Bill, which is to avoid sending people to prison except when they have been lawfully sentenced by a court of law, or where their being contained in custody is essential to the protection of the public or the due administration of the law. I fully accept the second object of the Bill, which is to create a presumption in favour of bail, subject to exceptional conditions which are referred to in Schedule 1.
In saying that, may I also say as a preliminary comment that I fully agree with the objects of this Bill; that is, first, as the Minister explained, to try to reduce

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the prison population, and secondly—much more important to my mind—the defence of civil liberties. Therefore, I am entirely with the Government in the spirit in which this Bill has been presented. Although there are a large number of Amendments in my name, substantially there are only four. Perhaps I could give the noble and learned Lord, Lord Hailsham of Saint Marylebone, the reassurance that I certainly will not be keeping him here until midnight.
In moving these Amendments, I shall do little more than pose the questions which they raise rather than argue the case in any detail in order to ventilate the questions and get the reactions of the Government to these Amendments. If at a later stage in the Bill there seems to be an opportunity of making any advance upon these lines, perhaps that will be the occasion for more detailed consideration of these matters. The Amendment to which I am now speaking is an Amendment to Clause 3 of the Bill, but it is connected with Clause 6. In Amendment No. 5 I propose that Clause 6 should be left out. If I may, I will deal with those two Amendments together, because the first one, to Clause 3, is subsidiary to the deletion of Clause 6. Clause 6 makes absconding, failure to surrender to the order of bail, a substantive offence for the first time in the law of this land. That provision is of course based upon the conclusions which were arrived at by the Working Party which produced the Report on Bail Procedures in Magistrates' Courts. I can well understand the logic of the argument: if you are to abolish personal recognisance, as this Bill proposes, you ought to substitute something for it—some other kind of penalty—in order to deter people from absconding. I also understand that failing to surrender to bail, failing to deliver yourself to custody when required to by a court, is a serious matter. I do not dissent from that in any way.
Against that, I suggest that there are certain considerations which ought to be borne in mind. The first is that the whole ethos of the Bill is to try to prevent people going to prison who are now being sent there, with all the devastating effects that remand in custody can have on the individual—the kind
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of effect to which the noble and learned Lord, Lord Gardiner, referred just now. In introducing a Bill which has this as one of its prime purposes, it is a little odd, is it not, that one should actually be creating a new offence for which people can be sent to prison? We are living in a time when many people engaged in the field of criminal law and penal policy are considering very anxiously the possibility of "de-criminalisation", or reducing the number of criminal offences, especially those for which people can be sent to prison. It is a little anomalous to find that we are creating a new offence, and one for which a person can go to prison. If that is so, it follows that if this new offence is created for which people can be sent to prison, one must be able to show that it will serve some useful purpose. I take it that the purpose the creation of this new offence is designed to achieve is to deter people from absconding and failing to surrender to their bail. But will it do that?
As I understand it, we have not a great deal of information about this. There is a great lack of statistical information as to the effect of imposing a deterrent penalty of this kind upon people who might be considering absconding. Possibly the simplest way in which I can put the argument to the Committee would be by quoting from some critical comments made upon Clause 6 by Mrs. Suzanne Dell in the British Journal of Criminology in January 1975—it might be January 1976; I am not sure about the date. The Minister may be familiar with this magazine but, with the leave of the Committee, I should like to quote a few sentences from Mrs. Dell's article, which express better than I could the doubts and hesitations as to whether the creation of this new offence will in fact have any deterrent effect at all. She said this:
"The main source of information is Home Office research in London, which in 1969 showed a non-appearance rate of 3 per cent. among those hailed on committal and 6 per cent. among those bailed for further hearing before the magistrates. A high proportion of those who did not reappear before magistrates—27 per cent.—were charged with nothing more serious than drunkenness. One can imagine that many of these were not deliberately seeking to avoid taking their trial but were, with no deliberation at all, sleeping off the effects of further drinking episodes. Can it he sensible to make their failure to come to court imprisonable when the drunkenness offence itself is not imprisonable?"
Then she went on to deal with the more serious offender and said this:
"Whatever its effect upon the petty offender, would making absconding into a prison-able offence"—
I am sorry that I am hesitating over this but my copy is not very clear—
"at least deter the more serious offender from non-appearance? There seems no reason to believe so. People fail to appear for many reasons and in many circumstances. Some may genuinely forget and they include the drugged as well as the drunk. Some will deliberately disappear and abscond, but others will remain where they are, mistakenly hoping"—
and these are the inadequate people—
"that by not going to court the threatening event may be persuaded to go away. But an element in the thinking of any person who intentionally fails to reappear must be a belief, however irrational, that the police will not catch up with them. If a bail defendant believes that he can evade the police on the charge of which he is accused, he will not be deterred from absconding by the knowledge that this is also an offence."
I think that argument has considerable force, and if it be the fact that creating this new offence will not have any significant effect in deterring people from absconding, then the creation of the new offence is to be regretted. It seems to me that the onus of satisfying the Committee that we should do so rests upon the Government. They are proposing something positive, and I submit that the defence of that proposal rests upon them.
May I conclude by saying that if the personal recognisance is abolished and no substantive new offence is created, the present procedures already provide for penalties for the person who absconds. They provide those in two ways. One is that if a person fails to answer to his bail and is subsequently arrested, when he is brought before the court and the question has to be decided as to whether he will be remanded in custody, of course he will be remanded in custody because he has broken his bail and therefore may be detained in custody for an indeterminate period of time and thereby pay the penalty of failing to answer to his bail. That is one penalty which a person, as it were, imposes on himself if he does not comply with the terms of his bail. In passing, may I make a reference to the Amendment appearing in the names of the noble and learned Lord, Lord Hailsham of Saint
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Marylebone, and the noble Earl, Lord Mansfield, which is Amendment No. 15. It is there proposed that:
"In applying their minds to the question whether a risk of the matters referred to in paragraph 1 of this Schedule be unacceptable the court shall take account of all relevant considerations…."
Among the other matters the court shall take account of is,
"the question whether the accused has at any time failed to comply with the conditions of bail including the obligation to present himself at court".
I draw attention to that because if the Amendment is subsequently carried it only reinforces the point I am trying to make, which is that the courts will clearly refuse bail to somebody who has once failed to surrender to it. Therefore there cannot be very much doubt that that penalty will follow.
The second consideration is this. Under our present procedures, if a man fails to surrender to his bail, is then arrested and brought to trial on the substantive offence and is convicted, when the judge comes to deal with him the judge is surely entitled to have regard to all the circumstances, including the fact that he failed to surrender to his bail, in deciding the penalty of imprisonment, or otherwise, which is appropriate to the case. I do not know whether, theoretically, that is right, but in practice it must surely be that the judge would take that matter into consideration when deciding what is the appropriate penalty to be inflicted. I have developed the theme longer than I intended, and perhaps I can leave it at that. I beg to move.
Lord GARDINER: May I support this Amendment in a sentence, for the reasons that the noble Lord, Lord Foot, so clearly explained? It was, I think, a justice of the peace who described this as a sledgehammer to crack a nut, and I think that is just about the size of it.
Lord JANNER: It is not very often—indeed, it is very rare—that I disagree with what the noble and learned Lord, Lord Gardiner, says, and I agree with what my noble friend opposite, if I may so call him, says. I think that the Amendment sidesteps the real issue here. As I understand it, its purpose is to give alleviation, to a very considerable extent, to a person who is brought before the

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courts, and not to impose upon him or her a kind of penalty by creating recognisances. The Bill contains sufficient provision to enable a court to exercise its own discretion in respect of what penalty it should impose. I have very great faith, as I believe have most people in this country, in the ability of our magistrates to bring to their conclusions a considerable amount of experience and understanding, and they give invaluable service to the country.
I think it would generally be agreed that the Bill as it stands contains sufficient protection for a person who, inadvertently, or for some explicable reason, is not present at the time when he is due to appear. If such a person were to present his case to the magistrates, I do not doubt that their decision would be a just one and not one which was intended to increase the prison population or to make that person suffer. That is the real argument against what is being suggested now. Either recognisances should he required, or they should not. I think there has been ample evidence—and I do not propose to go through the whole story again—that the present system has not been a satisfactory one, and consequently something is needed to replace it. But I believe that the Bill contains a necessary and workable method of dealing with the situation.
3.24 p.m.
Lord HARRIS of GREENWICH: The noble Lord, Lord Foot, was kind enough to apologise for having tabled this and other Amendments rather late. I hope he will forgive me if, on one or two of his later Amendments, I have to say that we must look into them more closely, because it would be impossible to give an answer today, given the rather limited amount of time that we have had to deal with them. The noble Lord, Lord Foot, has moved an Amendment the effect of which, so far as Clause 3 is concerned, is that a person granted bail in criminal proceedings will be under a duty to surrender to custody, and the remainder of subsection (1) will be deleted. The question then arises: What is to be done to a person in this category who defies, perhaps quite deliberately, a decision to appear in court on a certain date and at a particular time? The answer really is nothing, as the effect would be to remove the criminal offence, because taken to-
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gether with this Amendment is the other Amendment to which the noble Lord, Lord Foot, has also spoken, which seeks to delete Clause 6, which would make absconding while on bail an offence.
The Government do not consider that the absence of any sanction at all for failure to appear at the time and place specified would be compatible—this is the point which my noble friend Lord Janner has just made—with the presumption in the Bill, that a defendant should be granted bail without first having applied for it. The introduction of the offence, which was generally welcomed by those who spoke earlier on the Bill, though it is fair to say not by the noble Lord, Lord Foot, has the further advantage of deterring from absconding a person released on bail and thereby makes it more likely that the courts will be willing to grant hail in a marginal case. If I may say so to the noble Lord—he and I agree on the general principle of this Bill—this is an issue of central significance, because the court will have discretion in a marginal case as to whether or not to grant a person bail.
I am bound to say that if the price of failure to abide by a decision of the court, that a person should appear at a certain time, is that nothing at all of a disagreeable character will follow, then in many marginal cases the court will decide not to grant bail. Therefore, though the intentions of the noble Lord, Lord Foot, are admirable, I believe that the effect of this Amendment would be exactly the reverse of what he imagines. I think that in more cases people would be remanded in custody than granted hail. One has to keep a proper balance here. One has to bear in mind that justices will have to make difficult decisions in borderline cases, and I believe that the existence of an offence such as that specified in Clause 6 will give that degree of encouragement to them to grant bail in such cases, of which there will be many. The noble Lord, Lord Foot, and I am sure the overwhelming majority of your Lordships, agree that we want fewer people remanded in custody, but I fear that the consequence of this Amendment would be exactly the reverse.
The Earl of MANSFIELD: I think most of your Lordships are keen that we should, as it were, empty the prisons so

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far as we can of people who need not be in them, but there comes a time when one has to pause and consider whether a proposed action is in the public interest. If the method of emptying the prisons is to abolish an offence, then one has to consider that very carefully indeed. At the moment, the sanction against somebody who fails to turn up for his trial is that he can thereafter be convicted of an offence and dealt with on the merits. I suppose that, during my career at the Bar, I dealt with as many bail applications as any—in my early days, in all cases for applicants for bail; later on, usually, for the Director of Public Prosecutions stoutly maintaining the opposite, and recently in my capacity as a sheriff in Scotland having to decide the issue.
I agree entirely with the noble Lord, Lord Foot, that most of the people one deals with are not so much evil as inadequate people and that the offences which they commit are the result of their inadequacy. Certainly in my experience it is that very inadequacy which tempts them not to turn up at the appointed time and place to take part in their trial, because the very reasons which tempt them to commit offences in the first place are the very reasons which tempt them not to face reality thereafter.
So far as the duty to the public is concerned, the criminal law has just as much of a duty to the public as to the offender. A court will convene witnesses at considerable expense and no little inconvenience who will all turn up: and jurors and even, I dare say, lawyers will attend the court. The accused does not arrive, and what happens? Nothing. When the accused is eventually apprehended he can then, apparently, as some kind of deterrent to others, be kept inside until eventually his trial gets under way.
That is putting the matter at its lowest. Unfortunately, there are a number of offenders who are not so much deficient in character or resolution as very evil men indeed. Very often they know that if they fail to turn up or fail to have their trial heard at a particular time, witnesses who may either have to be brought from abroad or who else may be very frightened people indeed will not turn up on a second occasion. If in those circumstances the criminal failed to turn up,
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I suggest it would be making a mockery of the criminal law if one could do nothing but exclaim, "Naughty boy!" and thereafter keep him inside until his trial.
I do not know whether I understood aright the noble Lord when apparently he suggested that failure to attend the trial could be reflected in the eventual sentence. If he meant that—and I see that the noble Lord is nodding his head in a vertical direction—I wholly deplore it. It cannot be right for a criminal court when, at the end of the day, it considers the circumstances and antecedents of the defendant who has been convicted, then to go into the matter and sentence him for an offence with which he has never been charged and for which counsel or the solicitor who appears for him at his criminal trial may not have been briefed and may not be able to put forward his side of the story, and in any event will probably not put it forward in the way that he would like. On reflection, I very much hope that the noble Lord will withdraw this series of amendments.
Lord FOOT: Certainly I shall not pursue these Amendments, but may I make one or two remarks in reply. On the point that he made, I should like to say to the noble Earl that there are many evil people who may be inclined to avoid surrendering to their bail in the hope that witnesses may be deterred from appearing on a second occasion or in the hope that potential witnesses may go abroad. I would say only this to the noble Earl: does he really suppose that very evil people like that will be deterred from turning up and surrendering to their bail on, presumably, a very serious charge by the fact that on summary conviction for failing to turn up they can get up to three months' imprisonment? I do not believe that that is a consideration which would operate in the minds of people of that kind.
However, I do not want to protract the argument. I can well see the force of what the noble Lord, Lord Harris of Greenwich, has said; that is, that if there is no clear penalty for failing to turn up for your trial, in borderline cases magistrates may be more inclined to come down in favour of custody than in favour of bail. Although I can see the substance of that argument, it does not fit

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in very well with what I understood the noble Lord, Lord Janner, to be saying just before when, as usual, he was defending the magnificence of our magistracy and their great competence in being able to arrive at proper conclusions without regard to irrelevant considerations. Under this Bill, magistrates will be required—and I have no doubt that they will carry out their duty—when someone is asking for bail to have regard only to those considerations which are set out in Schedule 1. I have such a high opinion of the magistracy that I do not believe that they will fail to do their proper duty and to apply those tests because of the thought, "Since there is no penalty for failing to surrender to it, if we give this man bail, he is the more likely to abscond."
Lord JANNER: If the noble Lord thinks that that is not sufficient guidance for magistrates, will the noble Lord have an opportunity at a later stage to add to it? My contention is that it is sufficient guidance. Be that as it may, his argument does not cover that point. The noble Lord is quite right; I have that opinion of magistrates. Years ago, I had a considerable amount of experience in the courts, and in other directions at the present time, and I think that magistrates carry out their duties in a proper way. Indeed, if they were to do something which was unreasonable, is not there still the opportunity of appeal?
Lord FOOT: I think that the noble Lord and I are discussing two different points. If we are to have Clause 6 as it stands, I agree entirely with the noble Lord that there are very reasonable provisions for allowing magistrates or, indeed, any court to excuse failure to surrender to custody if there is reasonable excuse. That is provided for in Clause 6, and I have no doubt that in the performance of the duty of enforcing that clause, if it remains a clause, magistrates will do their job properly. However, the argument that I was having with the noble Lord, Lord Harris of Greenwich, was slightly different. I was expressing some doubt as to the force of his argument that if no specified penalty is attached, then there will be a greater inclination on the part of magistrates to deny bail in proper cases. That is a matter of judgment and I do not think it would be very helpful if I tried to pursue it any further. I am very much
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obliged to the noble Lord for the consideration he has given to the Amendment and I beg leave to withdraw it.
Amendment, by leave, withdrawn.
Clause 3 agreed to.
Clause 4 [General right to bail of accused persons]:
Lord FOOT Lord FOOT moved Amendment No. 2:
Page 4, line 32, after ("accused") insert ("or convicted person").
The noble Lord said: If I may take Amendment No. 2 together with Amendments Nos. 3 and 4 and, indeed, together with Amendments Nos. 7, 9, 10, 11, 12 and 13, they are all directed to the same object. Under the Bill at Clause 4(2), the presumption of bail, which is provided for in both Part IV and Schedule 1, does not apply on or after conviction and before sentence. Here it applies only prior to conviction. There are many occasions when a court, particularly a magistrates' court, has someone before it and find him guilty of the offence charged and convict him or make a finding of guilt. Then the matter is adjourned in order that further inquiries of different kinds can be made—medical reports, social reports and so on.
Under this Bill as it now stands there is no presumption of bail. There is of course the possibility of bail, but there is no presumption in favour of bail in the intermediate period between the decision of the court upon the facts of the matter—the verdict of the court—and the subsequent availability of the information or report. The purpose of this series of Amendments is that the presumption in favour of bail shall arise if there is an adjournment after conviction for the purpose of obtaining further information about the convicted person, and in particular to obtain social inquiry reports and medical reports.
Again, I will not go into this matter in any detail but it was considered extensively by the Working Party, at Chapter 6. I do not for a moment dispute that it is a matter which is full of difficulty and where there is a great conflict of expert opinion on the whole question. In particular there is a great conflict of opinion between the psychiatrists, on the one hand, and the prison doctors on the other, as I understand it, as to whether

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one can most advantageously obtain a useful medical or psychiatric report upon an individual when he is in custody rather than when he is out in the community on bail. Here again, the statistics on the matter are not very evident. In paragraph 147 of the Working Party's report dealing with this matter of remands after conviction, it is stated:
"Figures of the number of persons remanded on bail for reports are not available, but the Prison Department's statistics of persons received into custody give some indication of the large numbers of persons remanded for reports. In 1972, for example, 23,885 persons were received into custody after conviction but before sentence."
It goes on later to say:
"It is reasonable to assume that in the majority of these cases the remand was for the purpose of obtaining a report. In the same year 12,437 persons were remanded in custody (by all courts) specifically for mental observation or state of health reports."
Is it not a very serious matter that in 1972 just fewer than 24,000 people were given what I might call a taste of imprisonment by being remanded in custody, not with the overt purpose of punishing them, because that would be entirely wrong, and many of them were persons who might not subsequently be sent to prison at all; but those people were taken into custody and held in custody for the purely administrative purpose of getting a social inquiry or medical report. It is sending people to prison in order that they may see a doctor. I regard that as a very grave criticism of our present arrangements, and the whole object of this Amendment is to see whether there is some way in which the number of people who are remanded in custody for that administrative purpose can be reduced, and to enable those people whose case is adjourned between conviction and sentence to have the advantage of the presumption for bail which is given under Schedule 1.
I should like to make it quite clear that this Amendment does not in any way detract from the obligation of the court to consider applications for bail in those circumstances according to the criteria laid down in Schedule 1. The court must still ask themselves: is this person likely to surrender to his bail? They must still ask themselves: if he is let out on bail, is he likely to commit other offences? They must still ask themselves: is he likely
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to interfere with witnesses—although that probably does not arise at that stage. They still have to ask all the same questions and in my submission if we were to give those people the same presumption of bail as is given to an ordinary accused person prior to his trial it could make a substantial contribution to the reduction of the number of people who are being held in custody purely for administrative purposes.
Again here it seems to me that the Government, in accepting the recommendation of the Working Party that there should not be a presumption of bail in those circumstances, need to defend their introduction of a change in the law. As the Minister will know, under the Magistrates' Courts Act there are provisions for bail to be granted, and in fact what is being done here is to take a retrogressive step, and we are reducing the obligation to grant bail as compared with the state of the present law. I will not go further into that but the noble Lord will know to what I am referring. It is a matter for the Government to justify their position; it is not for us on our side to discharge the onus of proof. They are introducing this new conception and I shall be interested to hear what the noble Lord has to say about it. I beg to move.
Lord GARDINER: I wonder whether I may ask my noble friend Lord Harris of Greenwich whether he has read the article by Mrs. Dell in last Friday's issue of the New Law Journal, and if not whether he will do so before approaching this question. I think she has done much more research work in this field than anyone else and she points out that about 12,000 people are remanded in custody for psychiatric reports. It is not because the justices think they are "barmy"; they just want a complete dossier. Mrs. Dell says:
"For example, in 1974, of 12,500 persons who were remanded in custody for psychiatric reports, only 12 per cent. were given psychiatric disposals, for example hospital orders."
Then she points out that while the Bill:
"confers no protection upon post-conviction remands, it takes away the existing safeguards, by repealing Section 18 of the Criminal Justice Act 1967. That section made it mandatory for remands under Section 14(3) to be on bail, unless any of the conditions of Section 18(5) were fulfilled. Section 18 also applied to remands under Section 26 of the Magistrates'

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Courts Act 1952, although there was a proviso that bail need not be granted if it proved 'impracticable' to obtain the medical examination."
She then continues:
"The new Bill thus repeals the restrictions which Section 18 set upon the post-conviction custodial remand, and is not replacing them. The proposal seems as unsatisfactory as it is retrogressive."
Secondly, she points out:
"Custody is far more frequently used for medical remands than for any other type of remand: in 1969 in London, for example, taking cases tried summarily, 86 per cent. of untried remands, but only 17 per cent. of medical remands, were bailed."
Professor Gibbens, who I expect many of us know, and who has great experience in this field, has said:
"In the great majority of cases a person remanded in custody for a medical report is kept in an ordinary prison cell without special observation and is at some stage given an interview which would not be longer than he would receive from a consultant in the Health Service."
It is really quite unnecessary to send a person to prison to see a doctor. I personally agree with what Mrs. Dell concludes—after reminding your Lordships about the Advisory Council on the Penal System and their 1974 Report on The Young Adult Offender
"The Council concluded 'we do not consider that the need for a psychiatric report justifies a remand in custody where bail would otherwise be granted'."
Her article finishes with these words:
"It would be most unfortunate if the new Bail Bill made the problem of the post conviction custodial remand worse by repealing the protection currently afforded by section 18 of the 1967 Act, and taking no further action. But if the Bill were amended so that the presumption in favour of bail covered post conviction remands for reports, then there would be a good chance of bringing to an end the absurdity of the present system whereby thousands of men and women are sent into overcrowded prisons simply in order to see a doctor."
3.50 p.m.
Lord HARRIS of GREENWICH: As the noble Lord, Lord Foot, has said, in moving this group of Amendments, or at least one of them, his objective is to extend to convicted persons who are remanded for inquiries before sentence the presumption now embodied in the Bill in Clause 4 and Schedule 1 in favour of the grant of bail to accused persons. The drafting is technically defective, but I do not make any point of that; it never seems to me that there is a great deal
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of advantage. It is much more prudent to discuss the principle, and that is what I propose to do.
A remand after conviction but before sentence may occur in a number of cases. First, there is the situation, which is not covered in these Amendments of the noble Lord, Lord Foot, where the magistrates' court has committed the defendant to the Crown Court for sentence because it considers that its sentencing powers are insufficient. That is one situation which is not dealt with in the Amendment, and for obvious reasons. But there are two other situations where such a remand can take place, and this has been dealt with by the noble Lord, Lord Foot, and my noble and learned friend Lord Gardiner. The first of these is where the magistrates' court, acting in this case under its powers under the Magistrates' Courts Act 1952, wishes after conviction but before passing sentence to adjourn the case
"for the purpose of enabling inquiries to be made or of determining the most suitable method of dealing with the case",
in which case there can be a remand in custody for up to three weeks at a time or on bail for up to four weeks at a time. Secondly, there is the situation where the magistrates' court is satisfied that the accused did the act or made the omission charged but is of opinion that an inquiry ought to be made into his physical or mental condition before the method of dealing with him is determined, in which case there can be a remand in custody for up to three weeks at a time.
The Bill as drafted, as the noble Lord, Lord Foot, has pointed out, follows the recommendation of the bail Working Party, and given the fact that the noble Lord, Lord Foot, and my noble and learned friend have argued to the contrary direction, I think it is right for me to draw the attention of the Committee to the precise terms of their recommendation. In paragraph 148 they express their view in the following terms:
"First, the fact that the defendant has been convicted (or at least found to have done the act or made the omission charged) means that the situation is rather different from that obtaining in the case of remand before conviction. We consider that it would be inappropriate for the presumption in favour of bail…to apply after conviction. We do not

