HL Deb 30 September 1976 vol 374 cc671-748

8.13 p.m.


My Lords, I beg to move that this Bill be now read a third time. This Bill is promoted by the Greater London Council to carry out the duty imposed upon it by paragraph 25 of Schedule 2 to the London Government Act 1963, which requires the expenditure by the Council on capital account or on lending to other persons, during each financial year and the immediately following six months, to be regulated by annual Money Acts. The present Bill accordingly deals with the estimated capital expenditure to be incurred and loans to be made by the Council during the financial period from 1st April 1976 to 30th September 1977, and includes provision for the requirements of the Inner London Education Authority.

Every GLC (Money) Bill makes provision for a financial period of 18 months from 1st April in one year to 30th September in the following year. This financial period consists of a financial year (12 months from 1st April to 31st March) and the first six months (1st April to 30th September) of the immediately following financial year. Thus the first six months from 1st April to 30th September of each financial year are dealt with by the previous year's Money Act until the Money Bill for the financial year in question receives the Royal Assent, which is usually in late July or early August. This six months overlap allows the Council to carry out, and to continue to carry out, without a break from one financial year to another, its powers to incur capital expenditure or make loans.

In the past this procedure has worked well. This year, however, after the Bill was given an unopposed Second Reading in your Lordships' House on 12th July, a Motion was successfully moved instructing the Select Committee to whom the Bill was committed to consider the proposed expenditure in the Bill on the development of the St. Paul's School site in Hammersmith. The Select Committee also had before them for consideration five Petitions deposited against the Bill, four of which opposed the development of the St. Paul's School site and the fifth opposed expenditure on certain waste disposal matters. These were the first Petitions that had ever been deposited against a Money Bill of the Council or its predecessors.

The Select Committee sat for five days between 20th and 26th July. The Council successfully objected to the locus standi of the five Petitioners and the Petitions were accordingly struck out. The Committee then considered the Instruction of the House and heard evidence from witnesses from the GLC and three witnesses summoned by the Committee. In the light of the evidence, the Committee decided to allow the Bill to proceed unamended and to report to the House in response to the Instruction. Your Lordships will have received and read the report of the Committee. The Committee was not able to produce its report before the House rose for the Summer Recess on 29th July, and the Third Reading of the Bill was therefore fixed for today to allow noble Lords sufficient time to consider the report beforehand.

As explained earlier, the provisions of the Greater London Council (Money) Act 1975, conferring on the Council powers to spend on capital account and to lend money, also expire today. The present Bill, after completing its stages in your Lordships' House, will have to await the return of the House of Commons on 11th October before it can receive the Royal Assent. There will thus be a period of at least 11 days in which the Council will have no power to spend on capital account or to lend money to other persons. This is the first time in the 85 years in which a Money Bill has been promoted in more or less its present form, that Royal Assent has not been obtained to a Money Bill before the expiry of existing powers on 30th September, and for the reasons which I shall now indicate it is earnestly hoped that the House will ensure that this does not happen again.

This unprecedented situation has created serious problems for the Council and for many of the citizens of London. The Council has been forced to make the following arrangements for the period from 1st October until the Bill receives the Royal Assent. All loans by the Council, including home loans and loans to housing associations, will be halted because the Council will have no power to make those loans. Where the Council has already agreed to lend money to home buyers, all completions of such house purchases will be delayed. The anxiety and distress that this is causing in individual cases is deeply regretted, but the Council has no option but to take this action. As an indication of the anxiety that this is causing, there have been to date 225 inquiries about home loans. These inquiries are becoming more and more acrimonious and, of course, will increase during the next few days. People who were planning to complete their purchases in the first two weeks of October are terribly distressed, particularly when there are linked transactions.

Your Lordships know that in many house purchases there are linked transactions. No completions of acquisition of land or buildings by the Council involving the payment of money to the vendor will take place. Payments due to contractors under their contracts for capital construction jobs will have to be temporarily financed, so far as possible, from revenue and special steps will be taken to contain payments within the revenue available. Your Lordships will realise that this is bound to be very limited, because expenditure for capital purposes from revenue involves an increase in the rate precept. Let us be under no illusions about that. The limited revenue available will be used to make unavoidable payments or to prevent unreasonable financial loss to the Council.

