Lords Sitting of 4 November 1976

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

P. C. HINE'S COMPENSATION
Lord MAIS: 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 how the compensation to former P. C. Hine of the City of London Police was calculated at £4,000, and why £2,750 was deducted for social benefits paid while he was incapacitated, leaving a residue of only £1,250.
The MINISTER of STATE, HOME OFFICE (Lord Harris of Greenwich): My Lords, in general, compensation under the Criminal Injuries Compensation Scheme is assessed on the basis of Common Law damages. In order to prevent double compensation from Government funds, the Scheme requires that compensation assessed on this basis should be reduced by the value of any entitlement to social security benefits or analogous payments which arise as a result of the injury. Individual awards are not subject to Ministerial review. P. C. Hine, whose compensation has been assessed under the provisions of the Scheme by a single member of the Board, may, if he is dissatisfied, apply for a rehearing before three other members of the Board.
Lord MAIS: My Lords, I thank my noble friend for his reply. I do not imagine that it gave him any more pleasure to give it than it has given me to receive it. Is he aware—perhaps he is not—that this is a case in which I have a certain amount of interest because I was alongside P.C. Hine before he was removed from outside the Old Bailey and I saw what had been done to him. I also visited him in St. Bartholomew's Hospital. He was not, in fact, expected to live through that first night but he did, largely due to very skilled surgery. I would ask my noble
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friend, whatever the rules and regulations may be, whether he considers it is just and right that a police constable, with a good career in front of him, who is crippled for life with the best part of one leg destroyed, whose future in the police force is limited to being a clerk in a police station, with all promotion gone, should receive £4,000—which in my view is totally inadequate?
Several Noble Lords: Hear, hear!
Lord MAIS: Then he has £2,750 deducted because of social security benefits, which, so far as I can see, anybody can collect whether a member of this country or not—
Several Noble Lords: Speech! Order!
Lord MAIS: I beg your Lordships' pardon. My last question is this. How can my noble friend reconcile that compensation paid to P.C. Hine with compensation amounting to nearly £12,000 paid to an enemy of the State who was really not injured?
Lord HARRIS of GREENWICH: My Lords, on the latter point, there are clearly a number of differences between the Northern Ireland Scheme and the Great Britain Scheme, which reflect differences in the origin and background and the circumstances in which they operate. Both Schemes are under review and an inter-departmental Working Party is looking at the Great Britain Scheme at the moment. But 1 must emphasise this point. I certainly accept that this is a most distressing case, but if Mr. Hine wishes this matter to be reviewed he can ask for the award to be considered by three members of the Board, rather than the single member who has reviewed it so far.
Baroness MACLEOD of BORVE: My Lords, can the noble Lord tell us why only one member of the Board was sitting on this case?
Lord HARRIS of GREENWICH: My Lords, that is the normal way in which hearings of this kind take place under this Scheme. But if Mr. Hine wishes this matter to be reviewed because he is dissatisfied, as he clearly is, it can be reheard by three members of the Board.
Lord BYERS: My Lords, would the member of the Board, who looked at this case and dealt with it, have known that this massive deduction would take place from the £4,000 award?
Lord HARRIS of GREENWICH: Yes, my Lords, indeed he would, because that is the basis upon which the Scheme is operated. But it is only right to say that some of the criticism to which the single member has been subjected is, in my view, rather unfair. The position is quite clear. If anybody in a case of this kind, which is a most distressing one, is dissatisfied, he can ask for the case to be reheard by three members of the Board; and that course is still open to Mr. Hine.
Lord MACKIE of BENSHIE: My Lords, does the Minister mean that the Board member's discretion as to the amount was unlimited'? Did he fix the £4,000 himself as a personal assessment?
Lord HARRIS of GREENWICH: My Lords, there is certainly an amount of Case Law so far as awards of this kind are concerned. But it was the decision of the single member to fix the award at this level. If Mr. Hine so wishes, the matter can be reheard by three members of the Board, as I have pointed out, and that is probably the most satisfactory way of taking the matter further.
Lord HAILSHAM of SAINT MARYLEBONE: My Lords, without wishing to impute blame to anybody, or to prejudge the result of any appeal, is there not something manifestly "rotten in the State of Denmark" which permits such a disparity between the £1,250 net still left to the man who was permanently injured and the £11,000-plus which is drawn, without tax, by somebody who was, admittedly, ill-treated by our security forces?
Lord HARRIS of GREENWICH: Yes, my Lords. I am aware of the fact that there is a great deal of public anxiety on this point and, as I have indicated, the Schemes are being reviewed.
Viscount MONCK: My Lords, can the noble Lord, with his great powers of prognostication, tell us what would have happened if the social benefits paid to this unfortunate man had amounted to
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£4,500? Would he have had to pay back £500?
Lord HARRIS of GREENWICH: My Lords, if a situation of that kind had arisen, it would have been an even clearer case for asking that the matter be reheard and that, as I have indicated, is open to Mr. Hine at the moment.
Baroness WARD of NORTH TYNESIDE: My Lords, is it possible for the noble Lord to let it be known what arc the views of your Lordships' House on the subject?
Lord HARRIS of GREENWICH: My Lords, I think that they have been made clear this afternoon.

TOLUENE DI-ISOCYANATE
3.13 p.m.
Lord HALE: My Lords, I beg leave to ask the first Question which stands in my name on the Order Paper and to correct the figure of 0·002 parts per million to 0·02, an error of transcription for which I am entirely responsible.
To ask Her Majesty's Government whether the control of 0·002 parts per million of air for the production of toluene di-isocyanate is still regarded as sufficient for safety and whether expert opinion suggesting a reduction by 97 per cent. is under consideration.
Lord JACQUES: My Lords, the current view is that control of TDI to 0· 02 parts per million in air is an adequate safeguard against sensitisation. However, in view of published evidence suggesting that certain groups of workers have become affected at levels below this threshold limit, the Health and Safety Executive is currently considering with the Medical Research Council the possibility of a study to evaluate any hazard when operating at or below the threshold limit.
Lord HALE: My Lords, is the noble Lord aware that the British Rubber Manufacturers' Association, to their eternal credit, published an admirable hard-backed volume in 1941 which was devoted entirely to the safety problems of toluene di-isocyanate? Is the noble Lord also aware that I am intensely grateful to

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him for the information he has supplied to me since this Question was put down, as to the more recent researches of the Health and Safety Executive? While nobody wishes to over-exaggerate the matter, the Question is prompted by trade union anxiety which arises from a series of distressing reports concerning toxic hazards which may well be connected with the fact, as the noble Lord stated in his Answer, that this type of process, with a proliferating variety of di-isocyanates, is now taking place in several thousand different factories?
Lord JACQUES: My Lords, we are aware of these matters and the Health and Safety Executive has given very high priority to this question. There was a meeting on Tuesday of this week when the Employment Medical Advisory Service and the Medical Research Council spent the whole of the meeting discussing this problem. I must, however, point out that there are real difficulties connected with the research which we contemplate. The measurement of TDI in air is quite difficult and the success of the study depends upon our being able to develop better monitoring techniques than are available at the moment.
Lord SEGAL: My Lords, can my noble friend say whether the meeting held this week of the Medical Research Council bore any relationship to the tabling of this Question?
Lord JACQUES: My Lords, to the best of my knowledge and belief there is no connection whatsoever.
Lord WYNNE-JONES: My Lords, is my noble friend aware that this apparently extremely small quantity means that in every cubic inch of air there can be nearly 1 billion—and I mean the English billion—molecules of this material? Would not he agree that this can create a considerable hazard because the material is not immediately destroyed and will therefore accumulate as breathing goes on? Also, would not the Minister agree that my noble friend has raised a very important matter and that it is urgent that it should be looked into carefully? Further, would the noble Lord take up the question of the method of analysis, because there is no difficulty in analysing for this material?
Lord JACQUES: My Lords, I agree entirely with my noble friend about the importance of this matter. That is why the meeting was held last Tuesday. May I say that that meeting was arranged long before the Question was put down, so if any noble Lord thinks that it was held as a result of this Question I can say that that is not so. It is currently believed that repeated exposures to levels in excess of the threshold limit are required before people become sensitised, but once people are sensitised then much lower levels are sufficient to produce some kind of response. Therefore, once you get it you have got it for good.
Baroness EMMET of AMBERLEY: My Lords, would the noble Lord be kind enough to inform those of us who are lay members in this matter where these very dangerous materials occur, so that we may avoid them?
Lord JACQUES: My Lords, they occur where printing ink is used, where paint is manufactured and so on.

MESOTHELIOMA AND FIBRE GLASS TEXTILES
3.19 p.m.
Lord HALE: My Lords, I beg leave to ask the Second Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government to what extent recent investigations into the manufacturing use of crushed fibre glass has connected it with mesothelioma.
Lord JACQUES: My Lords, no connection has yet been established between the manufacture and use of fibre glass and the development of mesothelioma.
Lord HALE: My Lords, is the noble Lord aware that although I am very glad to have that Answer, the Question has nothing to do with the fibre glass industry but with the use of minutely crushed fibre glass in the process of the making of textiles? Is the noble Lord further aware that when, according to a recent article in the New Scientist, the fire brigades association decided to dispense

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with the use of asbestos wholly in connection with protective clothing for firemen they selected the crushed fibre glass textile as the most heat resistant? Also is the noble Lord aware that they were advised that this should not be used until the possible long-term health hazards from inhaled glass fibres, which were now under expert investigation, had been discovered; and has he any knowledge in connection with that?
Lord JACQUES: My Lords, research work is being done in a number of ways. The International Association of the man-made fibre industry has established a registered charity in the United Kingdom to fund research into the hazards of man-made mineral fibres. A Joint European Medical Research Board has been established to give overall guidance in this research project which is co-ordinated by the WHO International Agency for research into cancer. Members of the Health and Safety Executive have attended a number of meetings connected with their research into mineral fibres and what I have mentioned is merely a sample from the list I have here. But I think my noble friend will be particularly interested to know that at the present time employers and the trade unions are negotiating interim standards, in which they have the assistance of the Health and Safety Executive.
Lord AVEBURY: My Lords, is the Minister aware that the Central Electricity Generating Board, although not obliged to do so under the Asbestos Regulations 1969, has applied those regulations to the use of fibres other than asbestos which are used in substitution for it for insulation purposes? This is possibly a very wise precaution for them to have taken, pending clarification of the possible hazards of these alternative fibres. Will he therefore agree that it is essential that the Simpson Committee should get on with their task of looking into the safety of these alternative materials and producing authoritative reports as soon as possible for the guidance of both employers and trade unions?
Lord JACQUES: My Lords, so far as the Central Electricity Generating Board is concerned, I am aware of the fact mentioned by the noble Lord. Secondly, the standard which has been accepted by
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the Board has in fact entered into the negotiations between the employers and the trade unions. As to the Simpson Committee, I will pass on the noble Lord's comments to my right honourable friend.
Baroness VICKERS: My Lords, in view of the fact that these workers are working with unknown quantities of these materials, are they, as regards health and safety, subject to the same restrictions as those working with asbestos?
Lord JACQUES: No, my Lords, they are not subject to the same restrictions because they are not subject to the 1969 Asbestos Regulations.

HOUSE OF LORDS REFORM
3.23 p.m.
Lord SHINWELL: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask the Leader of the House when the subject of House of Lords reform was last under consideration in another place, and whether the general body of Peers were consulted about the details of the proposed reform on that occasion.
The LORD PRIVY SEAL (Lord Peart): My Lords, House of Lords reform was last considered in a substantive form by another place in Session 1968–69. The Parliament (No. 2) Bill, which embodied proposals for reform, received a Second Reading on 3rd February 1969 and was considered for 11 days in Committee on the Floor of the House before being abandoned in April. The proposals in the Bill arose out of discussions at an Inter-Party Conference in which the Leaders of the three Parties in your Lordships' House took part. After a debate lasting three days in November 1968, this House gave general approval to the proposals for reform set out in a White Paper.
Lord SHINWELL: My Lords, in view of the debate on this subject not having been officially submitted to your Lordships' House for consideration, or at any

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rate no decision having been reached which could be regarded as satisfactory, will my noble friend arrange that an opportunity be provided officially, either by the Government or by the noble Lord the Leader of the Opposition who has views on this subject which he has occasionally expressed, so that we may have an adequate debate, having regard to the criticism levelled against your Lordships' House, even to the absurd suggestion that the House should be abolished?
Lord PEART: My Lords, I note the sweet terms employed by my noble friend Lord Shinwell, but in the Question I was only asked to give the date of the last occasion on which this subject was discussed. I do not want to reminisce, but I actually took part in those negotiations. It may well be that on some future occasion we shall come back to that subject.
Lord SHINWELL: My Lords, does my noble friend understand that I consider that reply to be somewhat unsatisfactory? We cannot leave this matter in such a nebulous fashion. Can we not have a decision that in the near future an opportunity shall be afforded to Members of your Lordships' House to debate this subject, which raises a great many constitutional issues?
Lord PEART: My Lords, I thought my noble friend was wanting me to be more specific. Certainly I will look into the question of a debate, and I think this would be a suitable subject for discussion through the usual channels.
Lord DERWENT: My Lords, in view of the excellent broadcast by the noble Lord, Lord Shinwell, to which we listened this morning, may I ask Her Majesty's Government, if there is another Conference or Committee appointed to consider this subject, to make quite certain that the noble Lord, Lord Shinwell, is a member of that Conference or Committee?
Lord LEE of NEWTON: My Lords, would my noble friend agree that, given good will on all sides of this House, there is a great deal that we can do ourselves to improve a very unsatisfactory situation? Will he therefore ask, either through the usual channels or in discussion with the
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noble Lord the Leader of the Opposition, whether there could be agreement to get rid of the farcical situation we have so far as Divisions are concerned?
Lord PEART: I think that is true, my Lords. I am only a new Member, but I recognise that the House behaves with dignity and the debating standards are high here and compare favourably with any other assembly that I know. I will leave it at that.
Lord HAILSHAM of SAINT MARYLEBONE: My Lords, will the noble Lord arrange for a transcript of the remarks made by the noble Lord, Lord Shinwell, on the radio this morning to be placed in the Library of the House?
Lord PEART: My Lords, I will ask he noble Lord whether he will do that.
Lord ORR-EWING: My Lords, could the noble Lord ensure that in a reformed House, when Labour supporters did not like legislation which was perhaps inspired by the Marxist wing they would follow the tradition so evident in the last six weeks and stay away?
Lord PEART: My Lords, on the actual issue of reform, when this subject was last debated there were views put forward by Conservative and by Labour members who were against it, and I am sorry to say they wrecked the Bill.
Lord PANNELL: My Lords, I have been here two years and I have noted the absence of debate in this Chamber. All we usually have is a series of badly read essays in turgid monotones.
Lord PEART: My Lords, I must say to my noble friend, who is a skilled Parliamentarian. that I do not think that is really true of this House.
Lord HARMAR-NICHOLLS: My Lords, as the noble Lord the Leader of the House may well be engaged in any discussions that may take place, will he bear in mind the very high quality of the contributions made by the young hereditary Peers on both sides of this House?
Lord WALLACE of COSLANY: My Lords, is my noble friend aware that in point of fact my noble friend Lord Lee of

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Newton has already made some constructive proposals which have been published in the Guardian? I think this matter could quite reasonably be settled by this House among ourselves by an adjustment to Standing Orders and the inclusion of a new Standing Order. Then we need have no recriminations with another place, which we wish to avoid.
Lord PEART: My Lords, I think we might look at that.

CHAIRMAN OF COMMITTEES
Lord PEART Lord PEART rose to move, That the Lord Aberdare be appointed Chairman of Committees tomorrow for the remainder of this Session in the place of the Earl of Listowel who has indicated his intention to resign. The noble Lord said: My Lords, I rise as one of the newest Members of your Lordships' House to express on behalf of the House the debt of gratitude we all owe to one of our longest serving Members, the noble Earl, the Chairman of Committees. The noble Earl has been a Member of your Lordships' House for nearly 45 years, most of which time he has spent on the Front Benches, either on this side of the House or opposite. For 11 years now he has been Chairman of Committees and has continued to be in the thick of things.
Those of your Lordships closely concerned with the running of Business will not need reminding how much the work of the House has increased during those II years. Much of the burden of this has fallen on the shoulders of the noble Earl as Chairman of Committees, but he has always carried out the duty of his important office with the utmost devotion. The noble Earl also has shown a scrupulous impartiality which we should not lightly take for granted merely because we have become accustomed to it.
Apart from the public side of the Chairman's work, on the Woolsack or in the Chair at the Table of the House, the noble Earl is Chairman of all the important Sessional Committees of the House, save for the European Communities Committee. Among other achievements, he has been the first Chairman in the long history of the post to have had responsibility for such matters as accommodation and security by virtue of chairing the Administrative
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Committee which came into being during his tenure of Office. He also has heavy responsibility for private legislation. Most of us are unaware of the growing load he carries in the Unopposed Bills Committee. In this field he made a major contribution by the meticulous way he presided over the examination of the County of South Glamorgan Bill, the first of what are expected to be many local authority Bills seeking to rationalise local law.
The noble Earl has helped to establish certain principles which will be of lasting value to the House and his successor. In addition to his years as Chairman of Committees, he has given long public service in other ways. He was Secretary of State for India under that great Cabinet of Clement Attlee. He later became Governor-General of Ghana. Perhaps it would not be inappropriate of me, as a former Minister of Agriculture., to mention that the noble Earl also served in my old Department. For a time he was Deputy Leader of the House. I am sure that the whole House would wish me to extend to him our best wishes for the future.
Several noble Lords: Hear, hear!
Lord PEART: My Lords, I welcome the fact that lie will continue to take an active part in the work of the House. I am also glad to be able to propose the noble Lord, Lord Aberdare, to your Lordships as the new Chairman of Committees.
Several noble Lords: Hear, hear!
Lord PEART: My Lords, like the noble Earl, Lord Listowel, the noble Lord, Lord Aberdare, has been Deputy Leader of the House, which is usually a good precedent for becoming Chairman. He has held ministerial office and served on the Front Bench opposite, an experience which will serve him well. We know of his personal qualities and charm, and of his clarity of mind. I am confident that the noble Lord will discharge the many responsibilities of Chairman of Committees with great ability and tact. Lastly, I hope that the faithful body of Peers, and the Deputy Chairmen, to whom we also owe a great debt of gratitude, will cheerfully serve under him as they have under his predecessor. If they

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do not, he is going to find himself sitting here night after night into the small hours. So to the retiring Chairman I give my best wishes for the future, and to his successor a very warm welcome.
Several noble Lords: Hear, hear!
Moved, That the Lord Aberdare be appointed Chairman of Committees tomorrow for the remainder of this Session in the place of the Earl of Listowel, who has indicated his intention to resign.—[Lord Peart.]
3.33 p.m.
Lord CARRINGTON: My Lords, on behalf of those sitting on these Benches I should like warmly to support the Motion moved by the noble Lord, the Leader of the House, who, if I may say so, behaves as if he had been in this House and led it for many years—and I can think of no better compliment than that. We wish to associate ourselves with what the noble Lord has said about both the noble Earl and the noble Lord, Lord Aberdare.
My Lords, the Office of Chairman of Committees is an ancient and honourable one and, as most things in this House, it has grown up by accident rather than design. The noble Earl, Lord Listowel, has had some distinguished predecessors with familiar names: Clarendon and Delaware, Waldegrave and Cathcart, Sandys, Saye and Sele, Warwick and Drogheda. One of his predecessors, Lord Willoughby of Parham, became the Chairman of Committees on the day he joined your Lordships' House, and received a Secret Service allowance of between £400 and £500 a year for doing the job. I do not know whether the noble Earl has been in receipt of such an allowance. If so, it is probably the origin of the rather curious allegation made by the noble Lord, Lord Briginshaw, (if he is reported correctly in the newspapers), that it is the CIA which is actively operating this House.
Another of the noble Earl's precedessors, Lord Cathcart, was a very assiduous Lord Chairman at first, but increasingly, it is said, he left his work to the Bishop of Bangor. Why the right reverend Prelate was not more fittingly occupied in Bangor we are not told, but we do know
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that Lord Cathcart, on the outbreak of war with France, immediately decided that an active military career was more agreeable than being Chairman of Committees—not, however, that he renounced his allowance, or the job, until he was granted the office of Vice-Admiral of Scotland, with a salary of £1,000 a year. Since he was a brigadier in the army, this was no doubt a very satisfactory solution. I look forward to my noble friend the Deputy Chairman General Lord Cathcart's future career with interest.
My Lords, the post of Chairman of Committees is not an easy one. Certainly those who only know of what he does on the Floor of the House misunderstand and underestimate the influence and the hard work of the Chairman. But we have been particularly fortunate in the noble Earl, Lord Listowel, in these past years. In him we have had someone who is a devoted and loyal servant of the House and of your Lordships. Those of us who have known him for very many years, as I certainly have done, underestimate the contribution he has made as Chairman of Committees.
My Lords, in the time that I have been in this House, your Lordships have been outstandingly lucky or outstandingly adroit in appointing the holder of this great Office, and today we pay our tribute and give our grateful thanks to him. I do so in the words of a predecessor of the Leader of the House who was thanking Lord Walsingham, who was retiring in about 1800, in the following terms:
"The Office of Chairman of the Committees was an office that required great ability, great industry, and a perfect knowledge of Parliamentary forms, and the rules of proceeding, and that no noble Lord could be found who possessed a larger share of those qualifications than the noble Lord who now—so highly to his own credit—and so much to the advantage of the House and the public, held that office, the duties of which he discharged with singular diligence, correctness and propriety".
My Lords, we welcome, too, the appointment of the noble Lord, Lord Aberdare—I nearly said my noble friend. But after six months of abstinence from these Benches, he is now in such a state of grace that he is capable even of exchanging the Whip for the Convenor. The noble Lord has moved into the political limbo which exists between Right and Left. He has joined the noble army of Cross-Benchers who, recently, daily

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and painfully have to make up their minds between Right and Left, or right and wrong. But I am sure that wherever he sits, we have the greatest confidence in his fairmindedness and his integrity. We wish him well, and many happy years as a distinguished successor to the noble Earl, Lord Listowel.
3.38 p.m.
Lord BYERS: My Lords, I rise to support this Motion. I remember the noble Earl, Lord Listowel, as an active member of the Attlee Government of 1945 to 1950, but I shall remember him much more clearly in the service which he has rendered to this House during nearly the whole of my time here.
Since 1965, a great deal of new ground has been broken within the responsibility of the Chairman of Committees, much of it as a result of the greater burden of Parliamentary work and of the increasing breadth of the Membership of this House. There has been a great increase in the amount of work and the length of sitting hours. The numbers of Deputy Speakers and Deputy Chairmen has had to be increased accordingly. I am told that when the late Lord Kilmuir was Lord Chancellor he rarely left the Woolsack, which is hardly feasible in present times with the burden of present legislation. In increasing the number of Deputy Speakers, I know that it must have given great pleasure to the noble Earl to be the Chairman of Committees at the time when a Baroness of this House was first made a Deputy Speaker—the noble Baroness, Lady Wootton of Abinger.
Over this period we have witnessed a great increase in the number of general Bills committed to Committee rather than being taken on the Floor of the House. Through all this increase in work and responsibility the noble Earl has at all times been a civilising and humanising influence with the interests of the House as a whole very much at heart. We wish him and Lady Listowel a very happy retirement and we welcome the proposal that he should be succeeded by the noble Lord, Lord Aberdare, whose qualities, and whose modesty, if I may say so, are very much admired by your Lordships.
With full confidence in his ability I support the proposal that he should succeed the noble Earl, Lord Listowel.
Baroness WOOTTON of ABINGER: My Lords, as my name has been mentioned I hope that I may take the opportunity to add a word on behalf of myself and my colleagues, Deputy Chairmen, of appreciation for the kindness and helpfulness with which the noble Earl, Lord Listowel, has guided our early steps and instructed us in our duties and the patience with which he has tolerated our incessant mistakes. We could not have been more fortunate, and I can only recall one occasion on which it might have appeared that our loyalty and affection or certainly our loyalty was beginning to be breached. That was many years ago when I think it was the London Government Bill that was being debated and the House proposed at very short notice to sit all night. According to the rota we had already agreed it fell to the noble Earl, Lord Listowel, to take the final session which would begin at 9 o'clock in the evening to the end. He immediately called a meeting of his Deputies, in despair at the prospect that he would have to sit from 9 o'clock until 8 a.m. His Deputies sat down and initiated a sit-in strike. But I may say that this matter was settled immediately without any reference to an arbitration service, and this was the only occasion on which it looked as if we were going to falter. I recall that I took the Chair at 5 a.m. as a demonstration that our loyalty was still as staunch as ever.
I am sure that all wish the noble Earl, Lord Listowel, and Lady Listowel happiness in their retirement and we hope we shall see as much of him as before, and perhaps as a rather more vocal Member of this House than he has been able to be hitherto. I should also like to say how much we welcome the appointment of his distinguished successor. I have been told by the noble Lord, Lord Aberdare, that there will be certain changes, that in our weekly 'meting we shall in future be expected to stand to attention and salute, and I can assure him that we are all diligently practising that.
Baroness HYLTON-FOSTER: My Lords, this is an exceptional occasion when the Cross-Bench Peers speak with one voice, and on their behalf I should like to express our gratitude to the noble Earl, Lord Listowel, for the guidance,

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thoughtfulness and courtesy he has always shown to these Benches and to the House. We would also wish to thank him for bearing in mind the interests of Cross-Bench Peers in matters of the Sessional Committees and, lastly, we can assure him that we shall be very proud to have him sitting on the Cross-Benches.
We should also like to congratulate the noble Lord, Lord Aberdare, on his forthcoming appointment as Chairman of Committees and to say how much we have appreciated his sitting on the Cross-Benches before taking up this non-Party political appointment. We thank him for taking on this very arduous job and we wish him well in his new office.
3.44 p.m.
The PRINCIPAL DEPUTY CHAIRMAN of COMMITTEES (Baroness Tweedsmuir of Belhelvie): My Lords, as Principal Deputy to the Lord Chairman I have the honour to join in the tributes to the noble Earl, Lord Listowel. I do so personally, and I should like to try to add some more words to the admirable tributes given on behalf of the Deputies who have served the noble Earl for so long. The noble Earl has always tried to avoid the limelight but today he just cannot do it. On behalf of all the Deputies I should like to thank him for his kindliness, for his courtesy, for his humour, and to say to time how very much we all enjoyed working for him. For myself, I have only had the luck to serve closely with the noble Earl for about two years. Therefore, I should like to thank him for initiating me into the mysteries of Private Bills and not least the one mentioned by the noble Lord the Leader of the House and well known to your Lordships; namely, that of the County of South Glamorgan. I would also thank him very much for guiding me through the pitfalls of the procedure of this House and for giving me an insight into the various duties of his office. The noble Earl's quiet, unassuming manner in which he has carried out his duties is the climax of a long an distinguished public career and I am sure that every Deputy is glad to know that, despite the undoubted attractions of his family, he will often be among us. I hope that when he comes here he will do so in the knowledge that your Lordships' House really
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appreciates everything that he has done. We wish him every happiness in the future.
Now he is to be followed by—formally, I cannot say "my noble friend"—the noble Lord who has been elevated to the Cross Benches, Lord Aberdare; and as a colleague of his, both in Government and in Opposition, I also know well those qualities of his which have been spoken of by those who have gone before me. I am sure that every Deputy will enjoy working with him too, whether it be by day or by night, and we wish him every success and happiness in a task that is well worth the doing.
Lord HARVINGTON: My Lords, may I, as one who was the opposite number of the noble Earl for nearly four years in another place, be allowed to say one word of appreciation of him. It is probably not very well known by noble Lords, and perhaps even less by Members of another place, how much the Chairman of Committees and the Chairman of Ways and Means have to collaborate together if the working of Parliament is to be smooth. In these days when there is so much bitterness between our two Houses it is perhaps well to ponder for a moment that behind the scenes something goes on which is not at all bitter but very friendly and co-operative. When the noble Earl and I had to meet, as we did on a number of occasions, I always found him a wonderful person, to help and to understand and to work with. In saying this I think it is only fair that one should also pay a tribute to his staff and mine who made that co-operation so easy for us.
The LORD CHANCELLOR (Lord Elwyn-Jones): My Lords, may I on behalf of my predecessors on the Woolsack and myself express our gratitude to the noble Earl for the wonderful and constant advice he has given us throughout the years. Frankly, without the assistance of the Lord Chairman and the Deputy Chairmen the contemporary duties of a Lord Chancellor could not be performed. When Winston Churchill was asked what his attitude was towards the Church of England he said, "I regard myself more of a buttress than pillar". For Lord Chancellors the noble Earl has been both a buttress and a pillar. We are immensely grateful to him; we thank him; and wish him every happiness for his future.
3.49 p.m.
The CHAIRMAN of COMMITTEES (The Earl of Listowel): My Lords, I am indeed deeply grateful, more grateful than I can possibly say, to all the noble Lords and noble Baronesses for their exceedingly and quite undeservedly kind remarks, and I shall always remember them with pride and pleasure. I was particularly glad to hear some voices from the Back Benches; but of course the Chairman of Committees is a creature who belongs just as much to the Back Benchers as to the Front Benchers. I must also thank your Lordships as a whole for your patience, tolerance, and understanding during my period of office as Chairman of Committees. No one who has occupied this office could possibly carry out his responsibilities without the friendly support of the whole House. The volume of work has of course considerably increased in recent years, as the noble Lord the Leader of the House has iust pointed out, but I have been exceedingly fortunate in being the first Chairman of Committees to have had the help of a whole-time Deputy, and I should like to thank the noble Baroness, Lady Tweedsmuir of Belhelvie, for all she has done as my Principal Deputy, while at lie same time being Chairman of the European Communities Committee. How she has managed to spare sufficient time from the work of that Committee and all its numerous sub-committees is something I have never been able to understand. She has also sat with me until the early hours of the morning during the present spill-over and on several other occasions when we have had late night Sittings, and I am most grateful to her for that also.
I should also like to express my gratitude to the 18 unpaid Deputy Chairmen who have already been referred to by several other speakers, most justly, without whose willing help on the Woolsack or in the Chair particularly late in the evening I would have resigned long ago from sheer fatigue and overwork. I am sure they will continue to serve the House under my successor, the noble Lord, Lord Aberdare, just as faithfully as they have served it during my term of office. I am also indebted to the many noble Lords who have spared the time to serve on long Private Bill Committees. These Committees usually sit all day, and it is sometimes not realised how much work is done by noble Lords off the Floor of the House.
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I must now say thank you to all the staff of the Chairman of Committee's Office and especially to my counsel, Mr. Talbot. He has now been counsel to successive Chairmen of Committees for 23 years, and his determination to ensure that private legislation is of the highest standard and entirely worthy of your Lordships' House is as lively today as it ever was. When he retired in 1965 the noble Lord, Lord Merthyr, my predecessor, said Mr. Talbot is one of those people who apparently is never ill. In the subsequent 11 years his stamina has been equally remarkable, though he is long past the age when most people are obliged to take things a little easier.
I should also like to thank Mr. Graham, the Clerk of Private Bills, for his invaluable advice whenever I hake had to pilot Private Bills through your Lordships' House. I think perhaps I realise, as Chairman of the Procedure Committee, how much we owe to the three Clerks at the Table for keeping us on the rails about procedure. I could not possibly have discharged my responsibility for giving the House procedural advice without their unfailing help.
My Lords, my immediate predecessor as Chairman of Committees was a Welshman, the noble Lord, Lord Merthyr, and his predecessor, the noble Earl, Lord Drogheda, was an Irishman. So it is obviously now the turn of another Welshman, and I dare say a very long time hence the Scots, or even the English, may have their chance, too. I wish my successor, the noble Lord, Lord Aberdare, the very best possible luck in his appointment, and I hope he will have the same generous support from the House as I have been privileged to receive.
Lord ABERDARE: My Lords, I am very honoured that this Motion should be before your Lordships, and I should like to thank the noble Lord the Leader of the House for proposing it in such kind terms so far as I was concerned. He has not known me very long perhaps. I should also like to thank everybody who has been so kind in what they have said about me. I can only say that if your Lordships agree to this Motion I will do my best to follow in the traditions of this ancient office. In fact I find it much easier to say that having heard what the

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noble Lord, Lord Carrington, said about some of the traditions. I am absolutely open to any offer to be Vice-Admiral of Scotland, or a General, or to take any sum from the Secret Service which they like to offer me.
In all seriousness, I will do my best to fulfil this office. Certainly, to re-assure the noble Baroness, Lady Wootton, I will try to follow much more closely in the footsteps of Chairman Listowel than Chairman Mao, or any other chairman she might have had in mind. Finally, may I express my own great personal gratitude to the noble Earl, Lord Listowel, for the kindness he has shown me over the last few weeks in trying to indoctrinate me into the mysteries of the office. If I make mistakes, they will be my own and nothing to do with the fact that he has not briefed me properly.
On Question, Motion agreed to, nemine dissentiente.