1535
mean by this that defendants should usually be remanded in custody for reports or that more remands for reports should be in custody…. All we have in mind is that once a person has been convicted he no longer has a presumptive entitlement to bail. Where, for example, a court has it in mind to pass a custodial sentence subject to the contents of the report which it has called for, it may consider that the remand should be in custody, even though there is little likelihood of the defendant absconding or committing further offences and, in our view, such a course need not be unreasonable. The second special consideration arises in the case of remands for medical and psychiatric reports, where the court needs to consider whether, apart from the normal bail considerations, it would be desirable for the report to be prepared in custody or not."
This is clearly a matter of judgment. We have considered, in drafting the Bill, that in the light of the recommendation made by the bail Working Party, the best course would be to leave matters of this sort to the magistrates' court, to leave in their hands an unfettered discretion as to remand on bail after conviction and to rely on advice to courts given by Home Office circulars. Nevertheless, as my noble and learned friend has pointed out, there has been discussion, not only in this House but outside it; he pointed out the article by Mrs. Dell. Certainly without giving any guarantees at all, I would say that we will certainly look into this matter at a later stage of the Bill to see whether this matter should be clarified within the legislation.
Lord FOOT: I am very much obliged to the noble Lord for that undertaking, in so far as it is an undertaking; I shall not hold him firmly to it. Before I sit down I would merely say that earlier I was speaking from a position under a defective microphone and could not properly be heard. May I congratulate all members of the Committee that they were spared having to listen to me.
Baroness MACLEOD of BORVE: May I ask the Minister one question. Throughout the Bill there is no mention made of people who are on bail at any stage or who are kept in custody at any stage for the reason that they are of no fixed abode. We have a great many people who are vagrants. We have a great number of people who cannot be traced because they have no fixed abode at all. Could the Minister give either an assurance or an answer as to what the Government's proposals or recommenda-
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tions to magistrates should be in the future about granting bail to those of no fixed abode?
Lord HARRIS of GREENWICH: I hope I will not incur the displeasure of the noble and learned Lord, Lord Hailsham, if I answer this point, because the noble Baroness will realise that it goes a little wide of the precise Amendment we are discussing, which turns on a different question. I do not think it would be appropriate for me to answer at length. Certainly there would be a presumption in favour of bail in all cases, but in my Second Reading speech on the Bill I tried to deal with certain other steps of a non-statutory character which I thought would be helpful in this regard.
Amendment, by leave, withdrawn.
Clause 4 agreed to.
Clauses 5 to 10 agreed to.
Clause 11 [Legal aid for bail decisions in certain cases]:
4 p.m.
Lord FOOT Lord FOOT moved Amendment No. 6:
Page 12, leave out lines 34 to 41 and insert—
"(c) where a person who is charged with or has been convicted of an offence appears or is brought before a magistrates' court on an occasion when he may be remanded or committed in custody and is not (but wishes to be) legally represented before the court."
The noble Lord said: I beg to move Amendment No. 6. Subsection (3) of Clause 11 is designed to ensure that a person shall be entitled to legal aid, if he comes within the financial limits, at his second remand in custody or prior to his second remand in custody, but makes no similar provision for his having legal aid and legal representation when he first comes before the court and is at risk of being remanded in custody.
When the noble Lord the Minister was speaking on this at Second Reading, he said that this clause was designed as a safety net. He explained, quite rightly, that if a person turns up on his second appearance, say, before the magistrates unrepresented, it does not necessarily mean that he was unrepresented on the first occasion. He may very well have had his own solicitor. He may very well have fixed up legal aid beforehand. Therefore, it does not necessarily follow

1537
that all the people who would be able to take advantage of this provision and get legal aid on their second appearance have been denied legal aid and legal representation on the first. But I can see no reason why this useful safety net should not be brought forward to the first occasion, so that it could be ensured that from the very outset, wherever anybody comes before the court and is at risk of being remanded in custody, he should on that occasion, if he is entitled to it and if he wishes it, have legal aid in order that he could be legally represented.
I believe that this is a matter of great importance, because I have had many instances and experiences in making applications for bail particularly before magistrates' courts. I said on Second Reading that I suppose I must have made almost tens of thousands of applications myself. It is well known to everybody who practises in the criminal courts, particularly in the magistrates' courts, that a person appearing on his own is at a great disadvantage in trying to explain to the magistrates why he ought to be granted bail. What usually happens—and I think this will be the experience of everybody—is that the police officer gets up and says, "I am asking for a remand in custody for eight days" or whatever it may be, and possibly briefly gives reasons why he is doing that. Then the chairman of the Bench says to the accused, "Have you any reason to put forward why you should not be remanded in custody?" The man is at a loss to know what are the considerations in which the magistrates are interested and what counts. He does not know about community ties, and things of that kind. He does not understand what these things mean. Very often he either says, "No, I can't advance any reason", or he puts forward the first thing that occurs to his mind; for instance, that he is hoping to get a job the following Monday, and if he is in custody he will not be able to take the job. But as a representation to the magistrates of his full condition it is hopelessly inadequate.
When it happens, as it repeatedly happens, that a person is unrepresented on a first occasion and therefore is unable to put his case, when he comes back on the second occasion and he is represented (as he will be under this Bill), if then there
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has been no change in circumstances but by virtue of the fact that he is legally represented he then gets bail, a very great wrong has patently been done because an error was made upon the first occasion. For the life of me, I cannot see why the noble Lord's safety net should not be advanced to the first occasion.
The fact that people who are unrepresented when making applications for bail are at a great disadvantage is clearly borne out by what statistics we have. May I give the Committee one or two figures which have been put forward by NAPRO and by the Howard League of Penal Reform in the representations which I think they made to the Working Party. They wrote:
"In the Cobden Trust survey it was found that 80 per cent. of defendants making their first appearance in court were unrepresented. The survey also found that the defendant was legally represented in only 36 per cent. of bail applications."
Susanna Dell (that is the lady to whom the noble and learned Lord, Lord Gardiner, referred just now) in her report of 1973 found that 38 per cent. of those remanded in custody before trial and not subsequently imprisoned were unrepresented, and there was no information on a further 20 per cent. of cases. Of those in her sample remanded in custody after conviction and not subsequently imprisoned, 79 per cent. were unrepresented. In Mr. Zander's study, when the police opposed bail, 31 per cent. of represented defendants were granted bail compared with only 16 per cent. of those who were unrepresented. Those simple figures seem to clearly illustrate the extent of this problem and the disadvantage which an unrepresented person is clearly under when he is making an application for bail on his own behalf.
Here again it seems to me that what the Working Party have done—and the Government have followed them in this—is that they have established the admirable principle set out in Clause 4 and in Schedule 1 that in the ordinary way there shall be a presumption in favour of the granting of bail, and then they have retracted and fallen back from that situation. I shall be interested to hear from the noble Lord, if it is said to be administratively difficult, what are the difficulties in ensuring that a person who is liable to be remanded in custody has

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the legal representation necessary to present his case. I beg to move.
Baroness MACLEOD of BORVE: I hesitate to intervene, but I should like to support what the noble Lord, Lord Foot, has said. Perhaps I might rapidly say what happens in our court. If there is any question of a man wanting bail and he is not represented, we put the case back for three quarters of an hour, an hour, or whatever time it takes, so that the duty solicitor can see him and then represent him in court. This is invariably done.
4.18 p.m.
Lord HARRIS of GREENWICH: As he has pointed out, the Amendment which the noble Lord, Lord Foot, has moved deals exclusively with the issue of legal aid, and it is to that I shall address myself. The noble Lord, Lord Foot, has also pointed out that there are two effects so far as this Amendment is concerned. On the first, I fear that the Government are not in a position at this stage to be able to agree with the noble Lord. I shall deal with the second effect in a moment.
The first proposal of the noble Lord, Lord Foot, is that there should be a requirement that the court should make a legal aid order on the first appearance of an unrepresented accused person if there is a possibility of his being remanded or committed in custody. The position about this is as follows. An accused person appearing for the first time may have been, and frequently has been, arrested overnight. Consequently, there will often be a situation in which he would have had no time to secure the assistance of any legal representative. If he appears in one of the 45 courts—like one of those referred to by the noble Baroness, Lady Macleod—where there is a duty solicitor's scheme, then the duty solicitor will obviously be in a position to help him. But it may never be practicable to cover all courts in this country in this way, and it certainly cannot be done at this moment of time. It would, in my view, be a retrograde step to defer a first appearance, since many an unrepresented defendant gets bail at that time at the present moment.
The noble Lord and others may contend that even if the court cannot pro-
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vide a solicitor on the first appearance it can, and should, grant legal aid at that time. This is, in fact, already done in many cases; although certainly not in all. I would not suggest that. Sometimes, however, it may not be practicable to do so. For instance, the defendant may be drunk or he may be in a state where he is unable to understand immediately what is at issue; and even if he does it may not always be immediately practicable to ascertain whether his financial position is such that he needs legal aid or to ascertain whom he wishes to represent him. That is an important factor because the name of the solicitor has got to appear on the legal aid order. He may want to take advice from a number of people as to whom his legal representative should be.
I do not say this just to try to create difficulties, but simply to point out the practical difficulties so far as the mandatory requirement is concerned. The Working Party referred to this particular problem and I will again quote them. It is appropriate to do so because, as I indicated in my Second Reading speech, the proposals of the Government are broadly based on the recommendations of the Working Party. This is what the Working Party said, in paragraph 181:
"We accept that in principle similar considerations apply to deprivation of liberty through a custodial remand. In practice, however, it is often not possible to arrange for a person to be legally represented before he is remanded particularly when he is making his first appearance in court, perhaps after an overnight arrest. We do not consider therefore that it will be practicable to require that legal aid should be offered to a person before he is remanded in custody. The same difficulty does not arise on a second or subsequent appearance and we recommend that when a court remands an unrepresented defendant in custody it should, as a general rule, grant legal aid if he is without sufficient means to engage a solicitor privately."
But there is then a second question. That is that the provision relating to convicted defendants would seem to relate solely to the position of people remanded in custody, for instance, for a report of the kind that we were discussing some minutes ago. It is reasonable that a person in this situation should be given legal aid if he is not legally represented already. There is no dispute between us on this issue. However, since this clause operates by amendment of the Legal Aid Act 1974 and the Amendment on the Marshalled List attempts to deal

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with two separate points, the question whether, and if so how, the objective can best be met needs further exploration. If the noble Lord is willing to withdraw his Amendment we will explore and see what can be done.
Lord FOOT: May I ask the noble Lord whether his last sentence means that he is prepared to look at this again before the next stage?
Lord HARRIS of GREENWICH: I am indicating that, on the second element of the Amendment, we will look at the matter again.
Lord GARDINER: May I ask my noble friend Lord Harris what are the Government intentions with regard to the encouragement of duty solicitors? I appreciate that in the absolute form of the Amendment there is a real practical difficulty. On the other hand, if everywhere there were duty solicitors the question would not arise and where there is not a duty solicitor many courts will ask a solicitor in court to have a word. Is it not possible for the Government to extend that'? We come up against the fact that it is our arrangements for legal aid which are defective. On the face of it, it cannot be right that we have now provided that this criminal who has just been convicted of an offence so serious that they are thinking of sending him to prison, cannot be sent unless he is offered legal aid. This man may be completely innocent and he may be sent to prison for a week; and we say that it is administratively complicated. It is much simpler for us in administration if we send him to prison for just a week to start with. It does not speak very well of our administrative arrangements.
Lord FOOT: I find the Minister's reply very disappointing. I do not believe that there are these administrative difficulties which he was quoting from the Working Party report. As the noble Baroness, Lady Macleod of Borve, has said, apparently in her court—no doubt one of the most excellently conducted courts in the land—
Lord HARRIS of GREENWICH: There is a duty solicitor scheme there. I was trying to point out that although we should like an extension of schemes
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of this sort it is impossible to pretend in the present situation that we can extend this scheme to every court in the country.
Lord FOOT: If we had an Act of Parliament which requires that a magistrates' court should grant legal aid and therefore representation in such cases, all the administrative difficulties could be very easily overcome. The noble Lord quotes the case of a man who is drunk and therefore cannot give sensible instructions. Surely, if a person turns up drunk, much the best thing is to put the case back until he is sober and until he can give reasonable instructions to his solicitor. I revert to the illustration that I gave which I am afraid the noble Lord has not answered. Is it not a very wrong thing that it can happen, and constantly does happen, that a person fails to get legal aid and therefore fails to get representation and has to put forward his own case? Is it not wrong that that person can be remanded in custody; and a week later, when he is represented, it is then discovered that he ought to have been given bail in the first place and was not. That is an intolerable situation. The noble Lord cannot persuade me that the administrative difficulties are such that the legal and criminal procedure of this country is not capable of coping with that situation. I reluctantly withdraw—
Lord SHTNWELL: If my noble friend the Minister would forgive me my ignorance, there is some question that occurs to me that, listening to this dialogue, affords me some concern. We take the case of somebody who one evening is arrested for an alleged misdemeanour. He remains in a prison cell overnight, presumably. He is not able to be represented that evening nor the following day before he appears before a magistrate or some other court. The court decides—the judge or the magistrate—this person not being legally represented, to retain him in custody. The question that concerns me is this. If he is retained in custody before there is any question of legal representation or because—as my noble and learned friend Lord Gardiner seemed to indicate—there are difficulties not easily overcome, is he retained in a prison cell, with similar treatment to that of a convicted prisoner, or is he provided with what might be described as preferential treatment in the circumstances?

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I am sorry that my noble and learned friend Lord Hailsham—if I may so call him—and the noble Earl, Lord Mansfield, appear to be hilarious about the nature of my question—or it may be some other matter which causes them to indulge in frivolity. I am confessing my ignorance of this matter. We are always told that British justice is the finest in the world. I am one who believes that, being very patriotic in matters that concern the United Kingdom. Having listened to this dialogue, I again confess my ignorance and ask what would be the position of a person in the circumstances which I have ventured to describe.
Lord HARRIS of GREENWICH: I believe that my noble friend is under a misconception. There is no requirement in the law as it stands that a person should be kept in custody simply because he has no legal representation. That is not the position. The noble Lord, Lord Foot, is seeking to make it mandatory that legal representation should be available on the first court appearance. That is not what the Bill says. The view of the Government is certainly that it is highly desirable that a person should be legally represented at his first appearance, and that happens in many cases. It happens if the person in question is able to secure legal representation on his own. It also happens if there is a duty solicitor scheme of the kind referred to by the noble Baroness, Lady Macleod of Borve. However unless the person is for some period of time deprived of his liberty to await the arrival of a legal representative, it is difficult to see how this can be managed. It is our view that that is not the right way to proceed. I believe that it is more often than not the situation that, on his first court appearance, be he legally represented or not, he will obtain bail.
My noble friend asked about the circumstances in which a person is kept in custody. There is no doubt—and none of us would shrink from this for a moment—that the conditions in which many people are kept in custody are a disgrace to a civilised society. I would not for a moment suggest anything else. I have seen some of this myself and the noble and learned Lord, Lord Hailsham, has seen a great deal more. It is a standing indictment of our society that people are maintained in conditions of this sort. I believe
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that it is the view of everybody in the Committee today that we want a situation where the minimum possible number of people are maintained in conditions of this sort. I do not believe that there is any dispute about that.
Lord FOOT: I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 11 agreed to.
Remaining clauses agreed to.
Schedule 1 [Bail for accused persons: supplementary provisions]:
4.23 p.m.
Lord HAILSHAM of SAINT MARYLEBONE Lord HAILSHAM of SAINT MARYLEBONE moved Amendment No. 8:
Page 14, line 6, leave out ("that it is probable") and insert ("that there is an unacceptable risk").
The noble and learned Lord said: I rise to move the first of the Amendments standing in my name. Strictly speaking, they are independent, although I have drafted one of the later Amendments on the hypothesis that the first one may possibly be accepted by the Committee. This was not intended to be disrespectful, but one had to draft the Amendment in one way or another.
This matter goes back to the speech which I ventured to make on Second Reading. As I indicated to the House, it was my opinion, fortified by a very distinguished member of the judiciary and by the document put out by the Senate of the Bar Council and subsequently supported by the Police Federation, that the wording of Schedule 1 made it too difficult for magistrates to operate the scheme in a way which would allow them to give effect to the considerations which are admittedly desirable and which were enshrined in the report of the working party which it is the main purpose of the Bill to legislate.
Bearing in mind that we have now passed that part of the Bill which creates, as we all agree that it should, a presumption in favour of bail, we now look at the Schedule which provides exceptions to that presumption. As drafted, it reads:
"The accused need not be granted bail if the Court is satisfied that it is probable that…".
The question is whether that is an adequate phrase to have used. Of course

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we all have different ideas about what is meant by "probable". My use of the word means that there is more than a 50 per cent. chance that something will happen. Other people may mean something else. Indeed, I know that they do because I have discussed this with members of my family and others. Let us apply this not to a busy magistrates' court like that of my noble friend nor that where the noble Lord, Lord Foot, used to practise, but to a remote country court in which quite a serious case has been raised. Or let us take something which we all have fairly well in mind—the case of the Cambridge rapist. I mention that case because we know the facts of it fairly well and because it has been disposed of and there is no possibility of an appeal.
I dare say that it would be possible—indeed, I do not feel that it would be difficult, especially if bail hostels were provided—to make reasonably certain that the odds were fairly small that, after committal or while on remand, the person in question did not again commit the offence while on bail. More probably than not, he would not do so, but does anyone think that he ought to be let out in those circumstances while awaiting trial? I believe that no member of the Committee will think that he should be.
The Bar Council suggested that, instead of, "probable that", we should have the words, "a real possibility that". I feel that that is equally rather too vague because a great number of people are charged with offences which, even if they do commit them again—although naturally enough some harm is done—perhaps not very much harm is done. For instance, any habitual drunkard may have another outbreak, or one of those unfortunate people who commit rather disgusting public nuisances may do it again; but, on the whole, a compassionate and liberal-minded Bench would probably be disposed to let them out.
I have used the phrase, "an unacceptable risk that…". Personally, I prefer that to either the solution of the Bar Council or that of the Bill as drafted. Take it to the Cambridge rapist. Suppose there is only a one in 10 chance he will commit another offence. The possibility is really so hideous, considering what he did, that it is what I should call an unacceptable risk. It is not necessarily
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a probability. It is rather more than a mere possibility. I shall go on, as I develop my various other Amendments, to indicate the kind of factor which would make a risk unacceptable. One is the seriousness of the type of offence the accused may commit when out on bail. Another is the degree of certainty that he will be convicted of a serious offence. He may have admitted it or be going to admit it. The length of the sentence which he will receive is also a factor. If he is not to receive a custodial sentence, presumably one would let him out on bail every time except if there were a danger of suicide or something similar. On the other hand, if in all probability he will receive a heavy custodial sentence, there is no purpose in letting him out. That sort of factor enters into the question whether or not the risk is unacceptable.
I have given a good deal of thought to this point and I believe that the phrase, "unacceptable risk" is definitely preferable to either the wording in the Bill as drafted, which is based on profitability, or the formula advocated by the Bar Council. Therefore I propose this Amendment. I ask the Committee and the Minister to bear in mind this other factor to which I think I drew attention on Second Reading. We have the best record in the world—with the exception of Sweden, with which we are equally placed—per head of population for not keeping people in prison awaiting trial. The statistic is six persons per 100,000 head of population.
I also ask Members of the Committee to bear in the back of their minds something which I heard on the wireless on, I think the day after the Second Reading in this House; namely, that in London alone seven persons are arrested every day for offences they have committed while on bail. I also ask the Committee to bear in mind what the Working Party said about this. The Working Party said, I think, two things which we ought to remember.
The first is that there are some people who say that bail is not granted often enough, and there are some who say it is granted too often. But both propositions can be true, they are not incompatible with one another. In certain cases bail can be granted where it ought not to be granted, and in certain cases bail is not

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granted where it should be granted. Perhaps one of the difficulties is that magistrates, particularly lay magistrates, sometimes in a remote part of the country, are not given sufficient guidelines as to how they ought to proceed. One of the things one hopes this Bill will do will be to help them to use their commonsense.
The last thing I wish to say on this point, which I think is included in the Working Party report, is that the magistrates have a very difficult task to perform, and for that reason one wants to help them. One cannot hold a State trial about whether a person is to have bail. If one went into an accused's complete record, his character, or his associates, one might easily prejudice the fairness of the trial when he is tried.
The magistrates are not asked to decide something which has happened in the past, such as when they are asked to decide whether a man has been guilty of an offence. They are asked to make an assessment about something which may, or may not, happen in the future. That is a very difficult task, especially when, as is normally the case, the evidence on which they are asked to make their assessment is neither complete nor absolutely convincing one way or another. I have given this matter the best degree of thought I can, and I propose in that spirit that the words "that there is an unacceptable risk" should be substituted for "that it is probable". I beg to move.
4.33 p.m.
Lord HARRIS of GREENWICH: As the noble and learned Lord, Lord Hail-sham of Saint Marylebone, pointed out, the Bill now provides in Schedule 1 that an accused need not be granted bail,
"if the court is satisfied that it is probable that the accused, if released on hail (whether subject to conditions or not)"
would abscond, commit an offence, or obstruct the course of justice. The Amendment which the noble and learned Lord, Lord Hailsham of Saint Marylebone, has moved would substitute the words, "that there is an unacceptable risk" for the words, "that it is probable". Clearly, in a matter of this type, it is unreasonable to take too doctrinaire a position, and I certainly do not wish to do so. I must say at the outset that we are not at the
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moment convinced that this form of words, which the noble and learned Lord has proposed, would improve the Bill, although my right honourable friend will consider what the noble and learned Lord said.
Before dealing with the argument of the noble and learned Lord, I wish to deal with one point which he touched upon this afternoon, as he did on Second Reading; namely, the position about how our record relating to the number of people maintained in custody awaiting trial compares with that of other countries. The noble and learned Lord quoted figures on Second Reading and mentioned them again this afternoon. I understand that they are drawn from a Working Party by the United Nations Secretariat—
Lord HAILSHAM of SAINT MARYLEBONE: I got them from a document circulated by the Magistrates' Association, but it in turn may have got them from the noble Lord's source.
Lord HARRIS of GREENWICH: I am much obliged to the noble and learned Lord. I suspect that as they are remarkably similar they come from the same source. What the noble and learned Lord, Lord Hailsham of Saint Marylebone, said is that our position does not compare unfavourably with that of other countries. If one looks at the table one sees that this is undoubtedly so. The United Kingdom and Sweden are top of the table in this matter, but—and I think I would carry the noble and learned Lord with me on this point—one must be a little careful when looking at international statistics, or indeed statistics of any kind. When considering some of the countries in the list—particularly Italy, to give one illustration—one must hear in mind the speed with which criminal defendants are brought to trial both in this country and in Italy.
Manifestly, if the process of bringing criminal defendants to trial is slow (and in the countries of some of our European partners it is considerably slower than in this country), clearly the number of people remanded in custody awaiting trial will he rather larger than in this country. That is undoubtedly so. Nevertheless, I would not seek to make too much of this point, but I feel it right to sound that cautionary note, given that the noble and

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learned Lord has, quite rightly, drawn attention to this question.
At first sight it appears that the Amendment which the noble and learned Lord moved today does not make the Bill more negative in its attitude towards a bail application, but I fear that it would to some extent have that consequence. The noble and learned Lord mentioned the case of the Cambridge rapist. He did so perfectly properly, because it came into the category of shocking cases to which 'the bail Working Party drew attention in its report. If one was discussing a situation where it was a question of whether the Cambridge rapist, or somebody of that character, was to be set at liberty, it would undoubtedly cause considerable public concern. We will come to that issue when dealing with the later Amendment in the name of the noble and learned Lord, which seeks to create a special category of cases which would be approached rather differently.
All I say in answer to the noble and learned Lord is that I do not think that the Cambridge rapist case would be necessarily significantly affected by whether we had one particular form of words or the other. It is a marginal matter, though obviously of some argument between us—perfectly properly and reasonably—as to whether it would have that consequence.
However, there will be no difference between either side of the Committee, or indeed between any Member, that there will be a number of people who, quite properly, should be kept in custody. Let us look at the criteria laid down in Schedule 1 to the Bill. One of the most important criteria is whether it is likely that the man will appear in court. Consider the instance of a man who possibly faces a sentence of life imprisonment, or something similar. In deciding whether or not to grant bail, the court can perfectly reasonably take into account whether the sheer weight of the sentence the man is likely to draw for that offence is likely to induce him to stay away when his trial takes place. Therefore, I believe that the court has adequate discretion to deal with cases of this kind. I do not believe that courts would behave unreasonably, because, with my noble friend Lord Janner, I believe that magistrates' courts, and other courts, apply their dis-
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cretion reasonably and in a responsible fashion.
I am quite sure that my right honourable friend the Home Secretary will look with care at what the noble and learned Lord, Lord Hailsham of Saint Marylebone, said, but as we are at present advised in this matter we do not believe that an Amendment of this type would improve the Bill. We believe that it would make it marginally—though perhaps only marginally—more restrictive, and given the fact that that is our view, we very much hope that the noble and learned Lord will not press his Amendment—
The Earl of MANSFIELD: Before the noble Lord sits down, I should like to return, albeit briefly, to the case of the Cambridge rapist. The noble Lord postulates the weight of the sentence which the accused might expect, but can the noble Lord tell us how many rapes the man was accused of when he first appeared on remand?
Lord HARRIS of GREENWICH: I will gladly look into this, but I am afraid that I cannot answer such a question off the cuff.
The Earl of MANSFIELD: It is not as frivolous as it sounds, because the bench, when considering whether he should be admitted to bail, certainly cannot take into account the daily newspapers; they can take into account only the offence with which he is then charged before them.
Lord HARRIS of GREENWICH: With great respect to the noble Earl, I am sure that as a matter of law what he has just said is perfectly reasonable, but magistrates are members of society, as is anybody else. I do not want to comment on the facts of this particular case, but given the fact that I had some knowledge of it when it was taking place I find it very hard to believe that the magistrates would have had any doubt whatever as to what sort of case they were looking at.
Lord HATLSHAM of SAINT MARYLEBONE: I am always anxious not to appear mulish, and certainly I do not want to appear doctrinaire. The noble Lord is always courteous and careful in his replies, and it would be wrong