It will also be necessary to delay payment to contractors so far as possible until Royal Assent, even though this may conflict with the contract terms that payment must be made within a prescribed number of days from the architect's or engineer's certificate that work to a stated volume has been carried out by the contractor and payment is due. As your Lordships will realise, this will cause pressure on cash flow to private industry. For some small contractors this can be very serious.

The Council has been placed in a difficult and embarrassing position and if Royal Assent should be delayed substantially beyond 11th October, new arrangements will have to be made to meet what will then be a critical situation. I have been given a brief on the kind of measures it will be necessary to take, but I do not believe that your Lordships will wish me to go into this and I do not intend to do so. All I want to say is this. As the matter in issue has been fully explored in the Select Committee, it is hoped that the House will now give the Bill an unopposed Third Reading without rearguing all the issues considered at length by that Committee.

The Greater London Council accepts the report and endorses the terms of the report of the Select Committee. I, for my part, would particularly like to draw the attention of the House to paragraph 12 and I shall read it. Paragraph 12 reads thus: The Committee are obliged to observe that they have some anxiety about the procedure adopted in this case. The Greater London Council is the only local authority whose expenditure requires Parliamentary approval. The Petitions against the Bill and the Instruction created an anomalous situation since the need for the Council's expenditure to be justified in this context has enabled a question of town planning to be submitted to another review over and above such safeguards as are laid down in planning legislation. The real objection of the Petitioners was to planning procedure and not to any of the provisions of the Bill, and indeed, apart from the choice of the St. Paul's site, the proposed expenditure in building a unified West London College was not by itself raised as an objection to the Bill. The Committee cannot believe that petitioning procedure is intended to operate in this way, and do not think it right that it should do so. If Parliament wishes to review individual planning decisions, then it ought to do so at an earlier stage, and not at the last moment when all that remains is for the necessary expenditure to be sanctioned or even, as in the present case, where some expenditure, albeit not very great, has already been sanctioned by Parliament. Moreover, the Committee can see no justification for submitting proposals for developments by the Greater London Council to risks of intervention which, if arbitrary or belated, could prove much more onerous than those which proposals for developments by other authorities must undergo. I thought that I should read this paragraph and draw your Lordships' attention to it because on the basis of recent events and of the Select Committee's observations I think there is a strong case for the modification of the Standing Orders of both Houses of Parliament to prevent the deposit of Petitions against the Greater London Council's Money Bills. Once a Petition has been deposited against the Money Bill, the Council is obliged to incur considerable expense to object to the locus standi of the Petitioner. If once a right to petition against the Money Bill became established, every Council development would be open to the challenge of aggrieved parties by that means and—this is the important point—the Money Bill procedure, which enables both Houses of Parliament to consider the expenditure of the GLC, will come into disrepute.

It is, in fact, difficult to see how anyone could establish a locus standi on a Petition against the Bill when the Bill does not confer any new functions on the Council but gives Parliament the opportunity of considering the financial limits on the carrying out of projects validly undertaken under other enactments. Let us not forget that those financial limits have to be agreed with the Government in the first instance. I cannot believe that if Parliament wished to provide a further stage in planning and other similar procedures they would wish to do so through amending a Money Bill to interfere with the exercise by the Council of discretionary powers which have been entrusted by Parliament to local authorities under existing Statutes. They would create some other machinery. As an example of the problem which could be created, the cost of developing the St. Paul's School site was included in last year's Money Bill and will be included in future Money Bills until it is finished, and it would obviously be undesirable for the Council to be faced with further Petitions designed to delay the progress of those necessary Bills and cause further disruption in the Council's finances.

To some extent what I have said about Petitions holds good about Instructions. It is obviously right for both Houses of Parliament to have the right to attach Instructions to the GLC Money Bill when referring it to a Select Committee. That is right, otherwise there is not much point in the procedure.

But, my Lords, while it is excellent to have a giant's strength, it is tyrranous to use it as a giant. Your Lordships should therefore be very careful how you use that power, and it is my view that if it is to be the pattern that there are to be Instructions on the Money Bill every year, then the business managers of both Houses of Parliament must take steps to ensure that the Bill is considered earlier, so that it can receive the Royal Assent before Parliament disperses for the Summer Recess. The alternative will be that the overlap period will have to be longer than six months and this will make a nonsense of the whole procedure, because it will mean that the House will be considering a Money Bill which can apply only to a very small part of the year in question.