HEALTH SERVICES BILL
3.56 p.m.
Lord WELLS-PESTELL: 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 Wells-Pestell.)
On Question, Motion agreed to.
House in Committee accordingly.
[The EARL OF LISTOWEL in the Chair.]
Clause 1 [The Health Services Board and its committees]:
Baroness YOUNG Baroness YOUNG moved Amendment No. 1:
Page 1, line 10, leave out ("five") and insert ("seven").
The noble Baroness said: We start at the beginning of the Committee stage of this important Bill, and before turning in detail to my first Amendment I should like to make two comments on matters of procedure. The first one is that I assume that we are going to take the Amendments simply in the order as printed on the Marshalled List.
I am bound to say—and I have already raised this point privately with the noble Lord, Lord Wells-Pestell—that I find this slightly surprising, but I believe it is now inevitable, as there has not been a Motion to group the Amendments. I would have thought it would have been much to the convenience of the Committee if they had been grouped and that we should take the appropriate Schedules with the clauses. If this is not to be the case, we shall have to be forgiven if we go from one part of the Bill to another; I cannot believe that this will always be the easiest way to follow it. However, this is not my decision and not a matter on which I can make a ruling; but I think it right that the Committee should appreciate this right at the beginning because I think it will make a difference in the way the Committee stage proceeds.
My second comment is a very general point. I am bound to say that I was surprised to find that the Government had not put down any Amendments at all to the Bill. I yield to no one in my admiration for the officials of the Department of Health and Social Services, particularly the draftsmen of the Bill. They are much to be congratulated. They clearly feel that they have produced a perfect Bill; not a word, not a comma, not a full stop needs to be altered. This, surely, must be an achievement. But, quite seriously, I hope that it means that the Government are taking this Bill seriously.
We on this side of the House believe that it is a very important Bill. It is actually about the lives and the health of a lot of people, and it would he most unfortunate if the impression were to be given outside the House, to the many people who are interested in the progress of this matter, that this House was in some way being used as a rubber stamp, and that the whole Bill, simply because of a Parliamentary timetable over which we have no control, has to be in this particular form. I find this a most extraordinary situation. I find it a particularly extraordinary situation as there were 50 tied Amendments in another place, which indicates how very close the Parties have come on various matters.
One would at least have thought that some of these issues would have been raised by the Government. It is ob-

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viously not to be so, and I think it is all the more unfortunate because of that. As I say, I do find it very strange that there are no Government Amendments of any sort, not even drafting Amendments; this is the first time, on any Bill with which I have been connected, I have found this to be so. I hope that the noble Lord who will be speaking for the Government will appreciate my genuine concern about this matter.
I turn now to the Amendment which is down in my name. This is the first Amendment that we are moving and, in a sense, it is a probing Amendment. Clearly central to the whole of this Bill is the Board that is to be established, with a chairman and, as matters stand now, four other members. What we on this side of the Committee should like to know is something more about the Government's intentions about the Board. The composition of the Board is clearly crucial to the success that must underline the whole of this Bill which, as I understand, is a piece of legislation designed to put into legislative form the proposals of the noble Lord, Lord Goodman.
If we turn to Schedule 1—and here we have a difficulty about not having grouped Amendments because we must turn to Schedule 1 which sets out the details of the composition of the Board—paragraph 8 makes it clear that two medical practitioners are to be appointed and two other persons appointed in consultation with other people employed in the health services. All sorts of other people are involved in the health services. Clearly, as its name implies, the National Health Service is a service and, as I indicated at Second Reading, the most crucial part of the Service is those who work in it, and that means all those who work in it. I should have thought it not unreasonable for the Government at least to consider for appointment to the Board representatives perhaps of the nursing professions, who seem to be left out of it altogether, or perhaps the nursing professions and others like physiotherapists and medical social workers. It does not appear to me at all unreasonable that their views which are, after all, crucial to the needs of the patients, should be considered, quite apart from the fact that at least it is arguable that the patients ought to be considered. Nowhere are their views, whether they are patients in the National Health
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Service or any other patients, going to be considered at all. There will he nobody representing them. At least we should find out from the Government why they have been excluded from membership of the Board, even if they are not positively able to propose why they should be put on it.
That is the first reason for this Amendment. There is another reason. It is not difficult to see a situation arising, under the proposals in the Bill, with a chairman and four members of the Board, of two members of the Board consistently voting one way and two consistently voting the opposite way, and effectively everything being decided by the chairman. Of course it is arguable that this could happen if there were six members, but it is less likely, I should have thought. So we might say there is hardly any point in having four members drawn up like this; we might just as well have a chairman who will decide everything.
Therefore it seems to me that there is a practical consequence to all this, but I do not believe that that is as important as the other point I have made: namely, that there are a great many people upon whom the Health Service completely depends whose views, certainly as the Bill stands at present, are not going to be considered. We on this side of the House should like to know how the Government intend, if indeed they do intend, to take the views of the nursing profession, or of the patients, in order to know what they think about matters which are going to be of immediate and real concern to them. I beg to move.
Lord PLATT: I should like to support this Amendment strongly. I am not, in a general way, in favour of large committees, but I do not think that one could call a committee of seven in such an important matter representing so many different kinds of work in the Health Services as being too big a committee. In fact, had I been drafting the Amendment I might have added two more, because I think we want real representation of many interests. It seems to me that this is a very harmless and proper Amendment, which should be agreed to.
4.4 p.m.
Baroness MACLEOD of BORVE: Before supporting the noble Baroness

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may I make one thing clear to your Lordships? I am national chairman of the Leagues of Hospital Friends. We are in no way a political body of any sort. We never discuss politics of any sort. We would never discuss pay beds, remuneration, the trade unions, the nursing profession, or anything except the good of the patients and staff of hospitals. We cover over 2,000 hospitals. I make this statement purely to show, I hope, that anything I say in this House has nothing at all to do with my leadership of the Leagues of Hospital Friends.
Having said that, I should like to go on to support my noble friend Lady Young in this Amendment. I have sat on local hospital committees, as well as others, and I think that five is much too small a number for this very important Board. My reasons are slightly different, in that I also know that people can be ill even in their own hospitals; they can have other engagements; and they can, if they are prominent people, have other things to do in public life and sometimes in home life. I think the number of seven will be far better than the number of five. I completely support what the noble Baroness has said.
Baroness WARD of NORTH TYNESIDE: I should like to support this Amendment with all the power that I can. For many years now I have been privileged to be a vice-president of the Royal College of Nursing. I should like to ask my noble friend who moved this Amendment whether she, representing this side of the House, has been in touch with the Royal College of Nursing to obtain their views on many aspects of this Bill, but in particular whether they feel that it would be advantageous to have more people on the Board.
The other point that I should like to make is that for many years when I was in another place I represented Parliament with a large "P". In those days I did not know anything about the procedure in this House, but for many years I represented Parliament on the committee which looked after physiotherapists. The committee used to make representations on their behalf. Sometimes we won our battles on our recommendations. This is not a Party matter at all; we had to make recommendations when the present
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Government were in power and when my own Government were in power. But it seems to me that over this very wide field it is important that we should have representatives of those sections of the community who help to operate the National Health Service, and I am sure do so very successfully. It is an important matter; therefore I think that through my noble friend Lady Young we are moving a very important Amendment.
I always like to put forward what I consider are the good sides of development. Over the years I have been connected with many hospitals and all developments in the part of the world which I have always had the honour to represent, and I was very pleased indeed to know that at last (I say "at last" because this is not a criticism of any Government) a State registered nurse was on the community health council. If that was felt necessary, it seems odd that no arrangement seems to have been made for the various members of the Health Service professions—physiotherapists, chiropodists and the wide range of people who go to make up the Health Service—to be adequately represented on this committee. I am therefore glad to support the Amendment, though I should like to know whether, as soon as the Bill was introduced, approaches were made to the members of the nursing profession and the others who play such a vital part in the Service about this question of representation.
Baroness ROBSON of KIDDINGTON: I support the Amendment, not necessarily because it would not be possible for five people objectively to take the decisions that might have to be taken by this committee—I think that could be done by five or seven—and not even because I think the nursing profession has been left out, because under Schedule 1, paragraph 1(2)(b), it would be possible for the nursing profession to be represented. I support it basically because there are more interests in the Health Service than can be represented by four people, apart from the chairman. I support it above all because we tend these days to administer and talk about the NHS forgetting about whom it is there to serve. There must be a place on this board to represent not necessarily the patient but the ordinary person in this

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country who might one day become a patient. I appreciate that it is difficult to work out how this representation could be included, but we must in everything we do in the Health Service remember the patient and potential patient. That is why I should like to see the membership increased to seven.
Lord WINSTANLEY: I should not like it to be thought that there is any dissent on these Benches about the Amendment. Like my noble friend Lady Robson of Kiddington, I will wait with interest to hear the reply of the Minister on this subject. My inclination at present is to support the Amendment, but at the same time perhaps I should voice a disquiet that I have. The effectiveness of the committee will in the end depend not entirely on its numerical strength but on the quality, rather than the number, of people who serve on it. Probably we should be better served by seven than five, but I must sound a word of warning about any plea for representation.
I should regard it as regrettable if we allowed the committee to become so swollen that it consisted merely of delegates representing vested interests, physiotherapists, nurses, or anybody else. We want on this committee independent people who are aware of the problems in the various spheres of the Service—the difficulties and views of the physiotherapists, nurses, ancillary workers, doctors and patients—and to have that I think we need seven rather than five. But if we were to go above seven and say that we need one to represent nurses, one to represent the patients' association and so on, we should be on a dangerous course. I shall therefore preserve an open mind while waiting to hear what the Minister says on this issue.
Lord PEDDIE: There is an old adage that the most satisfactory committee would number two with one absentee. I support the view that this committee should not seek to be representative because in endeavouring to be so it would become too numerous and unwieldy. We should aim at a committee that is few in number, but I believe from experience that with five we would suffer the disability, probably serious in this case, of absenteeism making it too few in number and probably placing too much dependence on the decision
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and activity of the chairman. I do not know what all the fuss is about. It would seem better to concede seven, provided there is a clear understanding that it is not indicative of an attempt to be representative but rather, from the administrative standpoint, of advantage because it would avoid difficulties arising out of absenteeism.
Lord WELLS-PESTELL: I will, first, deal with some of the points made by the noble Baroness before she spoke to the Amendment. I will try to be as friendly as possible, though I did not feel very friendly about one of her observations. As for the arrangement of these Amendments, I take full responsibility. It is not always the custom to group Amendments. The noble Baroness, when she was at the Department of the Environment, found that to be the practice there and she did so, but there have been many Bills before your Lordships with schedules where Amendments have not been grouped. It is a matter of opinion as to whether one method is better than another. I prefer this, but had I been approached early enough I should certainly have considered whether there was some advantage in grouping the Amendments.
The noble Baroness referred to the fact that there are no Government Amendments. There are none simply because we did not think any were necessary, and it is as simple as that. We have been through the Bill, like certain people in another place, not only paragraph by paragraph but word by word and line by line, and we are satisfied with it as it is. If in the course of the Committee stage it should become apparent or necessary for the Government to consider tabling Amendments, the Government will do so, but we do not think it necessary at this juncture.
I tend to take exception to the remark made by the noble Baroness about whether the Government were taking the Bill seriously. We have never taken a Bill more seriously than this one. As I said on Second Reading, this is a matter of principle with us, as it is a matter of principle with noble Lords opposite. I said on that occasion that the divide between us was a very deep one. But make no mistake about it we take the Bill very seriously; and I acknowledge, as I

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did on a former occasion, that we recognise that noble Lords opposite, and for all I know noble Lords on the Cross Benches, also have very real and deepseated convictions about this matter.
It would, on the face of it, seem perfectly reasonable to have seven people on the Board, but it would only be reasonable to do so if one could be certain that one was going to achieve the purpose that so many people feel a seven member Board will achieve. Let us face it, seven people will not achieve the representation of all the interests in both the private sector and the public sector. Two members of the Board are to be from the medical profession. They have to be acceptable to the medical profession, so there will be two members over whom, if you like, the Government will have no control at all. The remaining two will be appointed after consultation with National Health Service staff and other interested parties.
I feel that I must point out to those of your Lordships who may not be familiar with the intricacies of the trade union movement that the bodies concerned with the interests of patients in National Health hospitals and consulted about membership of the Board are the Patients Association and the Trades Union Council. There is a very strong Patients Association in this country. Representatives of the interests of the two groups mentioned in the Amendment will be present on the Board. Nurses working in the National Health hospitals are represented by the staff side of the General Whitley Council, which has already been consulted about the appointment of the other members, as have bodies representative of the interests of patients. In addition, the medical members will, we imagine, be able to bring to the Board experience of the problems and methods of working in the private sector and will also bring to the Board experience of the treatment of private patients within the private sector.
If we are going to say that the nurses must have a special place, we must remember that there are a large number of different groups serving in our hospitals. There are a very large number of medical laboratory technicians, physiotherapists, occupational therapists; there are the domestics—and, let us face it, the success or failure of a hospital will very often depend
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on the contribution of the domestic staff. Stop the food and see what happens! There are engineers and porters, there are ancillaries, there is a large administrative staff and, as I said, there are midwives, biochemists, and one could go on. How do we bring together representatives of all those groups? The staff side of the General Whitley Council includes representatives of all the major National Health Service unions and of the Royal Colleges of Nursing and of Midwives.
We feel that there is some merit in this and I admit that this is open to the point of view that seven members might be better than five. However, we believe that there is no point in increasing a number simply for the sake of increasing it unless by increasing it one is going to be able to rope in a substantial number of interests that are not likely to be represented. Our view is that there is no particular merit in specifying seven members.
Lord PEDDIE: I fail to see how one could possibly accept that argument because one could increase it by two and yet at the same time reject—as I certainly do—the concept of extending it so as to get full representation from the various parties. I am supporting seven members purely from the standpoint of mechanics. If there are seven members, that will be far better as a number because the Board will be free from the difficulties that can be created by absenteeism. It has nothing to do with representation.
Lord WELLS-PESTELL: With very great respect and unless I have misread the Bill, the question of absenteeism cannot possibly arise because there is a section in the Bill under which deputies are to be appointed so that in point of fact—the noble Baroness looks surprised, but I believe there is a clause in the Bill which provides for deputies to be appointed, a deputy for the chairman and deputies for the members of the Board—so that if a member of the Board cannot attend for any length of time, the deputy who has been appointed will take his place. So there is no question, as I see it, of people being absent—
Viscount LONG: I am not quite with the noble Lord on this. I wonder if he means to say that in addition to these five members we shall have deputies

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behind the scenes who can be brought in. I do not think that we should be quite happy with that make-up of the group. I wonder whether the noble Lord could explain. It sounds as if people would be co-opted at a moment's notice and I do not think that would work very well.
Lord WELLS-PESTELL: It is not a question of co-opting people. I am trying to find out whether the Bill contains such a provision and where it is. t cannot remember every word of every clause, but my understanding of the situation is that the Board will have appointed a deputy for the members of the Board and for the chairman so that, if for any reason a member of the Board c mild not attend for three or four weeks or perhaps a month or two—for instance, he might be in hospital—the deputy who had been appointed would take his place so that there would always be a full membership of the Board. I believe that the time limit is that if the person in question will be away for three or four weeks and this is known, the appointed deputy will take his place. If, on the other hand, the Board was likely to meet several times during that period so that the member was likely to miss three or four meetings, a person would be appointed to deputise for him from the same discipline: that is, if it was a doctor, the deputy would be a doctor; if it was a member of the staff side, the deputy would be from the staff side. So the question of absenteeism does not arise. My train of thought was rather spoilt, but I do not think I had any other point that I wanted to make.
Lord HILL of LUTON: Can the noble Lord tell us where this substitute arrangement is to be found?
Lord O'HAGAN: I am not sure whether I have understood the position correctly, but I hope that it is in order for me to refer to a schedule even though we are discussing Clause 1. As 1 understand it, paragraph 10 of Schedule 1 which appears on page 21 refers to deputies. Those deputies are only for Scotland and Wales so that the question does not arise for the parent Board. In the preceding paragraph, the provision for absenteeism refers to six months, but perhaps I have got it wrong as well.
Lord WELLS-PESTELL: The noble Lord is perfectly right. In paragraph 10 of Schedule 1 there is provision for the Secretary of State to make regulations appointing deputies, and my understanding and reading of it is that it applies not only to the Scottish and Welsh Committees but to the Board, covering circumstances in which they may act for members. I mention this only because the point was raised that there might be fewer than five people attending a committee. All I want to say in reply is that we do not think there is any particular merit at all in having seven as against five. We feel that there is some merit in keeping the Board as small as possible. I think it has been the experience of a good many of us that a commtitee can be too unwieldy, and it can be too unwieldy if there are seven members. We feel, perhaps wrongly, that the right number is five and that on this basis having two from the medical profession and two from the staff side, this will be the ideal number.
My only other comment is that I understand that five was the agreed figure in the Goodman proposals, and, as the Committee knows, the Goodman proposals were examined very carefully, not only by the Government but also by the British Medical Association, and, so far as I know, no question was raised about five being an insufficient number. Therefore this leads me to say that we do not feel that we can accept the Amendment of the noble Baroness.
Baroness WARD of NORTH TYNESIDE: With the leave of the Committee, I should like to ask the noble Lord a question in connection with the discussion of whether the figure should be five or seven. Perhaps I should have mentioned this when making previous comments. For years one has been aware of the satisfactory arrangement regarding the Whitley Council. Apart from the members representing the medical profession, are the other members, two of them at any rate, to be appointed through the Whitley Council, as has been the arrangement in the past in so many matters connected with the Health Service? It is extremely important to know this and I apologise that I did not raise this matter earlier. Of course I should have mentioned it.
Lord WELL-PESTELL: I should like to point out to the noble Baroness that she does not have to ask the Committee for leave to speak. During the Committee stage Members are—I should say unfortunately—allowed to speak as often as they like. But I hope that that will not be an encouragement. In reply to the noble Baroness, I should say that all the members of the Board have to be appointed by the Secretary of State; hut, as I said earlier two of them must represent the medical profession. Of course there have been consultations with the British Medical Association regarding the two people that it wants as representatives. Two have to be appointed from the staff side and consultations are taking place with the staff side, the Whitley Council, the trade union movement and so on. The Chairman is to be an independent person. The Secretary of State is endeavouring—I cannot say more than this at present—to get somebody who is really independent in the strict sense of the word. I hope that it may be possible, even before we complete the Committee stage of the Bill, for me to say something more about that.
Baroness MACLEOD of BORVE: Before the noble Lord sits down I should like to press him a little further on this matter of the figure of five members. As he has just reminded the Committee, they are all appointed by the Secretary of State. I am the chairman of a board—a consumer council, as a matter of fact—of which all the members are appointed by the Secretary of State. In this council we have a backlog of 18 months to two years of people who have to be reappointed to fill vacancies. I am worried in the same way as the noble Lord, Lord Peddie, about the number of five, when perhaps one, two, or even three members might well have to resign for other reasons. They might even decease, and nobody could do anything about that. It takes a considerable length of time for Secretaries of State to appoint people to replace others. This I have found over many years, and I hope that the noble Lord will take some notice of this point when he is insisting, as I gather he is, on a figure of only five members.
Lord PLATT: I do not want to rise too often and I shall heed the words of the Minister on that subject, but the
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occasion has been taken at this very early stage to make some general comments, and I should like to make a remark on two of the comments. I think it is a pity if we feel that this is a matter that is already dividing the Government from the Opposition and that it is an argument between the Socialists on the one hand and the Conservatives on the other. I hope that the whole Committee, not only the Minister, will bear in mind that there are 18 medically qualified Members of your Lordships' House, only one of whom sits on the Conservative Benches. Therefore I do not think that this should become a wrangle between two Parties. My second comment is that it is easier to replace a member of the domestic staff than it is to replace a consulting physician or surgeon.
Lord WELLS-PESTELL: I am grateful to the noble Lord, Lord Platt. I will try to answer the noble Baroness, Lady Macleod of Borve. It is the responsibility of the Secretary of State to appoint members of the Board and of the Scottish and Welsh Committees. The consultations to which I have referred have been going on, and one advantage of having deputy members who will subsequently be appointed is that in the event of absenteeism—for whatever reason a member may be prevented from attending—the deputy will be available. Therefore if a member of the Board dies there will be a deputy who can take his place. I realise the difficulty of getting good people, but perhaps it is easier to get five good people than seven; I just do not know. But if there are seven members appointed then seven deputies have to be found; so in one sense the problem is reduced if the figure remains at five. We do not envisage the kind of problem which the noble Baroness has mentioned, for the simple reason that, as I say, we have foreseen these difficulties and we shall overcome them by having a deputy appointed in each case.
Viscount MONCK: I should like to raise a point before the noble Lord sits down. As your Lordships know, I am getting old, senile and deaf and I may have missed something, but I should like to clear up this deputy business. I understood that my noble friend Lord O'Hagan referred to page 27 of the Bill

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where according to Schedule 1, paragraph 10(1)
"The Secretary of State shall be"—
I think that that should read "by"—
"regulations provide for the appointment … of … a deputy chairman or deputy member of the Board, to act in place of the chairman or a member …"
That presumably means a deputy chairman and one deputy member.
Lord HILL of LUTON: I should like to put to the noble Lord the simple issue in the form in which the noble Lord, Lord Peddie, put it. There are many noble Lords who have an all too long and intimate experience of committee life. We know from experience that five is too few a number and we know from experience that the system of deputies popping up occasionally when the person for whom they are deputising is ill just does not work. Is there some fundamental reason why five should be the figure rather than seven? I should have thought that on the simple basis of the experience of most of us a good small committee is one of seven, about five of whom are likely to be present on any one occasion. Do not let us make a doctrine of this. Simple common sense ought to lead the noble Lord to accept this Amendment and to allow us to get on with something much more important.
Lord WELLS-PESTELL: The noble Lord is making the mistake of thinking that there will be absentees. I am saying that that contingency has been covered by the fact that a deputy will be appointed, so that at any meeting of the Board the full number will be present.
Lord FULL of LUTON: I hope the noble Lord will not depart so frequently from ordinary experience. People do not come at the last minute. They do not give notice to deputies; they just do not come. They perhaps send a telephone message an hour before the meeting. This system of appointed deputies who are called on in the known and advertised absence of full members of a committee just does not work in practice. Surely we can rely on our common sense and accept the number of seven as likely to be the number that will provide a respectable proportion of members present on any one occasion.
Lord SANDYS: My Lords, I think the noble Lord, Lord Hill of Luton, has made a particularly important point which follows up what my noble friend Lady Macleod has said. Of course, we have had this afternoon—and perhaps the noble Lord, Lord Wells-Pestell, will correct himself later—what I take to be a Freudian slip in his argument, because he said in regard to the composition of the Board that there will be two members over whom the Government will have no control at all. As we understood it, the object of having a Board in the first place was to establish an independent Board, and its independence was the subject of considerable discussion in Standing Committee in another place. Perhaps the noble Lord, Lord Wells-Pestell, will look at Hansard tomorrow. It may be that I have taken him out of context, but I detect a sort of dirigisme in the Government's attitude towards the Board which is perhaps a little unhealthy at this stage. I do not know whether the noble Lord might like to comment on that in a moment.
However, the noble Lord said that the composition of the Board is open to different points of view, and it is our view that seven is much better than five. I think that, if it were possible to find the perfect number, that number would have been suggested in the Goodman proposals, but no number was further recommended as a result of their discussions. So we are left with the Goodman recommendation of five and the suggestion by my noble friend Lady Young of seven, which appears to be far more practical.
Lord WELLS-PESTELL: I certainly have no recollection of saying that there would be two members over whom the Secretary of State would have no control. The Amendment seeks to provide for the appointment of two further members of the Board, which I understand, but so far as I can see it does not require that there should be consultation about the appointments. Nor does it say who shall decide whether the members represent the interests of two groups. In that sense I think the Amendment is rather weak; and I would come back to the point that I made earlier. When there was obviously very serious and real difficulties between the Government and the medical profession, the noble Lord, Lord Goodman,

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was invited to intervene in this matter, and he had long, protracted, detailed and complicated discussions with the medical profession on this Bill and on certain aspects of it, and in particular on the establishment of the Board. The agreement was—and it seemed to be acceptable, because I have no information that it was unacceptable to anybody—that the Board should consist of five members. If that is acceptable to the medical profession, with whom the noble Lord, Lord Good-man, had discussions, I would have thought, with the greatest respect, that that was good enough.
Lord WINSTANLEY: Since the noble Lord has invited us (indeed, encouraged us) to speak twice, or even more, perhaps I could add one other word and perhaps almost faintly come to his aid. I still adhere to my view that seven would be better than five, for the reasons given by many noble Lords and, particularly, recently by the noble Lord, Lord Hill of Luton, but I see a difficulty. If we increase the Board from five to seven without at the same time increasing the number of members acceptable to the medical profession, the number of doctors, from two to three, then I think one might indeed be in grave difficulties. So I still support those who would like seven, but if it is going to be seven we shall then have to increase the number of medical representatives, in my view, if we are to get acceptance of this, from two to three.
Baroness YOUNG: I am very grateful for the support that this Amendment has received from all parts of the Committee. I should like to assure the noble Lord, Lord Platt, that in my opening observations I was not wishing in any sense to score Party political points, because I take this Bill as not being that kind of Bill at all. It is not a Party political Bill, and the mere fact that we have spoken on this matter in the way which we have illustrates that. I am very conscious of the fact that we have 18 medically qualified Lords in your Lordships' House, and I hope very much that we shall hear from all of them. One of the great advantages of the House of Lords is that it is to a very large extent a House of experts, and if ever there was a time for the Lords who are doctors to speak it is now.
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In answer to my noble friend who asked be about the Royal College of Nursing, perhaps I could say that I have taken advice from a number of members of the nursing profession, although I must be quite frank and say that I have not consulted the Royal College of Nursing itself. But I have had talks with a great many people in the nursing and other ancillary professions involved in the National Health Service.
Baroness WARD of NORTH TYNESIDE: May I ask my noble friend whether she would be kind enough to let us know who? Because it is tremendously important to know who has had discussions. We want discussions with everybody concerned; and, personally, I always like to know who have had the discussions.
Baroness YOUNG: I cannot possibly tell my noble friend Lady Ward what discussions the Government have had, but I can and I will let her know, not during the Committee proceedings, the entire list of people with whom I have discussed this Bill, because it is really quite extensive. I can assure her that in a very short period of time I seem to have talked to a lot of people, but I shall certainly let her know who they are if she would like me to. I should like to say to the noble Lord, Lord Winstanley, how grateful I am for his support. I quite see that he does not like the principle of representation at all. I do not like it, particularly; but, of course, that is what we have in the Bill. Therefore, once it is written into the Bill it usually seems more logical to continue from it. I take absolutely his point that if the number was increased from five to seven it would be desirable that three of them should be representatives of the medical profession. I think that is a very important point.
I was very grateful for the points made by the noble Lord, Lord Peddie, and the noble Lord, Lord Hill of Luton. It seems to me that they are both absolutely right on this point of a quorum. I shall be coming to this point later on in my Amendments. Indeed, Amendments Nos.123 and 124 are consequential to Amendment No. 1, because they deal with the question of a quorum, which, again, is not written into the Bill at all. But the practical point when there are only five, as the noble Lords, Lord Peddie and Lord

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Hill, have quite rightly pointed out, is that if somebody cannot come—somebody is ill on the day or is caught in a snow-storm, or something happens or does not happen which means that for some reason or other two of them cannot come—you could have three people deciding everything. You could even have one person deciding everything under the Bill as its stands at the moment. This surely cannot be the intention of the Government or, I should have thought, the intention of Lord Goodman. So there really is a very real point about numbers and attendance.
As I say, I and my colleagues are very grateful for the support we have received over this Amendment. I think that at this stage we should like now to consider again what the noble Lord, Lord Wells-Pestell, has said; and perhaps he, too, will take the opportunity, when he receives Hansard tomorrow, to read what noble Lords have said. I think this particular Amendment is not a matter on which I should like to start these Committee proceedings by dividing the Committee, but we shall be returning to the point when we get to Schedule 1, and I hope that between now and then the noble Lord will take the opportunity, with his advisers, to look at the very difficult points which remain unanswered as the Bill stands.
There are not substitutes for everybody ready and waiting at every committee meeting. There is nothing about a quorum and a great many people are not represented at all. I am not very happy about the reason that has been given for the way the particular representatives come in. I am much more impressed by the argument that this is the agreement reached by the noble Lord, Lord Goodman. It may be that this is one that we shall have to consider as well. As I said we shall not press this Amendment but shall be returning to the issues involved. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
4.51 p.m.
Baroness YOUNG Baroness YOUNG moved Amendment No. 2:
Page 1, line 10, leave out ("appointed by") and insert ("whom").
The noble Baroness said: This Amendment and Amendment No. 3 are, in a
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sense, paving Amendments which we shall need to consider before considering Schedule 1. If the noble Lord, Lord Wells-Pestell, will look at Clause 1(2) he will see that it says:
"The Board shall consist of five members appointed by the Secretary of State in accordance with Part I of Schedule 1 to this Act."
But the fact is that the rest of the Bill says very little about filling vacancies and very little about a quorum; therefore this Amendment is very much on the same point that we have already been discussing. We on this side think that the wording ought to be strengthened so that when we come to look at Schedule I we can be assured that when the Board meets it shall have five members present and voting—because this is the key to the whole Bill—and should anything happen to one of the members, that someone can replace him or her in a short period of time: in other words, that we shall not be left with a Board operating on some occasions with perhaps one or two members. I am speaking to both Amendment No. 2 and No. 3 which, as I have already indicated, are paving Amendments to Amendment No. 134 later in Schedule 1, that Amendment indicating that the Secretary of State must fill occasional vacancies on the Board. I beg to move.
Lord WELLS-PESTELL: I am completely mystified by these Amendments. I can only say that I must have spent two hours looking at them, as well as taking advice, to see what they achieve. If your Lordships have a copy of the Bill before you I should like you to look at the subsection. It reads:
"The Board shall consist of five members appointed by the Secretary of State …"
The Amendments make it read:
"The Board shall consist of five members whom the Secretary of State shall appoint…"
For the life of me, I cannot see that the Amendments improve it, add to it, or really do anything at all. They do only one thing: they increase that sentence from 24 words to 25 words. Really I do not think they are necessary. Nothing could be clearer than the wording in the Bill at the moment. There cannot be a single valid reason for changing it. It may be said that if it makes no difference, then why not accept the Amendments? I am saying that the Amendment is quite pointless and one only accepts an Amendment if it adds something of substance or

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value. This does neither. The noble Baroness quite rightly says that this will refer to Amendment No. 134, I want to suggest to her that leaving it precisely as it is will not invalidate or affect in any way any reference she cares to make when we come to that Amendment.
There must be some experts in the English language present in the Committee. With the greatest possible respect, can they truly say that "The Board shall consist of five members appointed by the Secretary of State" is in any way improved by changing it to: "The Board shall consist of five members whom the Secretary of State shall appoint". I do not think there is any substance in this matter—certainly no substance that justifies altering the present wording.
Lord SANDYS: I think that my noble friend explained this point perfectly. It is a paving Amendment and leads straight into Amendment No. 124. I think she referred to Amendment No. 134; that was a slip of the tongue. if you look at Amendment No. 124 you will see exactly why this Amendment is proposed. It is entirely grammatical and I think it follows logically.
Baroness YOUNG: We can debate points of language for a very long time, but it is necessary to get things correct in law. I am advised that this is the correct way to do this. I apologise for not referring to Amendment No. 124. This would be the correct way of leading into the further Amendment. Obviously, these are not Amendments on which I am going to divide, but I suggest to the noble Lord that we have not put down these Amendments just because we want to alter the wording in a meaningless way; we have done so because they are, as I have indicated, paving Amendments to a later Amendment.
While I have been looking at this Amendment and at Schedule 1 again, my eyes were caught by a printing error in Schedule 1 to which I can perhaps draw the noble Lord's attention. On page 27, line 24, at the beginning of paragraph 10(1), my copy reads:
"The Secretary of State shall be regulations …"
It is, of course, meant to be "by regulations."
Lord WELLS-PESTELL: That point has been raised already. It is acknowledged that that is a mistake. It should be "by".
Baroness YOUNG: May I suggest to the noble Lord that it will require a Government Amendment? I am delighted to feel that the Department of Health and Social Security has made a mistake and therefore has not produced a perfect Bill. It is a comfort that there should be something slightly wrong. I shall be feeling a little better myself as we proceed to think that this might happen. We shall have a further debate on the one which follows from these two paving Amendments when we get to that Part of the Bill. With that, I beg leave to withdraw the Amendment.
Lord WELLS-PESTELL: If I may say so, I know that the Opposition want to beat the Government with as many sticks as possible, but there is such a thing as a printer's error and not a Departmental error.
Amendment, by leave, withdrawn.
On Question, Whether Clause 1 shall stand part of the Bill?
Baroness ELLIOT of HARWOOD: May I ask the noble Lord a question which I could have posed when we were discussing the composition of the Boards? Two Boards have been put into the Bill, one for Wales and one for Scotland. I appreciate that the Secretary of State has put forward a very sensitive plan in order to meet the views of people living in Scotland and Wales. The number of pay beds which might be involved in this connection in Scotland and Wales is so small that I do not think that that alone would justify having separate committees for Scotland and Wales; but if the Committee is going to have the opportunity to, as it were, look after all the affairs in the Bill which apply to Scotland and to Wales in addition to the phasing out of the pay beds, then the situation is different because obviously there will be a continuing purpose behind these Boards which will go beyond the years in which the Goodman proposals are operating.
In, say, five years there may be no pay beds in Scotland or Wales at all. Will the Board be in charge of all the Welsh

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and the Scottish health services and therefore have a continuing use? If not, the Government should put in some clause to bring these Boards to an end—that is, if they are only to be in charge of the phasing out of pay beds. If they are to he in charge of all the other things in the Bill as well then perhaps they have a further use. I was thinking of this in order to save the Government money because they will be fairly expensive, and will perhaps cost a quarter of a million. It is worth spending a quarter of a million if that amount is needed and wanted. Could the noble Lord say whether he feels that these two Boards will have a continuing use after the phasing out of the pay beds has taken place?
Lord O'HAGAN: I should like to follow that question and amplify it a little. I understand from what the Government said in another place and from the notes on clauses, that the introduction of Committees for Wales and Scotland was not something suggested by the noble Lord, Lord Goodman, and that the idea of having these separate Committees for Scotland and Wales is something that the Government themselves have introduced in order to improve—as the Government see it—the Goodman proposals and make them more workable. I want to check with the noble Lord that that is in fact so.
Could the noble Lord explain when he is answering the question asked by my noble friend Lady Elliot of Harwood, how the Government envisage these Scottish and Welsh Committees working if and when devolution takes place? Of course, I am not asking him to prejudge anything that may or may not happen in the next Parliamentary Session, but in the Government's White Paper, Cmnd.6348, Our Changing Democracy, the Government said that the Scottish Administration would be responsible for health matters in Scotland, including the National Health Service. The Administration would be able to decide policy on a whole number of matters that were listed, among which were private practice and the control of nursing homes. That statement was not altered in the supplementary statement on devolution which came out subsequently. How do the Government envisage these Boards working and how do the Government envisage pay beds continuing in
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circumstances when the Assembly in Scotland under whom the National Health Service in Scotland will be put, was against pay beds? What would happen if the Assembly in Scotland decided to abolish them unilaterally?—because we know that it is the declared policy of the Scottish National Party to eliminate pay beds totally. Could the noble Lord give us any light on that?
The other two questions I want to ask are, first, how does Northern Ireland fit into this? We are talking about Scotland, Wales and England. Are the Government going to come forward with a Statutory Instrument at some later date to deal with pay beds in Northern Ireland, or is some wholly separate procedure to be followed? Finally—and I am being as quick as I can as I had hoped to raise these matters on the Schedule hut as we have not got that I want to raise them now—Clause 1(3) of the Bill says:
"Without prejudice to the power of the Board to set up any other committees …."
What other committees have the Government in mind to set up? We understand from this that it is envisaged that there may be other committees apart from the Scottish and Welsh Committees. Could it possibly be that the English are going to have a committee of their own?
5.5 p.m.
Lord WELLS-PESTELL: Perhaps I can deal with the questions from the noble Lord, Lord O'Hagan, first. What one hears last is always freshest in one's mind—at least it is in mine. The Bill at the present moment applies, as the noble Lord knows, to England, Scotland and Wales. At the moment there are no plans for dealing with the situation in Northern Ireland.
I cannot answer his question satisfactorily as to what ultimately happen in Scotland. We shall have to await the outcome of the devolution Bill. One has to bear in mind that that may take some considerable time and we want to proceed in the matter of this Bill as soon as we possibly can. We are committed to take certain steps, as the noble Lord knows, immediately upon the Bill getting Royal Assent. I do not think, therefore, that we can really wait to see what happens in Scotland. We shall have to decide what the future of the Scottish Committee will

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be in the light of any changes arising out of the devolution Bill. I think I have answered all the points raised by the noble Lord, Lord O'Hagan.
Lord O'HAGAN: Clause 1(3), the "other committees"?
Lord WELLS-PESTELL: It is not an unusual practice when one is setting up a board or a committee—we did it, if I remember rightly, in the Race Relation Bill—to make provision for a situation which may arise. It may well be that the Scottish Committee, the Welsh Committee and the English Board may well find that it is necessary to set up a sub-committee to investigate a certain situation and we are taking powers in this Bill to do that.
I return now to the noble Baroness Lady Elliot of Harwood: the Scottish Committee has precisely the same power as has what has been called the English "Board", and so has the Welsh Committee. We felt that in the present climate, if we were going to do this, there was some merit in treating Scotland separately and treating Wales separately. We know that there was quite a body of opinion that felt that one Board could deal with England, Scotland and Wales. There are a number of private beds, as the noble Baroness knows. You will find them on page 34 of the Bill where they are set out under the heading of Scotland. I have not totalled them up.
Baroness ELLIOT of HARWOOD: For Scotland, 234, and 60 for Wales.
Lord WELLS-PESTELL: It was felt that it was rather important to have a Committee on the spot. The Board itself has to operate from somewhere and one presumes that it will operate from London. It is much easier to have its counterparts in Edinburgh—as I imagine it will be there for Scotland—and in Cardiff where I imagine it will be situated for Wales, charged with precisely the same responsibilities.
The only thing is that before the Health Services Board itself can make and take decisions in relation to Scotland it must have the opinions, the views, the observations, and, what is much more important, the recommendations of the Scottish
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Committee and precisely the same thing applies to the Welsh Committee. We feel that it is simpler and wiser for each of the two countries to have its own committee. But they are responsible to the Health Services Board, which must take them into account before making any decision, after the first 1,000 hospital beds, on the future phasing out of hospital beds and the question of new building notifications and authorisations. Looking at the matter dispassionately, I believe that that is a simpler way of working.
Baroness YOUNG: I thank the noble Lord for that reply to my noble friend Lady Elliot. But does he not think, in view of what he said—and one entirely accepts the reasons he has given for the Scottish and Welsh Committees, because I quite see that, politically, not to have them at this time might lead to rather unfortunate interpretations of the situation—and in view of the very few beds that are to be phased out anywhere, that it lends point to one of our later Amendments? That Amendment is to the effect that the Board should have power to increase the number of beds, as well as to phase them out, because, clearly, it will give the Scottish and Welsh Committees much more freedom to act, as it will give the main Board more freedom to act, and, when their work seems to be confined to relatively few beds, this seems a relevant point.
Lord WELLS-PESTELL: Am I to understand that all the pay beds in Scotland are fully occupied, and that it is therefore necessary to increase them? The duty on the Scottish Committee, as on the Health Services Board and the Welsh Committee, is to deal with those beds which are not in use, or not in full use, and the question of adding to them does not arise just because 1,000 of the 4,444 pay beds in Great Britain are not necessary.
Baroness YOUNG: We could have a very long debate on bed occupancy, because the noble Lord knows as well as I do that if every single hospital bed was permanently occupied there could be great difficulty in any kind of emergency. For a whole variety of reasons, not least the fact that you need to keep some beds empty in case there is a bad motor accident and a lot of casualties come into a hospital, there are always a number of beds empty.