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of me to be anything but courteous and careful in my retort. I mentioned the Cambridge rapist to show an extreme case, but I do not take the view that on the Bill as drafted the magistrates would not have been bound to grant bail. I am quite sure that the noble Lord and I are absolutely at one as to what ought to happen—I am not pointing fingers at anybody—but I am not at all sure that on the Bill as drafted the magistrates would not have had to let the Cambridge rapist out, because under the Bill they are bound to give bail unless they are satisfied that one of the risks defined in the Schedule is probably going to happen. I think, and so does the member of the Judiciary who communicated with me (the noble Lord probably knows his identity, because I expect he has communicated with the noble Lord, too, but he did not expressly give me leave to mention his name), and so does the Police Federation and the Bar Council think, that in this kind of situation the noble Lord has gone too far.
I would accept from the noble Lord, I think, the statement that marginally this would make it more restrictive, but I want to do that in this respect. I want the formula "unacceptable risk" to be used instead of "is probable", because I think the test which the magistrates ought to apply is to presume in favour of bail but not to try to tot up the risks and say, "Is it probable or not that this will happen?". They should look at the seriousness of what may happen and ask, "Is that a risk which, as responsible magistrates, we find acceptable?" I believe that to be what they ought to do, and I am asking the noble Lord to consider whether this formula is not the right one.
In passing, may I say that I think we are talking a great deal too much about absconding. The noble and learned Lord, Lord Gardiner, has often said (and certainly I heard somebody say it this afternoon, but it was not him) that the danger of absconding is usually quite small in relation to bail cases. I think 3 per cent. was the figure mentioned, and it is certainly quite a small figure. What one is really talking about as to these bail cases is the danger of the accused either getting in touch with and "nobbling" witnesses, or intimidating them in some
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way, or committing offences while out on bail. If the offence with which a man is charged is one involving violence, or is a very serious offence, it is that, and not absconding, nowadays, in modem society, of which you ought to be afraid. In the old days, in the 18th century, before there was a proper police system, when there were no means of tracing people, no social security, no means of finding out a man's employer and so on, I dare say that absconding was a very real difficulty. That is why we had the surety system and the man had to dwell in his surety's house, and so on. But nowadays the problem is to stop offences of an unacceptable kind being committed while the man is out on bail. As I said, in London every day, so I understand, seven people are arrested for offences committed while they are out on bail.
I am not happy about the Government's formula. If the noble Lord had been a little more forthcoming, I would not have felt it right to press the Amendment in any way, but I do not think lie was very forthcoming when one comes to consider his courteous but, I think, fairly firm rejection. Nor, to my mind, was the reason which he advanced a very satisfactory one in view of the great weight of the opinion behind me on this matter. I do not mean behind me on these Benches—they are all listening to the Budget, so far as I can make out; I mean the judicial and professional opinion which supports the general view I am putting forward. Of course this matter is not closed either way. I propose to press this Amendment if the noble Lord is not a little more forthcoming. If he does not like my formula and can think up a better one, we can come back to it on Report, but I am wondering whether he will not be a little more forthcoming first.
4.47 p.m.
Baroness WOOTTON of ABINGER: I should like to encourage the Minister to be a little more forthcoming because, personally, I am not at all happy with either of the proposed forms of wording. I entirely agree with the noble and learned Lord that a 50 per cent. chance is too big to take in cases like the Cambridge rapist and in other cases of the same kind. On the other hand, to lay down in print that a court is not to take "an unacceptable risk" seems

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to me rather absurd, because I should have thought that any court would know that it was not proper to take "an unacceptable risk" by definition. Therefore, I do not think that would tell the court anything. I hope my noble friend will try to think up some phrase which comes, so to speak, halfway between that of the noble and learned Lord and the one in the Bill as it now stands.
Lord GARDINER: I see that the noble Lord, Lord Wigoder, is not able, obviously, to be present here today, so perhaps I might just remind the Committee of his view—and, after all, he has considerable experience in this field. He said on Second Reading, at col. 518 of the Official Report of the 22nd March:
"As I have always understood it, the gravity of the offence has been not an independent factor which warrants the refusal of bail; it has been a factor which the courts consider in deciding whether or not a person will surrender to stand his trial. Certainly, in recent years it has been not unknown for bail to be granted in murder cases where it is clear that a person will stand his trial, will not interfere with witnesses and will not commit further offences while on bail. Indeed, the other matters mentioned by the noble and learned Lord, Lord Hailsham—the strength of the case, the question of community ties, and so forth—I suggest are really all matters which primarily come under the heading, 'Will the defendant fail to surrender at his trial?'."
I observe that in Friday's issue of Justice of the Peace it is said:
"Frankly, we have never been able to follow the logic that commends this practice to the professional judiciary. The amateurs of the magistracy are, we think, less attracted by it. If a court does not consider it a real possibility that an unconvicted offender will abscond, commit a further offence or interfere with witnesses, then we fail to see in what way the seriousness of his alleged offence is relevant to the issue of bail."
No doubt the Government will also take those observations into account.
Lord MORRIS of BORTH-Y-GEST: As one who is sympathetic to the philosophy behind this Bill, I share many of the doubts expressed by the noble and learned Lord, Lord Hailsham of Saint Marylebone. Perhaps my attitude rather coincides with that expressed by the noble Baroness, Lady Wootton. Though I support the approach of this Bill, I am a little unhappy with these words, "satisfied that it is probable". May this not be very confusing for some benches of magistrates? May it not lead to the situation where, in some cases in which there really
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ought not to be bail, magistrates may be persuaded that they must grant bail?
These are so often matters of instinct, matters based upon experience. Over the years, magistrates and judges who have to decide these matters draw upon a wealth of experience of the past; and it is very unfortunate if they must be anchored to certain words. They must be "satisfied"—that is only another way of saying "sure"—"that it is probable". I share the view of the noble and learned Lord, Lord Hailsham, that "probable" means more than 50 per cent., and I think that magistrates may have a powerful plea made to them in cases where really, by instinct and by experience, they would feel, "No, this is not a case for bail". They will now be told, "You must be satisfied, you must be sure, that it is probable that one of these things will happen". I wonder whether the noble Lord, Lord Harris, could think of some other phrase that would be in tune with the philosophy of the Bill but yet would not give quite the difficulty to some magistrates that I suggest the present wording might.
It may be that there is not much between the two sets of words. To be satisfied that it is probable, I should have thought meant that it must be over 50 per cent. To be satisfied that there is an unacceptable risk—one is coming very near it. What is an unacceptable risk? It is a risk that ought not to be taken; a serious risk. One gets very near the 50 per cent. You must be satisfied in each case. I wonder whether it is possible to get some form of words that would meet the difficulty that I share with the noble and learned Lord, Lord Hailsham, and the difficulty that I share with the noble Baroness and yet would not interfere with the spirit of this Bill.
Lord MORRIS of KENWOOD: I wonder whether I might add one more voice, the voice of one who has to make some of these decisions, for as sitting magistrates we have to face the question of whether a person should or should not be granted bail. I wonder whether I might join my colleagues on these Benches and the noble and learned Lord on the Cross-Benches in urging the Government to give this matter further consideration, specifically as it relates to the word "probable"; because "probable",

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in my opinion, means that you have to be more than satisfied that the defendant is likely to commit an offence. This is an almost impossible decision to come to, given the limited information that we as magistrates must consider when we make this decision. I am not sure whether the words which the noble and learned Lord, Lord Hailsham, put forward are necessarily the correct ones, but I think they come rather nearer than does the word "probable". I think the word "probable" is too strong. I think the Government should give serious consideration to this matter and I hope that they will do so.
Lord FOOT: I do not suppose that the noble and learned Lord, Lord Hailsham, shares some of the attitudes and opinions I have been expressing about this Bill this afternoon, but I think it only right to say that although I have been urged by those who have been advising me and helping me in this matter to try to get the Government to stick on the word "probable", I am satisfied myself, after listening to the noble and learned Lord, that the words he is proposing are preferable to the word "probable". I think that the difficulty we were in was this. When the noble and learned Lord spoke on Second Reading, he spoke then about the great difficulties which the word "probable" would arouse. But on that occasion he was contemplating proposing, I think, in Committee that we should adopt the recommendations of the Bar Council and should substitute for the word "probable" the word "possible".
That created great alarm among supporters of the Bill, because I think the noble and learned Lord will agree with me that simply to substitute the word "possible" for "probable" would be driving a coach and four through the Bill. I do not think—and here I agree with the noble and learned Lord—that the difficulty in the use of the word "possibility" is cured by putting in front of it the epithet "real". I do not think that "real" adds anything to the meaning of "possibility". A possibility is either real or it is unreal; and if it is unreal it is not a possibility. Therefore, I think that the noble and learned Lord has lit upon words which go as close as one can get to the intention of this Bill without going over the top into the field of
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probability. If I may say so to noble Lords opposite, I can see that magistrates who have to administer this would be in great difficulty when the clerk to the court says: "If you are going to refuse this man bail, you must be sure that it is probable that he is going to do this." I think that in those circumstances magistrates will be faced with an almost impossible conundrum. Therefore, because I have been convinced by the noble and learned Lord that this is the best set of words that have yet been found, I think it right to say so. If the Govment will not undertake to reconsider this matter then, if the noble and learned Lord proposes to carry this to a Division I will go into the Lobby with him.
Baroness WARD of NORTH TYNESIDE: As a magistrate for many years, I should like to say one thing. Surely, some magistrates would like the words that are in the Bill and some magistrates would like the words that my noble and learned friend Lord Hailsham wants put in the Bill. Magistrates are human beings. Some magistrates like one thing and some magistrates like another. I am wondering how many noble Lords present today have been magistrates. It is a very difficult matter and very few people today have said anything about what magistrates would like. So far as I know, nobody today has mentioned the fact that where you have a large number of magistrates attached to a court it just depends on what magistrates are sitting on the Bench at the time the matter comes up for discussion. In my part of the world I always knew that our clerk to the Bench was very concerned with which magistrates were sitting.
I have listened to all this with great interest as a magistrate, but the idea that anybody should say to the magistrate: "Now you must remember this and you must remember that" is unreal. I cannot put a figure on it, but I do not think many magistrates have any idea at all of what really goes on. They take their own views. If anybody were to ask me, I would prefer the words of my noble and learned friend Lord Hailsham. I do not know why. It is just because I happen to like him. I do not know that I like the views expressed by the noble Lord on the other side of the House who was talking his way. Yet, after all, quite

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a lot of people would like his words. The idea that a clerk to the court would be saying to the Bench of magistrates: "Now you must remember this and you must remember that" is all nonsense; it never occurs.
If my noble and learned friend Lord Hailsham likes to go on with his Amendment, I will support him—but, for goodness' sake! do not think that magistrates get very excited about words; they certainly do not. They do the best they can within the law. It all depends what magistrates have been summoned to sit on a particular court on a particular day. I should like to know a great deal more about what the views of magistrates really are in all these matters. I will not say any more because I do not really want to, but may I please ask noble Lords who have had a great deal of legal experience always to bear in mind that magistrates like to do the best they can in every case that comes before them. That is all I have to say.
Lord HARRIS of GREENWICH: The noble and learned Lord, Lord Morris of Borth-y-Gest, said that it
could be a marginal question whether we have the words which the noble and learned Lord, Lord Hailsham, prefers, "unacceptable risk" or the Government form, the word, "probable". It is, obviously, a matter for the noble and learned Lord to decide what to do. It would be impossible for me to commit the Government to any position on this matter this afternoon; but, as I said earlier, I will report to my right honourable friend what has been said in this debate. I cannot go farther than that today. The views have been expressed and I will report them.
Lord HAILSHAM of SAINT MARYLEBONE: I am grateful to the noble Lord. He must not think that I am taking an aggressive or hostile view. But in view of the measure of support that I have had, both from the Cross-Benches and the Liberal Benches, I must take the opinion of the House on this.
5.0 p.m.
On Question, Whether the said Amendment (No. 8) shall be agreed to?
Their Lordships divided: Contents. 115; Not-Contents, 55.

CONTENTS

Aberdare, L.

Elgin and Kincardine, E

Meston, L.

Allerton, L.

Elliot of Harwood, B.

Monckton of Brenchley, V.

Amory, V.

Elton, L.

Monson, L.

Amulree, L.

Emmet of Amberley, B

Morris of Borth-y-Gest, L.

Arran, E.

Exeter, M.

Mowbray and Stourton, L. [Teller.]

Atholl, D.

Faithfull, B.

Auckland, L.

Falkland, V.

Newall, L.

Balerno, L.

Feversham, L.

Nugent of Guildford, L.

Balfour of Inchrye, L.

Foot, L.

Nunburnholme, L.

Banks, L.

Fraser of Kilmorack, L.

Ogmore, L.

Barrington, V.

Gisborough, L.

O'Neill of the Maine, L.

Berkeley, B.

Glenkinglas, L.

Pender, L.

Brimelow, L.

Greenway, L.

Porritt, L.

Brock, L.

Gridley, L.

Rankeillour, L

Brooke of Cumnor, L.

Grimston of Westbury, L.

Redesdale, L.

Brooke of Ystradfellte, B.

Hailsham of Saint Marylebone, L.

Reigate, L.

Burton, L.

Ruthven of Freeland, Ly.

Byers, L.

Hampton, I.

Sackville, L.

Cairns, E.

Hawke, L.

St. Aldwyn, E.

Campbell of Croy, L.

Home of the Hirsel, L.

St. Davids, V.

Carr of Hadley, L.

Inglewood, L.

St. Helens, L.

Carrington, L.

Killearn, L.

St. Just, L.

Chorley, L.

Kimberley, E.

Sandys, L.

Clifford of Chudleigh, L.

Kinnoull, E.

Seear, B.

Colwyn, L.

Lauderdale, E.

Selkirk, E.

Cork and Orrery, E.

Lloyd, L.

Sempill, Ly.

Cottesloe, L.

Long, V.

Sharp, B.

Cranbrook, E.

Lucas of Chilworth, L.

Sherfield, L.

Cromartie. E.

Lyell, L.

Simon, V.

de Clifford, L.

Mackie of Benshie, L.

Somers, L.

de Freyne, L.

Macleod of Borve, B.

Stamp, L.

Denham, L. [Teller.]

Mansfield, E.

Strang, L.

Dilhorne, V.

Margadale, L.

Strathclyde, L.

Dormer, L.

Marley, L.

Strathcona and Mount Royal, L.

Dundee, E.

Massereene and Ferrard, V.

Ebbisham, L.

Merrivale, L.

Stratheden and Campbell, L.

Strathspey, L.

Vivian, L.

Westbury, L.

Terrington, L.

Ward of North Tyneside, B.

Wise, L.

Trefgarne, L,

Ward of Witley, V.

Young, B.

Vickers, B.

NOT-CONTENTS

Aylestone, L.

Goronwy-Roberts, L.

Mais, L.

Balogh, L.

Greenwood of Rossendale, L.

Melchett, L.

Birk, B.

Hale, L.

Northfield, L.

Blyton, L.

Hamnett, L.

Oram, L. [Teller.]

Bradwell, L.

Harris of Greenwich, L

Paget of Northampton, L.

Brockway, L.

Henderson, L.

Parry, L.

Collison, L.

Houghton of Sowerby, L.

Phillips, B.

Cooper of Stockton Heath, L.

Hoy, L.

Ritchie-Calder, L.

Crook, L.

Jacobson, L.

Shepherd, L. (L. Privy Seal.)

Crowther-Hunt, L.

Jacques, L.

Shinwell, L.

Davies of Leek, L.

Janner, L.

Slater, L.

Davies of Penrhys, L.

Kirkhill, L.

Stedman, B.

Donaldson of Kingsbridge, L.

Leatherland, L.

Strabolgi, L. [Teller.]

Elwyn-Jones, L.(L. Chancellor.)

Lee of Newton, L.

Wallace of Coslany, L

Energlyn, L.

Llewelyn-Davies of Hastoe, B.

Wells-Pestell, L.

Evans of Hungershall, L.

Longford, E.

Wilson of Radcliffe, L.

Feather, L.

McCarthy, L.

Winterbottom, L.

Fisher of Camden, L.

Maelor, L.

Wynne-Jones, L.

Gaitskell, B.

On Question, Motion agreed to.

Resolved in the affirmative, and Amendment agreed to accordingly.
5.8 p.m.
Lord HAILSHAM of SAINT MARYLEBONE Lord HAILSHAM of SAINT MARYLEBONE moved Amendment No. 14:
Page 14, line 23, at end insert—
"( ) Without prejudice to the first two paragraphs of this Schedule the accused need not be granted bail where the act or any of the acts constituting the offence with which he is charged consisted of treason, murder, manslaughter, rape, an assault or aggravated assaults or a threat of violence to another person or of having or possessing a firearm an imitation firearm, any explosive or an offensive weapon, or of indecent conduct with or towards a person under the age of sixteen years or of a conspiracy to commit or an attempt or incitement to commit or procure any of the above acts, or of aiding or abetting the commission of any of the above acts."
The noble and learned Lord said: The Amendment which I now rise to move is not of course an alternative to Amendment No. 15. They are separate Amendments; they can stand together. It could be argued that if the noble Lord was going to be more forthcoming regarding Amendment No. 15 than he was over the previous Amendment we discussed, Amendment No. 14 would not be so urgently necessary. This again gives effect to the views of, I think, the Senate of the Bar Council and certainly to the views which have been expressed to me. The seriousness of the offence committed has a bearing on whether or not bail should be granted.
The question of whether a risk is unacceptable that a crime should be committed when on bail obviously depends, in part, upon the nature of the offence which you may be afraid the person will commit is the person is allowed out on bail. If it is a modest offence, and not much harm will be done, you might be able to accept a very high degree of risk. If, on the other hand, it is a very serious offence, like murder, wounding with intent to murder or rape, you would not be content with a very high degree of risk; even a small degree of risk might be said to be unacceptable. So I have sought to put these words into the Bill:
"Without prejudice to the first two paragraphs of this Schedule the accused need not be granted bail "
if the charge involved certain offences of violence or inchoate offences connected with offences involving serious violence. I think this is right.
I accept that you can theoretically deal with this problem on the question of likelihood to abscond. But you are, in the modern world as I tried to say before—more concerned with repetition while out on bail than the danger of absconding. I was not at all impressed with the long quotations which the noble and learned Lord, Lord Gardiner, read out on the last Amendment. I think probably that if my Amendment No. 15 were opposed, No. 14 would become less necessary if it blemishes the logical purity of the noble Lord's Bill. Whether or not

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I divide the Committee, I rise to propose it and I should like to hear what the noble Lord has to say about it, since it is backed by a body which is far more reputable and respectable, indeed venerable, than my own private thoughts. I beg to move.
Lord HARRIS of GREENWICH: The effect of this Amendment moved by the noble and learned Lord, Lord Hailsham of Saint Marylebone, is to provide that where the accused is charged with any of the offences listed in it, the court need not grant bail even if they thought the accused would surrender at the time and place required. In other words, no presumption in favour of the granting of bail would arise in connection with the appearance of any person charged with any of these offences. Obviously there will be a lot of agreement in the Committee, as there was over the last Amendment, that many of the people who commit the offences listed by the noble and learned Lord should not be granted bail. The question is whether it would carry us a great deal further if we wrote this Amendment into the Bill.
I apologise once again for coming back to the Working Party, but given the fact that it was a widely representative body, consisting of representatives of the Magistrates' Association and the police, I think it is appropriate that we should constantly bear in mind what it said in matters of this sort. What the Working Party said on this general issue, in paragraph 55 of their Report, about the conditions additional to those set out in paragraph 1 of the Schedule was as follows:
"In general they are not in themselves reasons for granting or refusing bail, but indicators of the likelihood or otherwise of the defendant's appearance."
As it subsequently observed in the following paragraph, the more serious the offence, the stronger the temptation to abscond was likely to be and the smaller is the risk that can justifiably be taken either of the defendant's absconding or of his committing offences similar to that with which he is charged. As I indicated over the last Amendment, the Government shared the general approach that the gravity and nature of the offence are evidence relating to the application of the
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three criteria which are set out in the first paragraph of the Schedule.
Another point I should like to mention—I always quote the noble and learned Lord with pleasure—is that I hope he will bear in mind that the shadow Home Secretary made a speech which I think he would find fairly persuasive, when in another place the 1967 Criminal Justice Bill was being discussed. I should like to refer to this statement made by the noble and learned Lord in another place concerning Section 18 of what became the 1967 Criminal Justice Act. Mr. Quintin Hogg (as the noble and learned Lord then was) said this at columns 1622–3 of Volume 745 of the Official Report, on 26th April 1967:
"At the same time—I hope that the Home Secretary may consider this even while the Bill is passing through another place—as I said in Committee, the trouble with Clause 12 and this Clause, which are really parts of the same complex now, is that they are much too complicated. In my opinion, which is widely shared in the House, the only real reasons for refusing bail which commonly arise are the danger of absconding before the trial, the chance of interfering with witnesses before the trial and the prevention of the commission of another offence by the same offender".
If I may say so with great respect, I think that is an admirable statement of the position and is certainly the view of the Government. But there is another point that I ought to deal with. I think there is an objection to the inclusion of so long a list of offences as is embodied in this Amendment. There is this need, as the noble and learned Lord said on the previous occasion, to avoid undue complication of the matter. However, there is no need to deal with the question of treason in particular, because by reason of Section 8 of the Magistrates' Court Act 1952 bail in cases of this sort can be granted only by a High Court judge or by the Secretary of State, and the probability of a person charged with a capital offence absconding is obviously very great. Therefore the mention of this offence seems unnecessary.
It is not just the grave offences that are involved: the trivial offences also are our concern. One of the offences mentioned in the Amendment by the noble and learned Lord is that of possessing an imitation firearm. That can, of course, be an extremely serious offence. It can be carried by a person who is attempting to persuade a bank cashier to part with a

1563
very large sum of money. It can also be an exceptionally trivial offence. With great respect to the noble and learned Lord, it seems to me that this demonstrates to the Committee the difficulty of putting in special categories of offences and changing the onus. That is why we have some considerable concern about this Amendment of the noble and learned Lord. It is not that we take lightly the point of dangerous men being set at liberty: not at all. We think that one should not specify particular categories of offences which are to be treated differently from other offences. In those circumstances, think the Bill, as drafted, meets the point and I hope that on reflection the noble and learned Lord will not press his Amendment.
Lord HAILSHAM of SAINT MARYLEBONE: The noble Lord, Lord Harris, has been very kind to me. I certainly think that in 1967 I well stated for an Opposition Member in another place the general points which I am making here now, and what I said again and again as Lord Chancellor in addressing magistrates all over the country. I do not think the noble Lord was altogether fair about the drafting of this Amendment. It may be true that it is unnecessary to put in "treason". It may be marginally true that the possession of an imitation firearm is an unnecessary embellishment. But the principle is fairly clear and, with the exception of those extremes, I should have thought I had done fairly well on the whole. They are the only ones that the noble Lord has complained of. I do not promise not to put this Amendment back on Report. What I am really concerned with is to prevent people getting out who may be likely to commit serious offences. I have achieved something with my last Amendment. I propose to have a good whack at my next one and not to detain the Committee with the intermediate one, if that is all right. So I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
5.21 p.m.
Lord HAILSHAM of SAINT MARYLEBONE Lord HAILSHAM of SAINT MARYLEBONE moved Amendment No. 15:
Page 14, line 23, at end insert—
"( ) In applying their minds to the question whether a risk of the matters referred to
1564
in paragraph 1 of this Schedule be unacceptable the court shall take account of all relevant considerations but without prejudice to the generality of the foregoing shall take into account the following considerations as relevant where capable of assessment:

(i) the seriousness and nature of the offence alleged;

(ii) the character record and community ties and associations of the accused;

(iii) the question whether the accused has at any time failed to comply with the conditions of bail including the obligation to present himself at court;

(iv) the extent to which actual or potential witnesses for the proscution may be exposed to contact with the accused if out on bail."

The noble and learned Lord said: This is, as I said, in the nature of the last Amendment, and an attempt to assist magistrates in arriving at their conclusion about whether a risk is unacceptable, because those are the words which we have now, for the time being at any rate, written into the Bill. These ideas really come out of the Working Party's report. The noble Lord will have detected that I am not being entirely original in having thought them up for myself, and they are intended to be the kind of points which a magistrate ought to think about.
First, there is "the seriousness and nature of the offence". What led me to withdraw the last Amendment was the fact that this is a broad statement of the principle, whereas that was an attempt to spell it out by reference to certain offences. The second is,
"…the character record and community ties and associations of the accused".
I was intending, if I may say so to my noble friend below the gangway who raised the point in an earlier part of the debate, to include any community ties, whether or not a person had a fixed address. Whether I have successfully done that as a matter of law, I am not sure. But I intended that "community ties" included the person without a fixed address, the footloose and the solidity of his relationships; in fact, the factors which the Working Party said ought to be taken into account.
Thirdly, there is,
"…the question whether the accused has at any time failed to comply with the conditions of bail including the obligation to present himself at court".
Fourthly, there is,
"…the extent to which actual or potential witnesses for the prosecution may be exposed to contact with the accused if out on bail".