I hope your Lordships will think carefully on this and if the attachment of Instructions to the Money Bill is to be the rule, then provision should be made to ensure that what has happened this year is not repeated. I hope your Lordships will not try to make the life of the Greater London Council more difficult and will not try to heap additional expenses on the ratepayers of Greater London. I invite your Lordships to give this Bill a Third Reading.

Moved, That the Bill be now read 3ª—(Lord Pitt of Hampstead.)

8.32 p.m.


My Lords, it is the custom for the chairman of the Select Committee which submits a Special Report to the House in answer to an Instruction, to speak on the Third Reading of the Bill. I had personal experience of this when I sat on the Brighton Marina Bill Committee, chaired by my noble friend the late Lord Grenfell, and on the Third Reading it proved to be a very boisterous affair.

I hope that I may have the leave of the House at this moment to pay tribute to the memory of my noble friend Lord Grenfell who died this week, and this tribute has the wholehearted support of the noble Earl the Lord Chairman of Committees. Lord Grenfell's obituary in The Times yesterday correctly stated that he was awarded the CBE but was quite silent as to the reason for that award. In fact the noble Lord was honoured for his long and devoted service as a Deputy Chairman of Committees and chairman of numerous Select Committees in your Lordships' House. As one who served with him on the Brighton Marina Committee I soon learned that while showing great courtesy and kindness he kept a firm hand on the proceedings. Your Lordships, I know, much admired his gallantry, when his health finally gave way, in attending the House in a wheelchair. He was a man with many friends and no enemies and we all mourn his passing.

Several noble Lords: Hear, Hear!


My Lords, this Select Committee which was appointed to hear the various Petitions came to a unanimous conclusion on the issue of locus standi in the case of both sets of Petitions and the make-up of the Committee was unusually wide. In fact, there was a Member from each of the four corners of the House. They were also unanimous on the issue that the Bill should proceed and that the relevant expenditure was desirable.

There was one point which the noble Viscount, Lord Hanworth, raised and I am afraid he is not able to be here tonight because he is in Penang, but he wanted to amend the report by adding that the Committee did not explore the possibility of the further dispersion of the West London College in order to provide a "kick-about" area. I do not think that adds very much to our report but I thought I ought to mention it, seeing that the noble Viscount is not able to be here tonight.

Having decided that there is no locus standi the Committee was left in a rather invidious position because they had to apply to the House for permission to call witnesses themselves. This is always un-desirable because these witnesses cannot be cross-examined and in this case in view of the timing, to which the noble Lord, Lord Pitt, has referred, we had to get them and hear them as quickly as possible. So we selected three witnesses to give evidence because obviously it would have been extremely unfair if we had only heard the Greater London Council's witnesses. We chose Mr. Fry, who had been appointed agent for all the Petitioners on the St. Paul's Field issue, as a witness and of course not as an advocate. We also chose a local resident whose house is on the edge of St. Paul's Field, and the Secretary of the Fulham Society, which is an amenity society which now covers the whole area of the new Hammersmith Council. But, as I think I have stated, the custom in this House is that of the High Court, that if the judge calls a witness himself then the witness is not subject to cross-examination, and these witnesses were not cross-examined.

I am sorry to say that I think a good deal of the trouble in this case arose from the fact that the noble Lord, Lord Pitt, on Second Reading inadvertently did not mention the fact which is very much in favour of his case; namely, that the Greater London Council Act of 1975 authorised the expenditure of £1 million on this project, and so if we were to curtail the project now we should be going back on what we authorised last year. There I am afraid the report has gone slightly astray, because owing to the difficulty of obtaining shorthand notes it was compiled before we had them all in hand and in paragraph 12 I added these words: where some expenditure, albeit not very great, has already been sanctioned by Parliament. I am afraid that was not quite accurate because the sum sanctioned could not possibly be called "albeit not very great", being a million pounds. That deals with the report, but I have certain observations of my own to make on the contents of the general observations which are contained in paragraph 12 of the report.


My Lords, before the noble Lord continues, as he has said that he has now dealt with the Report, may we not know the criteria on which the Committee decided who the witnesses were to be?