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There are always a number of private beds empty and, as we both know, there are always a number of National Health beds empty. This is not a criticism of the service. Indeed, it merely shows that those who are running it are acting responsibly, and we should want a better argument than that about the numbers.
Lord MESTON: How much does a private bed cost each week?
Lord WELLS-PESTELL: It would depend entirely on where the hospital happened to be. I am speaking off the cuff, but a bed in a teaching hospital could cost as much as almost £300 a week. But I believe that not very far from your Lordships' House there is a private hospital where the cost of a bed per week varies between £504 and £904.
Lord HARVINGTON: Speaking as someone who has been chairman of a hospital board at a disclaimed hospital for about eight years, I know something about bed occupancy. From what the noble Lord said I take it that there is only about 75 per cent. bed occupancy in the pay bed sphere. If that is so, it is not so bad as all that, because my experience was that if you had anything like 81 or 82 per cent. bed occupancy you were doing very well indeed. For the various reasons which the noble Baroness has touched upon, it is very difficult to get a bed occupancy beyond that. So I do not think that the noble Lord's argument about 1,000 empty pay beds will stand up very firmly on examination.
Lord WELLS-PESTELL: I do not want to be unkind to the noble Lord, but the question of pay beds does not come in Part I of the Bill. We have not yet reached the question of pay beds. It was only because the subject had been raised, that I felt it incumbent upon me to give some answer. I would remind the noble Lord that this is a matter which the noble Lord, Lord Goodman, went into very fully with the British Medical Association, the consultants, the medical profession generally and the Government. The figure of 75 per cent. occupancy of all pay beds is way out, and I will endeavour to find what the percentage is. But it is not a matter which we are discussing in this Part of the Bill.
Lord MESTON: So a pay bed is more expensive than a weekend in Paris?
Clause 1 agreed to.
Clause 2 [Purpose of ss. 3 to 5]:
5.16 p.m.
Baroness YOUNG Baroness YOUNG moved Amendment No. 4:
Page 2, line 24, leave out subsection (1).
The noble Baroness said: I beg to move Amendment No. 4, and I think it will be to the convenience of the Committee if I speak at the same time to Amendments Nos. 5 and 6. Amendment No. 4 is a paving Amendment for Nos.5 and 6 which, in a sense, are alternatives. It has been suggested to me that these are designed to be wrecking Amendments to ruin the Bill, but let me assure the Committee that that is not my intention and I do not believe that that is their effect. If we look at Clause 2, it will he seen that it is a declaratory clause setting out the intention of the Bill. Indeed, I looked again at the note on the clause which I was very glad to receive, and it begins:
"Subsection (1) declares the purpose of Sections 3 to 5."
It is therefore a declaratory clause setting out what the Government believe to be the purposes of the Bill.
In many ways, it seems to me that Clause 2 is not at all necessary to the Bill and could be taken out. If it is felt necessary that the Bill should declare what it is trying to achieve, I should have thought a better way of doing it would be to state in the Bill what are the functions and objectives of the Board, because if the Bill is to confer a real benefit on the community and is not merely stating some kind of principle, the main object can only be to achieve a better service for all the patients in NHS hospitals and in private nursing homes. I should have thought that that was something on which the entire Committee could agree, because that is surely what we all want. Therefore, Amendment No. 5, unlike the passage in the Bill which it would replace, suggests guidance to the Health Services Board and places certain duties upon it. Paragraph (b) makes it clear that, apart from the role of the Board in controlling the rate

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of phasing out accommodation and services from National Health hospitals, it has a positive function and can therefore propose to the Secretary of State the redistribution of facilities and accommodation for private patients; or, indeed, adding to the amount of accommodation for private patients.
After all, who is to say in an area of population growth that this might not be desirable? As I am sure that the noble Lord, Lord Wells-Pestell, will know much better than I, there are great problems when there is a shift in population. I think I am right in saying that this is already being experienced in London hospitals where there has been a great drop in the population. On the other hand, you have only to go to a new town to find a great growth in the population, and in such areas there are usually no private facilities. It is not, therefore, unreasonable for the Board to have as its objective the improvement of services for both National Health Service patients and private patients and for the Board to be able not only to phase out private beds but, if it so wishes or if it is thought desirable, to increase them. That is what Amendment No. 5 is designed to achieve.
If I may now turn to Amendment No. 6, this, as I indicated at the beginning of my remarks, is an alternative proposal to Amendment No. 5. Again it assumes that we leave out the first subsection of Clause 2 and insert in its place the two proposals contained in paragraphs (a) and (b). These paragraphs are designed to give to the Board the object of achieving freedom of choice for everybody, whether within National Health Service hospitals or anywhere else.
In preparation for the debate on these Amendments I read again our Second Reading debate. Indeed, I read again the words of the noble Lord's honourable friend in another place when the proposals made by the noble Lord, Lord Goodman, were first debated last December. On each occasion we have been assured from all parts of the House—not least, I am very pleased to note, from the Government side—that it is not the intention of the Government to abolish private practice or private medicine. On the contrary, one of the objectives of the Bill is to allow it to continue. If you ask yourself why you are allowing it to continue and why
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it ought to be allowed to continue, the answer is that it is to give freedom to the doctor to practise and freedom to the patient to choose his own doctor or consultant.
Therefore, far from being in any way intended to wreck the Bill this Amendment is, we believe, very important. It seeks to secure that one of the objects of the Bill shall be to allow freedom to resident and non-resident hospital patients to have the services of their choice, whether they are provided in a National Health Service hospital or elsewhere. I should have thought that this was something on which we were all agreed and it is in that spirit that I move these Amendments.
Baroness HORNSBY-SMITH: I should like to support my noble friend. There is a suggestion in the Bill that National Health Service and private practice facilities should be separated and I should like to inquire of the noble Lord what is to happen to the many millions of pounds which have been poured into hospitals by the great medical charities. Those charities have provided extensive facilities to National Health Service hospitals, and those units are often maintained by the voluntary contributions of large charities. I am thinking of Cancer Research, the Heart Foundation and one charity in which I have a particular interest; namely, the Arthritis and Rheumatism Council for Research. There is cross-fertilisation of staff. The Kennedy Institute is maintained by voluntary effort but there is cross-fertilisation in terms of the help that that research unit gives to the West London Hospital and other hospitals and, not unnaturally, private patients as well as National Health Service patients are seen by consultants there. At this moment the same organisation is financing a bone research unit which is attached to the London Hospital. That voluntary organisation is building it and paying every penny for it. As this clause would debar consultants who are doing research there from using those facilities for their private patients, I support firmly the Amendment moved by my noble friend Lady Young.
5.26 p.m.
Lord SANDYS: I rise to support the Amendment of my noble friend. In the

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first place, the Government owe us a little further explanation of Clause 2. Your Lordships have already heard that it is a declaratory clause. Declaratory clauses are fairly notorious because they can add everything or nothing to a Bill. So far as the force of law is concerned, most of your Lordships will agree that if Clause 2 were struck from the Bill it would be entirely the same afterwards so far as its examination before the courts is concerned. Therefore we have a statement before us in Clause 2 which follows very closely upon the Goodman proposals. It is my belief that the Government could have made a very much better exposition of their intentions in Clause 2. As I say, it follows upon the Goodman proposals but, to quote the noble Lord, Lord Wells-Pestell, he said earlier that one adds an Amendment only if it adds something of substance and value. With that I agree entirely and I believe that the three Amendments moved by my noble friend Lady Young, two of which we seek to import into the Bill, will do exactly that.
First, we have some drafting suggestions to make to the Government. In this connection I wish to draw your Lordships' attention to subsection (2) because there is a degree of obscure drafting about it which is wholly unnecessary. Whenever one reads:
"Nothing in this Act shall prejudice the operation of paragraph …"
one knows straight away that this is either a matter of padding or of strict declaration which, so far as the force of law is concerned, one can omit from one's reading. However, Clause 2(2) says something very important and it could say it much more clearly and substantially. It draws our attention to Schedule 1 to the National Health Service Reorganisation Act 1973.
I have had a look at this Schedule and it seems to me that it would be very easy to import into this subsection one sentence to which that schedule refers. As it is not provided for us by the Government, I will read paragraph 10(5) of Schedule 1:
"Regulations made in pursuance of this paragraph shall not require that all consultants employed by an authority are to be so employed whole-time."
It seems to me that in the words of the Amendment we have a very much better exposition of intention. I will go a little
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further. What is this declaration for? I think my noble friend has already declared this: it is a restatement of an existing statutorily protected right of the part-time consultant to engage in private practice. Does the noble Lord wish to intervene?
Lord WELLS-PESTELL: No.
Lord SANDYS: Here, if in drafting that sub-paragraph greater emphasis had been laid on this point and greater clarity had been used, we should have something of value. Nevertheless, it is drafted as written in the Bill. I turn to what my noble friend Lady Hornsby-Smith said—and I think this is the really important point—as to whether private medical practice may use, to the extent that it wishes, facilities within National Health Service hospitals. It seems to me that the freedom is emphasised in Amendment No. 6 to a much greater extent under the wording of the second of the two alternatives. Under Amendment No. 5 a very positive suggestion is made and the phrase used is "the best possible facilities".
If a declaratory clause is to be of value in our view it should be relatively brief and, if possible, clear. I have in mind what I believe to be one of the better declaratory clauses known to your Lordships very well; that is, in the Countryside Act 1968. That is exceedingly brief and straightforward. So far as this Amendment is concerned, my noble friend will be deciding upon which alternative she will choose and your Lordships will no doubt make that decision very shortly unless my noble friend chooses to withdraw the Amendment. Nevertheless, it appears to me that a decision should be made by your Lordships to make a much clearer point of Clause 2.
Lord WELLS-PESTELL: As the noble Lord, Lord Sandys, and the noble Baroness, Lady Young, have said, the effect of this Amendment would be to remove from the Bill what we consider to be a vital declaration of the intentions of Clauses 3 to 5 relating to the withdrawal of pay beds and facilities for private patients and to the restrictions of the Secretary of State's powers under Sections 1 and 2 of the 1968 Act. I think one must understand—and every member of this

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Committee does understand—what this Bill is about. This Health Services Bill is designed to provide a vehicle for separating private practice from the National Health Service and, if I may say to the noble Lord, Lord Sandys, to provide that in certain circumstances consultants will be given the opportunity of using the National Health facilities for certain types of acute illness where they are not available in the areas in which the consultants happen to be. Is it unreasonable in a Bill that one should state the purpose of the Bill? I accept that this is declaratory; it may well be that perhaps it does not do a great deal for the Bill but one tends to put in a Bill what its purpose is.
Lord WINSTANLEY: Will the noble Lord forgive me for interrupting so early? I have been attempting to follow his argument clearly but he says that this subsection contains a vital declaration of the intentions of the Bill, and I agree with him, but if it does that, can he say why the same things are not contained in the Long Title of the Bill? If the separation of the two forms of practice and the gradual withdrawal are so crucial to the Bill why was that not incorporated in the wording of the Long Title of the Bill, which makes no reference to either of them?
Lord WELLS-PESTELL: Presumably it was because the Government considered that a better place for it was in the Bill itself and not on the cover, and I should have thought that was a very good reason. The effect of inserting in place of sub-section (1) the words proposed in the Amendment—and I think the Committee ought to consider this carefully—would be to give the Board additional powers and duties which would overturn the declared intention of the Bill and would in some respects put it into reverse.
The duties and responsibilities of the Health Services Board are clearly laid down. They have certain functions: one in respect of the phasing out of pay beds over a longish period, after the first 1,000 have been phased out by Schedule 2 within the first six months. It then has certain responsibilities and duties for new buildings, hospitals and nursing homes in London and outside London, to give
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authorisation and in other cases to receive notification. Also it has a tribunal responsibility. Their responsibilities are clearly defined. This particular Amendment and, if I may say so, the alternative Amendment No. 6, completely changes the responsibilities and duties of the Board and is to a very large extent in conflict with the purpose of the Bill.
The purpose of Clause 2 is to fulfil the commitment in the proposals of 15th December last which my right honourable friend the former Secretary of State in the Department of Health and Social Security made available and which subsequently became known as "the Goodman proposals". Perhaps I may just quote a short passage from them.
"The legislation would contain, first, a broad declaration that private beds and facilities should be separated from the National Health Service. Secondly, an expression of the Government's commitment to the maintenance of private medical and dental practice in this country through the renewal of the provisions of the 1949 Act, which maintains the right to private practice by entitling doctors and dentists to work both privately and in the National Health service establishments, and thirdly the establishment of an independent board to relate these two commitments."
So there is a limited responsibility on the Board, and of course in some respects these Amendments would reverse it and in other respects they would impose new and different duties on the Board.
Baroness YOUNG: I am sorry to interrupt the noble Lord, but I wonder whether he can explain to me how my Amendment No. 5, which is simply designed to enable the Board to secure the best possible facilities within the National Health Service, could possibly be in contradistinction to the proposed separation? Is he really saying that the proposed separation will make things worse?
Lord WELLS-PESTELL: No, I am not saying that at all. What I am saying is that the Board has a limited responsibility. It has not got the responsibility under this Bill to inquire into and reorganise the whole of the medical services of this country. It has a limited responsibility. The Amendment tabled by the noble Baroness goes far beyond the responsibilities which we think the Board ought to have and which we certainly never envisaged and never intended that it should have. The statement in Clause

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2(1) represents the first leg of the commitment; namely, a broad declaration that private beds and facilities should he separated from the National Health Service hospital.
I will not mention the statement in Clause 2(2) which is to fulfil the two commitments of Goodman, because the noble Lord, Lord Sandys, referred to them when he said that the power to make regulations governing the terms of employment shall not contain a requirement that all consultants should be employed whole-time. In another place, as your Lordships will know, there was a very full discussion on Clause 2 and its purpose, which covered something like 89 columns of Hansard.
In the discussions which led to the Goodman proposals of 15th December, those representing the medical profession thought it right to work for a renewal of the 1949–73 provisions enabling the consultants employed in the National Health Service to conduct a private practice. For their part, the Government rightly held to the need to state in the Bill its purpose, and that is why it is in the Bill. My right honourable friend the former Minister of State referred in Committee in another place to two directives or broad declarations of principle under which the National Health Service will operate. Later, my right honourable friend made the point again. He said:
"There is no point in anyone being under any illusions. The purpose of this legislation is to separate private practice and not to extend its life within the National Health Service indefinitely".
The Government therefore maintain that Clause 2(1) is vital. This is why we feel unable to accept Amendment No. 4. As to Amendment No. 5, it would not only completely alter the sense of direction of the Bill, but in our view would make nonsense of the mechanism of the independent Board which I have already said on more than one occasion is very clearly defined.
The Amendment would give the Board the duty of exercising its function with the object of making available at National Health Service hospitals the best possible facilities for the prevention, diagnosis and treatment of illnesses, a duty, if I may say so, which already falls on the Secretary of State in Section 1(1) of the National
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Health Service Act 1946. This is an obligation which has been on the Secretary of State since 1946. If I may say so with the greatest respect, the Secretary of State needs no help from the Board in carrying that out, because he is obligated by Act of Parliament to provide the very things which the noble Baroness seeks in her Amendment
The Board will also be given the duty of exercising its functions with the object of making available the best possible facilities for the prevention, diagnosis and treatment of illnesses under private arrangements. This responsibility is out-side the intended scope of the Board. It is contrary to the purpose of the Bill, inasmuch as the facilities might be provided in National Health Service hospitals, and could not be achieved through the limited function given to the Board by Parts I and III of the Bill. The responsibility of providing the best possible facilities at private sector hospitals rests with the owners and managers of those hospitals, and not with the National Health Service, subject to the statutory control over standards which the Government have under the Nursing Homes Act 1975. The Board would be given the duty of exercising its functions with the object of securing the availability of sufficient accommodation and services of a satisfactory standard at National Health Service hospitals for the treatment of patients. But the functions of the Board under the Bill are not concerned with the treatment of National Health Service patients. The Board has no means at all of achieving that end. If I may say so, it would be quite wrong and quite inappropriate that it should. That is the function of the Secretary of State for Health, and of the Department.
The Board would also be given the duty of exercising its functions with the object of securing the availability of sufficient accommodation and services of a satisfactory standard in private nursing homes for the treatment of patients. The Board would have no means at its disposal for achieving this end, and therefore, we should not find it possible to accept Amendments Nos. 4 and 5.
In dealing with Amendment No. 6, to a very large extent I should be repeating myself, and that is the last thing I want to do in view of the magnitude of the

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task before your Lordships in dealing with the Amendments on this Bill. But I must say that the effect of inserting in place of subsection (1) the words proposed in Amendment No. 6 would be to give the Board a quite different responsibility, as I have already said. The Amendment proposes that the Board should have the responsibility for securing that hospital patients have a freedom of choice of doctor, either privately or within the National Health Service. This responsibility again is outside the scope of the Board. Although in theory responsibility for the choice of doctor rests with the patient, in practice the choice of the patient is normally that of his general practitioner. In the private sector, normally a patient would be seen and treated personally by the consultant to whom he had been referred by his general practitioner. In the National Health Service, though, he would not necessarily be assured of the same degree of personal treatment. Normally he would be under the supervision and care of the consultant to whom he was referred by his general practitioner, and the consultant would accept responsibility for his treatment. In these circumstances the Board is just not equipped to take, nor would it be practical for it to have, the responsibility for securing the purposes of sub-section (1)(a). It is one thing to guarantee the continuance of private practice in this country and quite another to seek to convert this into a right for individual practitioners to choose where they will exercise that right, whether it is in the National Health Service or outside it.
The effect of subsection (1)(b) of the Amendment would be to transfer from the Secretary of State and the health authorities to the Board part of their statutory responsibility for the day-to-day management of the National Health Service. Indeed, I do not think I should be putting it too high, but it might even include strategic planning. This cannot be left to a Board. It must be left to the Secretary of State who has the responsibility under the appropriate Act. No one is seeking to dictate to doctors where they should do their private practice. Under the proposals in the Bill the only restriction on their freedom of choice is that eventually, the facilities which they currently enjoy in National Health Service hospitals for
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treating private patients will be withdrawn, except for the occasional admissions to which I referred a moment ago in trying to reply to the noble Lord, Lord Sandys—all patients needing highly specialised facilities not available in private hospitals and nursing homes. We shall come to that in due course.
I do not think I want to say anything more about the purpose of the Bill, which is the progressive withdrawal of private facilities in National Health Service hospitals, and not the position to which I think the Amendment of the noble Baroness would give rise. In this Bill we are seeking to do a very simple thing, even if noble Lords do not like it. It is very simple. It is to separate private practice from the National Health Service, not to stop private practice. I have been at some pains to say that the Government recognise the need for private practice. We have not and never have had any plans for abolishing private practice. We think that if people want to choose a private doctor, if they want to choose a consultant, if they want a pay bed in a private hospital, they should have the right to so choose. We think it will be beneficial for private practice and beneficial for the Health Service for the two to be separated.
5.51 p.m.
Lord STONE: Speaking as a general practitioner who is in practice now, I must confirm the attitude and the reasons which my noble friend has just given. This is how it works, how it has worked and how it should continue to work. The general practitioner has a choice and it depends on the consultant whom he chooses. This consultant may be a part-time or a full-time servant in the National Health Service. If he is in full-time service there is no room for him to do private practice outside. On the other hand in the teaching hospitals in particular, he will find that most consultants are on a part-time basis. The part-time is for the National Health Service to which they give a complete and satisfactory and adequate service; but on the other hand in the sessions in which they are contracted out of the National Health Service they have the full opportunity of working where they will in conjunction with general practice. They are under contract, and if they live by their contract

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those consultants who are not fully committed to the National Health Service are perfectly at liberty to use private nursing homes, private hospitals or any private facilities. They are there because—and I say it against my profession—the financial rewards of this have been going up enormously since my day of starting in general practice. These facilities are there for people who want to be patients in private nursing homes or private hospitals.
What is more, one finds that the largest number of consultants in the National Health Service are full-time salaried servants and in some of the lesser hospitals and non-teaching hospitals there is no opportunity for private practice. So we can only feel that those consultants who are in partial contract only get the benefit of all the finance that there is in and around the patients' ailments. I should like to point out too that when it comes to facilities there is nothing to stop a patient of any sort from going into any hospital. Even if there were private patients in that hospital, when it comes, for example, to intensive care, there is only one intensive care ward for the hospital and these people are looked after better in the public ward than in the private ward.
Baroness MACLEOD of BORVE: May I ask the noble Lord one question? Twice when he was speaking he referred to satisfactory standards. I should like to know whether it is the responsibility of the Secretary of State to see that the standards are satisfactory, or whether it is the responsibility of the Board. From things I have heard all over the country, it seems to me that the standards in some hospitals are not satisfactory. There is insufficient staff and some of the wards are shut. I am wondering whose job it will be in future to see that standards are satisfactory.
Lord WELLS-PESTELL: There is a general responsibility on the Secretary of State to see that the standards in our hospitals are satisfactory. I think he would be the first to say that in many places they are not satisfactory. We know this and we try to do something about it. Many of our hospitals are housed in buildings that ought to have been pulled down long ago. I have been in some of them. It is because of these
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conditions—shortage of staff, because the place is antiquated and so on—that we do not get satisfactory standards. We try to do something about it within the limit of the financial resources. A good deal has been done but there is a responsibility on the Secretary of State to see that the services supplied are satisfactory.
Lord PLATT: In discussing the clause which contains some definition of the Government's intention we are surely getting back to a Second Reading debate. We have had all that before. If anybody wants to know my views will they kindly read them. I am totally opposed to this separation of private from NHS practice. It is bad for the NHS patients and it is bad for the private patients. The noble Lord speaks about the inspection of nursing homes and seeing that conditions are all right. As I said in my Second Reading speech, who is to inspect the doctors who are going to work in those places? Who is going to say who can and who cannot operate? In the NHS hospitals all that is done. I also think that the separation is bad for the reputation of British medicine at home and abroad. I said that in my Second Reading speech and I hold that opinion very strongly indeed. As one who has had experience of private practice as a consultant and also as a full-time professor with no private practice, I would say that if the clause moved by the noble Baroness is going to make this Bill more difficult to pass I shall be with her.
Lord HILL of LUTON: I am not certain what the intentions of the noble Baroness, Lady Young, are but I would suggest that the noble Lord, Lord Wells-Pestell, has put up a powerful technical case against this Amendment in two respects. First, it would transfer to the Board functions that are statutorily imposed upon the Secretary of State, and, second, the present wording tells the truth about the intention; the Amendment does net. It is not the purpose to make available the best possible facilities for the prevention, diagnosis and treatment of disease and to secure the availability of the best accommodation. It does neither of these things. It seeks to do something which I think is narrow, trivial and contrary to the public interest. That is more a general story for a Second Reading debate,

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but at least it has the merit of honesty in describing what the narrow but well defined purposes are, and does not introduce words which, however comforting they may be, would not accurately or truthfully describe the real purposes of the Bill.
Lord HANKEY: My Lords, I have listened to the noble Lord, Lord Wells-Pestell, with growing amazement. It seems to me incredible that the Board should be set up to make a fairly fundamental change in our health system without regard to the best possible facilities for the prevention, diagnosis and treatment of illness. My noble friend has expressed this very well. This is a most narrowly phrased Bill, but seeing that the Secretary of State has, by common admission, the duty of seeing to these things, is it not incredible that he should set up a Board to reorganise the Health Service without specific regard to the responsibilities which he has? Once Lord Wells-Pestell had admitted that, I find myself totally unable to follow the rest of his speech. I think, therefore, the wording suggested by the noble Baroness really ought to go into the Bill, which otherwise is so negative as to mislead, no doubt, as to the real intentions of the Secretary of State. I cannot believe that he wishes to act or wishes the Board to act without regard to the best possible facilities for the prevention, diagnosis and treatment of illness.
Lord HUNT of FAWLEY: While quite appreciating what the noble Lord, Lord Wells-Pestell, said about not wanting to abolish private practice—and I am sure that he does think that—I would like to mention something which does worry many doctors. Many members of the Government do not feel like that, nor do many members of trade unions. Here is a resolution put forward at the Labour Party Conference this year by the Confederation of Health Service Employees. It reads:
"This Conference calls for the speedy passage of the Health Services Bill to phase out private practice from the National Health Service, while viewing these as interim measures only, and calls upon the Government to take urgent steps to abolish totally private medicine in this country."
So often a resolution at a Labour Party Conference gets into a manifesto in a year or two, and this is what does indeed
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concern doctors—that this Bill is regarded by many people in the Government and elsewhere as just an interim measure.
Lord WELLS-PESTELL: I only want to say this to the noble Lord, Lord Hunt. Every political Party has conferences, and each of them comes to all sorts of conclusions. If you look at the Conservative Party annual conferences, they have had people on their left wing and people on their right wing; all sorts of things have been passed, but they have not found their way even into a Bill let alone on to the Statute Book. What I am saying is this—and it was put very admirably by my noble friend Lady Lee the other day when she was speaking on Second Reading—that we believe in a mixed economy.
This Government do not believe in total nationalisation any more than they believe in no nationalisation. The same view is taken in education. We are not opposed to private education. What we are saying is that if people want it they will have to pay for it. We are not opposed to private medicine. I do not think we shall ever be opposed to private medicine, but what we say is that if people want it they must pay for it. It really is as simple as that. I honestly say this; I can see no cause for concern on the part of members of the medical profession, least of all the consultants; there is no reason for them to harbour that idea.
The only other thing I want to say is this. My attention has been called to the fact that I said a little while ago that the responsibility of the Board was to phase out 1,000 beds. What I should have said is that it is the responsibility of the Board, the Health Services Board, to advise the Secretary of State on the withdrawal of pay beds after the first 1,000 listed in Schedule 2 have been removed.
6.5 p.m.
Baroness YOUNG: We have had a very useful debate on these three Amendments, and I am most grateful to all noble Lords who have taken part. I entirely take the point made by the noble Lord, Lord Hill. The noble Lord, Lord Wells-Pestell, has, of course, described absolutely accurately the intention of this Bill. It is a very narrow interpretation. We read the Goodman proposals, and there, my good-

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ness me, every comma and every full stop has been paid attention to. It is not a happy augury, because it means that everybody is going to refer to this rather like studying the Bible, to interpret every single verse without actually understanding the sense of what lies behind it. I think in fact it will prove, as the noble Lord, Lord Platt, has said, to mean that everybody will have worse care, and that is the tragedy of the situation.
We may accept what the noble Lord says, that on this very narrow interpretation that is what is wanted. But I wonder whether it is going to achieve what he has just said once again is the Government's intention, that there shall be freedom for the doctors to practise privately if they so wish. If, for example, we look at subsection (1)(b), it is of course an ultimate duty on the Board to secure the
"progressive withdrawal of accommodation and services at National Health Service Hospitals from use in connection with the treatment of persons at such hospitals as private patients."
So the ultimate objective is to remove all private beds from the National Health Service hospitals. If this is to be so, it has to be read in conjunction with sub-section (2), where, of course, the Government are also giving the assurance that consultants will be able to practise, both full-time and part-time, for the National Health Service if they so wish.
It is no use saying consultants can practise part-time. The noble Lord will know much better than I do the complicated financial arrangements which are agreed with consultants who work part-time, whereby they are paid, I think I am right in saying, nine-elevenths of their salary. They do as much work for the National Health Service as a full-time consultant does, but they are free to have private practice as well. Lots of consultants have entered the Service on this understanding, and I am sure the Government do not in any way wish to mislead those who are in it now, and who cannot be held as party to these arrangements individually. If they suddenly find themselves in circumstances in which there are not alternative facilities in which they may practice, where those facilities have been phased out, there will be a dilemma; it was the dilemma to which the noble Lord, Lord Goodman, drew our attention at Second Reading. Unless there are the alternative facilities ready when beds
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have been phased out of National Health Service hospitals, part-time consultants will not be able to practise part-time unless they are prepared to accept a reduced salary for doing the same amount of work; they will be obliged to become full-time consultants.
There are all sorts of arguments and reasons why people prefer to remain part-time consultants rather than full-time, which I do not think it is right to debate under Clause 2. But I would draw the noble Lord's attenticn to what seems to me to be a contradiction in this clause. If the Government are saying that subsection (1)(b) stands and sub-section (2) stands, it is difficult to see how subsection (2) can apply if subsection (1)(b) is carried out. This is what creates the doubt in the minds of doctors, because they look at this narrow interpretation and see it as doing that. The Government make statements, but it is no use making a statement unless it can be translated into things that are going to happen. It looks very much as if these things will not be attainable, that once the great machine has started to work the bees will be phased out, that it will take a very long time in many places to have private alternative facilities, that the two are not possible.
I was delighted to know that Lord Stone is going to take part in the Committee proceedings, but he was, of course, talking about London, and, with all respects to Londoners, most people do not live in London. A great many people in other parts of the country are going to be very concerned about this; there simply are not alternative facilities once the private beds are phased out of hospitals. This is a serious matter, so I think we should be thinking about what will happen. I think he said that it was not a free choice, that a consultant was in fact chosen by the general practitioner and the patient did not choose.
I think I would be right in saying to him that the patient would choose a consultant on the advice of the general practitioner, but he does not have to take the general practitioner's advice and is perfectly entitled, if he so wishes, to ask for a second opinion on something. Therefore, it is very important when we are talking about freedom of choice for everybody that we know what we mean.