1565
That is to emphasise the importance of not allowing the accused to nobble witnesses or, in very serious cases, to be in a position where he can. These arc, in practice, what experienced Benches take into account; I do not think I am breaking fresh ground. But if there is to be a statutory presumption in favour of bail, even if you use the more permissive words of the "unacceptable risk" which are now accepted, magistrates ought to be given some help as to the relevant considerations.
I quite take the point of my noble friend below the gangway, that different magistrates take different views of discretionary matters. I do not think it is desirable that they should, but I know that they do. I want to limit the range of variation between court and court, and between individual and individual. I want them to know in general what they must bear in mind and, having regard to the very strong persuasive control that the Lord Chancellor exercises over the practice of magistrates, I should have thought this was helpful rather than otherwise. The Amendment is not intended to be either more restrictive or more permissive of bail. It is intended to put down in black and white, in a form which they will have in front of them when they decide on questions of bail, what they ought to be thinking about. With those preliminary words, which I hope have been reasonably lucid and short, I beg to move.
Baroness WOOTTON of ABINGER: I should be very glad to see the back of no fixed abode". In my experience in magistrates' courts, "no fixed abode" is sometimes interpreted as meaning living in a furnished flat, which seems unfair. I dare say that "community ties" is as good as we can get. I have heard of old boy ties and RAF ties, but I have never yet heard of community ties. However, I daresay that people will take to wearing them.
Lord GARDINER: May I just ask whether the word "record" is intended to include a conviction which is spent under the Rehabilitation of Offenders Act?
Lord HAIL SHAM of SAINT MARYLEBONE: No. I am much obliged to the noble and learned Lord. I assume that the spent conviction would be excluded by virtue of the terms of the Act
1566
which he was so instrumental in passing. Obviously, if we get to that stage, and if he is prepared to suggest an Amendment to make that clear, I shall be prepared to accept it. At the moment, of course, I cannot alter the wording as it stands.
Lord HARRIS of GREENWICH: The Amendment moved by the noble and learned Lord, Lord Hailsham, operates by providing, in effect, that when considering whether any of the three grounds for withholding bail listed in paragraph 1 of the Schedule apply, the court may take into account the factors listed in the Amendment. The first three factors listed, as he has rightly said, are variations on some factors suggested by the Working Party as evidence of the existence of one or other of the grounds for withholding bail; namely, the nature and gravity of the offence charged, the strength of the case, the accused's record and antecedents, the likely sentence if the accused is convicted and the accused's community ties. The fourth factor listed in the Amendment is a new one not mentioned by the Working Party.
I am bound to say that we find substantial difficulty in regard to the fourth factor, because,
"…the extent to which actual or potential witnesses for the prosecution may be exposed to contact with the accused if out on bail"
goes rather too far. If the accused is on bail, any witness must be "exposed to contact" to some degree. If the noble and learned Lord will forgive me for saying so, this is a dangerously ambiguous form of words, because it could be used in a more restrictive sense than I suspect is his intention. The court could, in any case, impose a condition that the accused is not to attempt such a contact. If there is a probability, or whatever form of words eventually emerges from the consideration of this Bill through both Houses of Parliament, of interference with witnesses, this could in itself be a ground for refusal of bail, and it is the view of the Government that this is enough.
The first and second factors mentioned in the Amendment are matters which are relevant as evidence of the probability or otherwise of the defendant's absconding, committing offences while on bail, interfering with witnesses and so on, and it is therefore arguable that some words to this effect could be included in the Bill. The dangers in the inclusion of matters

1567
of this kind are that they may be taken by some to mean either that the existence of one of the elements is conclusive one way or the other; or, secondly, that the list is exhaustive. The Government's view has hitherto been that while these factors are relevant as evidence, it is better not to set them out in the Statute but to give them, as they would be given, their proper weight in general guidance on the implementation of the Bill's provisions, in a circular to magistrates and so on.
That is the view of the Government at this stage. With the exception of the point which I have made—namely, that the fourth element of the Amendment goes, in our view, substantially too far—obviously it is another rather marginal matter whether one includes this in the Bill or prefers to deal with it by means of a circular to magistrates. Again I should be interested at this stage to know the views of the Committee on this point. Certainly the Government will consider the matter and take a final view once they have had the advantage of hearing your Lordships' views, but at the moment we are not persuaded that this Amendment is necessary. The matter could be dealt with by circular. As I have indicated, the fourth proposal in the Amendment goes too far and is, I suspect, rather more restrictive than is the intention of the noble and learned Lord.
Lord FOOT: I agree with the noble Lord that there seem to be objections to paragraph (iv) which do not apply to paragraphs (i) (ii) and (iii) of the noble Lord's Amendment. Confronted with the problem as to whether or not they were going to grant bail to someone and whether that person had a right to bail under Schedule 1, I should think that the magistrates would have great difficulty in interpreting paragraph (iv) of this Amendment side by side with sub-paragraph (c) of paragraph 1 of the Schedule. Under paragraph (iv) of the noble and learned Lord's Amendment they are asked to take into account
"…the extent to which actual or potential witnesses for the prosecution may be exposed to contact with the accused if out on bail."
When they turn their minds to the unacceptable risk of that person interfering with witnesses, they are then confronted
1568
with a different question. It would be perfectly possible to come to the conclusion that potential witnesses might well be exposed to contact with the defendant, yet the same bench of magistrates might come to the conclusion that the defendant would be unlikely to interfere with them.
I should have thought that the attempt to combine these two things would create only confusion in the minds of magistrates. Therefore I should have thought that nothing would be lost if the noble and learned Lord agreed to drop paragraph (iv) of his Amendment. It seems to me that, if it is valuable in the sense in which the noble and learned Lord suggested, all it does is to call to the attention of magistrates for their assistance the kind of things which they ought to have in mind when they are making up their minds. What in particular attracts me is the clear inclusion of the
"…community ties and associations of the accused".
I do not believe that this has appeared hitherto in any Statute.
Lord GARDINER: As we have been asked for our views, may I say that I very much prefer the draft which is in the Schedule to the Bill. Apart from being relevant to the question whether the man is likely to turn up for his trial, I cannot see why the gravity of the offence matters. If I may refer to one point to which nobody has yet referred, we are not talking about the gravity of the offence that the man has committed but about the gravity of the offence which he has committed or of which he is wholly innocent. Everybody of experience knows that the need for bail for an innocent man is the greater the more serious the charge is. We all know how comparatively difficult it is, particularly in any kind of heavy case, for many people to conduct their defence from a prison cell, compared with being free to see their solicitors and to obtain help from witnesses whom they know but their solicitors do not know. Therefore from a very real point of view, the more serious the crime is the greater the need for an innocent man to obtain bail.
Viscount SIMON: Before the noble and learned Lord replies to this short debate, may I ask him a question. I am not clear what is meant by "community,

1569
ties" about which we had a little joke. I feel that there is a suggestion in this context that "community ties" might be referring to ethnic minority communities. Surely it would be most unfortunate if the idea ever got about that the possibility of a man obtaining bail might be diminished because it was said that he was a member of a minority community. It seems to me that the word "community" is a little unfortunate because of the way in which it is used in other contexts.
Lord HAILSHAM of SAINT MAR YLEBONE: If I may first reply to the noble Viscount who has just asked me a question—may I say in passing what a pleasure it is to answer a question from him because his father was always very good to me and I have always remembered him with very great affection; for many years our friendship was quite close—the answer is to be found in paragraph 62 of the Working Party's Report. Perhaps I had better read it because I do not want either to improve upon it or to diminish it. The paragraph is quite short and reads:
"Where there is no clear indication from the seriousness or the nature of the offence or from the defendant's record whether bail should be granted or refused, the court will need to rely on its own assessment of the defendant's character in deciding whether he is likely to comply with the conditions of bail if bail is granted. The extent to which the defendant has a stable home background and settled employment—what are generally called 'his community ties'—is likely to be of considerable influence in determining whether he is a good bail risk. We therefore regard it as a matter of considerable importance that courts should have information about the defendant's community ties, since without it they cannot make an adequately informed assessment of the hail risk".
In the light of that paragraph, I think that the noble Viscount will find that it is a fairly acceptable phrase which is in fairly common use as a result both of the general parlance of magistrates and of the Working Party's Report.
I am sorry that I cannot help the noble and learned Lord, Lord Gardiner, more about the reasons for the seriousness of the offence being a factor which ought to enter into the mind of a court in granting bail: as to whether the risks of committing further offences, or absconding, or interfering with witnesses are unacceptable. I had thought that it was fairly obvious, but the noble and learned Lord
1570
will find that it is set out at considerable length—I think I read it during the Second Reading debate—in paragraph 56 of the Working Party's Report: "The offence charged". The Working Party took a view about the seriousness of the offence which was more or less in line with my view in the last Amendment and argued it at length in paragraph 56.
But the chief point which I have sought to make before and which I will make again now, because the noble and learned Lord seems to be puzzled about it, is that when you are considering whether a person is likely to nobble witnesses, or to run away, or to commit another offence of the same kind while he is out on bail, the seriousness of the offence is a factor which enters into your mind in deciding how likely it is; and the nature of the offence, the seriousness of the offence, is a matter which enters into your mind as to whether or not you ought to take the risk. If he is a very violent character who is always knocking people about and using lethal weapons in support of his desires, quite obviously a much smaller risk will be unacceptable than if the offence he is likely to commit is a comparatively trivial offence of theft. Therefore, the seriousness of the offence is a relevant factor in magistrates' minds in asking the question whether bail should be granted. Indeed, so much is this so that the noble Lord, Lord Wigoder, on Second Reading—and, I think, the noble Lord, Lord Foot, in what he said this afternoon—pointed out that one of the arguments which he thought would tell against the last Amendment which I withdrew was precisely that the seriousness of the offence was a factor which ought always to be borne in mind when one is handling these cases. I have done the best I can with the noble and learned Lord. It may be that he does not understand what I have said or it may be that he does not agree with it, but I do not think I shall improve upon it by repeating it to him.
When I come to deal with the noble Lord, Lord Foot, and the noble Lord, Lord Harris of Greenwich, I am not wedded to paragraph (iv) at all. It seemed to me that it was not any more restrictive than the present practice involved but it seemed to be relevant, coupled with the seriousness of the offence as to the likelihood of the witnesses being "nobbled". I thought it was no more

1571
than spelling out the reasoning in the Working Party's Report, although I fully accept that the words do not come from that Report. Perhaps the noble Lord would undertake to propose an Amendment without paragraph (iv) on Report, or if he does not do that I would make a counter proposal that I would propose an Amendment myself, moving out paragraph (iv), on Report. Having heard the argument I should be perfectly content to drop it if it is going to cause any confusion. What I would not be prepared to accept, with great respect to the noble Lord, Lord Harris, is the theory that it could be dealt with by circular rather than in the Bill. I think it is essential to put it in the Bill. If the noble Lord would be more forthcoming about that point we might settle the matter amicably.
I realise that the noble Lord is in some difficulty today. We know that there is not a Home Secretary. I do not want to exploit the noble Lord's difficulties, but one of the reasons why I found it impossible not to take the opinion of the Committee on the previous Amendment was that he would be faced with a situation in which he had a different colleague to deal with before the Report stage and I thought the opinion of the Committee might be of some assistance to that colleague when he makes up his mind about the attitude to take to these matters.
A note has been put before me that I could drop paragraph (iv) if I wish to move the Amendment without it. If that is acceptable to the Committee that is what I will now do, as I am given on fairly solid authority that this is open to me. As I have said, I am not wedded to paragraph (iv). It was included in good faith but I am always open to accept criticism. What I am not prepared to do is to leave it to a circular.
With regard to the first question put by the noble and learned Lord, Lord Gardiner, I have already undertaken that if on reflection he thinks it is necessary to do so in order to safeguard his own Bill I will move—or if he moves it, I will accept—a further Amendment to safeguard it. My thought was that it is not necessary because the Act deals with the matter adequately. In those circumstances if I may move this Amendment
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without paragraph (iv), I will do so. I beg to move.
Moved, That Amendment No. 15, excluding paragraph (iv), be agreed to.—(Lord Hailsham of Saint Marylebone.)
Lord HARRIS of GREENWICH: I am in some difficulty, but not necessarily the difficulty indicated by the noble and learned Lord. I would put it to him with great respect that I have said that I would discuss this matter with my right honourable friend. There are two further stages at which this matter can be discussed—Report stage and Third Reading. I have indicated that I will do so and I should be grateful if the noble and learned Lord would not press the matter this afternoon. We will gladly come back to it on Report stage.
Lord HAILSHAM of SAINT MARYLEBONE: I hate to be horrid so I will not be horrid. I think it will be rather more nuisance to the House because we shall be compelled to have another debate. On the other hand, I have pressed one Amendment and perhaps the Committee would consider it unreasonable if I did not comply with a courteous request, courteously put, but the noble Lord may be quite certain that I shall return to it at Report stage. Having said that, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
5.45 p.m.
Lord FOOT Lord FOOT moved Amendment No. 17:
Page 14, line 32, at end insert:
("( ) This Schedule does not apply where the offence of which the accused or convicted person is accused or has been convicted is not punishable with imprisonment.")
The noble Lord said: I am glad to say, as this is the last Amendment on the Marshalled List, that it is one of almost divine simplicity and raises a matter upon which I hope there will be no disagreement throughout the Committee. It so happens that as the law stands at the moment there are certain circumstances under Section 14 of the Magistrates' Courts Act 1952 in which a person can be remanded in custody while inquiries are made, even though he is charged with an offence for which he is not liable to be prosecuted. This

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is a very strange state of affairs but it is the way in which 'the law has been interpreted.
When this situation was considered by the Advisory Council on the Penal System in their report on The Young Adult Offender, in 1974, they had these strong words to say:
"The courts have held that a person may be remanded in custody under Section 14 of the Magistrates' Courts Act even though the offence is not punishable with imprisonment. We are strongly of the opinion that it should not be possible to remand a young adult in custody in such circumstances, and recommend that the law should be amended accordingly."
It seems to me that those words, applied as they are there to the young adult, apply with equal logic and sense to all adults. It seems to me to be almost intolerable that people should be liable to be remanded in custody and sent to prison when they are only charged with an offence for which they cannot be sentenced to imprisonment.
The case is so simple that I begin to think I must have overlooked some fallacy in the argument. The noble Lord has not been able to give way to me on any other Amendment, but I hope that he may be able to give way on this occasion. I recognise at once that because some of my earlier Amendments have not been carried the words of this Amendment would have to be amended to read as follows:
"This Schedule does not apply where the offence of which the accused is accused is not punishable with imprisonment."
That is a simple matter of drafting because my earlier Amendments have been rejected. I beg to move.
Lord HARRIS of GREENWICH: This matter was dealt with in paragraph 156 of the Report of the Working Party and, if the Committee will forgive me for a moment or two, as it is a matter of some importance I should like to draw the attention of the Committee to precisely what the Working Party said about this. They say:
"We have referred (in paragraph 146 above) to the fact that the power to remand a person under Section 14(3) of the Magistrates' Courts Act 1952 to enable inquiries to be made is not confined to imprisonable offences, as is the power in Section 26(1) of the Act. We have considered whether the power to remand in custody under Section 14(3) should be
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limited to imprisonable offences. We consider that in general it is difficult to justify holding a person in custody on remand when he is not liable to imprisonment on conviction of the offence charged and that a remand in custody should, if possible, be avoided in these circumstances. In our experience, however, cases occasionally arise where it is in the defendant's interest to be remanded in custody. For example, it may be apparent to the court that a person who is charged with a minor offence is mentally disturbed. In these circumstances the court may properly wish to adjourn the case with a view to inquiries being made about possible treatment."
I will not read on because the paragraph sets out the situation which arises in a minority of cases where, in the view of the Bail Working Party, it is in the defendant's interests that he should be remanded in custody. I emphasise, as does the Working Party, that this arises very occasionally. But it is not our view that it is right to set aside the Working Party's recommendation on this point.
Lord GARDINER: I would venture to hope that the Government will reconsider this before the next stage of the Bill. It has always seemed to me wrong that somebody should be sent to prison under a form of remand, refusal of bail, when it is not an imprisonable offence. Such experience as I have leads me to think that when it is used it is not normally in the sort of case to which my noble friend has referred. When one looks at the cases they seem to be mainly young men and anybody who demonstrates. Of course, all Lord Chancellors—and no one more so than the noble and learned Lord, Lord Hailsham—have always told magistrates that to refuse bail because you think it will do him good or to give him a taste of prison is absolutely wrong. No one has said that more firmly than he has. While I am sure that in general magistrates do not do this, I am afraid there are benches in some parts who on some occasions do in fact do that. It cannot be right, can it, in the case of a demonstrator who sits down on the pavement? The fact that my wife has been so convicted does not, I think, influence me in any way. If the maximum penalty is a fine of £5 or £10, how can it be right that they should be sent to prison straight away by being refused bail? I would hope the Government would give some further consideration to this question before the next stage of the Bill.
Lord HARRIS of GREENWICH: Obviously, I will again draw the attention of my right honourable friend to what the noble and learned Lord has said, and what has been said by the noble Lord, Lord Foot. I cannot give any undertaking today. It is a narrow question, but I accept that problems of this kind, if they arise, do cause legitimate concern. Without giving any guarantee, which of course I could not do this afternoon, I will gladly have the matter looked at.
Lord FOOT: I am much obliged. In those circumstances, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Schedule 1, as amended, agreed to.
Remaining Schedules agreed to.
House resumed: Bill reported with an Amendment.

CROFTING REFORM (SCOTLAND) BILL
5.53 p.m.
Lord KIRKHILL: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, that the House do now resolve itself into Committee.—(Lord Kirkhill.)
House in Committee accordingly.
[The Baroness WOOTTON OF ABINGER n the Chair.]
Clause 1 [New rights of crofters and collars to acquire their subjects]:
Lord BURTON Lord BURTON moved Amendment No. 1:
Page 1, line 5, after ("may") insert ("within ten years of the passing of this Act,").
The noble Lord said: I hope this is a constructive Amendment which should improve the Bill in every respect. If we could first of all look at it from the crofters' point of view, they will have ten years in which to make up their minds as to whether or not they wish to purchase their crofts. I think even the slowest thinking crofter should have penty of time in ten years. They will
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undoubtedly have a very slight limitation, but if the Bill turns out satisfactorily I should have thought that at the end of the first ten-year period it would have been possible for the period to be further extended, if need be.
If one looks at it from the landlords' point of view, it seems to me that the landlord is being burdened with a quite intolerable situation. He will have a cloud over his head for ever and a day unless my suggestion of ten years is accepted. It will be quite impossible in many cases for satisfactory economic planning of an estate to take place if the landlord does not know from one moment to the next whether he is going to own a piece of land or whether it is going to be compulsorily acquired. Take, for example, the letting of shooting. Possibly a foreign syndicate may have rented the shooting, and then all of a sudden, in the middle of the area, a crofter decides that he wants to acquire his piece of ground. The whole of the arrangements made for the syndicate to come over could well fall. It could upset the whole of at least one of the day's shooting. The landlord might well find himself in breach of contract through absolutely no fault of his own. Again, it is quite impossible to budget if you do not know what rents you are likely to have coming into the estate. Finally, from the landlords' point of view, there is a worry over rents, because as soon as you go to a crofter and say, "The rent ought to go up to so and so", he will turn round and say, "Well, if it is going up to that, I am going to acquire the croft". It really makes the situation quite impossible.
If one looks at the position from the national point of view—and surely the Government must have sonic regard to that—the intention of the Bill is progressively to wind up crofters. It may be that the Government will deny this, but it is only thinly disguised as a benefit for crofters. If one assumes that one of the main intentions is to wind up the crofting tenure, which I think it undoubtedly is, then there should be considerable advantage in expediting this; instead of having it dragging out over endless years it will be over a period of ten years. I know the noble Lord, Lord Kirkhill, comes from the East, but he must be aware of the increasing lethargy of the

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crofter as you move to the West. I think possibly even the Crofters Commission would not deny that many crofters would benefit from a slight spur.
This Amendment would do this without materially altering the principle of the Bill. The end of the ten-year period will produce a time for reflection and a chance to note the reduction in the number of crofts, and, one then hopes, a substantial reduction in the number of civil servants required to administer crofts. The result would be a substantial saving in unremunerative public expenditure. This being Budget day, I would strongly commend this Amendment to your Lordships, and I move accordingly.
Lord KIRKHILL: Let me at the outset admit to the usual type of non-lethargic North-East Scot activity. To continue the simile, I would with some vigour resist the Amendment. The noble Lord has argued forcibly that the rights which have been given to crofters to acquire the land will hang over landlords like the Sword of Damocles and it would be wrong not to put a time limit on the threat, imposing a time limit on the crofters' right to purchase the land is not an effective way of preventing loss of sporting rights, since a great deal of land could go in ten years' time. Indeed, the effect of introducing a time limit would in practice be contrary to the noble Lord's intentions, since it would lead to a surge in purchases to beat the deadline.
Moreover, imposing a limitation on the period for which the right to acquire would apply would be completely contrary to the spirit of the Bill. The intention of the Bill is not to offer crofters a short-term concession which they would be under pressure to take advantage of before they lost it, but to give them a continuing right, which they would be entirely free to exercise or not without any influence being brought to bear. As I said during the Second Reading debate, the object of the Bill is to remove the constraints which prevent crofters from developing their land to its full potential. The noble Lord, Lord Burton, puts a somewhat different nuance, a slightly different construction, on this interpretation, but I reiterate what is the Government's intention behind the Bill.
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It achieves this by recognising their rights (that is, the rights of crofters) to become owners of the buildings which, in most cases, they or their predecessors have erected, and in acknowledging their special affinity with their land. For crofters who, for one reason or another, are still tenants in ten years' time, these factors will still be valid and it would be wrong once again to put them in the position of haying to rely entirely on the good will of their landlords should they be desirous of purchasing their land. If, however, as the noble Lord appears to expect, the crofting situation at the end of that period has altered sufficiently to require changes to be made in the legislation, it will be for the Government of the day to undertake whatever action they then consider necessary. I hope that with that explanation the noble Lord will not pursue his Amendment.
Lord CAMPBELL of CROY: My noble friend Lord Burton has pointed out, among the reasons that he has put forward for his Amendment, that the landowner will want to be in a position to plan ahead. I can understand my noble friend's concern on this. I am also well aware that the intention of the Bill is that the crofting system should be allowed to change in its own time (not necessarily disappear in due course but change), and it is different from the original proposal of the Crofters Commission in 1968 under which the whole crofting tenure system would have disappeared on an appointed day and every crofter would have compulsorily become an owner-occupier. I think in all the discussions that have gone on since then it has been agreed (and it has certainly been agreed between the two Front Benches) that crofters should be given the option and not compulsorily be made owner-occupiers on a certain date.
I should like to ask the noble Lord whether he can add to what he has said to reassure landlords about what provisions there are in the Bill or elsewhere that they would receive reasonable notice, because I think that the main point of concern is that the landlord should be able to plan ahead and that there should be reasonable notice if there is going to be a change, or a number of changes, which would upset the plans which he is making, or has already made. If that reassurance were there noble Lords on both sides would, I think, be happier.
Lord KIRKHILL: I cannot be specific as to the exact time-scale posed inherently in the question directed to me by the noble Lord, Lord Campbell of Croy. I would give him an assurance that there would be a reasonable time allotted.
Lord BURTON: There are only about 14,000 crofting units, and if all went in ten years this would be only 1,400 a year. After all, it is the intention of the Bill that we should take on six extra staff. With the existing and six extra staff and the thing gradually winding up, I cannot see that the noble Lord's excuse that the machinery would get cluttered up holds water. One cannot expect the whole lot to come forward, so even if one assumed about half, 700 a year, that would not be too severe on the administrative machinery.
I am rather shocked that the noble Lord should not consider anything regarding the efficiency of land management, a matter mentioned by my noble friend Lord Campbell. One cannot manage one's property if one does not know what one is going to have from moment to moment. However, if the Minister is really adamant I fear that one has no option, with your Lordships' leave, but to withdraw the Amendment.
Amendment, by leave, withdrawn.
6.5 p.m.
Lord BURTON Lord BURTON moved Amendment No. 2:
Page 1, line 10, leave out second ("the") and insert ("a")
The noble Lord said: With your Lordships' permission, I should like to move Amendment No. 2 and speak to Amendments Nos. 3 and 6. There is not a great deal to this Amendment. Although the crofter has an automatic right under the Bill to purchase his house site and garden, he has not quite but almost as much right to purchase the other land and other houses pertaining to it. This means that if a crofter was tenant of two or more crofts which are amalgamated, he could therefore buy only his one house. If, on the other hand, he is tenant of two or more crofts which are not amalgamated as one unit, he would have the right to buy two or more houses. That does not seem to be quite fair.
At December 1974 there were 18,149 crofts and 14,162 croft units. Therefore,
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there are probably about 4,000 croft houses. It does not mean that every croft has a house on it, but there could be as many as 4,000 houses involved in this slight unfairness. It appears to me that what is sauce for the goose should be sauce for the gander, and what is fair for one crofter should be fair for his neighbour also. Further, it seems unreasonable that an absentee crofter should have the same privileges as a hard working local resident. Therefore, I should hope that to produce equality in the crofting fraternity, and for no other reason, this Amendment should be accepted: that is, that the crofter should be allowed to buy the house which he is occupying,. I beg to move.
Lord KIRKHILL: I am unable to accept the noble Lord's Amendment, and I think I must respond in some detail to his proposition because it is contrary to the principle of the Bill that a crofter is to have an incontestable right to a conveyance of the site of the dwelling-house on or pertaining to any croft of which he is tenant. I do not consider that there is any good reason for deviating from that principle where a crofter is tenant of two or more crofts which he runs as a working unit. If there are other houses on the crofts apart from the one which the crofter occupies, these may be used by members of his family or they may be uninhabited. But they will most likely have been provided by the crofter or his predecessors in the tenancies. Even if surplus to the crofter's individual requirements it is equitable, in the Government's view, standing such provision, that the crofter should have the right to a conveyance of them. The landlord, in the Government's view, can lay no moral claim to these houses and I see no justification for seeking to impose any restriction on the crofter's right of acquisition.
In any event, such a restriction on a crofter's incontestable right would not in practice prevent him from acquiring the site of other houses on his crofting unit. He would have the right to acquire these sites as part of the croft land by order of the Land Court if necessary. The landlord could oppose such acquisitions only on the grounds of substantial hardship to himself or substantial detriment to the sound management of his estate, and it is hardly conceivable that a landlord would be able to establish such