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It is worth while to have aired this subject. We now know that we have a very narrowly defined Bill in which the Government are not prepared to say, or to repeat, in this declaratory statement that it is their intention that the facilities for patients in both National Health and private nursing homes should be improved, or should be maintained at the highest possible standard. I find that a very sad feature, but that is the conclusion to draw at the end of the remarks of the noble Lord, Lord Wells-Pestell.
Nor are we prepared to write into it that there should be a freedom of choice. This is outside the Goodman agreement. And because in fact it is going to be extremely difficult to implement this, it is perhaps as well not to put it in because I suspect it is not going to work. However, we can debate that again. I shall go back and consider once again this lengthy debate, because I am not satisfied with the answer that I have got, and I think that I should tell the noble Lord that if this Bill is going to work, and if the future of the National Health Service is to be assured, we must have a basis of trust; it will not be good enough to go back to that one document and say, "That is what it said, and that is what we are going to stand by because it is not a static situation, and we have to move on from it. I believe that a great deal more thought will have to be given to this. I shall at this point withdraw the Amendment, but I shall seriously consider coming hack to them on Report.
Amendment, by leave, withdrawn.
6.13 p.m.
Lord SANDYS Lord SANDYS moved Amendment No. 7:
Page 2, line 24, at beginning insert ("Without prejudice to section 8 below").
The noble Lord said: With the leave of the Committee, I should like to move Amendments No. 7 and speak to No. 8, because Amendment No. 7 is in effect a piece of drafting machinery for Amendment No. 8. This is an Amendment which we believe to be very desirable because it places a qualification, and follows very closely upon the proposals which Lord Goodman laid before the Government after consultation. May I he allowed to refer to the Goodman proposals, and I shall
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do so in chapter and verse. My quotation lies in Section 3a of the Goodman proposals. I hope that your Lordships will permit me to read a portion and also quote from Lord Goodman's speech, because I believe it is strictly relevant to this Amendment. In the proposals it reads as follows:
"The criterion for phasing out shall be the reasonable availability of reasonable alternative facilities (including accommodation, services and equipment) within a reasonable geographical distance and to which reasonable access is available to those patients and practitioners desiring to avail themselves of it."
The noble Lord, Lord Goodman, at Second Reading referred to the word "reasonable" and its importance in law, and he said at column 1500 of the Official Report in our debate on 21st October:
"My own interpretation of 'reasonable', which I think would be supported by better lawyers than I am, is that the word must mean `reasonable in every sense '. In my view it is not necessary to underline it but at the same time it would cost nothing to underline it. If the restoration of a little confidence can be achieved by adding a couple of words at the expense of the common printer, I would say let us add those words and make quite sure that everything the doctors want that is reasonably required by them should be provided and this Bill should be set off under the very best possible auspices."
The noble Lord in his proposals made the suggestion. Our Amendment, and the wording of our Amendment, follows closely upon it. We believe that it would be desirable to have a qualification on an important section of the Bill. Under the paving Amendment—that is, Amendment No. 7—I referred to "Section 8 below" of the Bill, and Clause 8 refers to a particularly important situation which will arise on restrictions on power under Section 31 of the 1968 Act to allow the use of National Health Service facilities by private patients. I should perhaps refer to the Act of 1968 because the Bill does not refer to the Act until Clause 8, and it is a very important section.
In his speech a little earlier, the noble Lord, Lord Wells-Pestell, referred to enactments since 1946 which allowed private practice to use National Health facilities. Of course Section 31 of the Health Services and Public Health Act 1968 does just that. I think it would be tedious if I recited the whole of the section. It is one sentence, but it gives a Minister power to make such use, and on such terms as he thinks desirable, of any services to private practice. I think that

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the situation which we shall come on to in our later Amendments under Clause 8 of the Bill will elucidate the position further. Nevertheless, it is particularly important at this stage to include in the Bill, as we see it, a qualifying clause as set out in the Amendment. I beg to move.
6.18 p.m.
Lord WELLS-PESTELL: May I deal with Amendment No. 7 first. Again I am bound to say that if the noble Lord—and I have no doubt that he has done so—has read his Amendment in relation to page 2, line 24, which he wants to begin, "Without prejudice to section 8 below" and then reads on, as I am sure he has done because he is a very thorough person as I know from past experience, he will see that Clause 8 lays down certain facilities and certain undertakings. Because of the very fact that it is already in Clause 8, I cannot see why in this particular part of Clause 2 it is necessary to say, "Without prejudice to section 8 below because it is so clearly set out in Clause 8 and there is no intention whatsoever of changing Clause 8 because it is so clearly set out. The clause declares the effect of Clauses 3 to 5, which provide for the phasing out of facilities of private practice in National Health Service hospitals.
This progressive phasing out is not inconsistent with the occasional use of facilities for individual patients in special circumstances. This will be provided by Clause 8. The words of the clause, by referring to the effects of Clauses 3 to 5 only, sufficiently allow for the effective operation of Clause 8 for the limited purposes spelled out in Clause 8. It is clear that Clause 2 is so drafted as to allow the special occasional use of the facilities in Clause 8 to continue unaffected by the phasing out. If that is so, and if the noble Lord accepts that that is so under Clause 8, then I cannot see the need to add in Clause 2 the words he proposes, and if he examines the matter I am sure he will come to the conclusion that they are not necessary.
Coming to Amendment No. 8, I do not want to quote because I suppose we shall all get tired of the Goodman proposals by the end of the Committee stage. While, therefore, I will not quote from them again, the statement in Clause 2(1) represents, as I said earlier, the first leg
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of the commitment; namely, a broad declaration that private beds and facilities—and we are concerned here with facilities—should be separated from the NHS. The Amendment seeks to water down and confuse this declaration by adding to it a proviso which is inappropriate. The proviso appears to be intended to reflect other parts of the proposals of 15th December, which appear elsewhere in the Bill; namely, the criteria for the selection of the 1,000 beds and the principles to which the Board is to have regard in Clause 4(7). But the proviso is not a full and faithfull reflection, no doubt because it attempts to do in a few words what requires 40 lines or more elsewhere in the Bill.
The words in the Amendment are also unnecessary since the operation of phasing out 1,000 beds is fully covered by the details of Clause 3, and the activities of the Board are fully covered by the details of Clause 4. The provisions in those clauses are the effective provisions which will govern the progress of separation. It seems that the words of the proviso have been designed to hold back the process of separation by casting doubt on the way the principles in Clause 4(7) are to be applied by the Board. For instance, there is the reference to
"… patients or practitioners desirous of obtaining or providing …"
private treatment. The words in the 15th December proposals refer to "reasonable demand". It would be inconsistent with the 15th December proposals, and lead to inordinate delay, if regard had to be had to any patient's or any practitioner's desire; there must be a reasonable demand. Moreover, there is no recognition in the proviso of the provisions in Clause 4(7)(c) and 4(7)(d) about the phasing out of pay beds where steps that could be taken to provide alternative facilities are not being taken.
In addition, by importing into the proviso the reference to availability of facilities to patients or practitioners for obtaining or providing private treatment, the Amendment substantially elaborates the principles of the 15th December proposals as these have been embodied in Clause 4(7), where the phrase used is "facilities for private medicine". This could mean that even if there was a negligible demand from patients, nonetheless

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the consultants could maintain the case for pay beds because they desired to practise privately. This is not part of the 15th December proposals which were agreed.
6.24 p.m.
Lord O'HAGAN: May I ask the noble Lord, Lord Wells-Pestell, to reconsider his attitude on this matter? My noble friend Lord Sandys, when moving his previous Amendment explained that he was asking for the noble Lord's views on whether the wording of subsection (2) could be improved. He wanted to make the second part of the declaratory clause, Clause 2, more explicit and he gave some examples from the Countryside Act and others of ways by which this could be done. Lord Wells-Pestell did not answer that point and I hope he will take the opportunity to do so now or later, because this Amendment is very much in line with the previous constructive one which my noble friend moved. It raises a matter which will, I think, recur throughout the Committee stage and I will refer to it now rather than having to repeat myself inordinately.
It is easy for the Government to pick and choose and select those parts of the Goodman proposals which they feel are essential, crucial and vital, and say, "These are part of the Goodman commitment", yet at the same time not pay attention to parts to which the Government do not attach such importance or refuse to alter the emphasis in other ways. To give an example, what Lord Wells-Pestell has been saying in replying to this Amendment has been "the Goodman, the whole Goodman and nothing but the Goodman". However, when we were examining Clause 1, I asked him whether the Scottish and Welsh committees were in the Goodman proposals. They are not. Despite that, the Government have seen fit in that case to add to the Goodman proposals because they feel that this addition will make the Bill work better.
It is not fair for the noble Lord to criticise those of us who have moved Amendments by saying, "You are attempting to undermine or undercut the Goodman proposals", when a few minutes later—when it suits the Government—they are quite happy to alter the Goodman proposals. The question then is this:
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is the alteration a major or a minor one? Who has the judgment of Solomon as to what is a major or minor amendment to the Goodman proposals?
Lord Wells-Pestell said that the last Amendment would water down and confuse the issue. I suggest that it is a matter of judgment. In my judgment it would have done the reverse; it would have clarified the issue. The noble Lord, Lord Goodman, spoke of his desire to remove the corroded atmosphere in the Service, and that we all wish to see removed. But I would ask Lord Wells-Pestell to bear in mind this when he is using the proposals made on 15th December as an argument and when he is talking about the commitment to Goodman: please have an open mind, please be prepared to consider and please do not insist that the Government's interpretation of an agreement between various parties is the only interpretation.
There may be ways in which the implementation of the Goodman proposals, if they are to be implemented, could be improved. I believe that my noble friend's suggestion is constructive and I hope that the noble Lord will not repeat, every time an Amendment is moved from these Benches, that in the view of the Government it would represent a substantial alteration to the Goodman proposals, when the Government are themselves prepared to alter those proposals when it suits them.
Lord WELLS-PESTELL: The Government have embodied all the Goodman proposals in the Bill and, as the noble Lord, Lord O'Hagan, quite rightly pointed out, they have added to them. The reason for this is that a long time ago the Government formulated the type of Bill that they wanted to separate private practice from the National Health Service. I do not have to tell the noble Lord, or any noble Lord present tonight, the kind of difficulties that arose when the Government made it clear some time ago that they wanted to separate private practice from the National Health Service. In order to get some agreement between the Government and the medical profession, we got the Goodman proposals which we understood were acceptable and accepted by the medical profession. Therefore, we embodied them in a Bill and we think that we have faithfully embodied them in

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this Bill. We have added other things, as the noble Lord mentioned, in order to seek to do what we want to do.
The noble Lord has asked, "Why not take it back and have a look at it?". I do not want to mislead the House. I want to be perfectly frank, as I hope I always am in your Lordships' House. We have studied very carefully what has taken place in another place. We know that there were 29 Sittings of the Committee. We know that it considered word by word and line by line something like 500 Amendments. The result is that when the Bill came to us we again looked at it very carefully and quite independently. We came to the conclusion that the Bill spelt out exactly what the Government want. We have carefully considered all the 143 Amendments that face your Lordships' House at the present moment and when I say that we have carefully considered them I mean that we have carefully considered them, since we received them in, I admit, reasonably good time. We have spent long hours going into them and we have come to the conclusion that, by and large, we prefer the Bill as it is and do not think that it will be improved by the Amendments.
Lord O'HAGAN: T hesitate to rise again, but the noble Lord referred to the Committee stage in another place. What about the Second Reading in your Lordships' House when the author of the Goodman proposals, the noble Lord, Lord Goodman, came here and made certain suggestions about the way in which his own proposals could be carried into effect? My noble friend Lord Sandys referred to this specifically and those words are reflected in the Amendment. He talked about the use of the words "reasonable in every sense" which the noble Lord, Lord Goodman, referred to in his speech on Second Reading. Are we to take it from the Government that they are not prepared to look at Amendments even when they are in the spirit not only of Goodman the first time round but of Goodman speaking in your Lordships' House? Surely, the speech that was made by the noble Lord in this House as well as the proceedings of the Committee in another place will be taken into account by the Government when answering the debates here.
Lord WELLS-PESTELL: I have said that we have studied not only the Good-man proposals—that is clear because they are embodied in the Bill—but also the speech of the noble Lord, Lord Goodman, on Second Reading, and that we have not seen fit as a result of that to put down any Amendments ourselves or, for that matter, if they are reflected in any Amendments before your Lordships' House, to feel that they would in any way improve the Bill.
Lord SANDYS: Of course the Government think that the Bill is perfect, but there is a certain note of selfsatisfaction which is not to my liking or that of my noble friends. In examining the position, of course we went into the clauses that relate to this particular Amendment very carefully. The noble Lord, Lord Wells-Pestell, was good enough to say that we normally do so and of course we have done so in this particular case. However, we detect in Clauses 4, 7 and 8 a loosening of nuts and bolts in the Goodman proposals and I believe that this is especially important. I shall not go into detail now, because I shall shortly be withdrawing the Amendment, but I should just like to say this. The noble Lord, Lord Goodman, quoted from a letter that is particularly relevant to the two Amendments to which we are speaking. The letter was sent by the British Medical Association to its members before the ballot. It said:
"Clearly, it is difficult to assess the validity on the one hand of the assurances given by the Goodman proposals and on the other the anxieties expressed in debate that so much remains a matter of individual interpretation and, so far as implementation is concerned, a matter of good faith."
My noble friend Lord O'Hagan referred to this as the judgment of Solomon and I am certain that he is right. The letter went on to say:
"If the proposals were to be implemented as intended by Lord Goodman, then a significant measure of protection for the future of the independent practice of medicine would be achieved. If, however, the proposals were to be distorted by the Government and Lord Goodman's aims were not to be preserved, then there is no doubt that both private practice and the independence of the profession would suffer."
We believe that to be a very fair statement by the British Medical Association and I would not add one word to it. However, I feel that, at this stage, it would be better to withdraw the Amendment and return

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to the point at a later stage. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
6.38 p.m.
Baroness YOUNG Baroness YOUNG moved Amendment No. 9:
Page 2, line 43, at end insert—
("(3) Nothing shall be done under or by virtue of this Act, and nothing in this Act shall be construed, so as to operate to the detriment of any person (whether or not a consultant), who was on 12th April 1976 employed whole-time or part-time in one or other of the national health services or concerned with the interests of patients at NIIS hospitals, whether or not such detriment occurs under, by reason or in consequence of the terms of his employment.").
The noble Baroness said: I must say that, having listened to the noble Lord, Lord Wells-Pestell, reply to Amendments Nos.7 and 8, I am embarking on this debate with a heavy heart. It looks to me as if the Government have made up their mind that they will not accept any of the Amendments, and of course we now understand why they have put down no Amendments. I made my remarks about a perfect Bill as a joke because we all know that nothing in this life is perfect, but I must say that I am now distressed to think that the Government have decided that they themselves could not put down any Amendments to meet the points raised by the noble Lord, Lord Goodman, on Second Reading and that they look as if they will not meet any of the points that we are raising.
I shall of course try with the present Amendment because I should have thought that it was one that would have appealed to the Government. We came to consider what is to happen to all those individuals who will be affected by the phasing out of 1,000 beds. On the last two Amendments that I moved I have already spoken about the difficulties that part-time consultants will face if there are no private facilities available where they can practice. As the noble Lord knows, they receive only part of the salary of a full-time consultant and if they cannot make up the difference in private practice they will clearly be worse off. Therefore, they are likely to suffer financially. The Amendment is intended to apply not only to them but to the other employees who may be affected. We are concerned here with what I understand is an accepted trade union formula of no detriment.
Not only would the consultants easily suffer; what about all the other individuals, the nurses, the physiotherapists, and all those who have to serve and cook the meals in relation to 1,000 beds that are to be phased out, if these beds are not to be filled with National Health Service patients? When I asked this question at Second Reading I never got a categorical assurance that every single bed phased out will be used by a National Health Service patient, and ill one instance of which we know the accommodation has already been used as offices. Nobody has to be very clever to see that it could mean that many people will be affected. It is possible to argue that they will all be found other jobs in the hospital, and of course we hope that they will, but nobody can he sure. One of the objects of legislation must surely be to make quite sure that all the eventualities arc covered, and it is for this reason that we have put down the Amendment.
It might have been possible to put down an Amendment which went into the whole question of compensation, but that is not a method which I particularly care for, and i did not wish it in any sense to be looked at as a kind of special pleading by a special group. I take the view about the National Health Service, and indeed medical service generally, that everybody involved in it is giving a service. They are obviously being paid, but they are giving a service, and that is surely the spirit in which it should all be looked at. At the same time anybody who is likely to suffer financially for it ought to have some kind of recompense. I purposely used this particular form of words because I believe it to be a leading trade union principle that no renegotiation of collective agreements may ever operate to the detriment of existing employees. That is, in effect what the Amendment says, and it means employees in the widest sense: everybody employed in this massive transfer of beds. Therefore I hope that, because the purpose of the Amendment is constructive and helpful, the Government will accept it. I beg to move.
Lord WELLS-PESTELL: I believe that in dealing with an Amendment of this kind it is essential to look at Schedule 2 to see where the beds are located. The greatest number of beds that are to be withdrawn happen to number 46 and they

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cover all the hospitals in Kensington, Chelsea, and Westminster. So the number of private beds likely to be closed in any one hospital will be infinitesimal. Let us look, for example, at the position in Sunderland, where five beds will be closed, while in the whole of Suffolk there will be only three, and Suffolk has a good many hospitals. It is not as if one is to close 1,000 beds in one place and get rid of a tremendous amount of labour. The fact is that the 1,000 beds are to be drawn from England, Scotland and Wales, from hundreds of hospitals, and I should think that the question of displacement of staff will hardly arise unless for any reason a member of a hospital staff wants to leave.
We can take this question of detriment to an absurd length. Who are the people who are to be affected? The Amendment is very wide ranging. Let me give your Lordships a case in point. A cleaner who has been working in a private section of a hospital might complain that by the closure of two or three beds she will loose a certain amount in tips every week. A junior hospital doctor whose consultant was more often away from the hospital for private practice, or a part-time consultant who, if he is to increase his income, has to travel a little farther, could, I suppose, say that he had a claim for detriment because he had to travel a little farther. One would assume that he would put that on to the fee of the other private patient. So I suppose that any staff who had a greater load of work as a result of treating National Health Service patients rather than private patients could complain. I suppose that hospital porters who had been serving the private wing of a hospital could complain that because that part of the hospital, or a few beds had been closed, they had suffered as a result of loss of tips.
But where is this detriment? If we are to have in the Bill a clause which deals with detriment let us be realistic about it. Let us satisfy ourselves that there is going to he detriment. When one talks about detriment in the trade union world that means loss of jobs, and very often the loss of a large number of jobs. But these thousand beds are to be phased out in England, Scotland and Wales. They are to cover the whole of the area, and the number of beds to be phased out in
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any one hospital can, in the majority of instances, be counted on one hand. I do not really see that the question of detriment arises or that there is any need, just for that reason, for this Amendment.
Lord SANDYS: I cannot accept the noble Lord's answer because it must be manifestly clear to your Lordships that Clause 2 applies not only during, phasing out of the first 1,000 beds but throughout the period that the Bill, when it becomes an Act, is on the Statute Book, and in the course of action during which the Board intend to phase out all private beds. So it must follow automatically, as certainly as night follows day, that there will be a loss of jobs. There is bound to be a loss of jobs. The Amendment seeks to ensure that the minimum amount of detriment is suffered by those involved. The noble Lord referred to Schedule 2. He quoted Kensington, Westminster and Chelsea and mentioned 46 beds, which is perfectly accurate, according to the Schedule. But that confuses the issue, because it suggests that that is the maximum number. It is the maximum number in Phase 1, but of course this clause covers a very much longer period.
The second point which the noble Lord raised was the loss of minor income, and he referred to tips. It is not tips, it is jobs which we are seeking to preserve by promoting the Amendment. I suggest to your Lordships that the Amendment goes very much wider and is far more beneficial in its aims than possibly the Government have grasped. At present the attitude of the noble Lord is one of resistance, but if he will look at the matter a little more carefully and perhaps consult the trade unions concerned he will be of a different mind about it.
6.46 p.m.
Baroness WARD of NORTH TYNESIDE: The noble Lord referred, I think, only to hospitals around London, and this is quite typical. I am looking up those which are to be closed down in my part of the world; that is to say, in Cleveland, Cumbria, Durham, Northumberland, Gateshead, Newcastle upon Tyne, North Tyneside, South Tyneside, and Sunderland. I am becoming rather tired of the fact that in this place we are

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always having to discuss Bills all of which relate to London. I do not want anything to happen to London hospitals any more than I want anything to happen to hospitals in my part of the world. I should like to remind the noble Lord that in this area we have King George's and King Edward's Hospital Fund, so quite a number of problems can be faced by using money from King Edward's Hospital Fund. When I go into some of the hospitals around here I find that in the general wards there are curtains all around the place and they are almost private wards, but that does not apply in my part of the world, and we are very worried about this situation.
I am all in favour of passing the Amendment which we are now discussing, but I want to say this. If this Bill ever becomes law (which heaven forbid!), and if the Government ever get reelected (which I hope they will not), then when they come back we shall have another Bill. This is the point, is it not? The noble Lord has talked about all sorts of things relating to Lord Goodman. I have a great admiration for Lord Goodman, but I should have preferred to see him sitting here. Then we could have had a go at him. I do not like discussions on a noble Lord's arrangements and then that noble Lord not coming to listen to those discussions. I do not approve of that. The noble Lord said that this was going to close down only 1,000 beds all over, so far as I can make out, but if the Bill becomes law then, before you can say "Jack Robinson", the Government will be coming along with another Bill and we shall have exactly the same arguments. I think that my Party, and I hope the Liberal Party, should get at the Government and tell them that we are not going to have this sort of thing going on. As I say, it does not suit my part of the world.
I will quote just one thing. We had a very fine hospital provided by private money, endowed by private money, which housed, and was arranged especially for, crippled children. Not so very long ago—and this is in the area in which I live, so I know that I am telling the truth—the local authority and all the people who lived in the area subscribed money and built a wonderful swimming pool; because in recent years it has been discovered that it helps cripples if they can get into a very good swimming pool. We spent a lot
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of money on it; it is a beautiful pool. The hospital was endowed. The whole of the hospital was given; but, of course, it has been taken over by the National Health Service. We have argued and argued about this, without any result from the Government. Of course, many of the crippled children got better through new treatment over the years from when the hospital was originally established, and it is true enough that there were some empty beds. They were occupied by adults.
The National Health Service took the hospital over just after this beautiful pool was built. We had lovely grounds for the children, lovely gardens—everything. So far as I can make out, some of the children have now got to be moved to the new Freeman Hospital, which we do not find at all satisfactory. It is quite a long way away from this beautiful swimming pool, and we do not find that at all suitable. When the noble Lord quite rightly says that there is a shortage of beds all over the country, that there are lots of people wanting to get into hospital and that they cannot because there are not enough beds, why get rid of the beds in this hospital? Why fill up beds in the new Freeman Hospital, which we are all waiting for and which we have had to wait for for years and years and are just about to get? Here is this other hospital which they say, of course, will have some beds empty. Why? We could fill those as well, and use the Freeman Hospital and all the new beds very satisfactorily.
I am absolutely in favour of this Amendment. I hate to have to say this, because I sometimes trust members of the Government—not very often, but sometimes I do—but I certainly think that this Amendment is absolutely necessary unless the noble Lord can say that this will be the last Bill to phase out pay beds. I suppose he cannot say that, can he? Because I think that if the Government stay in much longer we shall have another Bill and there will be a whole lot more beds phased out, and there will be more losses. As for looking after my part of the world, we have the greatest contempt for what is done in my part of the world. I am sorry if the noble Lord wants to get up—
Lord WELLS-PESTELL: Perhaps I may say to the noble Baroness that this is

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the last Bill on this matter because the Government will phase out, eventually, all pay beds.
Baroness WARD of NORTH TYNESIDE: That is what I thought.
Lord WELLS-PESTELL: I think the noble Baroness was under the impression that it was going to be only 1,000. May I say to the noble Baroness that I will look at this. We feel, as to the displacement of staff—because, as I said earlier on, only a few beds will be affected in some hospitals, and some hospitals will not be affected at all—that they will he absorbed, or could be absorbed (not necessarily will; it depends on them, but they could) into the National Health Service. But I will look at this, and I think that perhaps the best thing to do is to write to her and send a copy of the letter to the noble Lord, Lord Sandys, so that they will have an opportunity to consider it before Report stage.
Baroness WARD of NORTH TYNESIDE: I thank the noble Lord, but I do not like letters. I like the thing in public, and I want the letter in Hansard. I do not want the letter sent to me. The bother of having to get a letter in Hansard is quite an operation, and I do not like private letters. I like letters that are public.
Lord WELLS-PESTELL: I was not proposing to write to the noble Baroness, as much as I should like to do so. I was proposing to write to the noble Baroness, Lady Young, on an entirely different matter from the one that the noble Baroness, Lady Ward, was speaking about.
Baroness WARD of NORTH TYNESIDE: I was not talking about her.
Baroness PHILLIPS: Before we go any further, I think the noble Baroness who has just spoken has in many ways been a great deal more honest than many of the other noble Lords who have spoken. I would say to the noble Baroness, Lady Young, for whom I have the greatest respect—I think she is extraordinarily able, and I would much rather have her on my side than against me—that I feel there is a certain element of hypocrisy about the way we are being told that they are sad that the Government will not accept any of the Amendments. When I sat on the
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Opposition Front Bench, the Conservative Government of that time, in the case of a major health Bill and of a major social security Bill, did not accept one small Amendment from our side of the Committee. We differ philosophically, and I think that the other Party does not like this Bill. I think that if they were honestly to admit that they do not like this Bill, instead of pretending that they are now the champions of the workers—that is very interesting, but it is certainly a change of heart—it would be a much more honest approach. Those who do not like the philosophy behind the Bill—we respect this, and we understand it—should use that approach rather than bringing in some of these things, which seem to some of us merely delaying tactics.
Lady RUTHVEN of FREELAND: I must ask permission to say to the noble Lord, Lord Wells-Pestell, that I think his calculation of only 46 pay beds being done away with in London is a little incorrect. I have made a rough calculation, and I think it is well over 200.
Lord WELLS-PESTELL: I must interrupt the noble Baroness. I said 46 in Kensington, Chelsea and Westminster, not in London.
Baroness RUTHVEN of FREELAND: What I was going to say was that that affects all the teaching hospitals in London, and, to me, they are the most important, because they are the ones where instruction is given both to the medical students and to the nurses. My calculation is that well over 200 beds will be phased out.
Lord WINSTANLEY: I welcome the fact that the noble Lord, Lord Wells-Pestell, has undertaken to look again at this Amendment and certain of the matters underlying it, in particular the calculations about possible lost jobs, and so on. I am very glad, too, that he has finally acknowledged that this Amendment does not look only at the first phase of 1,000) beds; it looks at the ultimate situation—the situation which the noble Lord has now made totally clear: the Government's intention ultimately to eliminate all private beds in National Health Service hospitals. When that has happened, there is no doubt at all that there will be many people

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who will be detrimentally affected in a number of different ways. It is not only the lost jobs.
So I merely rise to ask him whether, while he is looking at the number of jobs, and things of that kind, he will also look at another point. There are consultants, many of whom I could name and who he will discover, I am sure—who are at the moment part-time consultants. Many of them would honestly prefer to be whole-time National Health Service consultants but they cannot get whole-time contracts because the hospital boards are not in a position to offer them. When private practice has been phased out altogether—I am not saying that they necessarily want it phased out altogether; I am saying that some of these people are doing private practice because they are obliged to do so, they are compulsorily part-time—when private practice has gone from within the hospitals, one would like to feel that they will have opportunities to opt for full-time contracts. I am mentioning this to make it clear that there are a number of aspects so far as detriment is concerned and not only loss of jobs. If the noble Lord is to look at part of it, then he might as well look at it all.
Baroness YOUNG: It had been my intention to press this Amendment because we on this side feel strongly about it. I think that the support that it has received on all sides showed that everybody was concerned about the placing of staff. I was pleased to hear what the noble Lord, Lord Winstanley, said, because it applies to those consultants who will not be able to get full-time jobs as well as to other staff. We have just debated at length subsection (1) and the noble Lord drew my attention to the fact that it is the Government's intention that all private beds should be phased out; so that we must talk about the 4,000 beds.
I should like to reassure the Committee that we on this side think that the conditions of the staff are important. I may not have had much to do with hospitals, but I have had a considerable amount to do with schools and re-organisation, and one of the things that always comes up is, "What is to happen to the staff?" I can say categorically that none of them is financially worse off at the end of the arrangements than
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at the beginning. They may not have the same status; but they have not lost any money. I think this is important. I welcome what the noble Lord, Lord Wells-Pestell, has said. If he does not like our Amendment, I hope he will be able to bring back an Amendment himself which meets this point. If there is not an Amendment produced, then we shall return to this again on Report and press it to a Division. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Lord STRABOLGI: This may be a good moment to halt the Committee as agreed. I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

SEXUAL OFFENCES (AMENDMENT) BILL
7.3 p.m.
Lord WILLIS: 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 Willis.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD CHAMPION in the chair.]
Clause 1 agreed to.
Clause 2 [Restrictions on evidence at trials for rape, etc.]:
Lord HAILSHAM of SAINT MARYLEBONE Lord HAILSHAM of SAINT MARYLEBONE had given Notice of his intention to move Amendment No. 1:
Page 1, line 21, leave out from beginning to ("at").
The noble and learned Lord said: When I put down this Amendment I did not know that my noble and learned friend Lord Morris of Borth-y-Gest, was going to put one down. I have looked at his Amendment and I have looked at mine. I think his is the better and achieves the

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same purpose that I had intended to achieve by mine. I therefore do not intend to move my Amendment.
Lord MORRIS of BORTH-Y-GEST Lord MORRIS of BORTH-Y-GEST moved Amendment No. 3:
Leave out Clause 2 and insert the following new clause:
Restrictions on evidence at trials for rape etc.
.—(1)At a trial at which any person continues to he charged with a rape offence to which he pleads not guilty no evidence shall be adduced by or on behalf of any defendant at the trial and no question shall he asked in cross-examination by or on behalf of any defendant, in relation to any sexual experience of a complainant with a person other than a defendant unless, after an application made to the Judge in the absence of the jury, the Judge, being satisfied that such evidence or such question is relevant to an issue arising in the trial, gives leave.
(2) In this section complainant means woman upon whom, in a charge for a rape offence to which the trial in question relates, it is alleged that rape was committed, attempted or proposed.
The noble and learned Lord said: I put down this Amendment solely in the hope of being both helpful and constructive. On the Second Reading I made some observations in the course of which I endeavoured to say how much I admired the report of the advisory group under the chairmanship of Mrs. Justice Heilbron. I expressed the view that the general tenor and underlying philosophy of the report were wholly admirable. I, therefore, for my part, expressed a general welcome for the Bill. In particular, I thought that Clause 1, if it is enacted, will prove of great value in the administration of the law, of value as a definition and of added value because of the declaratory provision in subsection (2) of Clause 1. However, I expressed some reservations and those reservations really relate to Clause 2.
On Second Reading I put forward the view that Clause 2 seems to be unnecessarily complex and that it may lead to doubts, delays and debates with all the expense that may as a consequence result. I think that the report pointed out very forcefully that there has been much public concern in regard to the position of women who have been complainants in these cases. Before a woman ever reaches the witness box she will have had experiences of great torment. I am sure that we ought to do as much as we possibly can to see that she is not unnecessarily—and I stress the word "unnecessarily"—exposed to
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questioning which may be painful, humiliating and distressing. Of course we must remember that it is for the prosecution to prove their case. The prosecution must prove a lack of consent and an accused person must not be denied any proper means of repelling charges brought against him.
The Amendment that I have put down, I have put down in the hope that it meets the case forcibly presented in the report of the advisory group, the case that women who are complainants are often in need of protection. I have not myself taken the view that members of the Bar have needlessly indulged in what has sometimes been called "character assassinnation"; but defence counsel has material, he wants to use his material, and it does not soon or at once become evident to counsel for the prosecution—or, indeed, to the judge—whether what is being put forward has relevance or. if it has any relevance, has real relevance. The Amendment I have put forward therefore, if it was thought to be helpful and acceptable, while avoiding all the complexities of Clause 2 as at present drafted, would provide that no questions could he put to a woman complainant in regard to her sexual experiences with any man other than the defendant unless and until the court gives leave. Application would have to be made in the absence of the jury. The judge would have to consider whether there was relevance in the questions proposed to be put.
It seems to me that in these cases the range of situations is so varied that it is difficult to lay down in any precise terms how a judge would rule in regard to relevance. There must be some real relevance and the judge, I suggest, must be fair to the prosecution, he must be fair to the defence, he must hold the scales evenly and he must do his utmost to protect any witness. I have therefore drafted this Amendment which would provide that the judge would have to have an application before any of these questions were put; he would have to decide whether there was relevance—and I think a judge would consider, "Is there real relevance?" Probably the matters would relate to consent in almost all cases and the situations would be so infinitely various that the judge would have to decide whether there was relevance and whether he should give leave.
It seems to me that that is essentially the function of the judge and that we ought to trust Her Majesty's judges, with their experience, to he able to decide each case on its merits, having regard to its own particular facts. I have not thought that it was necessary to make any fresh enactment in regard to the question whether, by questions put, an accused person may bring in his own character so that questions could be put to him under the provisions of the 1898 Act. I should have thought that the law had been considered in regard to that matter. The prosecution must prove lack of consent, and if the defence is merely challenging that there was lack of consent I think it has been held that the defence to that extent is not attacking the character of the complainant. Therefore I would submit that this can be left to the judges, that that would be fair to women complainants, fair to prosecution and to defence. I put this Amendment forward merely in the hope that it is helpful. I generally favour this Bill. Perhaps my attitude might be expressed if I say, "I come not to bury Caesar but to praise him".
7.13 p.m.
Lord HAILSHAM of SAINT MARYLEBONE: I rise to support the Amendment proposed by my noble and learned friend—if he will allow me to to so call him. The Committee owes a great debt to him for having raised this debate. As I said, I prefer, in the main, his version to mine of Amendments Nos.1 and 2 which I did not move, but I thought that the last words of my own Amendment might be incorporated with his at a later stage as being perhaps an improvement. The real point is that we have to do something to reduce the immense verbosity of modern Parliamentary drafts-manship. The noble and learned Lord's Amendment and my Amendment are about a tenth, I should suppose, in numbers of words to that of the Bill as it now stands. Just look at it. You start at the bottom of page 1, you have the whole of page 2, the whole of page 3 and right down to about seven lines on page 4 in order to achieve the same result. That cannot be right. We aim at the same result and it must be that it is capable of being achieved in fewer words. I see the noble Lord,
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Lord Cudlipp, here and he knows the necessity of economy of words in another capacity.
If you pass the Bill in its present form it is my serious opinion that there will be hundreds of trials within a trial, there will be scores of appeals to the Court of Appeal and probably a round dozen or so appeals to the House of Lords. I sometimes hear complaints from the other side of the House that Bills produced are a lawyer's paradise. People exaggerate the form of beatific vision enjoyed by lawyers when they argue cases in court, but none the less this clause will cause a lot of expense, a lot of delay, a lot of uncertainty and a lot of litigation. I would ask the noble Lord who is in charge of the Bill to look at it again with a little bit of expert and elegant draftsmanship to see whether he cannot incorporate the best of Lord Morris and the best of Lord Hailsham.
Lord HARRIS of GREENWICH: That indeed would be very difficult. will speak, if I may, fairly briefly on this particular point. I am aware of the fact that the noble and learned Lord who has just resumed his seat and the noble and learned Lord, Lord Morris of Borth-y-Gest, have both made it clear that they are supporters of the Bill and wish it well. That being so and given the character of the argument which they have deployed this afternoon I certainly undertake between now and probably the Third Reading of the Bill to cause this matter to be discussed by officials in my Department and the Promoters of the Bill, to see what we can do about this particular problem in Clause 2. Certainly to achieve a greater economy of words is an admirable objective and we will set our minds to it. Certainly I will give that undertaking and I hope that we shall be able to produce something which will meet the general convenience of the House. I cannot give any total assurance at this stage but we will certainly do our best to meet the noble and learned Lord's point.
The Earl of MANSFIELD: May I reinforce what my noble and learned friend said, possibly from a slightly lower plane because that is from where I come. After I left the lush but rather souldestroying pastures of the Probate Division I found myself both prosecuting and

1521
defending rape cases with extreme frequency. Indeed, the first case I ever defended in the Central Criminal Court was a case of rape, and the last that T prosecuted in that forum was a case of rape. The first case I ever witnessed in an English court when as an undergraduate at Oxford at the Assizes was a case of rape, and the judge who tried it was, as he was then, Mr. Justice Morris on his first circuit. The case was prosecuted by, as he later became, Lord Justice Sachs. So that case, too, was on a higher plane than I was as an undergraduate.
I do not want to be flippant about this matter. The case of rape causes practitioners the greatest of difficulty and the greatest of embarrassment and it is fair to say it also causes juries a great deal of difficulty. Perhaps over the years juries have become rather wider in their sympathies than they used to be. Certainly, when I practised I do not think I ever lost a case of rape, so to speak, if I was defending, because with juries, which were more predominantly male in those days, if one got on the right note one could always in effect invite the jury to come to the conclusion on the basis that either they got up to this sort of thing when they were Servicemen or they wished that they had had the courage to do so. I know that that is a terrible way in which to put "courage but one has to confess that certainly as it stands at the moment the law on rape favours the defendant too much.
I found it extremely difficult when conducting cases on behalf of the Crown to obtain a conviction, and I was very surprised when I came to read the Official Report of the Second Reading to see the figures which the noble Lord, Lord Harris of Greenwich, quoted in respect of the years 1973–74–75 when the conviction ratio, if I may so call it, was about 3: 1. Figures can, of course, say anything, but I assume that the figures were simply as he gave them and that is a very high conviction ratio.
What worries me is that if Clause 2 is passed in its present form, the freedom of manoeuvre of the defence will be severely fettered, and what is perhaps more important is that the freedom of the judge to conduct the trial—as the noble and learned Lord, Lord Morris, said—fairly to the woman complainant, to the Crown
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and to the accused will also be fettered, particularly by subsection (3) of Clause 2. It seems to me that there are many cases where the jury have to take into account matters which are indeed peripheral to the acts complained of, but which, nevertheless, are extremely important.
For instance, there are many cases of ladies on their way home from dances who accept lifts, and then there are unfortunate consequences. In my experience, the defence is inevitably one of consent, it being said on behalf of the defendant that the girl had gone to the dance, she was out for a good time, she was probably provocatively dressed, she drank too much, she got the good time which she had sought and then, when she got back home and her parents asked her what had happened, she said that she had been raped. This is a story which will be over-familiar to anybody who has had anything to do with this kind of case.
Is it to be said that the defence cannot go into these matters, because that is to me one of the fetters which will be imposed by subsection (3), if by no other. If the behaviour of the complainant prior to the incident is allowed, when does the shutter come down? As my noble and learned friend said, at best this will make for a great deal of time, but at worst what it means is that for every trial there will have to be a trial within a trial, and some form of application made before the defence gets very far under way and the complainant is cross-examined. It does not stop there, because, very often, counsel for the defence has certain instructions which he is very reluctant to put to a complainant; because, contrary to what some Members of the other place believe, on the whole counsel behave in a responsible manner. But as the trial develops, and as the evidence comes out, it may then be his duty to go the whole hog, as it were. That will be a situation of extreme difficulty, if in the middle of the trial he has to go back and seek leave for something which has only just arisen.
I should have thought that what this comes to—and this is something which the Government must face—is either that the judges of this country are to be given discretion to decide when matters have gone too far, when the pendulum has swung too far away from the true, so that matters are becoming unjust either as

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against the complainant or as against the defendant; or alternatively, a legislative framework will be introduced which will, as I have said, place a fetter on the judge's discretion and he will not, as I read the clause, be able to do what he will frequently feel ought to be done.
If I may end by saying this, we have always left these matters of procedure to the judges, on the basis that if they go wrong the Court of Appeal can put matters right and that, I suggest, is certainly the principle which should be adopted in future. Of course, when it comes to the feelings of a lady who may have been over-roughly cross-examined, that cannot be put right by the Court of Appeal or anybody else, but that is not really the point. The point is whether a trial is to be fair and not whether a trial is of man or of a woman.
Lord HARRIS of GREENWICH: The most sensible thing I can say is that I take note of what the noble Earl has said, and I have already made it clear that we will look at this matter before the Third Reading of the Bill.
Lord WILLIS: I should just like to thank the noble and learned Lords, Lord Hailsham and Lord Morris, for their helpful attitude on this clause. As everybody readily admits, it is a little cumbersome, but if you write a medical prescription that, too, is sometimes a little cumbersome, and it is very dangerous to leave out one part simply in order to make it brief. Brevity may sometimes be the soul of wit. It is not always the soul of justice.
We have tried in this clause to encompass the suggestions made by the Heilbron Committee which deliberated on this matter for some time. I absolutely support what my noble friend Lord Harris of Greenwich has said, and we will meet and discuss to see whether something can be done to abbreviate the clause. But I would certainly resist leaving out of that clause one or two of the points which have been made by noble Lords, which are important and which Heilbron thought are important.
Lord MORRIS of BORTH-Y-GEST: May I thank the noble Lord, Lord Harris, for the way in which he has dealt with
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this matter, and also thank all noble Lords who have taken part in the discussion. I detect a general feeling that we are seeking the same objective, and it is merely that we are trying to decide what is the best path to tread so as to reach the objective which we all have in mind. I am most grateful to the Minister for what he has said, and in view of that I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 2 agreed to.
Clause 3 agreed to.
Clause 4 [Anonymity of complainants in rape etc. cases]:
7.27 p.m.
Lord HARRIS of GREENWICH Lord HARRIS of GREENWICH moved Amendment No. 6:
Page 6, line 22, at end insert—
(", or
(d) a bill of indictment charging him with a rape offence is preferred before a court in which he may lawfully be indicted for the offence,").
The noble Lord said: I beg to move Amendment No. 6 and, if I may, will speak at the same time to Nos.7 and 8. The object of these minor Amendments is to include, in the definition in Clause 4 of the time at which a person is to be regarded as accused of a rape offence, a reference to voluntary bills of indictment. This meets an assurance which was given in another place. I beg to move.
On Question, Amendment agreed to.
Clause 4, as amended, agreed to.
Clause 5 [Provisions supplementary to s. 4]:
Lord HARRIS of GREENWICH Lord HARRIS of GREENWICH moved Amendment No. 7:
Page 7, line 30, leave out ("(c)") and insert ("(d)").
On Question, Amendment agreed to.
Clause 5, as amended, agreed to.
Clause 6 [Anonymity of defendants in rape etc. cases]:
Lord HARRIS of GREENWICH Lord HARRIS of GREENWICH moved Amendment No. 8:

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Page 10, line 23, leave out ("(c)") and insert ("(d)").
On Question, Amendment agreed to.
On Question, Whether Clause 6, as amended, shall stand part of the Bill?
Lord HAILSHAM of SAINT MARYLEBONE: I do not want to take a great deal of time on this, because I realise that one could talk almost interminably about it and 1 do not propose to take that course. I raised the issue on Second Reading. I personally do not see that it follows, from the fact that you give the complainant anonymity, that you should give the defendant anonymity. I cannot see that the defendant is in the same position as the complainant in a rape charge. The fact is that we give the complainant anonymity—we have already decided to do so, because we passed the clause—on two grounds. One is that she is unusually placed in the position of having to prove her innocence before she can bring the charge home to the allegedly guilty party; and the other is that, as a rule, she has to face a series of unpleasant suggestions about her compliance with or consent to what has been done; sometimes, one must say, of the most disgusting kind.
As I said on Second Reading, there are arguments both ways but on balance I think that anonymity has it. As a rule, I am against anonymity. I think that publication is for the good of justice and, as the noble and learned Lord knows, I came to this conclusion reluctantly but quite definitely. The argument which is presented in support of the anonymity of a defendant is that sometimes in the course of his defence he has to admit conduct which a certain number of people would consider to be slightly indecorous.
I am left absolutely unmoved by the argument. Not to put too plain a point upon it, it seems to me to be silly. A man who is charged with murder often has to admit rather indecorous conduct in the course of his defence. Nobody suggests that he should remain anonymous throughout until the result is known. Only the other day magistrates refused to commit for murder in a case where a man had to admit to keeping a mistress within a mile or two of his allegedly murdered wife and to calling her in the same night to look after the children. No
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doubt that was very indecorous but nobody suggested that he should be anonymous. My own belief is that it is sheer sentimentality that because you allow the anonymity of the complainant you have to be even-handed and so you allow the anonymity of the defendant, too. Some people believe that this is obvious. I do not. I regard it as silly and I have said so.
Lord MONSON: I rise with considerable trepidation, as a layman, to oppose the Amendment of the noble and learned Lord. I understand and fully sympathise with the objects of the Bill, but I fear that by making things a lot less traumatic and less unpleasant for the unfortunate victim of rape, by virtue of the anonymity clause—anonymity for the complainant, that is—and by virtue of the clause that makes inadmissible evidence of previous sexual experience, there is a danger that the chances of an innocent person being convicted will be increased, even if only slightly. This is a very serious matter, because the sentences for such offences are severe, and rightly so. One thinks of a dramatic coincidence the other day that was cited by the noble and learned Lord, Lord Wigoder., in his Second Reading speech. About half an hour before he rose to speak a message had come through on the Press Associaion tape to the effect that an innocent man had been released after serving two and a half years of a 12 year sentence, because the woman in question had admitted that her story was a complete fabrication. There is also a danger that the incidence of frivolous and, indeed, malicious complaints which do not result in a conviction will rise, even if only slightly. Perhaps this is the lesser of two evils. In a sense, all legislation involves a choice between the lesser of two evils. This being so, I feel that Clause 6 strikes a fair balance, and I hope that it will remain in the Bill.
7.33 p.m.
Lord HARRIS of GREENWICH: I will speak fairly briefly because, as the noble and learned Lord rightly said when he spoke to the Committee a few moments ago, this is a narrow but not unimportant question. This clause did not appear in the Bill when it was first published and a new clause was inserted during the Report stage in another place to replace

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a defective Amendment which had been successfully moved in the Standing Committee in another place. As the noble and learned Lord points out, the clause provides for anonymity for defendants in rape cases, with suitable exceptions where it would be appropriate for the restriction on publication of the defendant's identity not to operate.
As explained during the debate on Second Reading, the Heilbron Advisory Group's views on anonymity for defendants before conviction were viewed by the Government with the greatest respect, but we came to the conclusion eventually that it would be wrong to persist with our attitude, given the decision which had been taken in the Standing Committee. The arguments advanced during the debate on the Second Reading of the Bill in this House have been considered by the Government and, indeed, by the sponsors of the Bill. Most of those who are opposed to the clause have taken the line that there is fundamentally no difference between a defendant in a rape offence case and in any other criminal case.
However, there is one fundamental difference: that in rape cases the complainant will be anonymous which, except in blackmail cases and cases involving juvenile victims, is not so with other offences. It is a certain disadvantage to a defendant in a rape case if he can be named while the person making the accusation, except in the rare circumstances for which the Bill provides, cannot. This was the purport of the speech of the noble and learned Lord, Lord Morris of Borth-y-Gest, during the Second Reading debate on the Bill. He said that after fairly careful reflection he had come to the conclusion that Clause 6 was right. That is also the Government's view. Therefore I hope that the Committee will support the retention of Clause 6 in the Bill.
Lord HAILSHAM of SAINT MARYLEBONE: Nothing has been said which has altered my opinion in the slightest, but if anybody thinks that I am going to divide the Committee I am not. I am afraid that it would cause a great deal of unnecessary discussion in another place, although we have dealt with this subject with admirable compendiousness, as we always do. However, having regard
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to what has been said by the noble Lord, Lord Harris of Greenwich, although I have made my point and stick to it I am not going to ask the Committee to vote upon it.
Lord BEAUMONT of WHITLEY: I hope that I am not impertinent in rising at this stage. I should have done so before the noble and learned Lord got to his feet, but he was very quick about it and I could not do so. I will not detain the Committee for long. I do not believe that this is entirely a matter of tit for tat. As the noble and learned Lord, Lord Hailsham of Saint Marylebone, said, it is not a question that because one side is anonymous the other should be also, even though that was the case put by the noble Lord, Lord Harris of Greenwich. In so many cases of accusation of rape the defence is not just indecorum. It is adultery. This is a matter upon which we all know that the noble Lord, Lord Hailsham of Saint Marylebone, has held strong views in the past, and I suspect that he takes the view, "Serve the person right if they have to be known to have committed adultery".
Lord HAILSHAM of SAINT MARYLEBONE: I really must complain. I never said anything of the kind and what the noble Lord has just said seems to me to be totally irrelevant to anything that I did say.
Lord BEAUMONT of WHITLEY: The noble Lord may not have said that, and if it is not the noble Lord's opinion I withdraw unreservedly what I have said.
Lord HAILSHAM of SAINT MARYLEBONE: I thank the noble Lord.
Lord BEAUMONT of WHITLEY: However, I still think that this is a particular kind of crime and I do not believe that there is anything analogous to it. The noble and learned Lord, Lord Hailsham of Saint Marylebone, quoted the case of a murderer or a person accused of murder—
Lord HAILSHAM of SAINT MARYLEBONE: I said, "acquitted".
Lord BEAUMONT of WHITLEY:—a person acquitted of murder who was able to produce an alibi. Some people

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choose to do it that way. Your Lordships will remember that the noble Duke, the Duke of Denver, chose before your Lordships' House to risk being hanged rather than to give away the identity of his mistress. The fact is, however, that in these cases you have to admit something which is in the twilit area between sin and not approved of by public policy in this country but which is not actually a crime. My noble friend Lord Wigoder suggested to me that there were other analogous cases, such as a solicitor accused of a peculation who had to say in his defence, "It wasn't peculation; I was merely very inefficient".
It seems to me that there is a difference in a lot of these cases that the inefficiency is something which is of public interest and in the public interest it should be known, and that the adultery is nobody's business except those who actually commit it. I should have thought this was the only class of case in which such an enormous proportion of people have to conduct their defence by admitting something which is seen by the world to be reprehensible and which is yet not a crime. In addition to the case put by the noble Lord, Lord Harris of Greenwich, I think there is a very good case for the retention of this clause.
Clause 6, as amended, agreed to.
Clause 7 [Citation, interpretation, commencement and extent]:
On Question, Whether Clause 7 shall stand part of the Bill?
7.41 p.m.
Lord MONSON: Before we leave the final clause, I should like to refer to a matter which arose on the Third Reading of this Bill in another place, where Mr. George Cunningham, at col.886 of the Official Report on 15th October—
Lord HARRIS of GREENWICH: With respect to the noble Lord, I am afraid that the Rules of the House do not permit him to quote any Member of another place other than a Minister.
Lord MONSON: May I ask the noble Lord whether it is in order for me to paraphrase?
Lord HARRIS of GREENWICH: Yes.
Lord MONSON: Referring to a case which received much publicity, involving some young Moroccans who had assaulted a woman in Earl's Court, an honourable Member made the point that it was a curious presumption which suggested that a boy under 14 years of age was incapable of this act, and he went on to express the hope that the House of Lords would see fit to look at the particularly silly presumption in English law, which has no parallel in Scottish law, and would make an Amendment to improve the legislation.
I assumed that one of the honourable Member's noble friends in this House would have tabled such an Amendment but saw nothing in the Marshalled List today; and in an attempt to understand why I read further in the report of the Third Reading proceedings in another place and I saw that the Minister of State—and I believe I am allowed to quote from his remarks—said:
"This is being considered by the Criminal Law Revision Committee, assisted by the Policy Advisory Committee on Sexual Offences. I think that is the best way of dealing with the matter."—[Official Report, Commons, 15/10/76; col. 890.]
With respect, the man in the street—indeed every person with any common sense—knows full well that a boy of 13 is perfectly capable of committing this offence, and that this has always been the case. It does not seem to me that it requires the deliberations of a Committee, however distinguished, to establish that fact. I should like to ask the noble Lord, Lord Harris of Greenwich, whether it would not serve the interests of justice if an Amendment were tabled for the next stage of this Bill in order to rectify the matter.
Lord HARRIS of GREENWICH: I think the most sensible thing would be for me to say that I take note of what the noble Lord has just said. He quoted some words spoken by my honourable friend the Joint Minister of State in another place, pointing out that this matter was being looked at by the Criminal Law Revision Committee, and if the noble Lord tables an Amendment we shall of course look at it; but I would not wish to hold out any hope that we would be in a position to accept it.
On Question, Clause 7 agreed to.
House resumed: Bill reported with the Amendments.

DOCK WORK REGULATION BILL
7.44 p.m.
Lord JACQUES: My Lords, I beg to move that this Bill be further considered on Report.
Moved, That the Bill be further considered on Report—(Lord Jacques.)
Lord SANDFORD: My Lords, before we actually start on the next Amendment I wonder whether I may take this opportunity to thank the noble Lord. Lord Jacques, for the very full and comprehensive letter which he has sent to me and to my two noble friends, Lord Drumalbyn and Lord Lyell. in which he clarified further for us the purpose and the content of Clause 7 which we were not able to get very clear on Tuesday. On reading that letter, which I did with great profit, I felt that it ought to be in the Official Report so that the many people who are in touch with us and have anxieties about this Bill might read it. I have therefore tabled a Question for Written Answer, to which I understand his letter can be the Answer and it will appear in Hansard tomorrow. I hope the noble Lord and other noble Lords will agree that it is helpful. I certainly confirm that the letter has been very helpful.
Nevertheless we shall need to study it and I may well need to return to parts of it on Third Reading. If tomorrow, when I am able to turn back to it, I decide, or my noble friends decide, that it will be so, we will endeavour to table appropriate Amendments in good time tomorrow. So may I thank the noble Lord and once again protest, in a general way, that we have to conduct our business in this rather extraordinary fashion.
Lord JACQUES: My Lords, I acknowledge the thanks expressed by the noble Lord and would say that we are happy to be of some help.
On Question, Motion agreed to.
Clause 8 [Cargo-handling operations in general]:
Lord LYELL Lord LYELL moved Amendment No. 49:
Page 12, line 22, at end insert—
("( ) The Board shall not make a recommendation under this section if in their opinion the classification of the work would adversely affect the efficiency with which the operations constituting the work are carried out, or would materially increase the cost").
The noble Lord said, My Lords, this is the last of the series of Amendments that we were moving the other evening when we came to a halt against the clock, but I remember what the noble Lord, Lord Jacques, said then, both in reply to my moving some previous Amendments, Nos.47 and 48, and also earlier in Committee. When we were discussing this series of Amendments on Tuesday evening the hour was indeed late and I wonder whether we made the most rational use of all the time available at that late hour.
This Amendment must be linked to the previous series of Amendments to which I spoke together with my noble friend Lord Drumalbyn. Once again I would ask the Government whether they do not consider that this Amendment, with its particular reference to costs, contributes to the Bill. At earlier stages of the proceedings on this Bill in this House noble Lords opposite objected to the ability of the Board to discuss and decide its policy, since noble Lords did not believe that there would be sufficient expertise in this particular area of cost accounting among the membership of the Board. I submit that this is an unworthy remark on the overall competence of the Board. I am certain that the noble Lord, Lord Jacques, will appreciate that costing, and indeed extracting information from costing records, is as free as it is possible for it to be from the mystique and mumbo-jumbo that appears to be the case to any layman. However the Board will not consist solely of laymen, and thus I consider that the criticism that has been raised on this point and on others in connection with costs is not entirely accurate.
I should like to refer to one other point that was raised at a later stage in our last deliberations on this Bill when there was a comment on labour costs and overheads. One thing which seemed odd to me was

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the reference to the level of profits. I am sure the House would agree that only in economies which have a total monopoly of power. where complete monopolies are permitted and, indeed, tolerated, can an employer or port authority decree or aim at a level of profits in the costs which, lest we forget, are costs to the port users and consumers. This matter also affects the public interest which we were discussing earlier. We believe that this particular Amendment is sound. We believe it contributes to the Bill. We await the reply of the noble Lord, particularly in view of what has been said on this series of Amendments and on ones similar to it in the past. I beg to move.
7.51 p.m.
Lord JACQUES: My Lords, we believe that costs ought to be taken into account, but not in the manner proposed by the Amendment. I would point out that we are dealing at the moment with Clause 8. Under Clause 8 there are two procedures before the Board can propose classification. In the first place they have to circulate, obtain information, give an opportunity for representations to be made, and then decide whether there is a prima facie case. If they decide there is a prima facie case, they have to start all over again and give opportunities for representations to be made. Finally, they have to decide whether it would be sensible in all the circumstances to classify the work. So there are two opportunities for submitting representations on costs to the Board.
In addition, after the Board have made their recommendations there is an opportunity of making representations to the Secretary of State. We attach great importance to that because we believe that employers might be reluctant to make representations on costs to the Dock Labour Board, which consists substantially of employers and employees, whereas representations could be made with complete confidence to the Secretary of State. We attach great importance to that and believe that that is the point when representations on costs, certainly overall costs, should be made. We think it is fit and proper that they should be made in that way.
The question of costs has never really been a matter for the National Dock Labour Board under the present Scheme.
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The cost before and after classification depends on many things which are solely within the province of the employer, or the employer and the trade unions with whom he negotiates. For example, costs depend on what mechanical aids there are before or after classification, and the question of whether or not there are mechanical aids is a matter entirely for the employer, or the employer and the trade unions, according to what the normal arrangement is. Secondly, the use of manpower is important in relation to costs, whether one man should be allocated to a job or not. This is a matter entirely for the employer in his collective agreement with the trade union. It has nothing to do with the Dock Labour Board. It has never had anything to do with the Dock Labour Board. Therefore, we think the Board should not be called in to deal with this matter under the new Scheme.
Finally, I would point out that at the Committee stage, the noble Lord, Lord Lyell, said, and I quote:
"I hope no noble Lord will claim against us that we are seeking to maintain low standards of employment or pay because that really would not be true, let alone fair."—[Official Report, 15/10/76; col. 669.]
I suggest to the House that if this Amendment were carried it would be entirely fair—
Lord LYELL: Oh, no.
Lord JACQUES: Would the noble Lord let me finish? It would be entirely fair if this Amendment were carried, for this reason. Take the case of an employer who has casual labour and who offers poor conditions—and there are some employers like that in this industry. This Amendment would seek to protect those employers who are giving the poorest conditions, because the poorer are the conditions, the greater would be the increase in cost. If this were carried out, it would be entirely fair to come to the conclusion that the Amendment was protecting the employer who, with casual labour, was giving poor conditions of employment.
Lord DRUMALBYN: My Lords, may I ask the noble Lord, Lord Jacques, one or two questions on this matter? First

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of all, I have no doubt that it will be perfectly legitimate for employers to make representations, or for anyone to make representations, to the Secretary of State at any time. But if the Secretary of State is going to be the source of decisions on efficiency and cost and so on, ought there not to be a provision in the Bill specifically providing for representations to he made under this clause to the Secretary of State? It seems to leave it very loose just to say, "Oh well, the Board will look at everything else, but it will not consider costs and efficiency. If that is what you want, you will have to write to the Secretary of State". I should have thought that in that case there would be a possibility for all concerned to make representations to the Secretary of State on these matters. I know it appears in other clauses, but I cannot find it in this particular clause.
The second point I wanted to ask about was this. When we are talking about costs in a straight comparison of costs between what is going on at present and what would go on if the work were classified, the only thing that matters is productivity—nothing else. Productivity is the difference between the two, given the existing basis of mechanical aids. There can he no question of bringing mechanical aids into a straight comparison of that kind.
My third point is that there must be some ports in the country where casual labour, in the ordinary consideration of what it means (and we have been into this subject before) is the appropriate way for dealing with the port. If there is only one shipment a fortnight, or something like that, it is rather absurd to have a complete and regular team of employees as registered dock workers. In that case I should have thought it was perfectly legitimate to say that casual labour can continue to be used, casual labour being the people who are used when there is cargo to handle. That may be very fine. As I have said before, the same people may be doing several other jobs when there is no cargo to handle. Therefore I think the criticism of my noble friend's speech mentioned by the noble Lord might be fair in certain circumstances where casual labour was being employed and where it could be replaced on a sensible basis by regular employment—
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I do not think any of us would object in such cases to the work being classified—but not otherwise.
These are the sort of consideration one has to have in mind here. I myself would not have thought that the Amendment proposed really poses the kind of difficulties that the noble Lord has been creating; because I think they are difficulties which he has been creating. They are not really difficulties.
Lord LYELL: My Lords, I could not phrase my reply better than did my noble friend Lord Drumalbyn, who put it very fairly that the noble Lord, Lord Jacques, is creating difficulties. For the noble Lord to suggest that the incorporation of this clause would give employers the freedom to persist in practices which are totally outside the provisions of the Bill, and to assist in the continuation of casual labour, is totally wrong. I cannot see that the Amendment has any bearing on that at all. This is far into the realms of supposition.
Regarding the comment which the noble Lord made tonight—and indeed has made in previous replies to this type of Amendment—that the Secretary of State would be more discreet than other employers and employees, I wonder whether that is the case. By the time any representations go to the Secretary of State, I believe that it is far too late. In this Amendment we are discussing what the Board shall do. At the bottom of page 11 it reads:
"… in particular, as well as all other matters appearing to them to be relevant …"
the Board shall carry out various tests, which are set out in (a), (b) and (c) in this subsection. For the noble Lord to bring casualisation and decasualisation into this subsection is irrelevant.
The noble Lord also pointed out that costs are the province of the employer and the employees, but the prices charged by the employers and employees for the operation of loading and unloading cargo at the docks is the cost to the consumer. If the cost to the consumer is allowed to escalate, I believe that the growth of containerisation and other more cost-efficient methods of handling freight will inevitably be adopted. This has happened in certain cases, and I hope that this Amendment would go some way to alleviate the

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problems in larger ports where cost efficiency has been allowed to decline.
We are very unhappy with the reply of the noble Lord and I think that we ought to insist on this Amendment; but the noble Lord has pointed out that there is an appeal to the Secretary of State so I suppose we must grasp at that straw of hope. In no way are we satisfied with the noble Lord's reply and indeed his continual reference to the possibility, and, as he puts it, probability that employers are going to use this Amendment to keep down pay and conditions of employment at the ports.
Lord DRUMALBYN: My Lords, will my noble friend allow me to intervene? I hope he will support my request to the noble Lord, Lord Jacques, as to where in this clause we can find the provision for appeal to the Secretary of State. It is not in the clause but I find that Schedule 4 does provide for representations to be made to the Secretary of State. I understand it appears in paragraphs 11, 12 and 13.
On Question, Amendment negatived.
Clause 9 [Reference by Secretary of State to the Board]:
8.3 p.m.
Viscount SIMON Viscount SIMON moved Amendment No. 51:
Page 12, line 39, leave out "take into consideration") and insert ("consider").
The noble Viscount said: My Lords, I am moving this Amendment on behalf of my noble friend Lord Airedale who could not be here this evening. As noble Lords know, my noble friend is very particular about the use of good English and he wants to know why, on page 12, line 39, the words "take into consideration" should be used, whereas at the end of paragraph 3 the reference is to matters which the Board were, "directed … to consider". A little earlier this afternoon noble Lords on the Front Bench opposite were complaining about a Conservative Amendment which had one unnecessary word. This time I think we might complain that the Amendment which the Government have drafted has two unnecessary words—" direct the Board to take into consideration", rather than, "to consider". I beg to move.
Lord JACQUES: My Lords, the noble Lord, Lord Airedale, was kind enough to submit three drafting Amendments, all of which were what I would call stylistic. We accepted two of them. In regard to this one, on balance we would prefer to keep the words that are in the Bill on the grounds that we have consulted counsel and are advised that there is a subtle difference between "consider" and "take into consideration". The draftsman wishes to keep this in and we see no reason why we should not meet his wishes. I therefore hope that on this occasion the noble Lord might withdraw the Amendment.
Lord DRUMALBYN: My Lords, might I also put in a plea. I agree that there is a difference; that is why the noble Lord, Lord Airedale, has suggested the Amendment. The noble Lord said that it is a subtle difference but I think it is a fairly normal one. You ask somebody to consider something and when considering it to take into consideration other things. You do not ask them to take into consideration the thing you are directing them to consider. There is a real difference here.
Lord JACQUES: My Lords, with the leave of the House, I wish to say that the noble Lord, Lord Airedale, made it quite clear that he had taken it for granted that they both meant the same thing and he was saving words.
Viscount BARRINGTON: My Lords, I am a little worried about the question of a subtle distinction. I can see that there might be a distinction between "taking into consideration" and "considering", though I do not know what it is. I can see that there certainly would be a distinction in taking something into account and accounting for it. I can think of many things in which my conduct might be taken into account by a judge without his having to account for it. This is a real point of difference if it is not a matter of verbiage only. If it is a matter of verbiage only, I can see no reason for not accepting the Amendment.
Viscount SIMON: My Lords, I am quite sure that my noble friend would not wish to divide the House on this issue. It would appear that the noble Lord, Lord Drumalbyn, had better briefing than

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I had about this. He seemed to know what was in my noble friend's mind. I will of course, accept what the Government say. We will leave "take into consideration", but will the Government then consider themselves putting down an Amendment to subsection (3) so that the end of that subsection would read:
"to report to him our opinion on the matter they were directed by him to take into consideration".?
That is, if there is a difference. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
8.9 p.m.
Lord DRUMALBYN Lord DRUMALBYN moved Amendment No. 52:
Page 13, line 10, after ("the") insert ("matter or").
The noble Lord said: My Lords, the point here is small but I think it may be an important one. Subsection (1) reads:
"The Secretary of State may … direct the Board to take into consideration any work, done or to be done at premises in a dock labour scheme area …"
The work done or to be done plainly might be one matter or it might be more. If it is only one matter, the Board cannot and should not be directed to report upon other matters. If the word, "matters" alone remains as it is, then I think there is a danger that the Board might be expected to report on other matters than the ones which they have been asked to take into consideration. Of course, there might be more than one matter, in which case the word, "matters" would be appropriate. For that reason I have put down this Amendment, so that subsection (3) should read:
"The Board shall, within such time or extended time as the Secretary of State may allow them, report to him their opinion on the matter or matters they were directed by him to consider."
I think it would be very difficult not to accept this, and if it is not acceptable I shall be glad to know the reason why.
Lord ORAM: My Lords, like the noble Lord, Lord Drumalbyn, when I saw this Amendment I linked it with subsection (1), but I really reached the opposite conclusion as a result of looking at these words. It seems to me that almost certainly directing the Board "to take
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into consideration any work" et cetera must involve a complex of issues, a complex of matters. Almost certainly, therefore, "matters" is the right and complete word to cover the situation. I do not think that the Amendment is a necessary one; it does not seem to me in any way to affect the meaning of the Bill as drafted, because surely the plural includes the singular.
In relation to the noble Lord's last point, that the Board might report on matters which were not referred to it, surely that is covered if one reads on, the rest of line 10,
"… on the matters they were directed by him to consider".
I listened with interest to what the noble Lord said, but I am afraid he did not convince me that this Amendment would in any way change the sense of the sub-section. Therefore, I am afraid I am not in a position to recommend the House to accept the Amendment.
Lord DRUMALBYN: My Lords, we are really on a very narrow point here, because the noble Lord has said almost all cases. I was merely dealing with the case where one matter is referred to the Board. He says that is covered in the word "matters", but not in that particular case. I cannot say that I agree with him, but 1 do not think it is a sufficiently important matter to divide on. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
8.4 p.m.
Lord DRUMALBYN Lord DRUMALBYN moved Amendment No. 53:
Page 13, line 15, after ("making") insert (", and their estimate of any additional cost likely to be incurred or saving likely to be made as a result of implementing").
The noble Lord said: My Lords, this Amendment does not call for any great expertise or accountancy. What it does is to call for an estimate of the additional cost, or the saving, likely to be the result of implementing a recommendation of the Board to classify or to declassify work in premises in a Dock Labour Scheme area. The work in question might be work of a particular type in particular premises or it might be work of a specific type in several premises throughout the particular Dock Labour Scheme area. The calcu-

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lation in either case should not he difficult. We are on very much the same point as we were on before. It will depend wholly or mainly on changes in manning that would be involved, changes in rates of remuneration, contribution to levy, and so on. It might he necessary also to take into account records of absenteeism, industrial action in the area and at the premises, the cost of training and retraining, and similar factors. They are all manpower issues. The main point is that productivity should always be a consideration present in the mind of the Board when making recommendations in cases of this sort. I beg to move.
Lord ORAM: My Lords, I think it would be helpful in considering this Amendment to take a brief look at the purpose of the clause as a whole, as a background to consideration of the wording the noble Lord has moved. Clause 9, of course, enables the Secretary of State to refer classification questions to the Board. While the Board will have the major responsibility for deciding whether the current classifications of dock work are satisfactory (that is under Clause 2) and whether to recommend (under Clauses 7 and 8) classification for particular work, questions of Government policy may arise which would warrant an initiative from the Secretary of State. In these circumstances the Board has an important advisory role.
The effect of this clause and of Clause 11 is that the Secretary of State cannot proceed to make an order classifying or declassifying work without the Board having first considered the question. The procedures which the Secretary of State must follow are that he must first consult with the TUC and CBI before deciding to give the Board a direction. Then the procedures, when he has given the Board a direction, are broadly similar to the procedures required under Clause 4(1) for the preparation of a draft scheme; that is, he must publish notice of the fact that he has given a direction, inform persons interested where they can obtain a copy of it and give at least 60 days in which representations can be made to the Board.
The point in relation to this Amendment is that the procedure is deliberately much simpler and more direct than that which the Board is required to follow under Clause 8 and Schedule 4 when it is determining
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whether to recommend to the Secretary of State that specified classifiable work at premises in the cargo handling zone should be classified. Therefore, we do not think it appropriateunder this clause to require the Board specifically to examine any of the prima facie and other grounds which the Board is required to take into account under Clause 8(4) and (5) or indeed any other specific matter. We do not think it is right to single out costs, as the noble Lord would propose, any more than, for example, industrial relations questions or any other considerations.
Moreover, I would ask the noble Lord to consider that the Board is required to give reasons for not making or for making any recommendation, and the Secretary of State has to publish the report and the action he proposes to take on it. Therefore, I would suggest that there will be full public scrutiny of both the report and the action that the Secretary of State proposes. For these reasons, particularly that the procedure has been deliberately kept simpler and we want to keep it that way, I hope the noble Lord will not wish to press his Amendment.
8.20 p.m.
Lord MOTTISTONE: My Lords, it seems as though the Government are particularly keen to keep out this question of costs and efficiency. We ended on that note on Tuesday. I should have thought it rather necessary that this particular facet of the workings of the results of any recommendation should be something that the Government would be the first to encourage. It does not seem quite right to say that the Board will make a report and the Secretary of State will make it public, because the question of the effect of costs and savings will not be obvious to the public. The public is not in a position to judge whether this is a fact or not. They will have views. They may make protests. They may do all sorts of things, but the Board, if it performs its functions properly, is in a particularly strong position to do that.
There are other factors like industrial relations, and indeed they have a bearing on costs and savings, and it might be that it would improve this particular subsection to include those, too. At least this is taking us some of the way down the line. In this day and age, when costs and

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savings are so important, when the National Economic Development Organisation is setting up special groups of people to study how there can be savings, how investment can be better directed, it is the theme of the day, it is reasonable for an Amendment such as that of my noble friend to be treated as of paramount importance. It is something that I should have thought the Government, rather than saying, "No, we don't like your Amendment because we think it is taken care of in other ways", would have said to themselves, "Let us have this direction to the Board; and if we think that we also want them to take into account possible industrial relations consequences of a recommendation", which indeed I think would be a very important added thing, "we will take on board what the noble Lord, Lord Drumalbyn, has had to say, and at the next stage we will add industrial relations to it, because these are things that the Board must consider".
Lord DRUMALBYN: My Lords, I am grateful to the noble Lord for his full explanation on this particular matter. He pointed out that this is rather a different kind of case altogether. The whole clause deals with something that the Secretary of State himself has been brooding on, and wondering what to do about, and he then refers this to the Board and says, "What do you think about it?" That is the essence of it. In the course of thinking about it, I would have thought that it would be natural for the Board to consider the question of cost. The noble Lord will have certainly appreciated by now that something which is worrying us very much indeed is that the Board is in danger of making its recommendations without reference to cost. Therefore, every possible indication that it should be cost conscious should be put into the Bill. This is our view.
I do not think I can say more about that, except to say that, as the noble Lord said, it is not a question of recommendations being appealed against and representations being made by other parties to the Secretary of State; so that even the Secretary of State may not be adequately considering the cost factor in this case. I should have thought he would have looked to the Board to give him advice on this aspect. I need not
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say any more about this. The noble Lord, I am sure, will consider this. If he agrees with us, he might put down an Amendment in an appropriate form; as my noble friend Lord Mottistone says, possibly with the addition of other matters that they ought especially to consider. I shall not say any more. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
8.25 p.m.
Lord SANDFORD Lord SANDFORD moved Amendment No. 54:
After Clause 9, insert the following new clause:
Appeals concerning classification
.—(1)If any person being an employer of persons carrying out work to which sections 7, 8 or 9 apply, or any trade union recognised for the purposes of collective bargaining by any such employer shall dispute whether any work should be classified as dock work which falls within Part I of Schedule 3 and not within Part II of the Schedule or claims that any work should not be classified or should cease to be classified on the grounds that it falls within Part II of Schedule 3 and not within Part I of that Schedule.
(2) Any such notice under this section shall state—

(a) the name and address of the person giving the same and the facts entitling him to give such notice;

(b) the nature of the dispute identifying the work in question and the facts relating thereto in sufficient details to enable a reference to be made hereunder including the address or description of the premises at which such work is carried on;

and a copy of such notice shall be sent by the person giving the same to the Board and to all other persons being employers and trade unions as aforesaid and in any way concerned or interested in the subject matter of the dispute.
(3) If the dispute or claim is not resolved, withdrawn or otherwise settled the Secretary of State may refer the dispute for decision to the Advisory Conciliation and Arbitration Service or to an Industrial Tribunal.
(4) No report or recommendation by the Board and no order made by the Secretary of State relating to such a dispute or claim shall be made while the dispute or claim stand referred to the Advisory Conciliation and Arbitration Service or to an Industrial Tribunal.
The noble Lord said: My Lords, I beg to move Amendment No. 54, and to apologise to the House that I did not realise that the two manuscript Amendments that I had to move on Tuesday would not by now have been incorporated in the main Amendment. As they have not been, I think what we have to do next is to get those two Amendments to the

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Amendment into Amendment No. 54, and then I will speak to the amended Amendment.
Lord SANDFORD Lord SANDFORD moved Amendments Nos. 54A and 54B as Amendments to Amendment No. 54:
Line 6, after ("dock") insert ("work")
Line 9, at end insert (", he may give notice to the Secretary of State.").
The noble Lord said: My Lords, I beg to move Amendment No. 54A, and think it would be for the convenience of the House if I also moved Amendment No. 54B, as I do not think there will be anything to be said about that, and then we can get on with the amended Amendment. I beg to move Amendments Nos. 54A and 54B.
On Question, Amendments to Amendment agreed to.
Lord SANDFORD: My Lords, I beg to move Amendment No. 54, as amended. I should like to start by outlining this Amendment because it appears in a different form from that which we discussed at Committee in column 1141 of Hansard. I have modified it in a number of respects in the light of what the noble Lord, Lord Jacques, said then. The first point where it differs is that in response to the point made by the noble Lord, Lord Wigoder, the fourth line of the Amendment reads:
"… whether any work should be classified as dock work",
and that is the important distinction. Subsection (1) then goes on to include not only disputes and issues as to whether work should be classified but also as to whether work should cease to be classified.
The other change is in subsection (3) where, apart from a slight alteration in the general wording of the first line, we are not laying an obligation on the Secretary of State to refer the dispute but just giving him the power to do so at his discretion if he wishes. The further change in subsection (3) is that we are offering as an alternative a reference to the Industrial Tribunal as an alternative to the Advisory Conciliation and Arbitration Service. Subsection (4) has been modified so that the delay in the processes of implementing Clauses 7, 8 and 9 do not have to be held up until the matter is resolved but only while the matter stands referred. That is
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to say, it can be withdrawn. The reference can be withdrawn, though not resolved, in order that the process can go forward. I hope that those explanations are sufficient to show the extent to which we have tried to respond to the points made by the noble Lord opposite. Before going into the precise way in which we think this will be helpful, I should like to make a rather broader point.
Many of us are now getting calls and are being approached by groups of workers, union officials, shop stewards and members of unions about the Bill because they are now coming to realise more clearly than they did when the Bill was in another place in May just how serious and real are the threats to their jobs and livelihoods. Another reason why this is happening is that some of them also realise that unless somebody in your Lordships' House—it is curious that they have chosen some Peers on this side as well as some noble Lords opposite—tables an Amendment on their behalf there will be nothing more that the other House can do to defend their interests.
We are now at the stage in the progress of the Bill when the Commons, however vigorously they are approached on either side, cannot themselves make any more Amendments; all that is left for them is to consider Amendments made by your Lordships. My main reason for wanting to see this and a number of other Amendments to Schedule 3 in the Bill by the time we finish tonight is in order that the Commons will thereby be enabled to reconsider what we have done and take account of representations which I am sure will be made to them as they are now being made to us. That is by way of a preliminary to the Amendment and some of the others that follow.
When we discussed this Amendment in Committee the noble and learned Lord, Lord Wigoder, properly asked us to distinguish between issues which had to be decided by the courts, among which were questions of interpretation as to the meaning of the words in Schedule 3(1) and (2) where it is set out what work is classifiable and what work is excluded from classification. That, I would agree with the noble Lord, Lord Jacques—he made the point strongly and his remarks are to be found at column 1135—is a matter for the courts. There is