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grounds to the satisfaction of the court in relation to the small parcels of land which would be involved.
I must also resist this Amendment because it would provide a blanket discrimination against absentee crofters by depriving them of the incontestable right to acquire the site of their dwellinghouse. I hold no brief for absentee crofters, I hasten to assure noble Lords, but I think that to make no contribution to a remedy for dealing with the absentee problem would negate the Government's true concept of this Bill, and I think that the Government are entitled to use the existing power of removal given to the Crofters Commission under Section 17 of the 1955 Act.
Lord BURTON: Perhaps the noble Lord did not fully understand me. I do not think I suggested at any time that the landlord had a moral right to claim the house—but more of that later—nor did I suggest in any way that the landlord was to get any benefit from this. I was simply saying that there was an unfairness as between one crofter and another. Because, perhaps for the sake of efficiency, he has amalgamated his two crofts as one, he will be given the right to buy only one house, whereas a man who, for one reason or another has not bothered to do that but is working two separate units, has the right to buy two houses. This does not seem to be equitable. It is not a big point because I suppose that a man in that position could buy it along with the croft land later on it is somewhat more complicated and it is not just the incontestable right. In the hope that the noble Lord will examine the matter again, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
6.11 p.m.
Lord BURTON Lord BURTON moved Amendment No. 4:
Page 2, line 11, leave out from ("minerals") to ("pertaining") in line 13.
The noble Lord said: It may seem strange that, as a landlord, I should be moving this Amendment, which is really only a drafting one. The deletion of these words would make no difference to the results of the Bill. Most of your Lordships will by now have appreciated—I am certain that this applies to the noble
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Lord, Lord Kirkhill—that crofting law is complicated. Perhaps that is an understatement. I am suggesting, therefore, that unnecessary wording should be deleted from the Bill. Salmon fishings are a separate heritable right and therefore, except in Orkney and Shetland, do not pertain to any croft. The words which I propose to delete would seem to be unnecessary.
Lord KIRKHILL: I recognise that what the noble Lord has said has an air of logic about it, but I can assure him that if the words in question were omitted from the Bill changes would be made as to the crofter's rights of acquisition which could impose a threat to the landlord's salmon fishings. Salmon fishings are, as most noble Lords will be aware and as the noble Lord mentioned, a separate estate in law but nevertheless, as a hereditament, they would come within the definition of land. They are not, however, normally within the crofter's possession as tenant of croft. This is an oversimplification perhaps of a rather more complex situation, since in Orkney and Shetland under udal law the right to salmon fishing is not a separate estate but runs with the land.
What we are seeking to do in the Bill is broadly to give the crofter the right to acquire the subjects which he holds on tenancy. His tenancy gives him no rights in relation to salmon fishings and it is, of course, no part of our intention in the Bill to alter that position. In order, therefore, to avoid the definition of croft land being interpreted as including salmon fishing rights and also to cater for the special position in Orkney and Shetland, it is necessary in our view to retain the words in question in the Bill. I hope, in the light of that explanation, that the noble Lord will withdraw his Amendment.
Lord CAMPBELL of CROY: Before my noble friend rises to do that, I simply wish to say that we are grateful to him for tabling this Amendment, so enabling the Government to give their interpretation, which is presumably an authoritative one, as to how the Bill will be interpreted if it is tested in the courts at any time. It is clear that the purpose of both my noble friend and the Government is the same, so far as the Bill is concerned, and that it was simply a matter of interpretation and whether the words should be in the Bill. I am glad that the Government have been given an opportunity

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to state quite clearly what they regard the position to be.
Lord KIRKHILL: I assure noble Lords that it is my fervent hope that it was an authoritative interpretation.
Lord BURTON: I fear that I did not quite follow all the reasonings of the noble Lord, but I will read carefully what he said in Hansard. I am grateful to him for having explained the matter and I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Lord BURTON Lord BURTON moved Amendment No. 5:
Page 2, line 15, after ("thereon") insert ("or part of any building").
The noble Lord said: I shall have more to say on this matter when we come to Amendment No. 18 on valuation. I will simply say in the meantime that there are many instances where the landlord has produced the materials but not necessarily the whole building. Thus, it would appear that one should add to the definition the words "or part of any building", as well as the whole house. I think that the noble Lord, Lord Kirkhill, is looking rather puzzled. There are a number of croft houses, and indeed fences and other fixed equipment, for which the material is supplied by the landlord without him having supplied the whole house; they may have been erected by the crofter. I should have thought, therefore, that in the definition there should be added the words, "or part of any building".
Lord KIRKHILL: Like the noble Lord, Lord Burton, I should like now to deal with Amendment No. 5 and No. 18, and I am glad to be able to assure the noble Lord that I find myself in full accord with the intention of the first Amendment which is, however, unnecessary since provision to the desired effect is already included in Clause 4(2)(b) read along with the definition of the site of the dwellinghouse. This provides that where the landlord has provided any fixed equipment on the site of the dwellinghouse, the consideration to be paid by the crofter will take account of any contribution which the landlord has made to the value of the developed house site. Whether the landlord's contribution amounted only to the provision of timber
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or stone, or to an improvement to part of the dwellinghouse, or involved the provision of the dwellinghouse itself, this will be allowed for in the consideration to be determined by the Land Court. The assumptions made are somewhat complex but their effect is to provide for a basic assessment of the value of the landlord's equipment at its existing use assuming vacant possession and no application of the crofting legislation.
I hope that, in the light of that rather complex explanation, the noble Lord will feel able to withdraw Amendment No. 5. However, I regret that I cannot assure him of the same sympathetic approach from the Government's point of view to Amendment No. 18, the substance of which was discussed in Committee in another place.
Lord BURTON: Is the noble Lord now going on to discuss Amendment No. 18?
Lord KIRKHILL: Yes, I was about to do so.
Lord BURTON: I had not moved that; I said that I would have more to say about that later.
Lord KIRKHILL: I was proposing to take the two together.
Lord BURTON: But I have more to say on the subject of Amendment No. 18.
Lord KIRKHILL: In that case I will resume my seat and the noble Lord can now say whatever more he has to say about Amendment No. 18, thereby taking them together.
Lord CAMPBELL of CROY: I think that my noble friend Lord Burton simply referred to his Amendment No. 18 in passing and was not expecting it to be considered completely in relation to the one he moved. I hope that the noble Lord. Lord Kirkhill, will agree to take just the one Amendment, which is what I understand my noble friend wants, and leave Amendment No. 18 to be dealt with later.
Lord KIRKHILL: I am always willing to be flexible, as noble Lords will agree, and if that kind of flexibility is demanded of the Government Minister at this stage, I will resume my seat, having been somewhat sympathetic to Amendment No. 5.
Lord BURTON: It seems that we are making some progress, the noble Lord having said that he is able to be sympathetic to an Amendment. Perhaps we are now doing rather better than we were. Perhaps it also goes to show how complex the matter is, as the noble Lord pointed out. He has assured us that the matter is covered later in the Bill. I must say that I have read through the measure with some care and I have not been able to see how it is covered; but with the assurance the noble Lord has given, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
6.19 p.m.
On Question, Whether Clause 1 shall stand part of the Bill?
Lord CAMPBELL of CROY: I have given the Minister notice that I would raise several points on, whether the clause shall stand part? I am one of those who would agree immediately with what my noble friend just said about this being a very complex subject. I wish, first, to take up a point which was raised by the noble Lord, Lord Douglas of Barloch, on Second Reading when he asked about the payment of rates, because a crofter will move from the very special and unusual crofting system to become a kind of owner-occupier. This might mean that he would have to pay more in rates than in the past or than he was expecting.
Since the Second Reading debate, the noble Lord, Lord Kirkhill, has written to a number of us who raised points in that debate and furnished us with information in reply, as he said he would. I am exceedingly grateful for all the information he has given. What he has said about rates is that, in certain circumstances, crofters at present enjoy a derating of 50 per cent. on their houses. He has pointed out that Schedule 2, paragraph 15, has the effect of continuing this for a certain time, depending on the lifetime of the crofter after his croft house has changed to owner occupation. My questions—and if the noble Lord cannot reply now, perhaps he will take an opportunity to do so later—are intended to find out more about the conditions in which the 50 per cent. derating applies to a crofter or a cottar who is to make a change under the Bill and to discover how long that will last.
I believe that a lot of questions will come up about this. I shall give some examples. Will the 50 per cent. derating
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continue after the crofter has ceased to work his croft? He may be in his 90s; he may be disabled and quite incapable of working the croft himself. Will the derating continue after the crofter has died and while his wife is continuing to live in what was the croft house? If he is succeeded by a son who is working the croft, what will be the situation if either the original crofter or his wife is still living with him in the house? There are various matters here and I do not expect the Minister to reply to all these points. I am just pointing out that paragraph 15 raises many questions which will be in the mind of crofters. I suggest that, if possible, the Government should reply to these points at some stage.
The noble Lord has also given us information about taxation which was sought by several speakers during the Second Reading debate. The noble Lord has pointed out that a number of present taxes will apply, as well as taxes which are in the pipeline. I am not here referring to today's Budget proposals, because I have not had an opportunity of hearing about the Budget because I have been here. I refer, for example, to the proposed development land tax, the legislation for which is still passing through Parliament. The noble Lord has pointed out that a development gains charge will now apply to crofters and that the capital transfer tax will apply if the estate of the crofter is above a threshold of £15,000. I remind your Lordships that crofts in different parts of Scotland vary greatly in value. Crofts can be exceedingly valuable in certain parts of Scotland whereas those in other parts can be of very little value in comparison. That is why I am raising these points which affect quite large sums of money.
I am glad to note from what the noble Lord has let us know that, where the proposed development land tax applies, a special agreement has been reached with the Inland Revenue that the liability for tax will fall separately on the crofter's and the landlord's share of the gain under the provisions of the Bill. This means that each of them will have the benefit of an individual exemption of £10,000.
My main purpose is to thank the noble Lord, Lord Kirkhill, for having provided this information to those of us who took part in the Second Reading debate and also to say that crofters should know

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where they stand vis-à-vis taxation before entering into some of the transactions for which this Bill provides. When they are considering acquiring croft land and selling it themselves, they should know what is likely to be the effect in the form of taxation. Similarly, they should know what is likely to be the effect upon their total capital assets when the crofter and his wife have both died.
The last point I should like to raise relates to forestry. I cannot see a provision in the Bill which deals in particular with the position of trees on croft land. I recognise that there is not likely to be much forestry on croft land in relation to other parts of Scotland but there may be small plantations or enough trees to be of consideration in the transactions which we are considering under the Bill. Can the Government therefore make a statement about how planted land or growing trees are to be dealt with in the transactions and the valuation procedure visualised in the Bill?
Lord KIRKHILL: The noble Lord, Lord Campbell of Croy, has asked about the duration of the rating concession which is to be given to crofters who become owners of their house sites. Perhaps I should begin by explaining to noble Lords what is the present position in regard to the rating of crofters' dwelling-houses. Under Section 7 of the Valuation and Rating (Scotland) Act 1956, the net annual value or rateable value of dwellinghouses which are occupied by crofters or those of like status whose holdings are within certain limits of size and rent, is the gross annual value subject to a special deduction of 50 per cent. In giving crofters the rights of purchase we would not wish to remove any benefits which they previously enjoyed. We have therefore provided in paragraph 15 of Schedule 2 to the Bill that the rating concession of a rateable value equal to 50 per cent. of the gross annual value contained in the Valuation and Rating Act shall apply to all dwellinghouses whose sites have been conveyed to crofters or cottars after enactment of the Bill. This concession will apply so long as the crofter or his or her spouse continues to occupy the dwellinghouse but will cease on termination of that occupancy, whether on death or otherwise.
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I am also advised that the concession will last as long as the ex-crofter or his wife occupies the ex-croft house. It will not apply to the son's occupation and "occupiers" in this context are well defined in rating legislation. I would imagine that this would extend to a situation in which the ex-crofter or his wife were living with the son so long as they were the occupiers of the ex-croft house.
The noble Lord also asked questions relating to the effect of taxation on the new rights being given to crofters. As he explained, I have written to a number of noble Lords on this and other points. The tax which will have the most relevance to the rights conferred by the Bill will be the proposed development land tax, if a crofter who has acquired croft land disposes of it within five years of purchase, Clause 3(3) imposes an obligation upon the crofter to share with the landlord the difference between the market value and the original purchase price.
Similarly, there is a liability upon a landlord who resumes croft land for development to give the crofter a share in the gain under Clause 9(1). In this situation where land is disposed of for development purposes there would, following enactment of the Development Land Tax Bill, be a liability to development land tax at the rate of 66¾ per cent. on the realised development value in excess of £10,000 and up to a limit of £160,000, and at the rate of 80 per cent. thereafter. Exemption will be provided on the first £10,000 of development value realised by an individual in any year. Agreement has been reached with the Inland Revenue that liability to tax will fall separately on the crofter's and landlord's shares of the gain under the provisions of the Bill. This will have important advantages for crofter tenants who will each have the benefit of an individual £10,000 exemption. Prior to the introduction of development land tax gains on disposals of land for development would be subject to development gains charge, which taxes such gains as income but provides for exemption for gains by an individual, not exceeding £10,000 in any one year.
Capital transfer tax which supersedes estate duty applies above a threshold of £15,000. The main effect of the Bill's provisions is that on his death a crofter's

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house, if he owns it, will be assessed at its open market value, whereas if it were tenanted it would be assessed at its value as a tenant's permanent improvement. A crofter who acquires his house site could therefore incur liability on death for capital transfer tax if the open market value of his house, when added to the value of his other heritable property, amounted to more than £15,000. Bequests to a spouse are, however, exempt from tax. Capital gains tax, which is levied at 30 per cent. on gains accruing on the disposal of assets, will be chargeable on sales for agricultural purposes which will not be subject to development land tax.
The noble Lord, Lord Campbell of Croy, also asked a question relating to the valuation of forestry on croft land. This question of how the value of any timber planted on croft land by a landlord will be reflected in the price paid by the crofter for the land in question is an interesting point to which the Government should respond. This is a point which has already been raised with the Department by the Scottish Landowners' Federation. I understand that this point can arise only in a very few cases of conveyance of croft land under the Bill, because in practice it is most unusual for a landlord, as I am given to understand, to plant trees on croft land. Any landlord who has done so without first resuming the land for the purpose has, I imagine, been either benevolent or improvident, depending upon one's point of view. But it is a point which, in the view of the Government, can be dealt with under the terms of the Bill.
I should like to deal with the question in two parts, covering the different situations in which the problem may arise. First, if the landlord has planted trees on croft land as a shelter belt this will constitute a landlord's improvement to the croft land, and the value of the improvement may be reflected in the rent which the crofter pays for his land. Therefore, when the crofter comes to purchase his land its value as shelter will be reflected in the price determined by the 15 years' rental purchase order, which is mentioned elsewhere in the Bill. Alternatively, if the full value of the improvement is not reflected in the rent paid for the croft land, then the landlord can ask the land court, as provided in Clause 3(2) to determine a fair rent for the land in question,
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including a fair reflection of the value of the landlord's improvement.
The second case is where the landlord's timber does not constitute an improvement to the land; that is, cases where the landlord has planted trees on the croft land as part of a forestry development without going to the trouble of resuming the land in question. In these cases the landlord has three possible lines of approach. First, it is open to the landlord to come to an agreement with the crofter to exclude from the sale of croft land the land on which the timber is growing. Alternatively, the landlord and crofter can come to an agreement about the price to be paid for the land, including a suitable payment for the landlord's timber. Thirdly, if the landlord and crofter cannot agree either about a price to be paid for the timber, or to exclude the relevant land from the sale, then the landlord can represent to the land court that the land on which the timber is growing should be excluded from the conveyance of the croft land. The landlord might be in a position to prove that it would cause him a substantial degree of hardship to convey the land in question without recompense for the value of his timber on it, but that would he a matter for the court to determine upon.
Lord CAMPBELL of CROY: I thank the noble Lord for replying to the points raised, and in particular for replying so fully on the matter concerning trees. I am sure that when such cases occur—and, as I said at the outset, they will not be very frequent—the guidance which the noble Lord has just given will be helpful.
Clause 1 agreed to.
6.35 p.m.
Clause 2 [Authorisation by Land Court of acquisition of croft land]:
Lord BURTON Lord BURTON moved Amendment No. 7:
Page 2, line 46, leave out ("a substantial degree of").
The noble Lord said: With your Lordships' consent I should like to speak also to Amendment No. 8. The wording at present in the Bill is, to my mind, absolutely iniquitous. On further examining the subsection it is clear that the words,
"…having regard to the extent of land owned by him",

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should also be deleted. Land in this day and age is not run for amusement; in almost all cases it is managed so as to bring about the best economic return and long-term benefit for the land. It is a shocking state of affairs when any Government turn round the laws and say that land must not be managed efficiently, and indeed, say that there must be substantial detriment to sound management before the law is allowed to alter it.
I know that the present Government are not always the best informed people on rural matters and values, but we on this side of the Committee cannot allow such wording to go on the Statute Book. Then, again, the Land Court are instructed both to look at the size of the landlord's holding and to bear in mind the relevance between the croft and the landlord's overall holding. Again, this is an appalling state of affairs. A large estate can have a mass of detrimental sales—that is what the law is saying.
Surely in this day and age we should be looking for the best possible land management? I feel very strongly indeed on this matter. Most of my life I have tried to look after my estate, and improve it. Now this Government turn round and tell the landlord that he must perform detrimental regulations on the estate. I go so far as to say that I consider this to be vandalism, and I am sure that we can have no part in it. I beg to move.
Lord KIRKHILL: As usual, the noble Lord, Lord Burton, has spoken cogently in support of these Amendments, arguing that it is unfair to landlords to require them to show substantial hardship or substantial detriment to sound estate management in order to prevent the Land Court from authorising the acquisition of croft land under Clause 2(1). However, I would remind noble Lords that this is a crofting Bill, which, frankly, is intended to benefit the crofters. It is one of the basic principles of the Bill that the crofter should* except in exceptional circumstances, be allowed to acquire his croft land, if he wishes to do so, at a price which reflects the crofter's interest in his land. This principle was enshrined in the previous Bill which the noble Lord, Lord Campbell of Croy, introduced in another place under the then Conservative Administration. That Bill too, incidentally, contained the words, "a sub-
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stantial degree of hardship" and "substantially detrimental" in the provision safeguarding the landlord's interests in sales of croft land. It is relevant to put on record that no representations against these words were received at any stage from the Scottish Landowners' Federation, which usually make representations when they worry about issues of this kind.
This Government accept—and I think that the previous Government accepted this as well that landlords' interests could be affected, in some cases seriously, by the crofter exercising his right of purchase under the Bill. However, both Governments decided that only in cases where the effect on the landlord of the sale of croft land could be shown to be substantial would the crofter be prevented from purchasing his land. In the Government's view, these Amendments run counter to the basic principles underlying the Bill, and I ask your Lordships to resist them.
Lord BURTON: I am on the crofting sub-committee of the Scottish Landowners' Federation; perhaps I ought to have declared that interest. We made very strong representations on this unanimously, and felt very strongly, and I am sorry if these representations have not got to the Government. It is fairly appalling that to provide what may be quite a small benefit to a crofter, the Government are prepared to encourage substantial detriment to good land use. I trust that it will be noted that the Government are prepared to do this. I take great exception to it, but I take it that at this stage I have little option but to ask leave to withdraw the Amendment. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
6.40 p.m.
Lord BURTON Lord BURTON moved Amendment No. 9:
Page 3, line 6, leave out ("may") and insert ("shall, when requested by the landlord").
The noble Lord said: In moving this Amendment I would also ask to speak to Amendment No. 10. Here, the Government are again saying that there must be material detriment, which is what we have just been speaking about on the last Amendment. It seems an appalling situation that there must be material detriment before anything can be done.

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Here, again, the Government are saying that Highland land must not be run efficiently. I believe this has been worded in the way it is from ignorance rather than from malice—I am being generous today. The noble Lord, Lord Kirkhill, thought that most of the trouble with the shootings would occur on common grazings. He mentioned that on Second Reading. As was pointed out at the time, he was quite wrong in this respect. On the low ground, the situation is far more dangerous. One small croft upon which one has not got the shooting rights could completely ruin a pheasant or partridge shoot, and in the Uist the snipe shooting could be interfered with very considerably. This is further wilful destruction of the few assets which exist in the Highlands.
There is another small point. I have tried to run a pest-destruction scheme in the North, and the defaulters have almost invariably been small crofters. This has not mattered very materially because the landowner has had the shooting rights and it has been possible to kill the vermin on the crofts. However, it now appears that it may be quite possible that this land will be missed out of these clearance schemes, which would cause very serious detriment to them. These schemes are on a shaky wicket on financial grounds, and I think this could well be the death-knell of the few remaining schemes. So the Government, if they insist on this measure, will also be damaging pest control. I cannot think of any crofters who would object to my proposals. There may be some, but I cannot think of any. But the present wording will certainly cause serious detriment, and I therefore move that we alter it. I beg to move.
Lord KIRKHILL: The Government would wish to resist these Amendments. Their effect, of course, would be to remove all discretion from the Land Court in the matter of sporting/eases, and this is not the Government's intention. I would therefore ask your Lordships to resist these two Amendments.
Lord BURTON: I dare say more will be said about this matter on the next Amendment. I therefore beg leave to withdraw this Amendment.
Amendment, by leave, withdrawn.
6.44 p.m.
Lord BALFOUR of INCHRYE Lord BALFOUR of INCHRYE moved Amendment No. 11:
Page 3, line 13, leave out from ("lease") to end of line 14 and insert ("in respect of shooting or fishing rights appertaining to crofting land compulsorily acquired under the provisions of this Act shall be for a period of not less than twenty years at a nominal annual rental not exceeding £1").
The noble Lord said: I beg to move the Amendment standing in my name. The Minister has said that this is a Bill for the benefit of crofters. I quite agree, but at the same time it must be a Bill which attempts to be fair to those affected by the proposals in the Bill. My Amendment is an attempt to define the outer boundaries within which the Land Court would have to function in granting a lease, as provided for under the Bill; but I think it is worth looking just for a moment at the procedure in the case of a croft owner whose croft is going to be taken from him compulsorily, which croft has some sporting rights which are an asset to his estate. Let me say at once that in the case of the majority of inbye land and crofts this problem does not arise, but I think the Minister will agree that there are cases in Scotland where it does arise, where sporting facilities on a croft are an asset to an estate.
Under the Bill as it is at present drafted it is proposed that the landlord shall be deprived of his sporting assets without any compensation at all and that he shall then be able to obtain a lease of the sporting from the Land Court on terms which the Land Court are to lay down. He is therefore deprived of his assets without compensation, and has to pay to use them in the future. That seems to me a very unfair proposition for any political Party to put forward, even in a Bill which aims at helping the crofters. My Amendment attempts to define the terms of a lease. I say again that I do not like the main provisions of the Bill as regards the appropriation of assets without compensation and then having to pay for them, but I must accept them. I dislike them, but I will not go any further into that. I would say that we ought not to leave the previous owner of the sporting at the mercy of the Land Court, at their discretion. He will not know for how many years he is going to have the sporting rights; that will be in the hands of the Land Court. He will not know the rent

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he will have to pay for something which was his own and which has been taken from him without compensation. It is a thoroughly unsatisfactory situation.
Then there is another point which perhaps the Minister will be able to clear up. As the Bill is now drafted, I question whether the Land Court in fact have the right, when they are assessing the price of a croft, to take into account the sporting, if your Lordships will kindly read line 37 on page 3, your Lordships will see the basis on which the Land Court have to arrive al a fair price. It must be
"the crofting value of the croft land".
This is a legal point, and I am not competent to give a legal view, but it seems to me very doubtful whether, under that provision, the Land Court would be entitled to say, "The sporting rights are worth so much, and therefore the previous owner must pay such and such a rent". It seems to me that this Bill confines the Land Court to this narrow provision of judging "the crofting value of the croft land", and that they would be powerless when it came to looking at sporting rights. I do not wish to detain your Lordships, but I think this an important Amendment to be considered, and I sincerely hope the Minister will look kindly upon its aims, even if he does not look kindly upon the terms of its drafting. I beg to move.
Lord MACKIE of BENSHIE: May I ask for some information on this Amendment? It appears that it could raise distinct anomalies. For example, if a crofter had land, which he applied to purchase, which included half a mile of a famous river, would the sporting rights and the fishing rights on this half-mile of river fall automatically to him, subject to any provision the Land Court may make?
Viscount MASSEREENE and FERRARD: May I tell the noble Lord, Lord Mackie of Benshie, on the Liberal Benches—I think that I am allowed to do so—that salmon fishing in Scotland is not tied to the land? I should like to support this Amendment, because surely it would be fairer to do what is always done when you sell land to the Forestry Commission. They always lease you back the sporting rights for 21 years at a nominal rent of,
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say, £1 a year. They will usually renew that lease after the 21 years are up. I should have liked to see the Government follow the example taken in the Irish Land Act. I agree that was a long time ago, but under that Act the equivalent of the crofter in the Highlands, the small tenant in Ireland, compulsorily acquired his farm, with the help of Government finance, but the landlord, his landowner, kept the sporting rights and the mineral rights.
This would have been a far better arrangement where you have many crofts on the estate, where some of the crofters are going to keep the sporting rights and others are not. To start with, it will not help the crofter at all. In the Highlands there is no use in having sporting rights over a small area of ground. It will probably completely ruin the sporting value of some estates. The majority of the Highlands estates rely on timber, but a great number of them rely for a very large part of their income, if not the largest part, on sporting rights. If you are going to destroy this, you will not only cause unemployment by the dismissal of some keepers and stalkers, you will also spoil the great help to this country of dollars coming into Scotland for sporting rights on the large estates. I hope that the Minister will take note of my noble friend's Amendment.
Lord BURTON: In regard to the point raised by Lord Mackie of Benshie on fishing, I think that this was fully gone into by me on Second Reading. I think I made it clear that the whole situation will be unsatisfactory; and this is really in support of the Amendment. I should like to point out that if there is to be material detriment—and it is only where there is material detriment that the Land Court must grant a lease—then it would be reasonable for the crofter to say, "If there is material detriment, then there must be material value in the fishing or shooting", and to demand a material rent. There is nothing in the Bill which says anything about a nominal rent. I feel that somewhere or other, even if we do not accept the full Amendment of the noble Lord, Lord Balfour of Inchrye, we should write into the Bill that the lease-back should be at a nominal rent.
Lord SELSDON: I should declare that I have neither an interest as a landlord