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another matter for the courts, and that is whether at any point the Secretary of State or the Board exceed their powers, and Lord Jacques was right in stresssing that that is a matter for the courts, too.
Having said that, I want to make it clear that there are various stages which will arise or be anticipated in the course of implementing Clauses 7, 8 and 9 where action is taken by the local board, the National Board and the Secretary of State who, in various ways, will have to come to a judgment about what work included in Schedule 3(1) as being classifiable will in fact be classified. That is a matter of policy under the processes provided by the Bill, and as those decisions become known—and of course they can become known at all sorts of preliminary points—the parties involved will find themselves getting into dispute and argument over what the implications will be for them. The first thing we need to provide for is that they can at some point, and the earlier the better, appeal to the Secretary of State in the matter and give him the opportunity to draw in whatever conciliation machinery seems to him to be appropriate.
There are all sorts of ways in which the disputes and issues will be anticipated as details about the proposed scheme or operation of Clauses 7, 8 and 9 become known, and several of these were mentioned in Committee. Some noble Lords opposite rightly made the point that disputes between workers may be resolved by a single union, and the T&GWU is a case in point, where dockers and lorry drivers may find themselves in dispute when it is known that work is to be handled in a particular way. I accept that, and that union will be well placed to do that. Other noble Lords made the point that the TUC would be able to solve interunion disputes, and so they would and one would want to see that happening. But I think noble Lords will agree that there will be other disputes which will involve not only unions but also employers, and when that happens it is not appropriate for the TUC to be the arbitrating and conciliating agent because employers are not members of the TUC. That is a case where it would be useful for the Secretary of State to be able, though not obliged, to refer a dispute or claim to either of the two bodies set out in subsection (3).
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In addition to all this, we have provided at various specific stages the opportunity for a public inquiry if a representation is made and the matter cannot be resolved. That will play its part as well. I hope noble Lords will agree that it is desirable to make available in the most serviceable manner all the machinery that can play a part in the operation of the Bill in an area of work which is, alas, notable for the strife and contention that goes on. I am particularly anxious to hear what noble Lords have to say about sub-section (3), because we have incorporated in it a reference to two bodies each of which was mentioned as being suitable to play a part in the original Consultation Document.
At paragraph 14 of that Document we read:
"The interpretation by the courts of some of the provisions in the present legislation which are concerned with defining the scope of statutory control has had the effect of limiting what was generally understood to be the Scheme's application and thus has narrowed the employment opportunities for registered dock workers. This has proved harmful for industrial relations. The courts have inevitably become involved in these questions because of the present arrangements for determining disputes about the application of the Scheme. Industrial tribunals are required in the first instance to settle whether the work carried out by a particular employer is or is not dock work against statutory definitions."
We entirely agree with that, but for that to be implemented the industrial tribunals need in our view to be mentioned on the face of the Bill, and that is why we have put it in.
Further on in the Document we read:
"in the event of any question arising about whether any operation fell within the new definition of port transport work, it is proposed that that question would be determined by the Central Arbitration Committee of the ACAS".
There it is in the Consultation Document and we think it should be in the Bill, and that is why we have put that in. We have done our best to stick to our original intention but at the same time incorporate all the points that noble Lords made in Committee, and we have been greatly helped by the observations of Lord Wigoder.
Viscount SIMON: We should like from these Benches to support the proposed new clause, but before we come to a decision I am wondering whether the Committee would permit me to ask two

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questions, one of the noble Lord, Lord Sandford, and the other of the noble Lord, Lord Jacques. I regret that I was not able to be present in Committee when this matter was discussed. The question I wanted to put to the noble Lord, Lord Sandford, was this. We know, as I am sure noble Lords opposite know, that some complaints have been made and fears expressed by employees who do not quite see whether they are going to have their jobs safely secured if certain work is classified—employees who are themselves members of the same trade union as embraces the great majority of the registered dock workers.
If the only body that can serve a notice on the Secretary of State is a trade union recognised for the purposes of collective bargaining I am not sure that these people will be quite happy, because I suppose that, strictly speaking, what a trade union does is done by the executive committee or by the general secretary in the name of the executive committee. If these members of the union themselves feel that they are being hard done by—they may be right or may be wrong and I am not arguing that point—it will not do them much good to say, "Your trade union can make representations". They could say, "We asked our trade union to make representations when the Bill was first being discussed and they refused to do so". I wonder, therefore, whether the noble Lord, Lord Sandford, could tell us whether consideration has been given to widening slightly that particular phrase.
The question that I wanted to ask the noble Lord, Lord Jacques, is a different one and is perhaps rather wider. I believe that it arises on the present clause, and certainly it arises on some of the clauses in this part of the Bill. It is a matter that was raised very briefly on some other Amendment and it is this. I am not clear whether a port employer is entitled to employ a registered dock worker on work that is not classified. We divide the work into classified and unclassified and we know that non-registered workers can be employed on unclassified work and, equally, that they cannot be employed on classified work. I think that this point was raised in the discussions that we had about driving a motor car or a van, and the question I want to ask is, is there anything in the Bill or in the Scheme in embryo that does not allow an employer to employ a registered
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dock worker on work that is not classified? Subject to those two questions—and perhaps the noble Lord, Lord Sandford, would answer me when he is replying to the Amendment, and I shall be interested to hear what the noble Lord, Lord Jacques, has to say—I would support the Amendment.
Lord JACQUES: My Lords, that is an important question and I think I should go very slowly so that I may be easily followed. The intention of the Amendment as it stands is not absolutely clear, but it suggests a right of appeal on the question of whether work falls within Part I of Schedule 3 and outside Part IT. I shall therefore deal with that first, since that is clear. As was said in Committee, the Government's view is that questions as to whether or not work is properly classifiable are questions that are rarely likely to arise in practice. If work is a border line case where there is doubt whether it is properly classifiable, it is unlikely that the Board would consider it for classification, and it is still less likely that the Secretary of State would wish to classify it. Quite clearly, the vires of his order would be the subject of attack.
It seems likely that any such cases would arise not in relation to the facts (it will normally be clear enough what the work is) but in relation to the interpretation to be placed on the words of Schedule 3, and this is a question of law. ACAS is not a suitable body to determine such a question, any more than is the central arbitration committee as was proposed at the Committee stage. I refer the noble Lord, Lord Sandford, to the proceedings in Committee where I explained fully how the Government under the Consultative Document had had consultations and, as a result of those consultations, had had no hesitation in saying that the central arbitration committee was not a suitable body to which to refer a question of law.
The work of industrial tribunals involves them in determining cases in which there is dispute both as to the facts and as to the law. On balance, it is not considered that they would be appropriate bodies for determining pure questions of statutory interpretation. Industrial tribunals at present have jurisdiction to determine disputes as to what

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is dock work for the purposes of the 1967 Scheme, but they are operating in a situation in which the procedures that will be provided by the Bill for establishing the facts are not available to them. Decisions of industrial tribunals about dock work have also ended up in the courts on a number of occasions. Since 1967, six of the 20 cases heard by the industrial tribunals have subsequently gone to the courts.
Baroness SEEAR: My Lords, I am sorry to interrupt the noble Lord. He said that this was a matter of fact and not of law, but it is not either. The clause makes it clear that the work is classifiable but the dispute is about whether it should be classified. That is a matter of judgment, not of law or fact.
Lord JACQUES: My Lords, I made it very clear that the intention of the Amendment was not absolutely clear, though I said that it was absolutely clear that it intended a right of appeal as to whether to work came within Part I but was outside Part II. I said that I would deal with that point first. In due course I shall deal with the question of judgment to which the noble Baroness has referred.
On balance, therefore, the Government are convinced that it is better to leave any person wishing to challenge the views of the Board or the Secretary of State on the question of whether work is classifiable to take the matter to the courts in the ordinary way. The Amendment as drafted says in subsection (3) that if a dispute or claim is not resolved, withdrawn or otherwise settled, the Secretary of State may refer the dispute. I emphasise that the word is "may". This means that if the Secretary of State decides to take no action, he and the Board may proceed. If it is the intention of the Amendment to enable the Secretary of State to seek such advice when he feels he needs it, noble Lords can be assured that no Secretary of State of whichever Party happened to be in office would seek to get an interpretation of a matter of pure law from ACAS or an industrial tribunal.
I come now to what I consider is a doubtful intention of the Amendment. It is not so clear as the point of law. The first part of the revised wording could be interpreted as meaning that disputes
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on matters of judgment or policy as to whether or not work which falls within the classifiable categories should in all the circumstances be classified ought to be subject to this procedure. The Bill already provides elaborate procedures, including under Clause 8 two opportunities for representations to the Board and a further opportunity for representations to the Secretary of State. The Secretary of State may, if he thinks appropriate, in consequence of representations made to him or otherwise, refer questions to ACAS for its opinion and advice. Thus the Bill already provides for ACAS to be consulted about industrial relations questions about which they are competent to give advice. Neither they nor an industrial tribunal are proper bodies to decide questions of policy such as whether the scheme should be applied to particular kinds of work. In the last analysis, that is the burden of the Secretary of State.
Lord SANDFORD: My Lords, I am grateful to the noble Lord, and I think we have narrowed very considerably such divergences as there were between us. First, I wish to respond to the point made by the noble Viscount, Lord Simon. We considered whether it would be possible to put in any safeguard here for individual members or groups of members within a single trade union. There is a controversy, and there has been for a long time, between the lorry drivers who have business in the docks and the dockers who work there, both groups being members of the Transport and General Workers Union. On balance I felt that, not myself being a member of the Transport and General Workers Union, I did not want to attempt to assess, let alone criticise, the ability of that union to resolve disputes between the many groups that make up its membership. My feeling was that by putting this Amendment into the Bill and inviting the other place to look at it, several people there who are much more closely associated with the union could brine their much wider experience to bear upon the issue. But our job to enable them to do that is to get the Amendment into the Bill, and this is what in a moment I will be asking the House to do, and especially for that reason. If they choose to modify it in order to give groups within unions, or even individual members of unions, the right to trigger off this appeal mechanism,

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I should be happy, and it would certainly meet some of the points that are being made to us by such groups at the moment.
As to the point made by the noble Lord, Lord Jacques, I am absolutely in agreement with him that on a very large number of points there are issues here which only the courts can decide, particularly the interpretation of what is classifiable within the terms of the Bill and what is excluded from classification; likewise with the vires of the Secretary of State. But I do not agree that the procedures set out in Clauses 7, 8 and 9 provide all that ought to be provided for those whose interests are affected by the implementation of Clauses 7, 8 and 9. It would be up to the Secretary of State to decide whether the dispute or the issue to which his attention is drawn by that notice is appropriate for one or other of those bodies, and if, as may well be the case, it is not appropriate, he will not refer it.
I am sure that there will be cases where disputes arise as a result of knowledge of what is to be proposed, or reported or recommended, and it would be a very good thing if the parties to those disputes could draw the attention of the Secretary of State to them at an early stage, and he could have the opportunity to decide whether to refer them to ACAS or to the industrial tribunal. This has been a useful debate, and the important thing now is that, having taken account of everything the noble Lord has said, I should move the Amendment into the Bill so that it can be among those proposals to be considered by another place.
8.55 p.m.
On Question, Whether the said Amendment (No. 54), as amended, shall be agreed to?
Their Lordships divided: Contents, 53; Not-Contents, 34.

CONTENTS

Amherst of Hackney, L.

Hacking, L.

Rochdale, V.

Ampthill, L.

Hanworth, V.

Ruthven of Freeland, Ly.

Auckland, L.

Hawke, L.

St. Just, L.

Balerno, L.

Hereford, V.

Sandford, L.

Barrington, V.

Hornsby-Smith, B.

Sandys, L.

Belstead, L.

Long, V.

Seear, B.

Berkeley, B.

Lucas of Chilworth, L.

Selkirk, E.

Brougham and Vaux, L.

Lyell, L.

Sempill, Ly.

Campbell of Croy, L.

Macleod of Borve, B.

Simon, V.

Colville of Culross, V.

Monk Bretton, L.

Strathclyde, L.

Cork and Orrery, E.

Mottistone, L.

Swansea, L.

de Clifford, L.

Mowbray and Stourton, L. [Teller.]

Teviot, L.

Denham, L. [Teller.]

Tweedsmuir, L.

Drumalbyn, L.

Norfolk, D.

Vickers, B.

Elles, B.

O'Hagan, L.

Ward of North Tyneside, B

Faithfull, B.

Pender, L.

Westbury, L.

Gowrie, E.

Rankeillour, L.

Winstanley, L.

Gray, L.

Redesdale, L.

Young, B.

NOT-CONTENTS

Birk, B.

Jacques, L.

Pitt of Hampstead, L.

Brimelow, L.

Janner, L.

Ritchie-Calder, L.

Brockway, L.

Kaldor, L.

Snow, L.

Champion, L.

Llewelyn-Davies of Hastoe, B.

Stedman, B.

Collison, L.

McCluskey, L.

Stewart of Alvechurch, B.

Crowther-Hunt, L.

Morris of Kenwood, L.

Strabolgi, L. [Teller.]

Davies of Leek, L.

Oram, L.

Wallace of Coslary, L.

Donaldson of Kingsbridge, L.

Parry, L.

Wells-Pestell, L. [Teller.]

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

Peart, L. (L. Privy Seal.)

Willis, L.

Gardiner, L.

Peddie, L.

Winterbottom, L.

Hale, L.

Phillips, B.

Wynne-Jones, L.

Harris of Greenwich, L.

Resolved in the affirmative, and Amendment, as amended, agreed to accordingly.

Clause 10 [Registration after work is classified]:
9.3 p.m.
Lord DRUMALBYN Lord DRUMALBYN moved Amendment No. 55:
Page 13, line 43, after ("work") insert ("(whether or not they were actually doing it) immediately").
The noble Lord said: My Lords, we had a discussion on this at Committee stage, and the noble Lord replied to me that merely to put in the word, "immediately" would not cover workers who, as he said,
"… for some reason or other could not he said to have been employed to do it—"
"it "being the work in question—
"immediately prior to classification.".—[Official Report, 19/10/76; col. 1144.]
He went on to say:
"There might be workers who have been taken off their work to do some other work for a few days, or even for a few hours";
and he went on to say—and I do not quote him now—or who were sick immediately prior to classification.
This Amendment is designed to take into account precisely those considerations, so that the subsection would read: The Board:
… shall include in their recommendation or report proposals, for the event that any work which they have recommended for classification or (as the case may be) they have considered on the reference, should be classified, as to the safeguards which should be provided for the existing workforce, that is to say those persons who will have been employed to do that work (whether or not they were actually doing it) immediately prior to its classification".
This, I think, would entirely meet the point that the noble Lord was making but would not leave any scope for safeguards in the case of people who had already left the service, or something of that kind. In other words, it tightens up the drafting. The noble Lord may still feel that he wants more latitude, but in that case I think he will have to say why. I beg to move.
Lord JACQUES: My Lords, there are two issues on which I want to comment: first of all, the technicalities of the Amendment; and, secondly, why we resist the Amendment. The addition of the words "(whether or not they were actually doing it)"does not, in our opinion, alter the position at all. Since orders normally
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come into force at midnight, it is likely that in many cases no one would actually be doing the work at the point of classification. The words do not resolve the problem at issue, because the doubt would not be whether the workers in question were actually engaged on the work at the point when the order came into force but whether they could properly he said to be employed to do it at that time. To gain the objective of the noble Lord, he would have to have those words instead of those that he has.
However, we are opposed to the Amendment on grounds more substantial than mere technicalities. The difficulty would be most obvious in a situation where some of the labour force were engaged on work which was not covered by the order, but where there was no difference between their terms of employment and those of others engaged on work which was covered. Notwithstanding the general intention to avoid so far as possible classifying part of the work of an integrated labour force; this may be desirable in some cases; particularly, for example, where the great majority were engaged on classifiable work. In such cases it might be hard to say whether some workers were employed specifically to do the work being classified, or were employed to do work of a kind which included the work to be classified. This sort of problem suggests that flexibility is needed to deal sensibly with particular situations, and that is what the present wording provides.
Furthermore, a check on whether or not the Board has taken all the circumstances of a particular case into account is provided by Clause 11(5) which allows the Secretary of State, when putting the Board's proposals under Clause 10 into effect, to do so with such modifications as he may think fit. We hope that with that explanation the noble Lord will see fit to withdraw his Amendment.
Lord DRUMALBYN: My Lords, I am grateful to the noble Lord for that explanation. I hope he recognises that what one is concerned about—and I certainly am—in this case is to get the conditions as crystal clear as possible: otherwise there is a great danger of industrial dispute on that point. I should have thought that his claim for latitude is a claim for lack of clarity; and this can give rise to industrial disputes. This was

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the point of my Amendment. If the noble Lord is satisfied on that, then I must say he has to take the responsibility for it and I shall not press this further; but 1 think that in cases like this there is a need for the utmost clarity and the least possible latitude. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
9.10 p.m.
Lord SANDFORD Lord SANDFORD moved Amendment No. 56:
Page 14, line 10, leave out ("(not to be more than 2 years)") and insert ("(which shall be a minumum of 2 years)").
The noble Lord said: My Lords, I beg to move Amendment No. 56. This is no more than consequential upon Amendments Nos.21 and 21B which we made yesterday following a debate and a Division. I think it needs to be made here in order to make it conform with Amendment No. 21B.
Lord JACQUES: I think I must remind the noble Lord that Amendment No. 21 was amended by Amendment No. 21B. In consequence, this Amendment is ill conflict with that revised Amendment. Under the new clause as it now stands, workers will be entitled to a transfer (if they satisfy the conditions specified) from the extension to the main register after two years' service on the work which was classified. In many cases, this could be as soon as their names are entered on the extension register.
Lord SANDFORD: I do not think I agree with the noble Lord but I shall read carefully what he has said. Amendment No. 21B which we made to Amendment No. 21 was not addressed to this business of a minimum of two years. That was already there. It was to make it clear that the period of time in which the worker had been engaged on this particular piece of work would count towards his time on the extension register before being transferred to the main register. In so far as the whole intention of Amendment No. 56 is to bring sub-section (4) into line with what we have done on Amendment No. 21, I should prefer to have it in the Bill now. If, after reading the noble Lord's words, I find we have not done what we intended to do (which was merely to secure conformity)
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I shall certainly undertake to put down another Amendment—as this is our Amendment now—at the Third Reading to do what the noble Lord thinks should be done. I hope that we have got it right. I should like to recommend that the House should accept this Amendment.
On Question, Amendment agreed to.
Clause 11 [Classification orders]:
Lord SANDFORD Lord SANDFORD moved Amendment No. 56A:
Page 14, line 13, after ("section") insert ("and of Schedule 3 to this Act").
The noble Lord said: My Lords, I beg to move Amendment No. 56A. Its purpose, again quite a modest one, is to ensure that the Secretary of State when he is preparing orders under Clause 11 should have regard to Schedule 3 in just the same way as everybody else involved in the operation of Clauses 7, 8 and 9 also has to have regard to Schedule 3 as to which work can be classified and which work is to be excluded from classification.
The Secretary of State is not obliged to conform precisely to the recommendations in the reports that are made to him and which have taken Schedule 3 into account. We think he should therefore have regard to it when he makes the classification orders which are based on the processes in those preceding clauses. It may be that we have done more than we intended to do, in which case no doubt the noble Lord will tell us, but in the hope that we have made only this modest safeguard, I beg to move.
Lord ORAM: My Lords, I must advise the House that this Amendment is not nearly so modest as the noble Lord thinks. I accept that he put it forward in good faith intending only a modest change, but I should explain why, in the Government's view, it goes much too far.
This Amendment can only have the effect of making Schedule 3 apply to orders resulting from the procedures laid down in Clause 6; that is, to orders which preserve as dock work under the new Scheme work which was dock work under the 1967 Scheme or was so treated under that Scheme by custom and practice.

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That must be the case because recommendations under Clauses 7, 8 and 9 can be made only in respect of work that is within Part I of Schedule 3 and not within Part 11. In other words, the Amendment is completely redundant in respect of recommendations under Clauses 7, 8 and 9 for they are already linked with Schedule 3.
That being the case, we must look at the effect of the Amendment on Clause 6 orders. If the Amendment was passed then it would mean that at a stroke of the legislative pen some work which has been subject to the Scheme and performed by registered dock workers since 1947 will be excluded. The Government think that that is quite wrong. If there is a case for excluding work from the Scheme, the particular local circumstances should be carefully examined. That can he done under the declassification procedures in Clause 9. To do otherwise would be very serious indeed for industrial relations in the industry.
In our view, it is important that all work which is at present dock work or is so treated by custom and practice, should be classifiable under the new Scheme even if it is of a kind which would not he classifiable under Clauses 7, 8 or 9. At earlier stages the Government made it clear that we believe that work which is covered by the present Scheme will continue to be covered by the new Scheme. I believe that noble Lords opposite accept that proposition. I advise the House, therefore, that this Amendment would do severe damage to that proposition which unites the two sides of the House.
Lord DRUMALBYN: My Lords, accepting that, as the noble Lord says, there is work which is at present being done by dock workers which is not classify able as dock work, will he say that that sort of work which is, as I say, being done by dock workers at the moment and is not classifiable as dock work under Schedule 3, will not be a precedent for extending and classifying as dock work other work which comes outside Schedule 3? I think I am right in saying that it will not be a precedent, but I should like to know for certain that that is so.
Lord ORAM: My Lords, certainly, as I understand the noble Lord's point, that is the position. If in any way I am inaccurate
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in that I will let the noble Lord know so that at a later stage we can consider it again, but I think he has a valid point.
Lord SANDFORD: My Lords, I wonder whether the noble Lord would, with the leave of the House, do one more thing before I withdraw this Amendment; that is, to confirm that if we do not have any reference to Schedule 3 in Clause 11, the Secretary of State nevertheless will be bound by it in giving effect to recommendations from the Board under Clauses 7, 8 and 9. The Board are bound by it in formulating their proposals under Clauses 7, 8 and 9. The Secretary of State does not seem to be bound by it. But if the noble Lord can assure me that he is bound as much as the Board, the purpose of my Amendment is safeguarded.
Lord ORAM: Yes, my Lords: I think I can give the noble Lord that assurance specifically in relation to Clause 9(6). The noble Lord will see that it states:
"… the Secretary of State may at any time refer to the Board for their advice any question",
and so on. That gives the Secretary of State considerable flexibility in relation to Clause 9; and I believe I am right in saying that he would not be bound under the two earlier clauses.
Lord SANDFORD: My Lords, with the leave of the House, that is not really what I wanted. The Board and everybody else involved in the operation of Clauses 7, 8 and 9 are obliged to have regard to Schedule 3 in the proposals that they are making. The Secretary of State does not have to do so. He makes up his mind about classification orders on the basis of the reports that he receives, but he is not obliged precisely to reflect the recommendations that are made to him. He can issue orders based upon those reports, but differing in some respects from them. What 1 want to know—and I think the House ought to have this clear before we move on—is whether, in any of those departures or variations which the Secretary of State makes from the variations that are put to him he is bound by Schedule 3 when he is dealing with matters that come to him under Clauses 7, 8 and 9.
I fully accept what the noble Lord said, and if we have inadvertently embraced matter to which Clause 6 relates—

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that is to say, work that is already dock work in 1967 Scheme ports—then we are going too far. I had not intended to do that. But I still want to be reassured about the extent to which the Secretary of State is bound in finally coming to his decisions on the classification orders.
Lord ORAM: My Lords, I hope that I have taken the noble Lord's point correctly. He will find the answer in Clause 5(4) which states:
"… the work that may be classified is any which (b) is within Part I of Schedule 3 to this Act and not within Part II of that Schedule."
I wonder whether that comes nearer to the answer which the noble Lord wants.
Lord SANDFORD: My Lords, it goes some way, because that is the clause under which the Secretary of State has to act when he is preparing a scheme. But what we are all interested in is to what extent the Secretary of State is bound by Schedule 3 when he prepares his classification orders. But I am aware that we are not in Committee and are on Report, and perhaps we ought not to bob up and down any more. Therefore, I beg leave to withdraw this Amendment, but I am not absolutely satisfied and we may have to return to it.
Amendment, by leave, withdrawn.
9.24 p.m.
Lord SANDFORD Lord SANDFORD moved Amendment No. 57:
Page 14, line 34, at end insert ("after the provisions of Schedule 5 to this Act have been complied with").
The noble Lord said: My Lords, I beg to move Amendment No. 57, and will at the same time speak to No. 57E. These are no more than consequential Amendments to the main Amendment which we moved into the Bill relating to inquiries, the main substance of which is now included in Schedule 5. But if we have Schedule 5, these two subsections must be linked in the way that is achieved by these Amendments.
On Question, Amendment agreed to.
Lord SANDFORD Lord SANDFORD moved Amendment No. 57E:
Page 14, line 41, after ("State") insert ("after the provisions of Schedule 5 to this Act have been complied with.").
On Question, Amendment agreed to.
Clause 12 [Effect of introducing the new Scheme]:
9.25 p.m.
The Earl of GOWRIE The Earl of GOWRIE moved Amendment No. 57F:
Page 15, line 9, leave out paragraph (a).
The noble Earl said: My Lords, if noble Lords cast their minds back to the Committee stage, they will remember that we on this side of the House were not happy with what the Government had to say about why they are proposing to abandon the licensing scheme—the licensing of port employers and the registration of port employers respectively—and to remove it from the 1966 Act. As drafted, the present Bill will have the effect of scrapping the present system of licensing port employers as the new Scheme is applied to areas at present covered by the licensing system. Both the port employers, who are subject to the present licensing scheme, and the port authorities, who are themselves the licensing bodies, wish the system, a system which was introduced by a Labour Government in a 1966 Act, to be retained.
As an aide memoire, may I run very quickly over what this licensing aimed to achieve. The licensing system was introduced by the Docks and Harbours Act 1966 and is administered by the statutory port authorities. The Act lays down the criteria which must be satisfied by a port employer who wishes to obtain a licence. In particular, he must satisfy the licensing authority of two things: first, that he efficiently manages his business, or is likely to do so, and in particular that he makes efficient use of the services of his dock workers—for instance, by providing the necessary and proper equipment—or that he is likely so to do; and, secondly, that he is willing and able to provide permanent employment to dock workers employed by him and to do so at rates of pay and on conditions of service which are applicable under the national or local agreements in the port transport industry.
In addition to these two criteria, the licensing authority has the power to limit the number of employers of dock workers in a port to that maximum number which it considers to be compatible with the efficient and profitable working of the port. By comparison, there are non-qualifying criteria applicable to registration. If a

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business wants to carry out dock work it must obtain registration and employ registered dockers, not casual labour. But registration in these circumstances is granted automatically. A consequence of this before September, 1967, when the licensing system was introduced, was that there were many intermittent or casual employers. The number fell from 1,500 to 500 as a result of the introduction of permanent employment and, as noble Lords opposite and their honourable and right honourable friends intended, this went all the way towards preventing casual labour. At the Committee stage the Government, in the person of the noble Lord, Lord Jacques, said that because we on this side accept that the licensing of employers need not be extended to companies outside the proposed Dock Labour Scheme it should not be necessary within the Scheme—in short, that it should not be necessary at all—and that this is why they are leaving it out of the Bill.
We argue that the present Bill ensures that although we are going to have a new Scheme we do not know what it is to contain. The noble Viscount, Lord Simon, made that point at an earlier stage. We want dock employers to know exactly where they stand, particularly in regard to any statutory responsibilities they may have to dock workers who lose their jobs through circumstances quite outside the control of any individual employer or group of employers. I am thinking of the kind of situation that might arise as a result of the aim of this Bill to create permanent employment. We know that the 1966 Act was concerned with decasualisation of dock labour. It was also made in the climate of the Devlin Report; it tried to increase the efficient performance of management functions as well as protect the rights of service functions of workers themselves.
So it seems to us it is no good the Government's saying, as the noble Lord, Lord Jacques, said in Committee, that licensing of employers served a useful purpose but is now no longer needed. It may no longer be needed in respect of provisions designed to prevent casual labour from being employed, but we contend that it certainly is needed in respect of permanent labour being taken on by an employer who then, let us say, ceases
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trading and other employers find that they are then statutorily required to employ a work force surplus to their ability to trade efficiently. We contend that the retention of the licensing scheme would make this much less likely to happen and we feel strongly that it should so be retained. I beg to move.
Lord JACQUES: My Lords, the licensing provisions in the 1966 Act served a useful purpose in the context of decasualisation, but the Government believe that they are no longer necessary. The number of registered dock employers has fallen from 1,300 in 1966 to 289 in 1976. Their number is likely to continue to fall. There is no reason to think that with permanent employment the problems which arose in the Scheme ports before 1967 are likely to recur or that any problems that might arise could not be dealt with by means of the protection under the Scheme. It is no part of the purpose of legislation relating to the employment of dock workers to seek to assess the ability of employers to carry out the task they purport to undertake.
It has been accepted by the Opposition in the other place that there was no need to introduce licensing, either at ports not covered by the 1967 Scheme or for employers doing cargo handling outside the dock area. It is the contention of the Government that if licensing is not required in non-Scheme ports which may become part of the Scheme then evidence must be produced to show why it is necessary only in the Scheme ports. No such evidence has been produced to us.
In point of fact it could be argued that licensing should be discontinued in the Scheme ports, having served its purpose; but since there is some decasualisation in the non-Scheme ports licensing is necessary there until we have got over the problem of decasualisation. In other words, there is a case for doing absolutely the opposite to what the Opposition are now seeking. We contend, and we have said, that licensing is no longer needed for its original purpose and it should not be retained for a purpose which is foreign to this legislation.
In Committee concern was expressed by the Opposition and was also expressed to the Government by the National

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Association of Port Employers that without licensing it would be possible for employers to set up for a short time as stevedores with a minimum of equipment when trade was brisk, make a quick profit and then go out of business, leaving their registered dock workers to be absorbed by the major employers in the ports. It seems most unlikely that given the highly mechanised handling now in use and the much higher labour cost of employing a permanent labour force, employers with limited resources would seriously consider the sort of "in and out" operation that appears to be feared. In the very unlikely event of this happening, the local dock labour board would be able to control the situation to a large extent by not engaging any additional men, and only allocating to that employer existing registered workers who could be spared by their present employers.
If the amount of trade for what was thought likely to be a short period was such that more workers were needed than were currently available from the register, supplementary workers might be employed. But similar arrangements would have to be made, in any case, if one of the major employers undertook the extra work instead of the man coming in with a view to going out shortly. In conclusion, without going into great detail, I would point out that even if this Amendment were carried, licensing of Scheme ports would still come to an end because no Amendments have been submitted to Clause 12(1)(b) or Clause 17(3)(a).
The Earl of GOWRIE: My Lords, with the leave of the House, one of the difficulties we have had all through this Bill is that Mr. Jack Jones has not been ennobled, because had he been so, we could ask him why he is so against licensing. I still find the attitude of the Government on this entirely incomprehensible. Here is a perfectly good working set of arrangements—
Lord JACQUES: My Lords, I find the reference to Mr. Jack Jones somewhat objectionable. This decision was not made by Mr. Jones, but by Her Majesty's Government. There are no good reasons for the assumptions the noble Earl, Lord Gowrie, has made.
The Earl of GOWRIE: My Lords, I do not know what the Parliamentary
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language is for "Pull the other one but that is certainly what I feel about it. What I am trying to get at is this: here is a set of sensible provisions which employers feel gives them some protection in, I acknowledge, a hypothetical situation, but one which could perfectly well arise. The aim of our proceedings, I would have thought, is to try to look at hew an Act may work out in practice.
As the noble Viscount, Lord Simon, said at an earlier stage, the difficulty here is that we do not know what the Scheme is going to be, or how it will work out in practice. This is one of the difficulties we have had in this whole salad of a Bill, which is why I made my little reference. The noble Lord, Lord Jacques, started off by providing the arguments that he provided on Committee, about the fact that we no longer need protections about casual labour. I acknowledged that in my speech, so he did not really need to answer that point. However, he has acknowledged as he did not acknowledge, I think, on Committee, that the port employers have expressed worries to the Government on this. The noble Lord said he has tried to allay their worries, but I have not heard that their worries are so allayed. However, if the noble Lord says in good faith that the Government have been in discussions with the employers, I am quite prepared to try to find out what the discussions were, and whether they feel the situation is more satisfactory now. In view of that, for the time being, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
9.39 p.m.
Lord LYELL Lord LYELL moved Amendment No. 57B:
Page 15, line 18, at end insert—
("Provided that, where a harbour authority continues after the coming into operation of the order to maintain welfare amenities which in pursuance of a welfare amenity scheme it had provided or was maintaining immediately before the coming into operation thereof, the harbour authority shall be deemed for the purposes of section 28 of the 1966 Act to be maintaining the amenities in pursuance of a welfare amenity scheme.").
The noble Lord said: My Lords, it might be for the convenience of the House if I were to move Amendment No. 57B and speak to Amendment No. 57D at the same time. I hope that

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will meet with the approval of the Government. These two Amendments were raised in Committee by myself and my noble friends. We understood then that the Government believed some provision should indeed be made to assist the port authorities when they need to collect levies from the port employers where the employees of these port employers use various welfare amenities in or around the port.
My Lords, it may have been that the Government misinterpreted the purpose of my Amendment, but the reply which was given by them in retrospect seemed curiously inappropriate. Is it relevant to consider the Health and Safety at Work Regulations? These may be provisions which apply, but in essence they are protective, or I might call them defensive, seeing that certain rules have to be, and indeed are, obeyed. We are still of the opinion that the port authorities need the ability to raise funds from the port employers, and above all to manage these welfare amenities. I wonder whether noble Lords opposite would agree that the management and raising of funds is indeed the duty of the inspectors and the Health and Safety at Work regulations. We hope that the Government will recognise the difference between the replies which we were given in Committee. We feel that these replies did not give the full details that we were seeking. I beg to move.
Lord JACQUES: My Lords, in the debate which took place at the Committee stage, it was pointed out that the Government had only recently been made aware of the problems to which the Amendment was directed. It was also said that the Government were considering the matter. In the meantime, the Government are convinced that in principle it is more appropriate that the Health and Safety Commission should be responsible for welfare in the docks as in other industries. There is provision under the Health and Safety at Work Act to make regulations dealing with welfare amenities. Therefore, it would not be right to perpetuate, as the Amendment proposes, these provisions in the Docks and Harbour Act of 1966. However, it is accepted that there could possibly be a transitional problem with regard to the power of harbour authorities to
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continue to charge to cover the cost of providing and maintaining welfare amenities introduced under the existing welfare amenity schemes.
In the light of the discussions which we have subsequently held with those concerned, the best course for any transitional period would appear to he to continue the duties and powers of harbour authorities under Section 28 of the 1966 Act. We therefore propose to use for this purpose the transitional and saving provisions under Clause 12(1)(b) and Clause 17(3)(b) until suitable arrangements are made under the Health and Safety at Work Act 1974.
Lord LYELL: My Lords, we are particularly grateful for that reply from the noble Lord. At first I wondered whether we were going to he considering the same point as we were discussing in Committee, but the noble Lord, Lord Jacques, has pointed out to us that the Government have considered these problems. They have had a little more time to deliberate and to consult the port employers and it would seem that the measures outlined by the noble Lord, Lord Jacques, on behalf of the Government are going to achieve what we hoped the Amendment would achieve. We are very grateful for the assurances given by the noble Lord, Lord Jacques, and with that I would seek leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
9.45 p.m.
Lord ORAM Lord ORAM moved Amendment No. 58:
Page 22, line 45, at end insert—
("10A.—(1) A person is not qualified to act as auditor of the Board unless he is a member of one of the following bodies—

(a) the Institute of Chartered Accountants in England and Wales:

(b) the Institute of Chartered Accountants of Scotland;

(c) the Association of Certified Accountants;

(d) the Institute of Chartered Accountants in Ireland;

(e) any other body of accountants established in the United Kingdom and for the time being recognised by the Secretary of State for the purposes of section 161(1)(a) of the Companies Act 1948,

or is a person for the time being authorised under section 161(1)(b) of that Act as having similar qualifications obtained outside the United Kingdom.

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(2) A Scottish firm may act as auditor of the Board only if every partner of the firm is qualified so to act.").
The noble Lord said: My Lords, the House will recall that on this subject noble Lords opposite pressed for an Amendment along these lines. We had a very vigorous debate which we have considered subsequently, and I have pleasure now in moving this Amendment.
Lord LYELL: My Lords, I am indeed most grateful for the way in which the noble Lord has proposed this Amendment. I am gratified that he thinks we had a vigorous discussion. I thought that it was very much on a technicality; I had hoped that it would be fairly non-contentious. We are most grateful that the noble Lord has seen fit to include this paragraph in the Schedule; it achieves exactly what we had hoped to achieve.
On Question, Amendment agreed to.
Lord LYELL Lord LYELL moved Amendments Nos 58E, 58F, 58B and 58G:
Page 24, line 25, leave out from ("of") to ("the") in line 26 and insert ("registers of dock workers and of employers of persons carrying out registered dock work").
Page 24, line 28, leave out ("dock employers") and insert ("employers of persons carrying out registered dock work").
Page 25, line 1, leave out ("dock employers") and insert ("employers of persons carrying out registered dock work").
Page 25, line 5, leave out ("dock employers") and insert ("employers of persons carrying out registered dock work").
The noble Lord said: My Lords, these are a series of Manuscript Amendments together with Amendment No. 58B on the Marshalled List. We believe these are drafting Amendments and hope that they will improve the wording of the Bill. With the leave of the House, I beg to move Amendment No. 58B and Manuscript Amendments Nos.58E, 58F and 58G.
Lord JACQUES: My Lords, we are still not convinced that these changes are essential to Schedule 2. Subsection (3) of Clause 5 defines what is meant by "dock work" for the purposes of the new Scheme, and the term "dock employers" must mean the employers of dock workers performing dock work. Therefore, we do not think there is any question of employers of workers performing work which is not
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classified being affected in any way by the provisions of the Scheme.
These Amendments are technically deficient because they refer to "registered" rather than "classified" work. But if the Opposition still feel that there is doubt, then if they will withdraw these Amendments, we will undertake to consider it further and to make it 200 per cent. beyond doubt by tabling any necessary Amendments to cover these drafting points at Third Reading.
Lord LYELL: My Lords, once again we are 200 per cent. grateful to the noble Lord, Lord Jacques, that these doubts that we had in our minds will indeed be removed by swift Governmental action. I beg leave to withdraw the Amendments.
Amendments, by leave, withdrawn.
9.49 p.m.
Lord LYELL Lord LYELL moved Amendment No. 58C:
Page 25, line 25, at end insert ("except for qualitative checking and recording where inspecting and/or measuring and/or weighing and/or sampling is involved.").
The noble Lord said: My Lords, Amendment No. 58C, we hope, is broadly similar to the one which I moved at Committee stage. I seem to remember that the noble Lord, Lord Oram, was then concerned, and indeed expressed at considerable length his worries about the use of the word "skilled". I hope he will see from my modified Amendment that this bone of contention has been surgically removed. The point that I raised on Committee, I believe, is still valid, in that these tests that I described are indeed carried out at the dockside or the quayside.
The noble Lord on Committee mentioned the Association of Commodity Cargo Superintendents, and, of course, we believe that this organisation is relevant in this particular case. However, there is a major difficulty in that much of the work indicated by the noble Lord, Lord Oram, concerning oils and chemicals, is carried out by other employees belonging to different unions from the one mentioned by the noble Lord. My main purpose in moving this Amendment is to ensure that the work which is carried out by workers other than registered dock workers

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can continue to be so. We understand that the position in the existing Scheme ports is covered under, first of all, Clause 5(4)(a) and (b), then under Clause 6(2)(a), and thirdly under Clause 6(5)(a) and (b). We believe that the combination of all these special and particular safeguards as to what work should, or should not, be classified would seem to protect the work which is at present carried out, and agreed to be so, by registered dock workers. It seems that the problems of Clauses 7 and 8 are not relevant, in that the type of work described by the Amendment would not be covered by handling cargo, nor necessarily by loading and unloading. I hope that this revised Amendment meets the problems raised, especially by the noble Lord, Lord Oram. I beg to move.
9.52 p.m.
Lord ORAM: My Lords, as the noble Lord, Lord Lyell, has explained, he is bringing this Amendment forward hoping to meet the point which I made about the difficulty over the word "skilled". I did indeed say that the main difficulty that I saw in accepting the Amendment which was then moved was over the interpretation of the word "skilled", and I recall that the discussion centred largely on that point. As the noble Lord explained, the present wording of his Amendment is designed to avoid the use of the word "skilled". I can see that the noble Lord has made still further efforts to get the right wording, but I am sorry to have to advise him that in our view this word "qualitative" gives rise to much the same sort of difficulty as the word "skilled". It could be very much a matter of judgment as to whether a particular task of inspecting, measuring, weighing or sampling could be said to be "qualitative" checking or recording.
But there is a further difficulty. It could well be argued that simply checking that goods had not been damaged or spoiled in unloading from a ship involved qualitative checking. Similarly in a warehouse, checking that cases or sacks had not been damaged might be considered as qualitative checking. It seems reasonable that work of this kind—which would certainly not be "skilled" work on any interpretation of the work—should be capable of being classified.
In general the Government remain convinced that to try to find a satisfactory
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dividing line to write into the Bill on work in the categories covered by this Amendment is a hopeless quest. I commend the noble Lord for his efforts in this quest, but I am sorry to have to say that in the Government's opinion, as I am advised, he has not succeeded. But I think I made the points in Committee that if such work is of a genuinely specialised character requiring special skills not possessed by registered dock workers, then it would not satisfy the prima fade grounds in Clause 8(5).
I referred to such work in our earlier debate. If it was of a kind as to require the same or similar skills as those of registered dock workers, then surely it is reasonable that it should be capable of classification. In practice, I suggest that work which is clearly in the first category is very unlikely ever to be given even preliminary consideration for classification. Therefore, although I see the objective of the noble Lord, I do not think there is the kind of difficulty he is seeking to meet.
Viscount SIMON: My Lords, may I ask the noble Lord, Lord Lyell, to indicate the kind of jobs he has in mind. I have been unable to grasp what it is he is trying to protect from classification.
9.56 p.m.
Lord LYELL: My Lords, in answering thenoble Viscount's question I may be able to define what we see as "qualitative" and the meaning we ascribe to the word. At an earlier stage I spoke about the timber importing trade, which is particularly relevant in that registered docker checkers, tally clerks or other persons who would be involved in such work, as is described in the provision, would be able to carry out and are indeed carrying out certain aspects of the work to which I referred. However, there is an element of this work—I will give a simple example—where the length, size or similar set of planks or amount of timber must be sorted and graded for onward dispatch to different warehouses. For instance, ash or oak might have to be sent to different warehouses and put on different lorries. I do not know whether each registered docker checker or tally clerk would be able to do that. He might have a handbook on the subject, I suppose, and of course I have given only a simple example of the type of work we have in mind.

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The noble Lord, Lord Oram, said that I had tried again and failed yet again. Perhaps he does not appreciate that I come from north of the Border where we remember the story of Robert the Bruce. Unfortunately on this Bill we do not have that number of opportunities left to try and try again as the memorable spider tried until he climbed right up into the timber roof. I regarded the noble Lord's answer as unsatisfactory because he appeared to go into needless detail. The type of work he was describing—looking for damage to cargo or damage externally to containers, crates, or pallates or to the cargo itself is, I think, already covered in the provision. We do not dispute that. The type of work we have in mind is where it is of considerable assistance to the onward dispatch of goods and where it adds to the efficiency of the cargo handling to have somebody doing the work who has specialised knowledge. Noble Lords will see that I deliberately did not use the word "skill" in that reference; I referred to "specialised knowledge", and he may have acquired that knowledge over many years.
Indeed, we do not think that dockers would aspire to have these particular skills. We were also not convinced when the noble Lord pointed out that these special skills would be covered under Clause 8(4) because we believe that that provision would match up to paragraph 4 of this Schedule. In fact, I wonder whether the noble Lord would confirm that he was referring to Clause 8(5) because I think it is there that the question of training, aptitudes and experience similar to those of dockers appears. I think that both on Report and at an earlier stage of our proceedings the noble Lord referred to subsection (4). I believe that it is subsection (5) that he means.
Lord ORAM: My Lords, I thought had said subsection (5).
Lord LYELL: My Lords, I understood subsection (4) and, certainly, in the Official Report, when T was moving this Amendment at an earlier stage, it was printed as (4). However, we can let this pass and agree that it is subsection (5). We do not believe that the safeguards in subsection (5) give sufficient protection to these specialised techniques and the special knowledged required. I am afraid we have not been convinced by the noble Lord's reply. It seemed curiously defensive and did not meet my rather detailed question satisfactorily.
Viscount SIMON: My Lords, if I may have the leave of the House to speak again. I should like to say that I found what the noble Lord, Lord Lyell, said not entirely convincing. If dock workers are engaged, let us say, in discharging and delivering timber, they will of course deliver the packages of timber according to mark. The documents will perhaps say so many packages of oak or ash or, more likely, deal, but it is not for the dock worker to know whether they have been incorrectly described. He will deliver them according to the mark on the package and I do not believe that he has to know the difference between oak and ash at all, though, if he has been working regularly with timber, he will know a great deal more than one might think.
10.3 p.m.
On Question, Whether the said Amendment (No. 58C) shall he agreed to?
Their Lordships divided: Contents, 45; Not-Contents, 39.

CONTENTS

Amherst of Hackney, L.

Hereford, V.

Rochdale, V.

Atholl, D.

Hornsby-Smith, B.

Ruthven of Freeland, Ly.

Balerno, L.

Kinnoull, E.

St. Just, L.

Belstead, L.

Long, V.

Sandford, L.

Berkeley, B.

Lucas of Chilworth, L.

Sandys, L.

Brougham and Vaux, L.

Lyell, L.

Selkirk, E.

Campbell of Croy, L.

Macleod of Borve, B.

Sempill, Ly.

Colville of Culross, V.

Monk Bretton, L.

Swansea, L.

Cork and Orrery, E.

Mottistone, L.

Teviot, L.

de Clifford, L.

Mowbray and Stourton, L. [Teller.]

Tweedsmuir, L.

Denham, L. [Teller.]

Vickers, B.

Drumalbyn, L.

Norfolk, D.

Ward of North Tyneside, B.

Elles, B.

O'Hagan, L.

Westbury, L.

Elliot of Harwood, B.

Pender, L.

Young, B.

Faithfull, B.

Rankeillour, L.

Gowrie, E.

Redesdale, L.

NOT-CONTENTS

Ampthill, L.

Harris of Greenwich, L.

Ritchie-Calder, L.

Barrington, V.

Jacques, L.

Seear, B.

Birk, B.

Janner, L.

Simon, V.

Brimelow, L.

Kaldor, L.

Snow, L.

Brockway, L.

Llewelyn-Davies of Hastoe, B.

Stedman, B.

Champion, L.

McCluskey, L.

Stone, L.

Collison, L.

Morris of Kenwood, L.

Strabolgi, L. [Teller.]

Crowther-Hunt, L.

Oram, L.

Thurso, V.

Davies of Leek, L.

Parry, L.

Wells-Pestell, L. [Teller.]

Donaldson of Kingsbridge, L.

Peart, L. (L. Privy Seal.)

Winstanley, L.

Elwyn-Jones, L. (L Chancellor.)

Peddie, L.

Winterbottom, L.

Gardiner, L.

Phillips, B.

Wise, L.

Hacking, L.

Pitt of Hampstead, L.

Wynne-Jones, L.

Resolved in the affirmative, and Amendment agreed to accordingly.

Lord LYELL Lord LYELL moved Amendment No. 58D:
10.10 p.m.
Page 25, line 26, leave out from ("repairs") to end of line 27 and insert ("to crates, boxes, pallets and other articles into which cargo is packed for loading and unloading operations.").
The noble Lord said: My Lords, once again we have an Amendment which is similar to one which I moved in Committee, but, as noble Lords will see, this time the Amendment would permit minor repairs to various boxes, crates and pallets where this is already done by dock workers or where it would be appropriate. The relevant word which the Amendment seeks to remove is "container". I referred to these items at the end of my remarks in Committee, and noble Lords will remember my pointing out that containers are made at present from steel, aluminium, GRP (which I understand is glass-reinforced polyester) or a combination of all these materials. From the inquiries I have made since Committee stage, it appears that there is no such thing as a minor repair should any damage to a container occur, because in all cases where a container is bent or buckled, or where one of the metal parts gets chipped, broken or damaged in any way, a specialist is needed, either to weld or to patch, or to realign the metal, or to repair in a major way the glass-reinforced polyester.
Such work, I think noble Lords will admit, really is beyond the range of even the most skilled docker who might have experience of such a thing on the dockside at present. Anyhow, such a docker would not require training in techniques utterly irrelevant to his main employment. But, of course, any major damage to a container would necessitate that container being removed, if necessary with its contents as well, to a specialised container repair depot. I consider, and I hope that noble Lords will agree, that any repairs, major or minor, to a container are in no way the province of registered dock workers, and I just wonder whether registered dock workers would wish to take the responsibility for such highly organised and very difficult work. But if the Government believe that this is the case, and taking into account
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Clause 8(5)(b), why do we need to have containers in this part of the Schedule at all? With that, my Lords, I beg to move.
Viscount SIMON: My Lords, I should like to support the noble Lord, Lord Lyell, on this Amendment. I must confess that when I first read it I had assumed that the Bill was using the word "container" in a rather general sense, as anything which contained something else. But, of course, in the shipping business for many years now the word "containers" has had this specialised meaning, and I think it would be rather unfortunate to leave that word in because it certainly would be mis-interpreted; and I entirely agree with the noble Lord, Lord Lyell, that there could not be any intention of registered dock workers making repairs to containers.
Lord ORAM: My Lords, as the noble Lord, Lord Lyell, has said, this is a some-what similar exercise to the last one. He will not be surprised, therefore, if I respond in a vein somewhat similar to my last response. As he has said, in Committee he moved an Amendment to restrict the minor repair work which may be classified to work (the words then were)—
"involving unskilled general work in the dry coopering, needlemen and 'box knocking' categories".
He has not this time gone into those sophistications. I said during that debate that the Amendment was too restrictive; it would prevent the classification of minor repairs to various articles, such as pallets used in the packing of cargo, and containers. As the noble Lord has this evening indicated, he indicated then that he was generally satisfied with what I said but criticised the inclusion of the word "containers" on the grounds that the repair of these would involve skilled work with metal and other materials. He has made a similar point this evening.
This Amendment varies the present wording of the Bill in two respects: by excluding the word "containers" and, secondly, by altering the final words from:
"used for packing or loading and unloading cargo",
to:
"into which cargo is packed for loading and unloading operations".

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I must advise the House that the essential point that the noble Lord has put forward—that is, omitting the word "containers"—really achieves nothing because lie has included in his Amendment the words "and other articles". All containers would be covered by the term "other articles". There would be great difficulty in excluding special minor repairs to standard through-transport containers. That is clearly the intention because of this problem of definition.
The word containers", by itself, would presumably include bags, boxes and crates; but in any case the Government do not think that minor repairs to through-transport containers should be excluded. Registered dock workers at present undertake the restoration of damaged paintwork on such containers in some cases. The noble Lord has in mind, as he indicated, such jobs as metalwork, skilled welding or the treatment of aluminium. I do not think that these could possibly be considered to be minor repairs, because if a metal through-transport container needs such treatment its whole structure is affected and the subsequent repair is anything but minor. So I think that there are difficulties of this kind in relation to the noble Lord's Amendment.
Another difficulty that I would indicate is that there are international standards applying to the construction of containers so that the metalwork to which he refers is, indeed, a major operation. But there is the difficulty of definition in relation to minor work which prevents me from accepting this Amendment, even though once again the noble Lord, quite understandably, has tried to meet the criticisms that I made of his earlier Amendment.
Lord LUCAS of CHILWORTH: My Lords, would it not be fair for the noble Lord to provide a suitable Amendment to establish what really was meant by "minor repairs". The trouble with this kind of description is that "minor repairs" can be almost anything or nothing. I know that when we are talking about containers we mean the big steel boxes and we are not talking about bags, boxes or sacks. These are dealt with by separate words. In the Bill the
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word "container" is followed by a comma. Surely that means that what we are talking about are these through-transported containers—not a box, not a bag, not a pallet or a crate that is used for moving goods in and around. This is, surely, a whole piece of equipment.
Certainly, in Southampton I know that registered dock workers carry out what they call minor repairs to containers. It is not only a question of international standards applying; because if a container is damaged on being brought off a boat for onward transmission into the United Kingdom, the international standards do not apply. Suppose it had a gash in its side. It is quite common practice for something to be stuck over the gash and that is called a minor repair. It is an ineffective repair but nevertheless that is carried out and that is the kind of repair, minor or otherwise, that gives rise to a potential claim or an extension of the activity into further work for repair. Once we have that, we are virtually going to encourage a new job to be created within the Dock Scheme area in substitution. We have had a lot of argument about that kind of thing.
We have always regarded the minor repair as being the knocking in of a few nails to secure a board in a wooden packing case, or something of that nature. If we move from steel containers—steel including aluminium of course—into some other material in the next few years then this sub-paragraph will not apply because of the technology involved, so my noble friend is quite right in seeking to secure the exclusion of a particular and important piece of machinery. If this wording is not exactly what the Government would like to agree is the intention behind the Amendment—and I am presuming of course that the Government agree with the intention—surely it is up to them to make suitable suggestions so that the intention can be clarified.
Lord LYELL: My Lords, I am very grateful for the support and above all the clarification that I have had from the noble Viscount, Lord Simon, and indeed the support from my noble friend Lord Lucas of Chilworth. As to the point raised by the noble Lord, Lord Oram,

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that containers, as we understand them for this purpose—I had better call them a through-transport container—might require painting, I would submit fairly strongly that painting is hardly relevant to the safety or indeed the condition of the cargo. On the other hand, a dent in the metal or a gash or damage to the metal-work is indeed relevant to the cargo, its condition and its safety. That is why I might have made an error in thinking of minor repairs of any kind because I would submit that the noble Lord's example of painting is certainly not relevant to the condition of the cargo and certainly any metalwork, as he has agreed, would require to be carried out in a specialised workshop.
The noble Lord mentioned European regulations for metalwork and for containers going across the Channel to continental Europe and indeed across the oceans. I believe also for the rollon roll-off section there are the TIR regulations, and indeed I am interested to hear my noble friend Lord Lucas of Chilworth say that patching is allowed because I had understood that the TIR regulations were very strict about such practices.
The noble Lord pointed out as the very last thing in his reply that "articles might cover through transport containers. I might take that, but I would counter, if that is the word, that containers, as we understand them and as they would be interpreted in this Bill, would mean through-transport containers as indeed has been pointed out by the noble Viscount, Lord Simon. We have moved towards the Government's objections. I am only sad that there has been no more than—as I described it at Committee stage—a millimetric advance towards our position, if as much as that. But there is one point on which the Amendment is not perfect, and we could not be satisfied with the example given by the noble Lord, Lord Oram. However, it is fruitless to continue to argue about glass reinforced polyester, or new techniques that may come. Therefore, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
10.26 p.m.
Lord MOTTISTONE Lord MOTTISTONE moved Amendment No. 61A:
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Page 26, line 10, at end insert ("and not including any normally operating in sheltered estuarial waters.").
The noble Lord said: My Lords, I should like to start by thanking the noble Lord, Lord Oram, for having agreed in Committee to look into this matter, and indeed for having written me a very full letter explaining the Government's attitude to the Amendment that I had down then. That gave me the opportunity to change my Amendment to the one that we have before us, I hope taking my lead from the noble Lord's letter and, indeed, from what he said in Committee. It seems to me that the kind of definition and the kind of change in the balance of the Amendment—I do not wish to repeat all the arguments that I put in Committee—would meet both my aspirations to safeguard the position of ships whose normal work is in enclosed waters, and which are not going to be used for long distance passages and carrying great cargoes for import and export from consideration under this Bill, and the very understandable objections which the Government had to my earlier Amendment. My Lords, I beg to move.
Lord ORAM: My Lords, as the noble Lord, Lord Mottistone, has said, we entered into correspondence arising from the debate in Committee. The Amendment which the noble Lord put forward then would have limited the application of paragraph 8(d) to,
"sea-going ships normally used for carrying cargo on the open sea."
As the noble Lord acknowledged, I have written to him explaining that under Section 57 of the Harbours Act 1964, which is referred to in the Bill, both in Clause 15 and now in Clause 4, as amended, "harbour" means,
"… any harbour, whether natural or artificial, and any port, haven estuary, tidal or other river or inland waterway navigated by sea-going ships.".
Therefore, the term "sea-going ship" is used in other legislation and has a well-understood meaning. Very strong arguments would be needed before changing a term which is already used in the definition of a "harbour"—a definition which was important in other legislation

1583
before the Bill was amended, and crucial after its amendment.
I went on to say in the letter that in the Dock Work (Regulation of Employment) Act 1946, under which the present Dock Labour Scheme is made, the term "cargo" is defined as including "anything which is carried in a ship or other vessel". That could technically be held to apply to, for example, goods carried in a rowing boat used as a ferry across a river. A sea-going ship "is one which is permitted to go to sea and is not restricted to sheltered estuarial waters, or to inland waterways. This gives a proper, clear distinction between goods which are moved by a non-sea-going ship or vessel, and thus could not be considered as cargo, and those which are moved by a ship which is permitted to go to sea and thus can be considered for classification. The number of occasions when sea-going ships do not put to sea is, we understand, quite small.
The Amendment moved by the noble Lord seeks to exclude that category of sea-going ships which do not normally put to sea. The number of such ships is small, so this minor change would not be a significant diminution of the work which may be considered for classification. However, there are serious difficulties about the drafting. If the ship is normally used only in sheltered estuarial waters, then it could, from time to time, put to sea. When it does put to sea, we see every reason why the goods which it carries should be considered as cargo. If the ship was, say, to put in at a wharf in the Port of London for a voyage to Rotterdam, the owners could insist that non-registered men were used to load and unload the goods because the goods would not be cargo. That would provoke the most serious industrial relations consequences and we do not think that that should even be a possibility under the Bill. Moreover, some sea-going ships of quite considerable size are being used to a greater or lesser extent in estuarial waters in order to trans-ship goods to a smaller port. A commodity such as grain, for example, is commonly carried in very large ships which can use only a very limited number of ports. We think that work associated with trans-shipment should be capable of classification.
1584
I have gone into the matter in some detail, as I think the noble Lord will acknowledge, because he raised the matter on the earlier occasion and has sought to meet the points that were then made. However, I think that it raises difficulties which I have explained and I hope, therefore, that the noble Lord will not press his Amendment.
10.32 p.m.
Lord MOTTESTONE: My Lords, the mind boggles at the prospect of the kind of ships I am thinking of going into the Port of London and causing a major dock strike by misusing the terms which we are seeking to write into the Bill. I should have thought that this was highly unlikely and that the people concerned would he most unwise even to risk being in that position, whatever the wording of this Bill.
Perhaps I may suggest to the noble Lord, Lord Oram, that there has not been sufficient time for the Government to consider these Amendments. I apologise for the fact that as I put down my Amendment only yesterday there has not been time for the noble Lord and his advisers to consider the implications. I hope that the noble Lord will not take it amiss when I say that I feel he has given me a Let's think up an excuse" kind of reply rather than one of his usual courteous and carefully thought out replies, such as that contained in his letter, a good deal of which he read and which I very much appreciated.
It is getting late. Also we are nearing the end of the Bill. The sole purpose of the Amendment is to introduce a small safeguard to protect a very few people from having their jobs disrupted by the Bill, whatever form it ultimately takes. I think it is rather tragic that it has not been possible for the Government to give more consideration to the Amendment and show more understanding of the purpose behind it. However, in view of the time I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
10.35 p.m.
Lord LYELL Lord LYELL moved Amendment No. 62:
Page 26, line 29, at end insert—
("10A. The work of persons employed in a business on premises occupied for the purposes

1585
of business where the terms and conditions of employment are mainly or exclusively the subject of a collective agreement unless the parties to the collective agreement further agree that the work in question may be classified.").
The noble Lord said: My Lords, would it be in order for me to move Amendment No. 62A to amend Amendment No. 62 before I speak to that Amendment? If so, I seek leave to move Amendment No. 62A, the manuscript Amendment.
The CHAIRMAN of COMMITTEES (The Earl of Listowel): My Lords, I think the noble Lord should move Amendment No. 62 first.
Lord LYELL: My Lords, I am indebted to the noble Earl. the Lord Chairman. In speaking to Amendment No. 62, I take into account the comments made by noble Lords opposite at the Committee stage. The House will remember that the Government then expressed concern that where both employers and employees, having a recognised agreement, wished to have work at a port or a dock classified, this should be so. We hope that our Amendment as re-drafted will do what the Government wish the provision in the Bill to make it do. What we seek to do by inserting this Amendment is to ensure that a satisfactory collective agreement is not, and will not be, affected by the Board classifying some work covered by the agreement. The other main object of the Amendment is to remove the possible causes of inter-union dispute, and even intra-union strife within the same union.
Perhaps I may ask the noble Lord who is to reply whether the Government have been able to confirm all that was said at an earlier stage about some tally clerks at Liverpool. All of us have recognised that such a group at such an important port is a very reasonable example in seeking to show the defects in our Amendment as it was then drafted. But the Amendment has been re-written, I would say mutatis inutandis, and we are of the opinion that should the tally clerks wish to have their work classified they could have their wishes fulfilled. But, secondly, are the Government quite sure that the tally clerks in Liverpool are in fact performing the work which is defined in Schedule 3? As we understand it, that is checking and recording and sorting
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cargo, or recording the handling or loading or unloading of cargo, because from inquiries that we have made it seems that most of this work in that particular port is performed by dockercheckers, whereas the 500 or so members of the clerical section of the Transport and General Workers' Union in the port of Liverpool are working mostly in offices around, the dock area, not in the warehouses, in the sheds or on the quaysides.
But the other main port where we find tally clerks is in London, and representations have been made to us that there are inter-union difficulties in and around the Port of London. For example, can the Government say that registered clerks in the Port of London are permitted to work in or around the warehouses and the cargo sheds? We are not sure that this is permitted, and in fact we understand that the work in these particular areas is performed by docker-checkers.
The Amendment seeks to allow dock workers the right to have their work classified, if they so wish, but not to upset an existing collective agreement. We hope the Amendment contains a reasonable safeguard for those who wish to have the work classified. We think that the Amendment meets the points raised by the noble Lord, Lord Jacques, at the Committee stage and thus we commend the Amendment. I beg to move.
Lord LYELL Lord LYELL moved manuscript Amendment No. 62A as an Amendment to Amendment No. 62:
Line 3, after ("of") insert ("that").
The noble Lord said: My Lords, I beg to move Amendment No. 62A.
Lord JACQUES: My Lords, while we would not seek to oppose the Amendment to the Amendment, I would point out that in our view it is of doubtful value. The use of the word "that" usually implies reference to something which is earlier in the sentence. There is no indication as to what the word "that" is supposed to refer.
Lord LYELL: My Lords, I understood it, and I think if the noble Lord might grant it, it would be reasonable to assume that "that" refers to "in a business" in the first line. I hope we need not

1587
deal in what his noble friend called semantics at an earlier stage, but that is my understanding. We have not been to a court of law about it, but we understand the word "that" refers to "a business" in line 1.
The Earl of LISTOWEL: My Lords, the Question is that Amendment 62A, after ("of") to insert ("that") be agreed to. As many of that opinion say "Content". To the contrary "Not-Content". I think the "Contents" have it. Clear the Bar.
My Lords, Tellers for the Not-Contents have not been appointed pursuant to Standing Order No. 53. A Division therefore cannot take place, and I declare that the "Contents" have it.
Lord JACQUES: My Lords, we have not had a chance of putting a point of view on Amendment No. 62. The broad effect of this Amendment is similar to that of Amendment No. 67 which seeks to give the right of veto to trade unions recognised in respect of work since 10th February 1976. This Amendment No. 62 goes even further in that the positive agreement of both the unions and employer is required before work can be classified, and there is no limit of time in respect of which the union must have been recognised. The same objections apply with even greater force.
The Amendment, if accepted, would frustrate one of the principal objectives of the Bill which is to make possible the classification of work which registered dock workers were performing under the 1967 Scheme but which was transferred outside the port areas and undertaken by registered workers. It would clearly be unrealistic and wholly incompatible with the intention of the Bill, that any employer or trade union recognised by him in respect of classifiable work should in effect unilaterally be able automatically to preclude such work being considered for classification. The Bill provides adequate opportunity for the views of all concerned to be taken into account before any new work is classified, and the views of trade unions and employers concerned would clearly carry considerable weight. But the Government are convinced it would be wrong that the Board's ability to examine classifiable work should be subject
1588
to the concurrence in all cases of both the employer and trade union recognised in respect of any such work as the Amendment proposes. We hope that with this explanation the Amendment will be withdrawn.
Baroness HORNSBY-SMITH: My Lords, once again the Government are conceding to the big boys with the muscles, and I should like to remind your Lordships that many of the highly skilled small businesses are very valuable exporters. Many of them may rent sections of ware-houses which they do not exclusively own, but nevertheless the handling of their goods, sometimes delicate machinery which may be only a small part but the most vital part of a great chunk of iron and steel.
Again, we find that the Government have given way to the massive companies. Because they can say that they own their own warehouses, their employees will be allowed to continue, within the half-mile limit or whatever it may be, possibly outside the dock area, to handle those goods. When it comes to the smaller firms then, however loyal and skilled the staff, whether they are handling antique furniture for export or highly technical pieces of equipment, they could well lose their jobs. I cannot accept the continual reiteration of the noble Lord, Lord Jacques, that it is the docker's right to take so many types of jobs from their fellow workers who have been working in their own skilled niche in their particular union.
Lord JACQUES: My Lords, there is nothing in this Bill which enables a docker to take over the work of somebody else. Workers doing the work at present are fully covered and protected by the Bill.
Baroness HORNSBY-SMITH: My Lords, if I may say so to the noble Lord, we have had representations from many members in different trade unions who are working in what would be either the half-mile or the five-mile zone indicating that they have very real apprehensions: if the goods are imports they will have been handled by dockers to that zone warehouse within the half mile, which may be beyond the gates of what is physically the dock. They have very real apprehensions. If the noble Lord

1589
is now telling us that no one in the Municipal and General or USDAW or the warehousemen who have hitherto under union agreements been employed in these establishments will lose their jobs—that there will not be the possibility of their jobs being taken over within this zonal limit—that will allay a lot of fears. But many highly-skilled lawyers in the various unions have read this Bill, and that is not what they believe.
Lord DRUMALBYN: My Lords, I wonder whether the noble Lord could tell us—I am sure he is much more experienced in this field than I am—if the existing workforce in particular premises was subject to a closed shop agreement, what would be the effect of classifying the work as dock work when it was not classified as dock work before?
Lord JACQUES: My Lords, It would have no effect whatever on the collective agreement.
Lord DRUMALBYN: My Lords, what effect would it have on filling vacancies? Supposing someone had to fill a subsequent vacancy in what was then classified as dock work, would it not mean that a registered dock worker would have to be admitted, and he, of course, could not be admitted because of the closed shop agreement? Where do we go from there?
Lord JACQUES: My Lords, it would, of course, mean that the registered dock worker after classification would get the vacancy.
Lord DRUMALBYN: But he could not; it is a closed shop.
Lord JACQUES: Yes, my Lords, but there is no reason why a closed shop agreement could not be modified as an agreement between the unions. It would make no difference to the collective agreement. As we have said many times, if there is a dispute between two unions, the TUC has a committee for dealing with such disputes and it is one of the most successful committees in the TUC.
Lord MOTTISTONE: My Lords, could the noble Lord clarify it a little further? If, as he says, the Bill without this Amendment is not going to lead to the upsetting
1590
of collective agreements, why is he objecting to this Amendment? Does it make things any different? It seems to me a little odd. If the Bill without the Amendment is going to protect the jobs of people who are not dock workers, the Amendment cannot make things worse for the chaps who are not dock workers. I do not see what he is objecting to.
Lord JACQUES: My Lords, with the leave of the House, I will reply. I am objecting to the Amendment because it frustrates one of the principal purposes of the Bill. In the past few years the movement of work from the dockside a short distance away, within, if you like, the five-mile limit, has caused a good deal of bad industrial relations. We are saying that that work should be classifiable; that is to say, it should be considered for classification. We have provided complete safeguards for the people who are at present doing the work. But it would mean that a docker could take a vacancy, and we contend that it is better that a docker should take the vacancy rather than that the existing dock employers should have to pay excessive severance pay, which is the present position.
Lord MOTTISTONE: My Lords, with the leave of the House, does this Amendment prevent dockers from taking a vacancy?
Lord JACQUES: My Lords, by this Amendment the trade unions and the employers could cause the work not to be classifiable, and, therefore, because the work was not classifiable, even though it came from the dockside, the work would not be available to registered dockers. We say it should be available, but that the existing workers should be fully protected.
Lord LYELL: My Lords, the noble Lord, Lord Jacques, has said that the workers should be protected. I think the example he gave of premises where there is a closed shop and should a vacancy occur a registered docker would be the first to obtain such a vacancy is one of the most terrifying replies certainly to this Amendment. I believe that although that particular reply may not frustrate the Bill it frustrates the good intentions of this particular Amendment. In the

1591
replies that the noble Lord, Lord Jacques, has given us—and he has been kind enough to give replies not just to me but to my noble friends behind me—I am afraid that he has gone less than half-way to satisfying not 200, not 20, and not 2 per cent.
11.4 p.m.
Lord LUCAS of CHILWORTH Lord LUCAS of CHILWORTH moved Amendment No. 63:
Page 26, line 30, leave out paragraph 11 and insert—
("11. Driving any vehicle whose use is mainly on public roads, whether inside or outside any dock labour scheme area; supervision of loading and unloading such a vehicle; seeing to the security of its load.").
The noble Lord said: I hope that in moving this Amendment we can move from the rather troubled waters of the last discussion into calmer seas. The Amendment is substantially the same as that moved by my noble friend Lord Lyell in Committee. It is different only in the
10.56 p.m.
On Question, Whether the said Amendment (No. 62), as amended, shall be agreed to?
Their Lordships divided: Contents, 46; Not-Contents, 40.