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nor as a crofter, but one thing that the Government may overlook is the valuation of sporting rights. It is difficult to value sporting rights. They are based entirely upon supply and demand and what people are prepared to pay for them. There is no doubt that the fragmentation of sporting rights, which this Bill would imply, can have a detrimental effect on the overall value of sporting rights in a particular area. While the Government may not feel concerned about this at the moment, the points that have been made on the importance of sporting rights in the United Kingdom both as export earner and tourist earner, albeit for a selective element of foreign tourist should not be overlooked. It should not be forgotten that the value of sporting rights of a sector can often exceed the value of the crofting land. On the one hand, we have the landlord who will be detrimentally affected and, on the other hand, the sporting rights which have a greater value as a group than as a number of individual units. The value of individual sporting rights below a certain acreage is limited, and if we have a fragmentation of this there can be severe detrimental effects. I hope the Government will bear in mind the mood expressed on these Benches, that this is something worth giving thought to.
Lord HOY: I hesitate to intervene but I had some association with this problem over a long period. I do not know how valuable are all these sporting rights on the crofts. They may be very valuable, as the noble Lord, Lord Balfour of Inchyre, said.
Lord BALFOUR of INCHRYE: It depends on the size of the croft.
Lord HOY: I am sure that it does. This applies to all crofts. I have listened to these arguments about the sporting rights and the forestry application. I heard Lord Campbell of Inchrye, who said we should take into consideration the value of these crofts and the forestry accommodation in them; and I hear about all this forestry that is going to be employed on the crofts and, in addition, the sporting rights. I want to know what kind of crofts they are. I am sure they are important, but I have never come across very many of them.
Lord CAMPBELL of CROY: That is what I said when I introduced that particular point. I said that it would only arise infrequently; but as there is nothing about it in the Bill, we wish to ask the Government about it. The noble Lord acknowledged that it was a matter where the Government were glad to take the opportunity to describe the procedure because it would arise. Can I take the opportunity also of saying that I am not Croy of Inchrye?
Lord HOY: I hope I did not say that. I said, "Lord Balfour of Inchrye", and when I dealt with forestry I said "Lord Campbell of Croy". I cannot be held responsible for the noble Lord's hearing. He must accept it for himself. When I hear about these great crofts with all these tremendous sporting rights and forestry accommodation on them, I find them difficult to understand. It may be there is a point. But even if noble Lords have a point, let them not exaggerate it. I think that the purpose of going through a Bill of this kind is to find out what are the problems confronting us. I rather liked the noble Lord, Lord Balfour of Inchrye, who sent me a note about what I said last week. I do not want the noble Lord to be disadvantaged by anything I have to say: but all that I have to say is that if all these tremendous values are on these little patches of land (for that is what they are) let us have a clear understanding of what we are discussing before we get rid of this legislation. I have never come across crofts of this kind. It may be, as the noble Lord, Lord Campbell of Croy, has said, there are only a few of them. I do not know how many. I do not know what "a few" means. In the context of legislation that we are enacting tonight they must be infinitesimal. That is my view.
Viscount MASSEREENE and FERRARD: You might have 100 altogether or 200. That is quite a large area of land.
Lord HOY: I find it difficult. At least I can provoke the noble Viscount, Lord Massereene and Ferrard, if no one else, to assure me about these troubles. I am saying that if we are going to deal with this, then all I want to know is what is the real extent of the problem. I want

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the Minister to be able to tell us what proportion of crofts he thinks are involved in this problem. That is not asking too much.
Lord LOVAT: Perhaps I may speak on this for a moment. I owe two apologies to your Lordships. One is for missing the Second Reading debate and the other for being late this evening when this debate started. The only subject that I was going to talk about, which has been touched upon by the noble Lord, Lord Hoy, is the forestry aspect of crofts. I come back to that in an indirect answer to his question as I should like to bring it to the attention of the Minister. No croft is the same, either in longitude, latitude or the specific purposes through which the crofter enjoys a livelihood. I do not think that that is sufficiently understood.
I speak with a certain knowledge here, having several hundred crofters on my estate. On estates which have been in the possession of one family for a long time one finds crofters who are the salt of the earth. The equivalent of the English yeoman is the Scottish crofter. On the West coast, as is well-known, they have been the backbone of the Royal Naval Volunteer Reserve in wartime. On the East coast no finer men have served in Her Majesty's Forces as territorials. I have profound admiration for these people. From the Second Reading debate I feel certain that problems have not been foreseen. For instance, I feel that while we are trying to help the crofters, in some ways we may be making a mistake in regard to crofters buying their land and reselling it. We are losing the type of person who is very important to populate the remote areas. We do not want to see these people drifting down to the council houses in the villages. But that is an aside.
No croft is like another. Apart from sailors coming from one side of the country and soldiers from the other, there is fishing on the West Coast and there are all the local crafts on the East coast. They are great stonemasons in the Beauly/Inverness-shire district. They are great carpenters or joiners, as they are called, in the Highlands. They are needed in quarrying and other ancillary works which they do extremely well.
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There is no value in a West Coast croft from a sporting point of view. Hooded crows and other vermin look after the grouse and any eggs laid on the West Coast. On the East Coast there is a different value in the sport.
To come back to timber, some crofts extend to several hundred acres of outrun. This is the point: the crofter does not think he owns the trees. I feel those trees should be the possession of the proprietor. I want to bring this home forcefully, as has the noble Lord, Lord Campbell of Croy. I am not thinking of afforestation so much as the value of trees which are on that croft and on its outrun. The noble Lord, Lord Hoy, is perfectly right, the croft is interpreted as being a smallholding. In fact some of them run to several thousand acres. This is a positive fact. They have been amalgamated over the years and there could be a sheep run which makes them run to several thousand acres. I do not want to take up the time of the Committee, but I feel the standing timber on hill country must be treated entirely separately to the value of the croft, which is the inbye land. I hope that the noble Lord, Lord Kirkhill, will bear this very much in mind.
Lord BURTON: The Scottish Landowners' Federation Crofting Sub-Committee went to considerable trouble to draw maps to show how fragmentation of the sporting interests would cause serious detriment in certain areas. If these maps have not reached the noble Lord, Lord Hoy, I will undertake to see copies are sent to him, because it is important that he knows about this. Particularly in the Black Isle, and even on my own ground at Dochfour, six miles from Inverness, one croft, about 40 acres, could cause serious detriment to a valuable shooting property.
The Earl of CROMARTIE: I should like to support what my noble friend said about size. It is no longer mine and I should like the noble Lord, Lord Hoy, as an old friend of mine, to understand that the common grazing of the township which I had on the West Coast had 13,000 acres. That is a lot of land.
Lord HOY: But it is not a smallholding.
7.4 p.m.
Lord KIRKHILL: Perhaps I may remind the Committee that the noble Lord, Lord Balfour of Inchrye, posed a major proposition to me several minutes ago. As we have discussed one or two other issues, the Committee might agree with me if I were to treat these in inverse ratio though not necessarily with an inverse serene of proportion. The noble Lord, Lord Mackie of Benshie, asked a question relating to the purchase of land, and whether such purchase of land includes the stretches of river which flowed on either side. I can tell him that salmon rights do not pass to a crofter with the land. Trout rights go with the land, but the clause provides for the lease-back to the landlord if these rights are of material value to the landlord.
The noble Lords, Lord Burton and Lord Selsdon, the noble Viscount, Lord Massereene and Ferrard, and indeed the noble Lord, Lord Lovat, touched upon a number of matters which tie on the question: should the landlord be entitled to keep his sporting rights? One noble Peer mentioned mineral rights. The Bill is about entitlement of crofters to buy inbye land. In the Government's view this has little relevance to the question of sporting rights. Sporting rights for the major part—and this might be the reply my noble friend Lord Hoy would require—affect common grazings which the crofter has no unqualified right to acquire. Where mineral rights belong to the landlord, the owner of the surface, they are reserved to the landlord owner because they are excluded from the definition of croft land. A number of noble Lords talked in general terms about fragmentation of land. In the Government's opinion the majority of land being discussed in this Bill is not for sporting land use.
I would mention to the noble Lord, Lord Lovat, that I made a more full reply regarding timber to the noble Lord, Lord Campbell of Croy, at an earlier stage. If he chooses to consult Hansard at the appropriate time, he will see what I said in reply to the noble Lord. The noble Lord, Lord Balfour of Inchrye, has raised an important question. I have to say at the outset that frankly he and I possibly approach this important question from the opposite end of the political tunnel. Although this is a crofters' Bill,
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the Government have tremendous sympathy for a real crofting need to create individual owner occupation of crofts. This is part of the Government's underlying political ethos.
With that as an introduction, I have to say to the noble Lard that I must resist this Amendment. I am doing so because in the Government's view it would be undesirable to place any restrictions on the powers of the Land Court in considering the terms and conditions under which the crofter should grant sporting leases to his landlord. But there are a number of safeguards for the landlord. First, the vast majority of croft land which may be purchased under the Bill will carry no sporting value. Generally speaking, sporting value lies in the common grazings. Secondly, there may be a small number of cases where there is sporting value. The Bill recognises this in several respects. First, the landlord can oppose the sale, and will prevent the sale, if he can satisfy the land court that (a) the sale would create substantial hardship for him or (b) there would be substantial detriment to the sound management of the estate. Secondly, where the Land Court determine that the sale should take place, but are satisfied that it would have a material effect on the sporting interests of the landlord, the Court must require that a lease of the sporting interests be given to that landlord, and the Court can specify the terms, which I would expect to include, in appropriate cases, that the rent should be fixed at a nominal value. The question of nominal rent is one which the Government might look at, and I would go as far as that this evening.
Lord CAMPBELL of CROY: Just before we finish dealing with this point, because a number of speakers have intervened, I should like to intervene following the Government and say that the Government have accepted—this has been repeated again by the noble Lord, Lord Kirkhill—that cases could arise where sporting rights were affected, with the inbye land. On a previous occasion I think the noble Lord felt this would arise only in connection with common grazing. These sporting rights could be a valuable part of the land in the area. The noble Lord, Lord Selsdon, pointed out that in

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some cases where valuation of such sporting rights is made, the value can be considerable. I was most interested in what my noble friend Lord Massereene and Ferrard said about the Forestry Commission's practice. I am not familiar with it, but I would ask the noble Lord, when he is looking at this as he has kindly said he would—if it is the practice of the Forestry Commission to have a lease of 21 years, which is very close to the 20 years suggested by my noble friend Lord Balfour of Inchrye—also to look at this. It seems to be a fairly close example of what can be done.
I do not think the noble Lord, Lord Kirkhill, has completely answered the point of interpretation raised by my noble friend Lord Balfour of Inchrye; that is, crofting value referred to on line 37, page 3. He was worried in case, under the terms of this Bill, the value was restricted to the crofting value of the land, although the Government's interpretation hitherto has been that the Land Court have jurisdiction extending to sporting rights. We should like a definite answer on that.
Lord KIRKHILL: If I might just intervene at this point, I can assure the noble Lord that the Land Court have that discretion.
Lord CAMPBELL of CROY: I am very grateful for that, and I am sure that my noble friend will also be reassured. My noble friend Lord Lovat spoke not only on the question of sporting rights but also about forestry. I am sorry that he could not have been here when we started our Committee stage, because I did speak on this subject earlier on the Question, Whether Clause 1 shall stand part of the Bill? I am grateful for what the noble Lord has said, because it came from his own experience and supported what I was saying; that is, that the question of timber can arise in some cases where croft land is concerned. I think the noble Lord answered the noble Lord, Lord Hoy, on this, and I would advise my noble friend Lord Lovat to look at Hansard, because the noble Lord, Lord Kirkhill, gave a very full answer which I think will be helpful in those cases where the matter of forestry does arise.
Lord BALFOUR of INCHRYE: I should like to thank the noble Lord the
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Minister and other noble Lords who have taken part in this short debate. I am grateful to the noble Lord the Minister for reassuring me on my second point as regards interpretation; that is, that the Land Court are fully able to deal with sporting rights as well as value of the croft land. As regards my other point, I hope the Government will look sympathetically at the analogy of the Forestry Commission which my noble friends Lord Massereene and Ferrard and Lord Campbell of Croy suggested should be done between now and the next stage.
I always enjoy listening to the noble Lord, Lord Hoy. On this occasion he asked about the extent of this problem; let me say that it is a very small extent. Most of the inbye land concerned has no sporting rights, but some of it has and I am sure the noble Lord would agree with me that injustice to one man is just as important for the legislature to look at as injustice to a great number of men. I beg leave to withdraw my Amendment, in view of what has been said.
Amendment, by leave, withdrawn.
Lord BURTON Lord BURTON moved Amendment No. 13:
Page 3, line 31, at end insert—
("(6) The Land Court where it has made an order under subsection (3) above, and when requested by the landlord, will provide that such a lease will be enforceable on the crofter's successors and the owner's successors.").
The noble Lord said: We have had considerable discussion on these sporting leases, but I should like to point out that regardless of what safeguards may be in the Bill as regards the Land Court being able to lease back, all these safeguards become useless if the crofter sells his purchase a few weeks after he has bought it. What the Land Court has laid down for a lease immediately falls as soon as the crofter passes his croft on to someone else. If the Government see their way to accepting my later Amendment on the right of pre-emption, there would not be the same need for this one. Meanwhile, the position is very different from that described by my noble friend Lord Massereene and Ferrard regarding the Forestry Commission, because I think it would be fair to say that the Forestry Commission does not die; but crofters do, and so do landowners. Therefore these leases will not pass on from one to the other and I hope that the Government

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will look very carefully at this. I beg to move this Amendment.
The Duke of ATHOLL: Perhaps I might be allowed to say just a few words in support of the general tenor of my noble friend's Amendment. I hasten to add that I have no personal interest at all in crofts or crofting. I think I am right in saying that, under the other Scottish Bill which is at present wending its way through your Lordships' Chamber, trout fishing leases will be enforceable on the successors of both the owners and the lessors of the fisheries concerned. If, for instance, an angling club takes on the lease of a certain stretch of water and spends a fair amount of money in improving the trout fishing in that water, it is obviously desirable that this should be so. However, it has not been so, I believe, in the past. I should have thought there would be no difficulty about making the same provision apply in this Bill as regards trout fishing.
So far as shooting rights are concerned, I believe I am correct in saying that the position in Scotland as a whole at the moment is that in the event of the land over which the tenant has shooting rights changing hands, the tenant's lease for shooting rights automatically fails. This seems to me undesirable, and I should have thought it would be much better for the tenant to have a contractual right to continue holding a shooting lease until the terms of the lease come to an end. I see difficulties in making crofting land different from land over the rest of Scotland. I would have thought this was a point which ought to be looked at within the context of the general law of Scotland, because the tenants of shooting rights can be very badly treated if this happens. In most cases, the person who sells the land, or the heirs of that person when they inherit the land concerned, continue the lease in a perfectly normal way, because most people behave in a reasonably moral way. However, there have been cases, I believe, where people who thought they had shooting rights for as long as the lease ran have been dispossessed because the land over which they had these rights changed hands.
Lord KIRKHILL: The noble Lord, Lord Burton, has, as usual, given a cogent reason for his proposition. Indeed, I intended to take this opportunity of
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congratulating him on the fact that thus far his draftsmanship has been, dare I say it, quite impeccable. But in this instance he has fallen short of the high standard which he has maintained throughout these proceedings. His purpose, if I interpret it correctly, is to ensure that a lease of sporting rights granted by an ex-crofter to his former landlord will, at the request of that landlord, be made enforceable on any change of ownership of the land; that is to say, against a singular successor of the ex-crofter as the new sporting landlord. It is not at all clear that the Amendment as drafted would achieve this.
However, even if the drafting had been effective for this purpose, I would be bound to resist it for a number of what I regard as cogent reasons, which have already been set out at some length in debate in another place. The effect of such a provision would he to make a distinction in law on sporting leases as between the former crofting counties and the rest of the country, and within the former crofting counties as between sporting leases on crofting land and other land and further within that classification, only in the cases where the landlord—in this context, the sporting tenant—requested such provision. The noble Lord will perhaps appreciate the unacceptability, as the Government see it, of such a confused state of law.
It might be helpful to noble Lords, in order to clarify the inter-relationship between this Bill and the Freshwater and Salmon Fisheries (Scotland) Bill, if I quoted what was said in the other place by my honourable friend the Under-Secretary of State for Scotland, Mr. Hugh Brown, during the Committee stage of this Bill. He said:
"So far as leases of fishing rights are concerned, the proposals for deeming certain agreements to be leases (under the Fisheries Bill) will, if enacted, have the effect spelled out in the amendment"—
the Amendment was one of like design to the noble Lord's Amendment.
"That [effect] is in the other Bill. But the purpose behind that legislation—of encouraging anglers to be in a position to make proposals for a protection order—is quite separate from the purposes of this Bill. Again, there is no need to make special agreements here for fishing agreements in the crofting counties. If Parliament accepts the other proposals, their application will he nationwide. If it does not accept them, then the position in law should remain throughout the country."

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The ultimate remedy for a landlord, who has at present valuable sporting rights which he considers would not be safeguarded to run under a lease secured under the Bill, would be to exercise his right under Clause 2(2) to contest acquisition of the land and seek a determination that he should not be required to sell.
Before I resume my seat, the noble Duke, the Duke of Atholl, asked me about the termination of shooting rights on change of ownership. I can tell him, Yes, this is the position and I accept the noble Duke's exposition of the law. But in the Government's view, this Bill is not the appropriate vehicle for bringing about any change in that law. I do not know whether I can concede agreement with his principle on this point. I can only hope to convince him of the relevance to the crofter's interest. But I return to the proposition put to me by the noble Lord, Lord Burton, and I hope that with the explanation I have given he will not press the Amendment this evening.
Lord MACKIE of BENSHIE: Before the noble Lord sits down, may I question his logic a little on the evenness of the law throughout Scotland? In fact, crofting is in a quite special position, and no other landlord has to sell his land to someone and get a lease back. I doubt whether it is logical to say that it should be the same law all over when crofting laws are in a very special position of their own.
Lord KIRKHILL: I was hopeful that your Lordships could accept that my logic was impeccable within the constraints of the crofters' Bill.
The Duke of ATHOLL: May I just give comfort to the noble Lord, Lord Kirkhill, and say that I absolutely agree with his logic. What I was hoping he would consider was that some suitable vehicle might be found in the near future for changing the general principle of shooting leases throughout Scotland, because at the moment it is extremely unfair on the tenants. Most of the shooting leases in Scotland are on lands which are not ex-croft lands.
Lord BURTON: I am very grateful to the noble Lord, Lord Mackie, for his interjection, because that is exactly the
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point I wanted to make. However, I would draw attention to what my noble friend the Duke of Atholl has said about shooting leases being changed and made a separate heritable right. They are a separate heritable right in England, and it seems unreasonable that we are going to lose our sporting assets in the crofting areas if something is not done to amend this Bill in a very few years' time. I appreciate that my drafting of this complicated Amendment may not be correct, and I therefore hope that the noble Lord may bring back at Report stage an Amendment which would meet what appear to be the general wishes of those on this side.
Lord KIRKHILL: I merely wanted to say, without expressing an opinion as to the relevance of the noble Duke's principal contention, that for this evening I must reiterate the Government's view that this Bill would not be the appropriate vehicle.
Lord BURTON: With that, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 2 agreed to.
Clause 3 [Consideration payable in respect of acquisition of croft land]:
7.26 p.m.
Lord BURTON Lord BURTON moved Amendment No. 14:
Page 4, line 1, leave out ("may") and insert ("shall").
The noble Lord said: Your Lordships will remember that on Second Reading the noble Lord, Lord Kirkhill, was pressed to explain how rents fixed at one-third of open market rents were fair rents. We hoped that he would come back at this stage and give us a fair answer. There are many cases where rents have been agreed as being fair between crofters and landowners, and the Land Court have had to be brought in for one particularly difficult crofter in the area who would not agree. The Land Court have invariably dictated rents lower than those freely agreed round about. The object of this Amendment is to ensure that the Land Court award fair rents; indeed, there ought to be an appeal where the rents are obviously at an unfair level. I beg to move.
Lord KIRKHILL: The same Amendment was tabled at Committee stage in another place, and I do not think I can improve on the reply given by the Minister on that occasion. I quote from the Official Report of the First Scottish Standing Committee for Thursday 12th February 1976, columns 126–127. He said:
"The purpose of the amendment would seem to be to ensure that in all cases where the landlord seeks to have the croft rent raised for the purpose of the Land Court determining the value of the croft land, the Court will be required to determine a rent, and presumably that decision will be in favour of the landlord. It is undesirable that a judicial body such as the Land Court should not have full freedom of decision in every case put to it, and I would not wish to attempt to limit the Court in this respect.
"The Land Court, like any other Court, are a judicial body which is accustomed to weighing up all the facts of a case before coming to a decision which is fair to all parties. One can foresee—and this is the key point—that there will be circumstances where the Court consider that the existing rent is a fair one and should not be revised upwards in order to enhance the sum paid to the landlord. There may even be occasions where the Court consider that the rent is too high and will reduce it in order to achieve a fair price for the crofter to pay. To achieve fairness all round, it is thus essential that there should be no restrictions on the Land Court's power of decision. The use of the phrase 'may determine' secures this and that is why may' is used instead of 'shall'."
The use of "may" also, of course, recognises that the Land Court have power to dispose of applications which are defective in form or substance. With such cases to be kept in minds in the Government's view it would be inappropriate to express this provision in mandatory terms. I hope that with the kind of assurance I have given to the noble Lord he will not feel the need to press the Amendment.
Lord BURTON: I feel that I must press the Minister a little further because he has not answered the question and told us to whom it is fair. I believe that the noble Lord told us on Second Reading that it is only one-third of the rents that one can obtain on the open market. I cannot see that this is a fair rent. If land is to be compulsorily purchased at this rate, we ought to be given a fair rent and not one-third of the open market value.
Lord KIRKHILL: The only comment which I can add to my earlier remarks
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is that, because of the statutory controls over the letting of croft land, there is in practice no open market in croft rents. The level of rents is generally governed by the provisions of Section 5(3) of the Crofters (Scotland) Act 1955 which provides for the Land Court to determine what the Act describes as a "fair rent". The Land Court take account of many factors in determining fair rents and clearly the considerations which they take into account will normally include such factors as the situation of the croft, the extent and quality of the inbye land, the value to the croft of any landlords' improvements, the extent of any share in common grazings, peat-cutting rights, and so on. The level of fair rent which this determination will produce will, as I think I indicated in the Second Reading debate, normally approximate to one-third of the level of open market rents obtainable for land let under agricultural holdings tenure. Such open market rents of leasehold subjects, in contrast to the fair rent which is a bare land rent, reflect the landlord's capital investment in fixed equipment as well as the land. Upon the last occasion the noble Lord was inclined to cast doubt as I made this comparison, but I can assure him that I am given to understand that experience on the Secretary of State's crofting estates indicates that crofting fair rents approximate to one-third of leasehold rents for comparable subjects.
Lord BURTON Lord BURTON: I hope that the noble Lord will look further at this Amendment, because his information is not quite correct. From time to time crofts become vacant. Anyway, there are any number of sub-tenancies from crofters, possibly to other crofters or outside people, which give a very good indication of what rents are ruling. As I said on Second Reading, these sub-tenancies are four or five times what the Land Court are awarding, not one-third. I hope that the noble Lord will look further at this point. In the meanwhile, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
7.34 p.m.
Lord BURTON Lord BURTON moved Amendment No. 15:
Page 4, line 6, at end insert—
("( ) The cost of conveying the land will be the responsibility of the purchaser.")
The noble Lord said: I move this Amendment because the landlord will be put to considerable inconvenience, and possibly considerable loss, as has already been explained on previous Amendments. As the landlord will be subjected to compulsory sale, it is not unreasonable that the purchaser should pay the costs of the conveyance. In cases of compulsory purchase by a public authority, the costs of the conveyance are usually borne by the purchaser. In these cases of croft purchases, the landlord could well be left with a minus quantity if conveyancing also had to be paid. I beg to move.
Lord KIRKHILL: I must respond to the noble Lord's proposition in some detail. The noble Lord will be aware that in Clause 4, which deals with the terms and conditions for the conveyance of the site of the dwellinghouse to a crofter or cottar, we have provided that the Land Court, in making their order relating to such a conveyance, may determine that any of the expenses of the conveyance and other expenses necessarily incurred by the landlord shall be borne by the crofter or cottar. This provision was inserted for two reasons, one of them technical. First, it was recognised that the price formula for the house site would inevitably, except in cases where there was a substantial element of landlord's equipment, result in a relatively low purchase price. That being so, it would be unreasonable to require the landlord to incur more in legal costs than he was receiving for his interest. Secondly—this is the technical point—it was recognised that conditions as to payment of expenses are not the kind of conditions subject to which an order under subsection (1) of Clause 4 may require a conveyance to be granted. Providing for the crofter to pay the entire cost of the conveyance of his house site is a departure from the usual conveyancing practice that each party to a transaction bears his own expenses.
The noble Lord's Amendment seeks expressly to extend this departure, as the Government see it, to all sales to crofters. This would be too sweeping. Moreover, the Government have it on record that the Law Society of Scotland would frown on any general application of the principle that the buyer should incur all the costs of a conveyance. Having accepted
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the principle that the crofter has a special entitlement to acquire his land at its crofting value, we would not wish as a generality to see any expenses being placed on the crofter other than those which normally he would be expected to pay. The Government have it in mind, moreover, that the landlord will stand to make a gain should the crofter resell the land within five years of his own purchase.
It is the broad intention, therefore, that in the case of acquisitions of croft land, each party will bear their own costs in regard to the transaction. Nevertheless, the Land Court have power under Clause 2 to fix the terms and conditions of acquisition, and this should give them discretion to take account of a submission by a landlord that he should not be out of pocket as a result of having to pay legal costs in excess of the price he was receiving for the land, and in that situation to determine that the crofter should pay a proportion of the landlord's costs. Finally, I should explain that in the Government's view there is no inconsistency introduced by the proviso to subsection (3) of Clause 4.
Lord BURTON Lord BURTON: Perhaps we have made a little progress, because the noble Lord said that the landlord should not be out of pocket. However, there is nothing written into the Bill to that effect. Perhaps the noble Lord will see whether he can write it into the Bill somewhere. Again I am afraid that I find that his information is not entirely accurate. He said that it would be a departure from normal practice, but compulsory purchases—and after all this is a compulsory purchase—are usually paid for by the acquiring authority. Furthermore, I think that almost invariably in feu charters the conveyancing is done by the purchaser. Therefore, it is not departing from the normal practice. If, however, the noble Lord will look again at this point, I will withdraw the Amendment.
Amendment, by leave, withdrawn.
7.39 p.m.
Lord CAMPBELL of CROY Lord CAMPBELL of CROY moved Amendment No. 16:
Page 5, line 16, at end insert—
("( ) The Land Court shall use its powers to appoint valuers to attend hearings and inspect subjects in all cases where, in its opinion, advice on valuation is needed in determining values under the terms of this section.")
The noble Lord said: I beg to move Amendment No. 16 which stands in my name on the Marshalled List. Under the subsections of this clause the Land Court are charged with the duty of carrying out valuations in various circumstances. There will be concern among the crofting community that these valuations are carried out as equitably as possible. They will be concerned that the Land Court have the most expert knowledge and experience at their disposal, if necessary, allied to their own wisdom in these matters.
I recognise that the new subsection which my Amendment proposes is not strictly necessary, since I understand that the Court possess the powers mentioned in it. However, I should like confirmation from the Government that I am correct in assuming that the Land Court possess these powers. I submit that to write this Amendment into the Bill would be an improvement, because it would provide reassurance if it were stated in the Bill that the Land Court shall use their powers in all appropriate cases. In any event we shall look forward to hearing the Government's view on this point and how they visualise the Land Court functioning in these evaluation matters. I would remind your Lordships that crofts vary vastly in values of crofting land in different parts of Scotland. Therefore local advice is needed as well as general expert advice. I beg to move.
Lord KIRKHILL: I thank the noble Lord, Lord Campbell of Croy, for tabling this Amendment because it gives the Government the chance to explain the position as we see it. We think that the Amendment as such is unnecessary because the Government consider that, under the present rules of the Land Court, the Court have full powers to remit questions to persons specially qualified by skill and experience to enquire into such matters and report, or to appoint such persons to act as assessors and sit with the Court at any hearing, or inspect the land or buildings or other subjects to which an application relates. I have no reason to doubt that the Court, in their desire to achieve a fair determination in cases which come before them as a consequence of this Bill, will not hesitate to obtain expert advice in all cases where they feel this is necessary.
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In short, that is the Government position, and I hope that the noble Lord, Lord Campbell of Croy, in the light of my short, but, I hope, comprehensive explanation will see fit to withdraw his Amendment.
Lord CAMPBELL of CROY: I am glad the Minister has been able to give the assurance that the Land Court have these powers and I am sure we shall all expect the Land Court to use them whenever there is a need for special experience or advice in these matters. I am also grateful to the noble Lord for having given such a short and concise answer. In view of what he has said, which answers all the points, although I think it would be declaratory to have this in the Bill, I recognise that it is not necessary and therefore I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
7.42 p.m.
Lord BURTON Lord BURTON moved Amendment No. 17:
Page 5, line 21, at end insert—
("(7) The landlord or his successors shall have the right of pre-emption over the relevant land.")
The noble Lord said: I really cannot understand why the word "pre-emption" is such a bogey to the Government. The crofter who is getting the right of compulsory purchase under the Bill would suffer no loss if this subsection were added. The only possible ground that I can see for refusing the Amendment would be malice against landlords. If this Amendment were incorporated in the Bill, it would overcome a good many difficulties about sporting leases, because if it were really important one would have the right to buy back the land when the croft was for sale.
If I may just explain, the crofter compulsorily acquires his croft. This is highly inconvenient and possibly damaging to the estate. However, the crofter has only purchased his croft in order to obtain a "quick buck". He takes the first opportunity to resell his croft and he may well be selling it as a holiday home. The noble Earl, Lord Cromartie, was particularly worried about this on Second Reading. The prospective purchaser offers EX for the croft and all this Amendment proposes is that the crofter must come back to the landowner from whom he originally

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bought the croft (or the land owner's successor) and offer him the right to purchase at the price which has possibly been offered by the person who intends to make a holiday home out of it. So that the crofter who bought the croft in the first place would suffer no loss whatsoever. It may well be that the land owner has been so inconvenienced by the original sale to the crofter on account of fragmentation or some other reason that it would be worth buying back the croft. It will make no difference to the crofter, who will be getting exactly the same price, but it will make an enormous difference to the land owner. Possibly more important still, it could make a big difference to land management. I beg to move.
The Earl of CROMARTIE: Before the Minister replies, I should like to support my noble friend Lord Burton for two reasons which I gave at Second Reading. As I said then, I welcome the Bill, but what I fear is the possibility of the odd crofter—not all of them, because I know a lot of them will not—who wants a quick and large buck from some developer who comes in. Not only will this possibly completely spoil an area but it will also mean that the crofting community may come to an end, which I think would be absolutely tragic. Possibly the noble Lord, Lord Burton, does not agree with me about that, but that is my view. Also it would mean taking land out of agriculture for the benefit of somebody who erects some ghastly building in the middle of it. I should like some assurance from the Minister that the Government realise that there is this danger.
Lord LOVAT: I should like to support what the noble Lord, Lord Burton, has said, and I should like to know the reason why the Government object to the right of pre-emption. I speak as an interested party. The crofters on my estate are old friends they do not want a stranger to take their properties. In the case of most landlords the crofters know that they will be well treated by landlords who have been there a long time and who have known the crofters' families. I feel so strongly about this that I hope the noble Lord, Lord Burton, will take it to a Division.
Lord KIRKHILL: While I note the very strong feelings just evinced by the noble Lord, Lord Lovat, I am unable to accept this Amendment, since in the Government's view it seeks to impose an undesirable burden on the crofter's title to his land by constituting a right of pre-emption in favour of the landlord and his successors over land which the crofter has acquired under the Bill. As I think I emphasised earlier this evening this is essentially a crofters' Bill. The intention in the Bill is to give the crofter an unrestricted title to his land and to allow him a completely free hand to dispose of that land as and when he wishes. It is no part of the intention of this legislation to make provisions which would mirror reflections of one of the more restrictive attributes of—in the Government's view—the feudal system.
Apart from the objection in principle to fettering the crofter's title with a pre-emption right, this would create practical difficulties—for—the crofter as well as imposing a constraint on development, encouragement of which is one of the primary objectives of the Bill. I fully sympathise with the point just made by the noble Earl, Lord Cromartie, as I did when he made the point during the Second Reading debate. I can only express again to him this evening the same personal view which I expressed then; that is, that I do not think it will lead to the wrong sort of urban development—at least I would hope not, but cannot give him an unequivocal assurance on that point. A crofter could, for example, lose the opportunity of a sale to a developer because of the delay which a pre-emption right would impose on the disposal arrangements. Furthermore, a landlord exercising a pre-emption right could forestall a sale for a development in which the crofter intended to participate and which would have provided benefits for the crofting community. These are the kind of practical difficulties which could arise, but, as I have said earlier, the Government's objection is one of principle and I have to resist the Amendment.
Lord LOVAT: If I may speak again, I think the noble Lord the Minister has argued very cogently on the obvious possibilities open to a crofter who wishes to sell to whomsoever he thinks fit. I would

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suggest to the noble Lord, Lord Burton, that it is not the right of pre-emption it is an opportunity to buy that croft. As I read the Bill, the landlord has no right of any kind even to make an offer. I feel if Lord Burton would amend on these lines I myself would be perfectly satisfied. The fact is, as I see it now, that you cannot buy back a croft even if the crofter is willing to sell it to the proprietor.
Lord MACKIE of BENSHIE: May I again, with respect, question the logic of the noble Lord, Lord Kirkhill. He says the Bill wants to give the crofter unrestricted right over his own land, but there is a clause in the Bill which says that he cannot sell it for five years without sharing the cash with his previous landlord.
Lord KIRKHILL: I can but reiterate that in the Government's view the purpose of the Amendment is to secure for the landlord and his successors a right of pre-emption—I would have thought this was self-evident—over the land acquired by the crofter. The Amendment would not be effective for the purpose of securing such a right in that it makes no provision for the detail of such a right of pre-emption or for the technical provision required to constitute such a right. That is the background to the Government's resistance. But underlying that background is the Government's resistance in principle; I have explained the principle as clearly as I can, and I cannot add to it.
Lord CAMPBELL of CROY: I would intervene just to say that my noble friend Lord Lovat has argued a slightly different case from that of my noble friend Lord Burton, pointing out that if the landlord had the opportunity of pre-emption this does not go so far as the right. This is in itself a reasonable suggestion. I hope my noble friend Lord Burton might also consider that point, which perhaps we could pursue at a later stage.
Lord KIRKHILL: I should have said in my earlier remarks (I apologise to your Lordships and in particular to the noble Lord, Lord Lovat) that nothing in the Bill prevents an ex-landlord from buying back the land. I should have made that point clear.
Lord BURTON: I would certainly be happy to go along with my noble friend. I am not worried about the right, but there are cases when it would be extremely valuable to the landowner to be able to buy it back. I am a little at a loss to see that there is nothing to stop the landlord from buying it back, as the noble Lord said. He might not even know of the sale. As the noble Lord said, it could be sold to a developer. The crofter would not lose out on this. This happens time after time. Rights of preemption are exercised. I have never heard of anyone losing a sale. I think this is just an excuse. I know the noble Lord opposite would like to help on some of these points, and I appreciate the difficulty in which he is placed with, perhaps, some of the Left Wing of his Party on some of these points. I would beg leave to withdraw the Amendment, but I must say that we might well desire to press some of these Amendments on Report.
Lord KIRKHILL: Perhaps I might just say that the Government regard this question of pre-emption I touched upon this point earlier, but perhaps did not emphasise it as I should have done—as part of the legacy of the feudal system. At this point there is no suggestion that the Left Wing of the Labour Party, either in your Lordships' House or in another place, is putting this particular Minister under any pressure. The Minister believes very much in a new freedom in the age of owner-occupation.
Amendment, by leave, withdrawn.
Clause 3 agreed to.
Clause 4 [Determination by Land Court of terms and conditions for conveyance of the site of the dwelling-house]:
7.54 p.m.
Lord BURTON Lord BURTON moved Amendment No. 18:
Page 6, line 1, leave out ("one half of").
The noble Lord said: I know that this argument about getting one half of the compensation was argued in another place. The proposals again are grossly unfair to the landlord, but what concerns me more is that the subsection as worded does not seem to make sense. I wonder whether the noble Lord opposite can

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explain it. I have read it through several times; I may be very thick, but I cannot make any sense out of this subsection. There are many instances where the landlord has provided materials for the crofter. I wonder, for instance, how would the house timbers be valued? I think my noble friend Lord Campbell of Croy touched on this question of valuation. I think it would be very difficult to value the wood in a house. Perhaps the noble Lord can explain the subsection a little more fully. There were many houses placed on fixed security by the 1955 Act. The landlord lost any right of flexibility under that Act. Now it seems that these houses are to be largely expropriated. It really is grossly unfair. I beg to move.
Lord KIRKHILL: I would preface my response to the noble Lord's Amendment by saying that I am advised that the effect of this Amendment would be to require a crofter to pay the whole of the proportion of value attributable to any equipment provided by the landlord. Although this might appear at first sight to be a very reasonable proposition, in reality it is over-generous to landlords. In the case of an acquisition by the crofter of a house site where the landlord has provided the house or part of the house, noble Lords should remember that, although the ownership of the house is vested in the landlord up to the time of the crofter's purchase, it is a frozen asset. Because of the crofting restrictions, the chances of a crofting landlord being able to obtain vacant possession of a dwelling-house and thereafter to sell it on the open market are very slight. Moreover, as long as a house forms part of a croft the return by way of the traditional crofting rent, even in the case of equipped rent crofts, is low. There is a strong case, therefore, for securing, as the Bill does, that the value of the improvement should be shared.
Broadly, the approach is that the value of the landlord's equipment should be apportioned between him and the crofter on the basis that it is being sold to the crofter as a sitting tenant. Accordingly, the formula contained in the Bill to cover the crofter's payment for such equipment produces a price which is roughly equivalent to a sitting tenant's valuation. It would be an unjustifiable benefit to the landlord and an expensive burden on the
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crofter to require the crofter to pay the full proportion of the value of landlord's fixed equipment to him, and for this reason I hope that the noble Lord will not press this Amendment.
Lord LOVAT: I think this very much bears out what the noble Lord, Lord Campbell of Croy, said with regard to valuation and a fair arbitration. Just as a crofter who on the West coast has to carry the tangle of the isles on to the lazy beds to make a better crop, does not expect more than a third of the value of an arable farm, on the East coast round Beauly crofters reseed their fields and rent the first year's grass for £40 an acre. So a poor house at a road end in Arisaig or Morar would not have the same value as a nice croft house with a slate roof above Beauly. I hope this will be borne in mind. I speak with a certain knowledge of those districts.
Lord BURTON: I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
7.59 p.m.
Lord BURTON Lord BURTON had given Notice of his intention to move Amendment No. 19:
Page 6, line 9, leave out ("may") and insert ("shall").
The noble Lord said: Perhaps I may refer also to Amendment No. 20 at this time. The remarks made on land valuing appear to be even more appropriate where only the site of the house is involved. Certainly the site of the house could well not produce enough capital to pay the lawyers. I think perhaps the noble Lord, Lord Kirkhill, has already given us a fairly full answer on this, because earlier he mentioned house sites as one of the land sites. With your Lordships' leave, therefore, I shall not move this Amendment.
Clause 4 agreed to.
Clause 5 agreed to.
Clause 6 [Provisions supplementary to sections 2 and 4]:
8.1 p.m.
Lord BURTON Lord BURTON moved Amendment No. 21:
Page 8, line 18, leave out subsection (3).
The noble Lord said: I beg to move Amendment No. 21. Here one goes one

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further. It is not clear where or when a croft can be a feu, in which case I am not clear what the clause means. If there is a case where a croft is a feu I can see no justification for such an arbitrary abolition of a contract freely entered into between two people. It is surprising that the Bill does not give private individuals a right to feu whereas it lays down that the National Trust is not allowed to convey in any other means. It seems that what is desired here is the abolition of the right of pre-emption which may be enclosed in a feu, but I am not quite clear what it means.
Lord KIRKHILL: As I understand it, the only effect of the noble Lord's Amendment would be to impede the crofter's purchase of land under the Bill. The purpose of subsection (3) is to eliminate any delay or difficulty for the crofter which could arise from the exercise of pre-emption rights over croft land. For instance, a crofter who was negotiating with his landlord or who has obtained a court order authorising the purchase of his house site or croft land might find that in the meantime the person having a right of pre-emption over the land has, in good faith, accepted the offer which the existing landlord would have been obliged to make by virtue of such a condition in the title. This would leave the crofter with no option but to renegotiate the purchase with his new landlord, or seek a fresh order of the court.
As noble Lords will have realised, there would be little reason for the owner of the pre-emption right to exercise that right against croft land being conveyed under the terms of the Bill, because, having exercised the pre-emption right, the new landlord would be under the same liability as the original landlord to convey the land to the crofter. With that explanation, I hope that the noble Lord will be satisfied.
Lord BURTON: I should like to thank the noble Lord for trying to make that explanation, but I think it only emphasises further how complicated crofting legislation is. Perhaps in the future we might get a Crofting Consolidation Bill. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 6 agreed to.
Clause 7 agreed to.
Clause 8 [Provisions relating to existing loans and heritable securities]:
On Question, Whether Clause 8 shall stand part of the Bill?
Lord CAMPBELL of CROY: I should like to inquire, without raising very technical points again, whether the Minister can give a brief explanation of how Clause 8(4) conforms with the later situation following reform of the feudal system in Scotland. I, and I am sure some other noble Lords, were a little surprised to see that paragraph (a) of subsection (4) proposes that in certain circumstances there should be a burden upon the superiority, whereas the purpose of the feudal reform has been not only to try to change these terms but also to make considerable changes in the feuing system. If this is exceedingly complicated I should not expect the noble Lord to give us a long explanation at this stage of the Committee, but I was able to give him notice that I would raise this since I hoped that he may be able to tell us how Clause 8 fits in with the latest situation regarding the feudal system.
Lord KIRKHILL: I hesitate on this occasion to say that I welcome the fact that the noble Lord has raised this question, as I certainly welcomed the earlier question he posed to me, because in essence this is entirely a technical and legal matter. As the noble Lord raises the question as to whether it is appropriate in the clause to refer to a superiority in view of the changes which have taken place in recent years in the law relating to conveyancing and the feudal system, I can advise him that the reference is appropriate since these changes have not had the effect of abolishing the feudal system which comprises estates of superiority. In 1970 the Conveyancing and Feudal Reform (Scotland) Act made provision for variation and discharge of feuing conditions, which of course would include rights of pre-emption. In 1974 the Land Tenure Reform (Scotland) Act prohibited the imposition of feu duties but did not prevent a grant of land in feu—in other words, it did not prevent the creation of estates of superiority. It is therefore still appropriate in this legislation to make mention of

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superiority estates, and of course rights of pre-emption which are supported by such estates.
Lord CAMPBELL of CROY: I am grateful to the noble Lord for having given us that concise explanation.
Clause 8 agreed to.
Clause 9 [Crofter's right to share in value of land resumed by landlord]:
Lord CAMPBELL of CROY Lord CAMPBELL of CROY moved Amendment No. 22:
Page 11, line 22, after ("rights") insert ("or, in cases where the majority of the crofters concerned do not choose to take up their rights, to the relevant grazings committee").
The noble Lord said: I beg to move Amendment No. 22. This point has been raised by the Stornoway Trust, and it was raised too late to be properly considered in another place, though a similar Amendment was discussed there. Clause 9(4) relates to compensation when land is resumed; land which forms part of a common grazing. The Land Court is to apportion the value among the crofters who share it. The Stornoway Trust suggest that an alternative should also be available, and indeed this is their own practice. The alternative is that a lump sum should be made available to the grazings committee who decide on improvements for the benefit of all. This is because the land is held on a community basis.
The Trust are not suggesting that this should he done; they are just saying that there should be an alternative. They have made it known to me, and I think other noble Lords and Members of the House of Commons, that this has been their practice and that they would very much regret having to change, because this alternative was not available to them, a practice which I understand is generally acceptable in their area of Lewis. The Trust also think that the Land Court will find it difficult in some cases to find a generally acceptable basis on which to make an apportionment, and this is because of the system.
I must make it clear that the Amendment has been drafted by me, and therefore doubtless contains technical faults, and the Minister need not spend time on that. My object was to make clear the
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second option which could be open, and which the Bill could make available. If my drafting is inadequate I should be perfectly satisfied just to be told that, because if the purpose of the Amendment commends itself to the Government I would hope that they would give advice or themselves put down an Amendment which would be impeccable. I hope that the Government will find that this is a useful additional point. If so, we can then together prepare a suitable Amendment for the next stage of the Bill.
Lord KIRKHILL: This is a very helpful Amendment because it enables me to state clearly what the Government view is on this point and it enables me to confirm that there is very little between the Government and the noble Lord, Lord Campbell of Croy, in this matter. As he correctly said, a similar Amendment was proposed during the discussion of the Bill in another place. It was said then that acceptance of the Amendment would present practical difficulties in its application. It would require the Land Court to investigate the local circumstances in every case to ascertain the use made by each shareholder of the common grazings. One can see that this could lead to acrimony among the individual members of the community and would also delay disbursement of the sum to be shared. It would also take what is a matter for the will of individual crofters out of their hands, and the Government do not feel that there is good reason why this should be done. Common grazings committees, however, under Clause 16 of the Bill are being given greater powers in regard to improvements to the grazings. They are being enabled to put in hand desirable improvements and allocate the cost among, the shareholders, subject to certain safeguards for the individual's interest. Grazings committees will, of course, be aware when a resumption of grazings land is taking place with its consequent sharing of the value of the land among the shareholders. Knowing this, I would expect an enterprising committee to take the opportunity to propose a desirable improvement and this would be a way of ensuring that some of the money at least is used for communal benefit without at the same time interfering with the individual's right to receive the money in the first place.

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There is an alternative to this and the noble Lord, Lord Campbell of Croy, touched on it; I suppose there is an alternative with respect to certain other matters dealt with in the Bill. There would seem to be nothing to prevent a voluntary arrangement being made whereby any crofter's share would be diverted to the grazings committee. This would involve the individual shareholder so wishing to divert his share, signing a mandate in favour of the grazings committee. Provided an arrangement of this kind has been arrived at which is acceptable to the parties concerned and that the Land Court are satisfied that the crofters' interests are not being harmed by the agreement or that it is not contrary to the intention behind Clause 9(4), I am sure that the Court would be willing to endorse it. This would seem to be a particularly suitable arrangement in cases where a comparatively small sum is to be shared among a large number of shareholders. I hope that, with that assurance and the mention I have made of the alternatives, the noble Lord will feel disposed to withdraw the Amendment.
Lord CAMPBELL of CROY: I think that what the noble Lord, Lord Kirkhill, has done is to indicate that without need of an Amendment, the alternative choice which the Stornoway Trust has suggested should be available can be worked out voluntarily. I am sure that the best thing now for us to do is to enable those who are most concerned about this to read what the Minister has said, and if the Stornoway Trust and others who are interested in this feel that the Minister's words have not really met their point, no doubt we shall be able to return to the subject on Report. But with the assurance that the noble Lord has given—the indication that an alternative is available by voluntary agreement without the need for an Amendment to the Bill—and on the understanding that we will read carefully what he has said and translate it into the situations which we have in mind, I beg leave to—
Lord KIRKHILL: I would just confirm that, although it may be an unusual experience, the Minister's words would, I think, stand up on this occasion.
Lord CAMPBELL of CROY: I think the noble Lord is saying that the Land Court would examine what he has said
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in your Lordships' Committee when considering an alternative.
Lord KIRKHILL: No; I was expressing my view and really giving an assurance that the Land Court would endorse the kind of proposition which is being made.
Lord CAMPBELL of CROY: I am sure that the noble Lord is being as helpful as he can be to me at this stage and I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 9 agreed to.
Clauses 10 to 12 agreed to.
Clause 13 [Provision as respects removal of land from crafting tenure]:
8.16 p.m.
Lord BURTON Lord BURTON moved Amendment No. 23:
Page 14, line 8, leave out from ("croft") to end of line 11.
The noble Lord said: With the permission of the Committee, I will speak at the same time to Amendment No. 24—in which there is a typing error; "any" should read "land"—and Amendments Nos. 25 and 26. These all refer to what we were discussing on Second Reading; the possibility of no further land being brought into crofting tenure. In my view, it is important that we do not extend the amount of land under crofting any further. I should point out that one of my Amendments would be of considerable benefit to the crofters because at the moment one may have a piece of ground which is suitable for grazing and which one intends to use for planning; instead of the ground lying idle it might be convenient to let the piece of ground to a crofter for grazing. But if one did this one would never get the piece of ground back again, and indeed it could be sold by the crofter within a few days because any piece of ground let to a crofter automatically becomes part of his croft, which is really a bit of a nonsense. I ask the Government to look at this matter carefully because, clearly, it would be of considerable benefit to the crofter as well as to the land owner. I will not trouble your Lordships further at this hour, but I would refer to the 1961 Act, particularly Section 2(2)(a) and (b) and Section 3. I feel that, although somewhat lengthy,