CONTENTS

Ampthill, L.

Hailsham of Saint Marylebone, L.

Rankeillour, L.

Atholl, D.

Hereford, V.

Redesdale, L.

Balerno, L.

Hornsby-Smith, B.

Rochdale, V.

Belstead, L.

Hunt of Fawley, L.

Ruthven of Freeland, Ly.

Berkeley, B.

Kinnoull, E.

St. Just, L.

Brougham and Vaux, L.

Long, V.

Sandford, L.

Campbell of Croy, L.

Lucas of Chilworth, L.

Sandys, L.

Colville of Culross, V.

Lyell, L.

Selkirk, E.

Cork and Orrery, E.

Macleod of Borve, B.

Scmpill, Ly.

Craigmyle, L.

Monk Bretton, L.

Strathcona and Mount Royal, L

de Clifford, L.

Mottistone, L.

Tweedsmuir, L.

Denham, L. Teller.]

Mowbray and Stourton, L. [Teller.]

Vickers, B.

Drumalbyn, L.

Ward of North Tyneside, B.

Elles, B.

Norfolk, D.

Westbury, L.

Faithfull, B.

O'Hagan, L.

Young, B.

Gowrie, E.

Pender, L.

NOT-CONTENTS

Barrington, V.

Janner, L.

Shepherd, L.

Birk, B.

Kaldor, L.

Simon, V.

Brimelow, L.

Kennet, L.

Snow, L.

Champion, L.

Llewelyn-Davies of Hastoe, B.

Stedman, B.

Collison, L.

McCluskey, L.

Stone, L.

Crowther-Hunt, L.

Morris of Kenwood, L.

Strabolgi, L. [Teller.]

Davies of Leek, L.

Oram, L.

Wells-Pestell, L. [Teller.]

Donaldson of Kingsbridge, L.

Parry, L.

White, B.

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

Peart, L. (L. Privy Seal.)

Wigoder, L.

Gardiner, L.

Peddie, L.

Winstanley, L.

Gregson, L.

Phillips, B.

Winterbottom, L.

Harris of Greenwich, L.

Pitt of Hampstead, L.

Wynne-Jones, L.

Houghton of Sowerby, L.

Plurenden, L.

Jacques, L.

Seear, B.

Resolved in the affirmative, and Amendment agreed to accordingly.

deletion of the word "normal from the phrase "normal use". It seeks to protect the work of some 200,000 people engaged in the road haulage industry and most particularly of about 40,000 of them who are directly engaged in haulage to and from the docks. I am hopeful that, when the noble Lord, Lord Jaques, comes to respond, he will be able to shed some light on our obligations with our friends in the EEC, particularly with regard to the movement of Ro/Ro vehicles. We withdrew this Amendment at Committee stage in order to have a further look at the question in the light of what the noble Lord, Lord Jacques, had said. We have set it down again at this stage because we could not find any good reason why this particular work should not be excluded.
So far as we can see, the noble Lord, Lord Jacques, suggested only that the driving of vehicles would only be carried out by registered dock workers in the most exceptional cases. He gave two instances. We feel that, once one starts making exceptional cases that are not defined, the provisions rather fall. The two examples that the noble Lord gave were, we thought, somewhat negatived by the answer that he gave to my noble friend the Duke of Atholl who had asked whether, if registered dock workers were moving import and export vehicles round the dock area, they could not continue to do so. The answer was, yes, they could continue to do so. Therefore, the exclusion, by virtue of this Amendment, of this work would not upset any particular arrangement.
I do not wish to repeat the arguments that we put forward at the Committee stage with, if I may say so, some vehemence and with what we believe to have been the support of the Committee, because understand that the Government are inclined to accept the Amendment, presumably because of the arguments which we then put forward. I hope that that is so because the Amendment takes care of the points that my noble friend Lord Mottistone might well have raised on his Amendments Nos.59 and 60. It was in the belief that the present Amendment would be acceptable to the Government that he did not move those two Amendments. I hope that that will prove to be the case when the noble Lord, Lord Jacques, comes to respond. I beg to move.
Lord JACQUES: My Lords, this is a matter on which little divides the Government and the Opposition. In Committee, the noble Lord, Lord Lyell, and others explained the concern of the road haulage industry that the paragraph meant that registered dock workers would evict lorry drivers from their cabs and seek to drive roll-on/roll-off vehicles on to the ship. I explained that the Government would never propose anything so foolish. Part I of Schedule 3 is enabling. It does not require classification of all work which is potentially capable of being classified. The Secretary of State had made it clear in another place that it was certainly not envisaged that the driving of lorries within dock estates should in general however he classified as dock work.
1594
In the Committee debate, the noble Lord, Lord Lucas, raised the question of our EEC obligations to foreign drivers and whether the Bill was incompatible with them. The Bill itself cannot be incompatible because it is only an enabling Bill. If ever a recommendation was made by the Board to the Secretary of State which appeared likely to have an effect on EEC obligations, then he would of course ensure that there was no breach of EEC regulations before making a statutory order under Clause 11(1). It is, of course, only when the statutory order is made that the law is changed.
It is fair to put the question: but what if a statutory order were proposed? Would it be a breach of EEC regulations? Although it may seem unsatisfactory, our answer to that is that it might or it might not be. But it is certainly not a matter which could he decided without putting all the details of any particular proposals to Brussels, so that they could be considered against the First Council Directive of 23rd July 1962, and subsequent amending Directives.
But, as has been emphasised, it is certainly not the intention to interfere with driving of roll-on/roll-off vehicles. The tests in the Bill, and its general intention, would never lead to such a situation arising. But there are situations in which as a matter of practice, convenience or practice, or convenience, where vehicles are left in dock parks by drivers and driven on board by dockers. Dockers are also used to drive import and export cars and lorries to and from the ship. A further difficulty is that if a prime mover or lorry cab is linked to a detachable trailer, then the cab and the trailer, or trailers, have to be regarded as the vehicle. This means that a lorry cab which is normally used on public roads could, under the terms of the Amendment, come into the dock estate, attach itself to a trailer, move the trailer around the dock estate, and then leave the dock estate without the trailer. Such work is usually done by the docker, using a prime mover not normally used on public roads. If such a situation occurred, it would of course have serious industrial relations consequences.
So we still have objections to the Amendment and so far have not been able to conceive of words which would

1595
overcome the difficulties outlined. But in view of this and earlier debates, and the examples given by the noble Lord, Lord Mottistone, in an earlier debate on paragraph 8 of Schedule 3, we would not seek to oppose the Amendment at this stage. However, we will re-examine the drafting and may return with further proposals at a later stage.
Baroness HORNSBY-SMITH: My Lords, before the noble Lord sits down, would he clarify one position? It has been said so frequently that this Amendment, and previous ones suggested, would make it difficult in relation to loading or unloading cars for imports and exports. It is not comparing like with like. The purpose of those who have supported these Amendments is in relation to the vehicles which have cargo within them.
A car for export is not licensed to be driven on a public road until it gets into the hands of the owner and gets licensed, and cars of that nature, for import and export, are truly cargo. They are not vehicles containing cargo. We are concerned in the Amendment with the vehicles, the very specialised and very expensive vehicles, the handling of which calls for very great skill and familiarity with the vehicle. We are not concerned with cars for import and export which are in themselves the actual cargo and not the transporting vehicles.
Lord JACQUES: My Lords, it is a question of getting words which would meet what the noble Baroness has said. We have not got those words at the moment, but we believe that we will get them.
11.14 p.m.
Lord LUCAS of CHILWORTH: My Lords, I thank the noble Lord for his very full answer, particularly in relation to our EEC obligations. I was not terribly happy with his qualified acceptance of the Amendment, because in truth the Government have had ample time to consider the Amendment and the exact wording. It has been in this state ever since the Committee stage. I feel obliged to say that if they are proposing to make any drastic alteration—which, I understand, would have to be made by tomorrow afternoon—it may
1596
well be that we would have to be very strenuous in our opposition.
Let us look at what the noble Lord might wish to do. He might wish to amend this Amendment, or the Bill as it then will be, to provide for the movement of unaccompanied trailers by a prime mover to be driven only by a registered dock worker. They do that already in a number of docks. I will give the example which, of course, comes near to me at home, at Southampton. My understanding is that the Dock Board have given some restricted training to 26 out of their workforce of 2,500 to drive heavy goods vehicles, the tractor unit. There are four of them in the dock which are used for this purpose, and there is no argument about it, there is no difficulty. In the event of a whole vehicle—that is, a tractortrailer unit or a road train vehicle—that is left unaccompanied, it would then be consigned to somebody to ship on their behalf, and my understanding is that this then becomes goods and is moved by the docker. In the last instance, where another prime mover is used, the complication of the machinery is such that very few dockers have the necessary aptitude, and I believe that they usually sit in the cab, so ensuring that they do the work although somebody else actually does the driving.
These are the sort of things that we may very well get into on Monday, when we have the Third Reading, and I would be most reluctant, at that very late stage of the Bill, to have to take an aggressive attitude. So far as this section of the Bill is concerned, we have gone along with a reasonable amount of agreeability. I therefore urge the Government to accept the spirit of this Amendment, rather than to accept it while they look at it over the weekend and then introduce something else into the whole area of the road transport industry in so far as the Dock Work Regulation Bill is concerned, which may cause us on this side to take a kind of stance we would be most reluctant to take at a stage as late as Third Reading.
On Question, Amendment agreed to.
11.18 p.m.
Lord LUCAS of CHILWORTH Lord LUCAS of CHILWORTH moved Amendment No. 63A:
Page 26, line 30, leave out paragraph 11 and insert—
("11A. Repair of any such vehicles, as referred to in paragraph 11 above, and their equipment.").
The noble Lord said: My Lords, with the permission of the House, I beg leave to move this Amendment on behalf of my noble friend Lord Sandford. We discussed this briefly at Committee stage, particularly in regard to those matters which we have discussed again tonight in relation to Part I of Schedule 3. I do not think there is anything very controversial in this. In fact, one might almost consider it to be something of a consequence of the Amendment just accepted by your Lordships. The position really arises in the event of a vehicle or part of its equipment—and the part of the equipment which comes most easily to mind is the hydraulic or air coupling between a prime mover and a trailer unit—becoming damaged during the course of loading. If one of these cables (it is known as a "Suzie") is damaged, the vehicle cannot move, and it may be that this work might be claimed at some time as being a minor repair to an article used for the loading or unloading of cargo.
That is what that is about. We do not feel that any repairs of any kind should be carried out to a complicated piece of machinery other than by those people sufficiently trained and practised in the art; so that the Amendment is something of a consequential one upon Amendment No. 63 and would ensure that nobody at some later stage will feel that because damage is occasioned to some vehicle or part of a vehicle concerned with loading or unloading the repair should become dockwork.
Lord JACQUES: My Lords, there is something wrong with this Amendment. It says, first, "leave out paragraph 11". To leave out paragraph 11 is to leave out the paragraph relating to driving. I am sure that that is not intended by anybody. So the Amendment is certainly defective. I do not think that the repair of any vehicle, whether or not used on the public roads, could be covered by Part I of Schedule 3. Part I of Schedule 3 deals with work which is classifiable.
Lord BROUGHAM and VAUX: My Lords, the noble Lord said that the Amendment is defective. We have just
1598
amended paragraph 11 by Amendment No. 63. We are now inserting paragraph 11A.
Lord JACQUES: My Lords, as I understand it, paragraph 11 has been amended by Amendment No. 63. Now we have a consequential Amendment No. 63A which is seeking to delete paragraph 11. I am sure that that is not intended.
The LORD CHANCELLOR: My Lords, I think it is intended to mean to leave out the new paragraph 11A.
Lord SANDFORD: My Lords, this is one of the difficulties that arises by our trying to do all this too quickly. if the noble Lord will deal with the substance of the proposed Amendment which my noble friend has just moved, I think that that would meet the case.
Lord JACQUES: My Lords, I do not think that repairs to any vehicle, whether or not used on the public roads, would be covered by Part I of Schedule 3. Part I of Schedule 3 lays down work which is classifiable. We do not think there is anything in Part I of Schedule 3 which covers the kind of repairs mentioned by the noble Lord. The only paragraph likely to be applicable is paragraph 5, but vehicles are not of the same genus or class as containers, crates, boxes, pallets or other articles used for packing, loading or unloading cargo. We have no doubt that repairs to vehicles are not classifiable.
Lord LUCAS of CHILWORTH: My Lords, I thank the noble Lord for that categorical answer. I do not think that there is any point in my reviewing the exact terminology of the Amendment. I think that my noble friend Lord Sandford has suggested how this came to be. With that categorical assurance at the back of my mind, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Lord SANDFORD Lord SANDFORD moved Amendment No. 64:
Page 26, line 34, at beginning insert ("(a)").
The noble Lord said: My Lords, I beg to move Amendment No. 64 and to speak at the same time to Amendment No. 65. There is no need for me to speak at any

1599
length because the main issue was dealt with, I think thoroughly, at the Committee stage. The noble Lord, Lord Jacques, then made a number of points which I think I have taken fully into account so that the new Amendment differs in three respects from the original. All I need to do is to mention those differences.
The phrase "and others to which he took exception has been omitted to comply with his argument that some perfectly legitimate classified dock work such as lashing, hatch opening and so on, is carried out by registered men. I have also omitted the provision that the work of riggers and shipwrights be limited to that which is carried on on board ship because, as he rightly said, some of it is carried on ashore. I have dealt with his criticism about the term" agreed by all the parties concerned "and modified that so that it reads—
"which is agreed by a majority of the employers and unions …".
With those changes all the original arguments that I made for this Amendment stand and I beg to move Amendment No. 64.
Lord JACQUES: My Lords, we at once acknowledge the change in the wording which is, of course, from our point of view, an improvement in the Amendment, but the new wording gives rise to other problems. As it stands, the wording
"majority of the employers and unions"
could mean the majority of both taken together, thus enabling several employers to agree a change against the wishes of the single union. If the wording were amended to the
"majority of both employers and unions"
it could still enable two small employers of 5 per cent. of the workforce preventing a change agreed by the one large employer with 95 per cent. Wording such as
"the employers of the majority of the workforce and the unions representing together the majority of workers"
would be better, but it could still be unsatisfactory if a large minority of either were against a change agreed by a small majority.
However, the objections to the Amendment on other grounds are stronger. The following points were made in Committee and still apply.
1600
First, the work of riggers on board ship is in some places already done by riggers who are registered dock workers; it might well therefore he appropriate for classification as dock work elsewhere. This incidentally need involve no change in "local custom and usage"—the existing riggers could simply become registered dock workers—on the extension register.
Secondly, this is not a new problem; paragraphs 6 and 7 of Schedule 3, which are the ones which make the work of riggers classifiable, reflect the wording of the Dock Workers (Regulation of Employment) Act 1946. In other words, this problem has been with us for a long time and has not given rise to any particular difficulties. The Government nevertheless have paid careful attention to the views expressed by some riggers that their work should not be classifiable. This would represent a narrowing of the potential scope of dock work from the present position. The Government do not believe this would be sensible. It will be better to leave the matter to the procedures under the Bill, which mean that all the circumstances—including in particular objections raised by employers and/or unions and industrial relations implications—will be carefully considered before work is recommended for classification. In addition, unions will be able to veto classification in circumstances provided for in paragraph 8 of Schedule 4.
Lord SANDFORD: My Lords, I am grateful to the noble Lord. I think we have done as much as we can do now to get this Amendment into shape. The noble Lord still has some misgivings, some of which are perhaps justified and some of which are rather unjustified, but the right thing for us to do now is to move this modified Amendment into the Bill and the noble Lord and his Department can look at it and make those adjustments that he thinks might be necessary for Third Reading, if they wish. The main consideration is that this particular topic should be returned to another place for them to give some reconsideration to it and in that context I would commend this Amendment to the House.
11.30 p.m.
On Question, Whether the said Amendment (No. 64) shall be agreed to?
Their Lordships divided: Contents, 47; Not-Contents, 33.

CONTENTS

Ampthill, L.

Gowrie, E.

Rochdale, V.

Atholl, D.

Hereford, V.

Ruthven of Freeland, Ly.

Balerno, L.

Hornsby-Smith, B.

St. Just, L.

Barrington, V.

Hunt of Fawley, L.

Sandford, L.

Belstead, L.

Kinnoull, E.

Sandys, L.

Berkeley, B.

Long, V.

Seear, B.

Brougham and Vaux, L.

Lucas of Chilworth, L.

Selkirk, E.

Campbell of Croy, L.

Lyell, L.

Sempill, Ly.

Colville of Culross, V.

Macleod of Borve, B.

Strathcona and Mount Royal, L

Cork and Orrery, E.

Mottistone, L.

Tweedsmuir, L.

Craigmyle, L.

Mowbray and Stourton, L. [Teller.]

Vickers, B.

de Clifford, L.

Ward of North Tyneside, B.

Denham, L. [Teller.]

O'Hagan, L.

Westbury, L.

Drumalbyn, L.

Pender, L.

Wigoder, L.

Elles, B.

Rankeillour, L.

Winstanley, L.

Faithfull, B.

Redesdale, L.

Young, B.

NOT-CONTENTS

Birk, B.

Houghton of Sowerby, L.

Peddie, L.

Brimelow, L.

Jacques, L.

Phillips, B.

Champion, L.

Janner, L.

Pitt of Hampstead, L,

Collison, L.

Kaldor, L.

Shepherd, L.

Crowther-Hunt, L.

Kennet, L.

Snow, L.

Davies of Leek, L.

Llewelyn-Davies of Hastoe, B.

Stedman, B.

Donaldson of Kingsbridge, L.

McCluskey, L.

Stone, L.

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

Morris of Kenwood, L.

Strabolgi, L. [Teller.]

Gardiner, L.

Oram, L.

Wells-Pestell, L. [Teller.]

Gregson, L.

Parry, L.

White, B.

Harris of Greenwich, L.

Peart, L. (L. Privy Seal.)

Winterbottom. L.

Resolved in the affirmative, and Amendment agreed to accordingly.
11.38 p.m.
Lord SANDFORD Lord SANDFORD moved Amendment No. 65:
Page 26, line 35, at end insert—
("(b) such work as by local custom or usage is left to riggers and shipwrights.
Provided that nothing in (a) or (b) above shall operate to prevent a change in the local custom or usage which is agreed by a majority of the employers and unions concerned.").
The noble Lord said: My Lords, I have already spoken to this Amendment. I beg to move.
On Question, Amendment agreed to.
Lord MOTTISTONE Lord MOTTISTONE moved Amendment No. 66:
Page 27, line 22, at end insert—
("17. The work of persons wholly or mainly engaged in the storage of perishable foodstuffs under controlled temperature conditions, except—

(a) where such goods are discharged directly from a ship into a cold store or on to the quayside adjacent to a cold store, and where by custom and practice the handling of such goods has been dock work; or

(b) where a cold store or other premises for the storage of foodstuffs under temperature controlled conditions is or is to be established within a dock labour scheme area as an integral part of the cargo handling operation.")

The noble Lord said: My Lords, I beg to move Amendment No. 66. I do not propose to review all the ground that was gone over at Committee stage. We have sought to take account of the remarks of the noble Lord, Lord Jacques, and to modify the Amendment, we hope to his satisfaction. However, it is perhaps worth pointing out one or two matters which, reading his Committee stage speech, made me think that he was suffering from certain misapprehensions which were not strictly correct.
In the first place, it was suggested that the changes which have taken place in cold storage siting over the last few years were in some way caused by a deliberate unwillingness to accommodate the wishes of the dockers. That is not the case. The changes in the pattern of cold storage have been due to the changes in the trading practices of the country. The noble Lord, Lord Jacques, quoted figures at col.382 relating to the Port of London which, until 1968, was the principal port of entry for imports of meat, butter and other commodities. For example, it then handled 97 per cent. of South American wheat, 86 per cent. of Australian meat and 67 per cent. of New Zealand lamb. By custom and practice, registered dock labour was employed in cold stores in

1603
London, as indeed it was in Southampton and Cardiff: in fact where ships were able to discharge direct to store or on to the quay alongside.
Since 1968 the trade with our earlier traditional suppliers has changed dramatically and now the bulk of it comes from Europe through the most convenient ports. It also comes to a greater extent through home production, and it is this that has caused the decline in the Port of London, not a deliberate moving away from the area to escape dockers. Coupled with the reasons that I have given are modern means of transport and an improved road system in the country, and this has led to appropriate siting of the new cold stores to meet the new pattern of distribution. Another factor is the marked growth in the last few years of the quick-frozen food industry to meet the modern demand for convenience foods, leading to the construction of many new cold stores, some in inland locations to serve food distribution requirements. Having said all that, which is the main reason for the moves, and not perhaps the one that the noble Lord was rather giving emphasis to in his earlier speech, it must also be said that the experience of employers in the cold storage industry is that dock workers do not like working in cold stores and only do so when they have to because of a lack of jobs in the docks. When they do work in cold stores they tend to introduce alien working practices which are not only more costly but are disruptive of labour relations. So on the whole there is a reluctance to accept dock workers because of their past practices.
If one could be sure that this legislation was going to create a pattern in which they are not going to cause potential difficulties with other workers in cold storage areas and cold stores, perhaps one might be rather happier about the general picture of things and not seek to put forward an Amendment of this kind. But as it is. all the factors add together that the work in the cold stores in the main is not dock work, either by custom and practice or by the basis from which the development of the new cold store siting has come. Therefore, it seems to us that if we protect the existing position of dock workers, as the alterations to our Amendment seek to do, this should satisfy the
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Government, and I trust that they will happily accept this Amendment—certainly, perhaps, the noble Lord, Lord Oram, would accept it happily—and incorporate it in the Bill. I beg to move.
Baroness VICKERS: My Lords, I should like to support the noble Lord in this Amendment. I do so because I have not spoken since I made my speech on Second Reading, having been prohibited from doing so by another Committee, and therefore I was unable to support him when he spoke on the previous occasion. I should like to refer to Hansard of another place of 10th February of this year, at column 267, where it was stated by the Minister of State, when he was replying about dockers taking over warehousing, cold storage, drivers' jobs and all the other jobs around the dock:
"We have agreed … that long-established warehousing, storage packaging and cold storage operations, which are not related directly to work transferred from the docks and which are not connected with port operations, would most certainly not be classified as dock work and, therefore, subject to the new scheme".
I am not doubting for a moment that that is a correct statement, but it would be convenient if the noble Lord would tell us that he agrees with it, and that it is what the Government intend in the future. When the noble Lord comes to reply, will he tell us what is meant by the phrase, "long established"? From what period does it date? It would make a great deal of difference to our views in regard to this Amendment if we knew these answers. Would he also tell us what is meant by, "unrelated to work transferred from the dock"? It would be very helpful if he could confirm that this is exactly what the statement means. This is one of the most important Amendments, because it deals with the feeding of the nation, with exports, and with the handling of home-grown food.
My Lords, as I understand it, at present there exists 450 million cubic feet of warehousing. That is present capacity. About 70 per cent. of the total warehousing of Great Britain is run by private companies, and the remainder goes to road haulage and the public sector. Unless the Bill is changed as was agreed on a previous Amendment, 67 per cent. of the total cold storage capacity lies within the cargo-handling zone. I understand that at the moment three unions are affected by the

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proposals, the Transport and General Workers Union, USDAW and the Union of General and Municipal Workers. Have these three unions been consulted? Have they agreed to the proposals in the future?—because it is a great change for them. As I understand it, the Bill creates uncertainty because 69 per cent. of all the warehouses are in the present cargo-handling zone and, as I have already mentioned, 67 per cent. of the total cold storage.
It is very difficult in the circumstances, when we need further cold storage, for any employer to commit himself at present to further expenditure until he knows where he is. In view of the fact that, I gather, the Secretary of State can also make an order extending the cargo-handling zone, or specifying additional areas, what worries me is the fact that the EEC may increase the amount of goods arriving by lorry on roll-on/roll-off ferries. The employees are worried about their position compared with the registered dock workers because they consider they may become second-class citizens in regard to the registered dock workers. I realise that in the future there may be a chance for them to register as clock workers if they so desire.
My Lords, I should like to refer to the question of cold storage undertakings with regard to employees. This matter was mentioned by my noble friend Lord Drumalbyn, who touched on the question of a closed shop agreement and the municipal workers union. If that part of the work, say, about 20 per cent., is deemed to be dock work, will all the employees be required to be placed on the extension register, or only 16 per cent. of such employees? If by then there is natural wastage and one or two of these employees leave, they can be expected to be replaced by registered dock workers of the Transport and General Workers Union. What is rather difficult is that there might be small premises in which there can be at least three different categories of employees with different expectations of job security, where previously there had been only one. Indeed, I gather there might he possibilities of conflict and uncertainty inherent in the new proposals, which I hope the noble Lord will be able to satisfy me is not correct.
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My Lords, in identifying those for inclusion in the extension register, it is conceivable that some may not wish to become dockers. Are they going to be coerced or dismissed? If the redundancy situation arises in which the three categories of employees are the first to be selected, then there will be conflicting claims, which I am sure we all wish to avoid. There is also the need for persons working in cold storage and other ware-houses to be flexible, and I gather that for quick frozen produce there is a considerable increase in importation at the present time and they now fill about 130 million cubic feet. This is the figure I got in 1974. I gather that the Federation has members with cold stores in the dock labour scheme and outside it, and valid comparisons can be made.
Another point that worries me is that increased costs arise in many ways quite apart from theeffect of differing wage scales and the imposition of the dock labour hoard levy. Registered dock workers have a tradition of rigid manning levels and restrictive practices. They tend to be inflexible and reluctant to do work other than the basic movement of cargo. As I have mentioned, the position in cold stores is very different.
Calculations made by a number of cold stores show that very substantial increases in cost can be expected, which, of course, will put up the cost of food, which is one of the reasons why I am interested in the Amendment. Comparison of two stores doing comparable work in comparable buildings reveals that the labour cost per ton of the store in the scheme is 80 per cent. greater than that of the store outside. Other undertakings have made calculations in the light of what is known about the expectations of registered dock workers and conservative estimates show an increase in labour costs of at least 100 per cent.; in many cases the increase will be greater. For those reasons, I would support the noble Lord who moved the Amendment, because I think it is causing worry to employers, employees and the self-employed, as well as to our overseas customers. I think it is quite unnecessary to spoil the system which we have at present, because it is working well.
11.53 p.m.
Lord JACQUES: My Lords, I shall first try to assure the noble Baroness. In

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the first place, I have no hesitation in confirming what. I said in my statement at column 399 at the Committee stage, which was the quotation given by the noble Baroness. I was asked what was meant by, "long established". A reading of that column will show that I gave a fairly clear indication of what was meant by "long established". I quote what I said:
"I will emphasise that 'long established' are the operative words in that sentence. This date"—
18th September, 1967—
"marks the completion of decasualisation with the introduction of the 1967 Dock Workers' Employment Scheme. Broadly speaking, it was also about this time that the far-reaching changes in cargo handling techniques, which have revolutionised the industry, were beginning to take place, with consequential changes in the nature and location of dock work."—[Official Report 26/10/76; col. 399.]
I think that gives a fair indication of what is meant—warehouses which were established before those changes took place, which, as I said, was on or about 1967, roughly some ten years ago. So far as the attitude of the unions is concerned, there is no difficulty here. I made that quite clear in columns 400 and 401 at the Committee stage, and I can confirm that.
The question of a closed shop has been raised. May I refer the House to Clause 5(7):
"The Scheme shall not include any provision on the following matters—

(a) the membership or non-membership on the part of a worker of a trade union or of any particular trade union;

(b) the recognition of trade unions by employers or employers' associations, or any other matter connected with machinery for collective bargaining …"

I think the principal questions raised by the noble Baroness are answered by what I have already said.
I should like to go to the Amendment itself, particularly having regard to the time. The first part of this Amendment repeats what was moved at the Committee stage. Two exceptions, (a) and (b), have been put in to meet criticisms which I made in Committee. It is doubtful whether the wording of the suggested exceptions would be satisfactory to achieve their intention; for example, under (a) where exactly has the handling of such
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goods to have been dock work by "custom and practice"—on that quay or in the port generally?
Now I come to (b). Under the Bill, "cargo handling" means any work with goods coming from or destined for sea-going ships. Thus any such work in the cargo handling zone or within a Dock Labour Scheme area, as the case may be, is classifiable. Thus if the work in the cold store involves such goods and would therefore be classifiable were it not for this Amendment it would still be classifiable even with this Amendment, because the work of the cold store is itself automatically a cargo handling operation. However, wording could perhaps be devised to achieve the purpose if it were desirable to achieve it. The Government's view is, however, that cold storage work away from the immediate dock area and not now integrated with the loading and unloading of ships needs to be classifiable. As I said in Committee, the movement of certain cold storage facilities away from the docks, and the refusal to employ registered dock workers at the new location—particularly in London—has given rise to serious industrial relations difficulties, including, for example, the 1972 dock strike.
A major purpose of this Bill is to prevent any such difficulties recurring in the future. Part of the work on the quayside has been eliminated by using an integral transport system to move cargo. For this reason it is particularly necessary to ensure that work in cold stores handling cargo within the zone or area is capable of being considered for classification as dock work. The Government say that they are seeking peaceful means of settling such disputes with the dockers. They are doing it in this Bill. If this House adopted this Amendment, it would in effect be saying to the dockers, "We decline to approve the peaceful methods laid down by the Government. You will have to get on with it as you have in the past, by your picketing or any other means you have within the law".
Baroness HORNSBY-SMITH: My Lords, could the noble Lord clarify one point. Twenty years ago cold stores were in the main for imported goods. Does he differentiate between cold store capacity which is exclusively for imported goods? Is this quite distinct from large cold store

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space which, in the present day and age with entirely new processes, may be mixed with very considerable frozen produce which is the result of United Kingdom production and not imported production?
Lord JACQUES: My Lords, I confirm that that is a very important matter for consideration before there is any classification, and indeed the Bill as it stood before amendment laid it down clearly that the Board had to take into consideration the proportions.
Lord MOTTISTONE: My Lords, I am a little at a loss, because I thought at one stage in his speech the noble Lord was going to accept the Amendment, but he then switched quickly and said that, though the modification we had made had certain satisfactory features, or words to that affect, the Government did not like it anyhow, which was, I thought, very discouraging. It seems to me that this is an important point which is worth pursuing a little further, and I do not accept all that the noble Lord, Lord Jacques, has said.
I should like to have a chance to read what he said. It seems to me that the Government, because cold stores have become a part of the mythical bogy world of the dock workers, singled them out to be a part of that area in which dock work jobs must be put, even if the cold stores have absolutely nothing to do with the docks. It seems to me that we need to study this more closely and to try to work out whether there could be an improvement to the wording. There were points in the noble Lord's speech at the beginning when he indicated that perhaps the wording may be acceptable to him if it was modified still further.
Lord JACQUES: My Lords, I think the noble Lord is mistaken. I said that the Amendment was technically defective, and I gave examples of the defectiveness. I said that perhaps this could be put right, but nevertheless we substantially object to this Amendment for the reasons I gave.
Lord MOTTISTONE: My Lords, I understand that the noble Lord is not prepared to help us put right what he thinks are the technical failings because
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he does not like the Amendment as a whole?
Lord JACQUES: We oppose the Amendment in substance.
Lord MOTTISTONE: My Lords, in that event we will have to do it ourselves, and I shall have to look forward to the Third Reading to see whether we can find an Amendment which we believe will meet the points the noble Lord made in his speech. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Schedule 4 [Procedure for recommendation under s. 8]:
12.3 a.m.
Lord DRUMALBYN Lord DRUMALBYN moved Amendment No. 67:
Page 29, line 13, leave out ("18th September 1967") and insert ("10th February 1976").
The noble Lord said: My Lords, we have skirted round this Amendment to some considerable degree already, and some might think that in view of the fact that we have already carried Amendment No. 62 that it was not worth while moving this Amendment at all. I do not propose to go in any depth into this Amendment. We take totally different views on the two sides of the House about it. We consider that an agreement is an agreement, whether it was made yesterday or 100 years ago, and it should not be overriden except for the strongest possible reasons. Recognition agreements are a kind of foundation. They are different from collective agreements; they are the sort of agreements which give the framework for collective agreements to be made. Collective agreements are altered, modified, revised, replaced, but all under the recognition agreement. This is about cases where there are recognition agreements in existence.
We believe that these should not be overriden, except if that recognition agreement was made in anticipation of legislation and very shortly before it, once the intentions of the Government were made known. Those would be the only possible reasons for overriding the agreement. This is our view. I do not know whether we have got the right date here. It might be, given the fact that this House has already shown the

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way it thinks on this, that the noble Lord might like to suggest another date instead of the 10th February; a date after which any agreement made would be an agreement made in order to anticipate the legislation and evade it. That seems to me the only possible reason—I do not say it is a very good reason—for overriding the agreement in this legislation. I think the real issue between us, an issue we have had between us before, is the necessity for agreements to be honoured.
Baroness SEEAR: My Lords, we support this Amendment. It seems to us that there can be no justification either in logic or in justice in choosing a date as long ago as 1967 for the recognition of an agreement of this kind. Therefore, we consider that the date proposed in the Amendment, or some other very recent date, should be adopted.
Lord JACQUES: My Lords, the Government are entirely opposed to this Amendment. I gave the reasons extremely fully in Committee—they appear at columns 399 to 401, Vol.376, of the Official Report—and I have confirmed them several times in discussing similar Amendments tonight. Briefly, the Government position is that we do not intend that long-established warehouses and cold stores should be subject to classification. I was asked what I meant by long-established, and I said those established before the changes in transport, which was about 10 years ago. However, we intend that where cold stores and warehouses have been moved away from the docks but are within the zone—the cargo handling zone or the labour scheme area, as the case may be—the work should be classifiable so that, so far as is possible without injuring the rights of the workers already doing the job, any additional job should go to the dockers who have been thrown out of work at the dockside because of the movement of that work. That could happen if the Amendment were accepted because it would give any trade union a veto immediately to prevent it. We are opposed to that. We think that some care must be exercised in using a veto and we believe that the veto should apply only to the long-established, and that is why the
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date 1967 is given. We would not agree that 1976 gives the same result by way of substitution. In our view it gives an entirely different result.
Lord DRUMALBYN: My Lords, the noble Lord spoke of "any trade union" Under the Bill it would be only a qualified independent trade union. Surely that makes a considerable difference?
Lord JACQUES: I accept that qualification, my Lords, but our position does not change.
Lord DRUMALBYN: My Lords, I am sorry that the noble Lord has not given this the sort of consideration that we wanted from him. He may find that the Bill goes back to the Commons with a date which is not the most suitable date from his point of view, given that some change must be made. The hour is too late for me to deploy the arguments on this matter, but I assure the noble Lord that there are counter arguments to those he gave and which appear at column 400 of the Official Report. They should be deployed, but this is not the time to deploy them; we need the view of a much fuller House. I will, therefore, beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Schedule 5 [Public Inquiries (Notices and Procedures)]:
12.9 a.m.
Lord SANDFORD Lord SANDFORD moved Amendment No. 68:
Page 30, line 38, leave out from ("subsection") to ("the") and insert ((1) of section 4, sub-section (10) of section 5 or subsection (4) of section 11 above apply").
The noble Lord said: My Lords, we now come to the last Amendment of this Report stage. This is what earlier we were referring to as some remedial surgery to an Amendment which we discussed in Committee and it provides a better way, we think, of relating Schedule 5 to the main body of the Bill. We have been into it all before and I do not think there is any need to explain it now. I beg to move.
On Question, Amendment agreed to.