1627
it should be deleted from the Bill which is before us and that we should not allow any further land to be brought into crofting tenure.
The Earl of CROMARTIE: I am not entirely in agreement with my noble friend over this. He stated categorically that no further land should be brought into crofting tenure, which is a rather sweeping thing to say. I happen to know sons of crofters who have had to leave their areas to find jobs and quite a number of them would like to come back into crofting. There are not many of them, but there are some, and I suggest that one should be careful before saying that we want to cut out the crofting system altogether. I do not think that that is the right thing to say.
Lord KIRKHILL: The noble Lord, Lord Burton, clearly explained the purpose behind these Amendments. As he would admit, he is concerned—this point was made by the noble Earl, Lord Cromartie, though in partial disagreement with him—to prevent more land being brought within the scope of the crofting Acts, and that of course is an aim which is consistent, as I see it, with his general thesis that the crofting system should be wound up as speedily as possible. The Government do not agree with that thesis and therefore cannot accept these Amendments, though if it is a comfort to the noble Lord I can assure him that lie is addressing himself to a situation which is very unlikely to arise after the passage of this Bill. However, the Government are not disposed to remove these minor provisions at this stage, believing that they have relevance so long as there is a fair amount of land held in crofting tenure. At a later stage it may be necessary to re-examine the position, but I could not go further than to say that tonight.
Lord HOY: I do not want to delay your Lordships at this late hour, but I have sat through the whole of the Committee stage and have said only a few words previously, and that produced six interventions. I do not want to repeat that performance at this late hour. However, I should not like this stage of the Bill to pass without telling the noble Lord, Lord Burton, how indebted we are to him. We often wonder where he gets
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to but, inasmuch as he has moved 23 out of the 26 Amendments, we now know why he stays so long in the Highlands.
Having come to that conclusion, am bound to tell him that the argument, so far as I am concerned, is on the side of the noble Earl, Lord Cromartie. I feel that it was a sweeping statement which the noble Lord made, and I wonder whether he quite understood what he was saying when he said that no further land will ever come into crofting. However, inasmuch as the noble Lord was mopping up the remaining clauses and the Schedules, I feel that we can excuse him for the generalisation in his concluding speech.
Lord BURTON: May I just say that I know of one case where I should be very happy to let a piece of agricultural ground to the son of a crofter, but I dare not do it because he will become the heir to the croft and that piece of land could then well be sold away from the estate altogether. I believe that this needs very careful scrutiny. If your Lordships will excuse me as soon as we have finished with the Amendment, I am hoping to return to the North this evening and I have only half an hour in which to catch the train. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 13 agreed to.
8.22 p.m.
Clause 14 [Extension of section 3 of Act of 1955]:
On Question, Whether Clause 14 shall part of the Bill?
Lord CAMPBELL of CROY: I should like to ask the Minister to explain why it is necessary that Clause 13 should be in the Bill. As he knows, I have taken an interest in the definition of "croft" and "crofter" and how in future a crofter will be identified. This clause seeks to extend Section 3 of the Act of 1955 and uses the words "definition of croft and crofter" in brackets. I should be grateful if the noble Lord can tell us the reason for the inclusion of the clause.
Lord KIRKHILL: The noble Lord, Lord Campbell of Croy, has raised the question of the definition of a croft and particularly as to how the definition is

1629
affected by this clause. This is essentially a technical and legal issue. As I said in the debate on Second Reading, the Bill does not seek to alter the definition of "croft" which is to be found in Section 3 of the 1955 Act. That definition is a combination of all the definitions which through the history of crofting legislation have identified crofts or land holdings, and substantially in effect defines a croft as a holding to which the Crofters Acts of 1886 and 1911 applied. It also covers holdings in the crofting countries which between 1955 and 1961 were capable of being registered as a croft on an application to the Land Court—that is, a holding with maximum rent of £50 and area of 50 acres; and, since 1961, such holdings as may be directed by the Secretary of State to be crofts, such holdings now being holdings of maximum rent £50 and area of 75 acres. This latter provision is being repealed by Schedule 3 to the Bill.
The 1955 Act makes provision, as did the 1911 Act, to deem any pasture or grazing right held by the tenant of a croft to be part of a croft. I ask noble Lords to note these words: the existing legislation deals with the rights held by the tenant of a croft. The provision thus leaves obscure two matters which become important to enable full effect to be given to the crofter's right to purchase his croft. The first is the position under legislation of the land which may have been subjected to an apportionment of grazing rights which in practice is regarded by the crofter as part of his croft. The other is the position of the grazing right which ceases to be held by the tenant of a croft, when the crofter ceases to be such a tenant.
This clause makes provision to remedy the obscurity by inserting in Section 3 of the 1955 Act, a new subsection (5) deeming land subjected to an opportionment of grazing rights to be part of a croft and restating the existing position as to unapportioned rights, and a new subsection (6) deeming such land and such unapportioned right, when no longer held by the tenant of a croft, to be held by the holder on tenancy and to be a croft until such time as that deemed portion is overtaken by other effects. As a deemed croft such rights and land can be regulated under the legislation provisions for assignation, bequest and so on.
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I must apologise to noble Lords for the somewhat technical explanation, but your Lordships will appreciate that the inquiry led towards a highly technical area of the legislation. I have tried to express such technicality with as much clarity as possible.
Lord CAMPBELL of CROY: I am grateful to the noble Lord, Lord Kirk hill, for having given such a full explanation. I know that I and others, not only in this House but outside, will want to read what he has said and may wish to return to this matter at Report stage if points arise. I am grateful to the noble Lord for having given that technical explanation.
Clause 14 agreed to.
Remaining clauses and Schedules agreed to.
Lord CAMPBELL of CROY: May I take this opportunity of thanking the noble Lord, Lord Kirkhill, for his solo performance over a very long period in answering the many points raised particularly by noble Lords from this side of the House? The noble Lord is following the feats of endurance of the noble Lord, Lord Hughes, during the Committee stage of Scottish Bills. Some of us may have felt that his answers were not completely satisfactory, but we thank him for the way in which he has tried to deal with everything that we have raised during the last three or four hours.
Lord KIRKHILL: I appreciate the very kind and thoughtful remarks made about me by the noble Lord, Lord Campbell of Croy. I can assure your Lordships, as I (lid earlier this afternoon, that the noble and rigorous North-East Scot is nothing if not vigorous in pursuit of the constraint of his Government's policy as he views it.
House resumed: Bill reported without Amendment.

RATING (CARAVAN SITES) BILL [H.L.]
8.29 p.m.
The PARLIAMENTARY UNDERSECRETARY of STATE. DEPARTMENT of the ENVIRONMENT (Baroness Birk): My Lords, I beg to

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move that the Commons Amendments be now considered.
Moved, That the Commons Amendments be now considered.—(Baroness Birk.)

COMMONS AMENDMENTS AND AMENDMENTS TO TWO OF TF-IE COMMONS AMENDMENTS
[References are to Bill 61 as first printed for the Commons]

COMMONS AMENDMENT
[No. 1]
Clause 1, page 1, line 5, leave out from "Wales" to "pitches" in line 6 and insert "having an area of not less than 400 square yards"
Baroness BIRK: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 1. With the leave of the House I will also speak to Amendments Nos. 13, 14, 16, 17 and 20. Taking into account the lateness of the hour, and bearing in mind the greater interest which noble Lords have in the Budget at this moment rather than in this Bill, I will certainly be as brief as possible. The purpose of Amendment No. 1, and the parallel one for Scotland, Amendment No. 13, is to ensure that very small sites will not come within the provisions of the Bill; this means sites of less than 400 square yards. Amendments Nos. 14, 16 and 17 are drafting Amendments, consequential upon Amendment No. 13.
Moved, That this House doth agree with the Commons in the said Amendment.—(Baroness Birk.)
Lord ELTON: My Lords, my principle observation here is that it seems a little strange in these days of metrication that we still have the obsolescent phrase "400 square yards" inserted in an Amendment to which we would not otherwise object. Will the noble Baroness see that it is borne in mind in her Department, when we come to the consolidation of rating legislation, which I think cannot be too far ahead, that it would be fitting for metric measurements to be used in this type of legislation?
Baroness BIRK: Yes, my Lords; I entirely agree with what the noble Lord has said, and I will certainly bear it in
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mind. It is now on the record, and I shall see that it is passed on to those concerned in my Department.

COMMONS AMENDMENT
[No. 2]
Clause 1, page 2, line 13, at end insert—
"Where by virtue of this subsection a hereditament is for purposes of section 48 of the General Rate Act 1967 a mixed hereditament as at the 1st April in any year, it shall be treated as being a mixed hereditament throughout the rating year beginning with that date, notwithstanding that it appears to the rating authority or is determined to have ceased to be one."
Baroness BIRK: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 2. The purpose of this Amendment is to avoid the situation where the site operator might have to meet an extra bill for rates during the course of a rating year (because his site has lost its status as a mixed hereditament), after he has fixed his charges to the caravanners on the basis that the site is rated as a mixed hereditament. If this happens part way through the rating year, the site operator will have to pay the difference between commercial rate and the mixed hereditament rate for the rest of that year. He will, however, have set his charges on the basis of the lower level of liability for rates. This Amendment thus prevents the need for an extra charge to be made on the caravanners remaining in the single unit for the rest of the rating year. So it covers the position both of the site operator and of the caravanners.
Moved, That this House doth agree with the Commons in the said Amendment.—(Baroness Birk.)
Lord ELTON: My Lords, noble Lords may recall that we raised this matter in this House, and I am glad to see that it was possible to meet it in the other place, and so we are very pleased to see this Amendment.

COMMONS AMENDMENT
[No. 3]
Clause 1, page 3, line 6, leave out subsection (9) and insert—
"(9) This section shall have effect for any rate period (within the meaning of the General Rate Act 1967) beginning after the end of March 1976; and any proposal of the valuation officer made during the year beginning

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with the 1st April 1976, if it could have been made on that date had this section been then in force, may be made so as to have effect as of that date, and section 79 of the General Rate Act 1967 (which relates to the effect of alterations in the valuation list) shall apply accordingly."
Baroness BIRK: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 3. The purpose of this Amendment is to ensure that any proposal made during the 1976–77 rate year to assess caravans and site as a single unit, and also any alteration to the valuation list as a consequence of such a proposal, may be effective from 1st April 1976, notwithstanding the fact that the Bill will not receive the Royal Assent by that date. Without such a provision, much of the benefit of the Bill in 1976–77 would be lost, since rating authorities would have to levy rates on each separately rated caravan for the period up to Royal Assent, and on the new composite assessment for the rest of the rating year.
Admittedly, the provision is retrospective, but the retrospection should be very slight, and certainly is more technical than real since the Bill has been before Parliament since before Christmas, and those affected will have assumed that it would be in force for the whole of the rating year 1976–77.
Moved, That this House doth agree with the Commons in the said Amendment.—(Baroness Birk.)
Lord ELTON: My Lords, there is here a point of principle to which I ought, briefly, to allude, since there is an element of retrospection, and retrospection is something with which in principle we on this side, and many noble Lords on the other side of the House, I think, do not agree. The Bill has been under pressure of time since the outset. It is a function of Government to get their legislation through on time. While we accept that no great injustice has been done or courted by the fact that local authorities have assumed that this law would become law without alteration, none the less we should say that it should not be taken as a principle.
I say this because it is very easy to move from small things to great, once the principle is established. In agreeing to this Amendment, and in appearing therefore to agree also to the principle
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of retrospection, I must put it firmly on the Record that this is not to be taken as a precedent for the acceptability of the principle of retrospection in any form of legislation whatsover. We wish to be helpful in this matter, but we do not wish to give hostages to fortune. Having said that, I am pleased to accept the Amendment.
Lord LUCAS of CHILWORTH: My Lords, my noble friend on the Front Bench has said exactly that which I wished to say. While he says that this piece of legislation should not be taken as a precedent, unfortunately retrospective legislation has become almost commonplace. Whether or not this particular piece of legislation is a precedent, it remains somewhat unfortunate that, because of technical difficulties, certain tenants of caravan sites might, even for a small amount of money, be held responsible because of this particular precedent.
There is very little that can be done about this on this occasion. Nevertheless, it is important that the point of my noble friend is borne in mind. Furthermore, it is very important that those who conceive this type of legislation, who put it through, are left in no doubt that in future this retrospective attack should not be allowed to go by default. Those of us who have any interest in these matters will take every opportunity to remind whichever Government happen to be in power that this is acceptable in technical terms, but in principle it cannot be acceptable. I hope that, in the event, greater care will be taken to ensure that the people involved are not subjected in this way.
Baroness BIRK: My Lords, both noble Lords who have spoken on the principle of retrospection are pushing at an open door, because I entirely agree with what they said. All I say about this Bill is that part of the reason for the time it has taken has been, quite rightly I think, to meet some of the points which I mentioned in Committee and on Report in this House, and which I felt ought to be incorporated to improve the Bill, and to meet, as well, points raised both in this House and in the other place. So one would have been faced with rushing through a Bill which was far from satisfactory, or with trying to meet many of the points raised, which were

1635
considerably complex in many respects; and in doing so to be something like—hoping that this will get Royal Assent certainly before Easter—about two weeks slightly out of date. But on the principle mentioned by noble Lords I certainly concur.

COMMONS AMENDMENTS
[Nos. 4, 5 and 6]
Clause 2, page 3, line 7, leave out from "proposal" to "he" in line 8 and insert "for the alteration of the valuation list in order that an area of a caravan site shall be treated as a single hereditament under section 1(1) above, and there is not already an area of that site so treated."
Line 10, leave out "the number of caravans" and insert "how many caravans occupied by persons other than the site operator are".
Line 11, at end insert "and how much of the rateable value proposed for the hereditament he attributes to those caravans, together with their pitches".
Baroness BIRK: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 4 to 6 en bloc. I should like to speak on these Amendments briefly because they are fairly self-explanatory. Amendment No. 4 makes clear that we are dealing here only with the first year of a site. There has been no change from the original Bill, except that we felt that it was not clear enough before, although the intention was the same. Amendment No. 5 narrows it to the number of caravans, while still discussing the situation in the first year. Amendment No. 6 refers to the total rateable value attributable to those caravans.
Moved, that this House doth agree with the Commons in the said Amendments.—(Baroness Birk.)

COMMONS AMENDMENT
[No. 7]
Clause 2, page 3, line 12, leave out from beginning to "and" in line 17 and insert—
"(2) After receiving a notice under subsection (1) above the site operator shall display a notice on the site from the beginning of April to the end of October in every year so long as the proposal is current or the site or part of it is treated as a single hereditament under section 1(1) above (but starting with the April following the receipt of the notice under subsection (1), if it is received in October), and shall state in the notice so displayed—
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(a) the part of the site included in the hereditament by the proposal or in the valuation list (or that the whole site is so included);
(aa) and the facts stated in the notice under subsection (1)."
Baroness BIRK: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 7. With the leave of the House, I should like at the same time to speak to Government Amendment No. 7A which follows and which corrects a minor drafting error in the Commons Amendment. The purpose of Amendment No. 7 is to extend the requirement for the notice to be displayed beyond the first year, and to ensure that after it is first received it is displayed at all times from the beginning of April to the end of October. It also ensures that the notice includes the information provided by the valuation officer under subsection (1).
The system will therefore work in the following way. The site operator will receive from the valuation officer a notice stating the number of caravans, occupied by persons other than the site operator, included in the new single assessment, and the rateable value he attributes to these caravans and pitches. The site operator will then display a notice on the site from the beginning of April to the end of October in any year showing (a) the part of the site included in the new single assessment; (c) the information included in the valuation officer's notice; (c) the general rate poundage. I beg to move.
Moved, That this House doth agree with the Commons in the said Amendment.—(Baroness Birk.)
The DEPUTY SPEAKER (Lord Amherst of Hackney): My Lords, the Question is that the House doth agree with the Commons in their Amendment No. 7. I now call Amendment No. 7A as an Amendment to Amendment No. 7.
[No. 7A]
Line 13, at beginning leave out ("(aa) and") and insert ("b").
Baroness BIRK: My Lords, I beg to move that this House doth agree with Amendment No. 7A to the Commons Amendment No. 7.
Moved, That this House doth agree with the Commons in the said Amendment to the Amendment.—(Baroness Birk.)
Lord ELTON: My Lords, I am not quite certain whether I am speaking to the amended Amendment, to the Amendment to the Amendment or to the Amendment itself, but the fact is that in any case I wish to raise no objection to it. This follows on a long and at one stage almost acrimonious discussion that we had in this House, in which it transpired that in fact we were all trying to do the same thing. The noble Baroness said that something like this would emerge from it; and I am sure the Liberals would join in accepting it with pleasure were they here.
The DEPUTY SPEAKER: The Question is that this House doth agree with Amendment No. 7A to the Commons Amendment No. 7.

COMMONS AMENDMENT
[No. 8]
Clause 2, page 3, line 20, leave out "proposal is made" and insert "notice is for the time being displayed.
(2A) If at any time it appears to the valuation officer that the facts stated in a notice under subsection (1) above or under this subsection are no longer accurate, he shall give to the site operator a further written notice bringing the facts so stated up to date; and the notice or last notice received by the site operator under this subsection shall after his receipt of it (or, if it is received in October, then from the beginning of the following April) take the place of the notice under subsection (1) for the purposes of subsection (2)(b) above."
Baroness BIRK: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 8. My Lords, the purpose of Amendment No. 8 is two-fold. The first part provides that the rate poundage to be displayed on the notice board shall be the current rate poundage. Thus, this item on the notice will normally change annually. The second part provides for the valuation officer to update the information given in his notice under subsection (1) if it appears to him that the facts stated in it are no longer accurate. This could occur if, for example, there is a change in the rateable value of the site because of a change in the number of separately assessable caravans on the site. The Amendment also requires that the site operator shall always display
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the information contained in the last notice received from the valuation officer. I beg to move.
Moved, That this House doth agree with the Commons in the said Amendment.—(Baroness Birk.)

COMMONS AMENDMENT
[No. 9]
Clause 2, page 3, line 25, leave out from "the" to "the" in line 28 and insert "hereditament by the proposal or in the valuation list.
(4) If so requested by a person occupying any such pitch as aforesaid,".
Baroness BIRK: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 9, and in speaking on this I will explain Amendment No. 9A, which remedies a drafting error. Amendment No. 9 is consequential to Amendment No. 7, and removes the original provisions which related to the requirement to display the notice in the first year only. The Government Amendment—that is, Amendment No. 9A—corrects a purely drafting error in Amendment No. 9. I beg to move.
Moved, That this House doth agree with the Commons in the said Amendment.—(Baroness Birk.)
The DEPUTY SPEAKER: I shall now call Amendment No. 9A as an Amendment to Amendment No. 9.
[No. 9A]
Line 1, after ("to") insert ("third").
Baroness BIRK: My Lords, I beg to move that this House doth agree with Amendment No. 9A to the Commons Amendment No. 9.
Moved, That this House doth agree with the said Amendment to the Amendment.—(Baroness Birk.)

COMMONS AMENDMENTS
[Nos. 10 and 11]
Clause 2, page 3, line 30, leave out "the" and insert "a".
line 30, at end insert "as the subsection would apply at the time of the request if a notice were required to be displayed at all times after receipt of a notice under subsection (1) and to take account of any notice received under subsection (2A)".
Baroness BIRK: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 10 and 11 en bloc. These Amendments are consequential on Amendment No. 7. Amendment No. 10 is purely drafting, and Amendment No. 11 provides that the written information to be given by the site operator on request from a caravanner is to contain the information given in the latest notice received by the site operator from the valuation officer. I beg to move.
Moved, That this House doth agree with the Commons in the said Amendments.—(Baroness Birk.)

COMMONS AMENDMENT
[No. 12]
Clause 2, page 3, line 34, after "(4)" insert "within one month".
Baroness BIRK: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 12. This Amendment provides that if the site operator receives a request for the information in writing he must provide it within one month of receiving the request. If he fails to do so without reasonable excuse, he will be liable to a fine of up to £50. As the provision was originally worded there was no specific limit to the period within which the information had to be furnished. That has now been remedied by this Amendment. I beg to move.
Moved, That this House doth agree with the Commons in the said Amendment.—(Baroness Birk.)
Lord ELTON: My Lords, on a small point of detail, could the noble Baroness confirm to me that what is meant by "a month" is a calendar month? Presumably we are speaking of either 30 or 31 days. Could the noble Baroness just give us an assurance that that is right?
Baroness BIRK: My Lords, I imagine so. I think "within a month" means the same as it does when the phrase is used throughout all legislation. I imagine it is a calendar month. Yes, I am told that it is a calendar month, so I can confirm that.

COMMONS AMENDMENTS
[Nos. 13 and 14]
Clause 3, page 3, line 36, leave out from "Scotland" to pitches "in line 37 and insert
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"having an area of not less than 400 square yards"
Page 4, line 8, leave out "a site to which this Act applies" and insert "treated as a single unit of lands and heritages under the said subsection"
Baroness BIRK: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 13 and 14 en bloc. This is formal, as I have already spoken to these Amendments with Amendment No. 1. I beg to move.
Moved, That this House doth agree with the Commons in the said Amendments.—(Baroness Birk.)

COMMONS AMENDMENT
[No. 15]
Clause 3, page 4, line 9, at end insert—
"Provided that any such alteration which is made during the year 1976–77, in a case where the caravan site would have been treated as such a single unit of lands and heritages as from 1st April 1976 if this Act had been in force on that date, shall have effect as from that date."
Baroness BIRK: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 15. The purpose of this Amendment is to ensure that for sites valued as a single unit when the Bill is enacted the valuation will have effect for the whole of the rating year 1976–77. This is the Scottish equivalent to Amendment No. 3, to which I have already spoken. I beg to move.
Moved, That this House doth agree with the Commons in the said Amendment.—(Baroness Birk.)

COMMONS AMENDMENTS
[No. 16 and 17]
Clause 3, page 4, line 14, leave out "to which this Act applies" and insert "which is treated as a single unit of lands and heritages under subsection (1) above".
line 29, leave out "to which this Act applies" and insert "which is treated as a single unit of lands and heritages under subsection (1) above".
Baroness BIRK: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 16 and 17 en bloc. I have already spoken to these together with Amendment No. 1, so I move them formally. I beg to move.
Moved, That this House doth agree with the Commons in the said Amendments.—(Baroness Birk.)

COMMONS AMENDMENT
[No. 18]
After Clause 3 insert the following new clause
Information for caravanners about rating of caravan sites mentioned in section 3
".—(1) Where the assessor alters the valuation roll under section 3(1) above, he shall include in the notice of deletion which he sends in pursuance of section 3(3) of the Local Government (Scotland) Act 1975 to each person named in the valuation roll as the occupier of a pitch for a leisure caravan, the following additional information—

(a) the name and location of the caravan site on which the pitch is situated;

(b) a statement that the assessor has deleted from the valuation roll the entry relating to the pitch because, for the purposes of valuation and rating, he is treating the caravan site including the pitch as a single unit in the occupation of the site operator;

(c) the number of such pitches which the assessor is including in the said single unit;

(d) the amount of the rateable value of the said single unit which the assessor attribute to such pitches; and

(e) the rate in the pound (as reduced under section 7(1) of the Local Government (Scotland) Act 1966) at which rates are levied within the area in which the site is situated for the first year in which the site and pitches thereon are assessed as a single unit.

(2) Subsections (5) and (9) of section 3 above shall apply for the purposes of this section as they apply for the purposes of that section."
Baroness BIRK: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 18. This new clause is the outcome of the Government's rethinking of the problem of giving information to caravanners to enable them to check the fairness of any rent increase which may be sought on grounds of the transfer of the rate burden.
For Scotland, however, it is possible to adapt an existing procedure to provide for the transmission of this information direct to each caravanner affected, rather than to require a notice to be displayed on the site. For future years, caravanners interested in knowing valuation details can consult the valuation roll, which is open to public inspection and will give all the necessary information, which is
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not the case in England. That is why this Amendment is worded in this way. I beg to move.
Moved, That this House doth agree with the Commons in the said Amendment.—(Baroness Birk.)
Lord ELTON: My Lords, I think that in these devolutionary days it is fitting wryly to comment that the Scots seem to have the better of it for once. Indeed, in the other place questions were asked why the English could not do as well. I do not wish to delay the House on this at this point, but in devolutionary days, as I say, there is always the danger of jealousy across the Border. Let us avoid it when we can.

COMMONS AMENDMENT
[No. 19]
After Clause 3, leave out Clause 4 and insert the following new clause:
Transitional provision for Scotland
".—(1) Where before the passing of this Act an agreement is entered into, relating to the payment of rent, between the site operator and the occupier of lands and heritages which consist of a pitch for a leisure caravan on the site and which for the year 1975–76 are separately entered in the valuation roll, the site operator may recover from that occupier during the currency of such agreement, in addition to the rent payable thereunder, a sum which represents the amount of rates payable by the site operator in respect of the site which is reasonably attributable to the pitch of such occupier and which but for the enactment of section 3 above would not be payable by the site operator.
(2) Subsections (5), (9) and (10) of section 3 above shall apply for the purposes of this section as they apply for the purposes of that section."
8.50 p.m.
Baroness BIRK: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 19. The purpose of this new clause is to allow the site operator to recover from a caravanner, in addition to any rent payable for a pitch, a sum representing so much of the rate burden transferred to the operator by Clause 3(1) as is reasonably attributable to the pitch.
In such cases in England and Wales it can be expected that the valuation officer would delay his discretion to create the single unit of assessment, but such a discretion is not available to Scottish assessors. The new clause is therefore

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designed to give all possible protection to people in Scotland who enter into fixed bargains before the Bill passes into law. The noble Lord opposite will recognise that this is a Peter and Paul situation. I should like to point out that the Opposition in another place received this Amendment with almost wild acclaim.
Moved, That this House doth agree with the Commons in the said Amendment.—(Baroness Birk.)
Lord ELTON: My Lords, it is a little late to be wild and possibly the wrong House in which to practise such strange procedures, best I believe that this is the last Amendment to which the noble Baroness will speak on this Bill. Therefore, I should like to thank her for the patient courtesy and lucidity with which she explained at all stages of the Bill what was going on and, with due respect, to remind her of the way in which she referred to it as a simple little Bill at the outset and the stages by which we managed to disillusion her of this. We have now achieved what we set out to do, a little late, and the Bill goes on to the Statute Book. I hope that it will prove of benefit to all who live under its regis and that they will feel suitably grateful to the noble Baroness for all her work.
Baroness BIRK: My Lords, I thank the noble Lord for his kind words and
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co-operation. It was rather like Topsy, it grew and grew. I must confess that I added to the complication myself in order to make it that which I feel it has turned out to be, a better and fairer Bill at the end of the day. I thank the noble Lord.

COMMONS AMENDMENT
[No. 20]
Clause 5, page 6, line 23, leave out subsection (2).
Baroness BIRK: I beg to move that this House doth agree with the Commons in their Amendment No. 20. I move this formally as I have already spoken to it on Amendment No. 1.
Moved, That this House doth agree with the Commons in the said Amendment.—(Baroness Birk.)

NOTTINGHAM CITY COUNCIL BILL
Examiners Certificate that no further Standing Order is applicable: Ordered to lie on the Table.
House adjourned at seven minutes before nine o'clock.