My Lords, the answer to that is that we received a considerable number—in fact about nine—applications to give evidence and we chose them so as to be as different as possible Mr. Fry obviously knew all about the matters concerned; Colonel Burnaby was a local inhabitant. We chose Mr. Ground because the Fulham Society is an amenity society, and he would obviously have knowledge of those matters. The noble Baroness must realise that the timetable was so very restricted that if we had allowed all and sundry to give evidence, we would have got into the same position as if the locus standi of the Petitioners had not been challenged. One has to accept that the discretion of the Committee in choosing witnesses in this case is a matter which is for the Committee.

The Earl of ONSLOW

My Lords, if the noble Lord, Lord Cawley, would allow me to interrupt, can he tell the House what witnesses he did not call as well as the witnesses he did call?


Certainly, my Lords. We did not call J. C. Putnam, the Hammersmith Councillor, G. F. Simpson, the Hammersmith Councillor, Angela Dixon, Acting Vice-Chairman of the Hammersmith Society, C. R. Bex, an architect, G. F. Hart and A. Martin, local residents, so there were quite a lot of people to choose from.


My Lords, would the noble Lord, Lord Cawley, not agree that it would have been wiser, surely, in view of the interest of the Hammersmith Borough Council, to have called at least one of the two Borough Councillors?


My Lords, the Greater London Council called a member of the Hammersmith Borough Council, at the request, I think, of the noble Lord, Lord Brimelow, so we had one Hammersmith Councillor giving evidence.

The noble Lord, Lord Pitt of Hampstead, said that this is the 85th Bill. Of course, this is not so, because it was first enacted with those early Bills which came before Parliament under the Metropolitan Works (Loans) Act of 1869. That was a Bill put before Parliament by the Metropolitan Board of Works, the predecessor of the London County Council. There have been 106 Bills before the present Bill. The noble Lord, Lord Pitt of Hampstead, is quite right in saying that no Petitions have been entered against any of these Bills except the present one. There have been two sets of Petitions against the present Bill of two different subjects. One might ask what on earth is the reason why the Greater London Council is being subjected to this nursemaid treatment, as one might call it. The reason was that in 1869 London was much the most important city in the country.

A noble Lord: It still is.


It was then necessary to regulate London strictly by Statute. Now, the Greater London Council has 7 million inhabitants and it has a rateable value of £1,894 million. The West Midlands Council, on the other hand, has 2.8 million inhabitants and a rateable value of £285 million. The Greater Manchester Council has 2.7 million inhabitants and a rateable value of £300 million. There is no West Midlands Money Bill, and there is no Greater Manchester Money Bill each year, so I cannot see why the metropolis should be treated in a different way from great authorities which admittedly are not quite as big as Greater London, but are of a great size.

In future, these Bills will obviously have separate Petitions. There is a misapprehension among the officials of the Greater London Council that this Committee decided locus standi against the West Kensington Borough Environment Campaign on some ground which it did not so decide. The reason the Committee decided against the West Kensington Borough Environment Campaign was that they held that it did not sufficiently represent an interest in the district under Private Bill Standing Order No. 117. The notepaper issued by the campaign is certainly impressive, and shows a chairman, a secretary, and treasurer and a list of sponsors. But when Mr. Fry was examined as to the substance of his campaign he said on Day 1 at page 42: It is very difficult to speak about members of the Campaign. When there was a debate last week 12 people who are supporters of the Campaign who are central came and occupied seats in the gallery. At Committee meetings there have been between 12 and 20 or 25 of them. We do not have paid-up members because nobody has ever bothered to do that. We have a simple aim. We are a campaign and have 11,000 people who we can clearly purport to represent". At page 44, Mr. Fry said: No, we did not have a roll of members. If you want a roll of those whom we represent, there is the Petition. My Lords, on this evidence the Committee decided the Campaign did not sufficiently represent the inhabitants of West Kensington. The Committee could not think that a series of names on a Petition could possibly constitute a representative body which would have a locus standi to oppose the Bill. But that does not mean that in future some other body might not have a locus standi because the West Kensington Borough Environment Campaign was held not to have a locus standi.

My Lords, as your Lordships will see, I am wholly in favour of a move to abolish these Bills. But I am told that it might not find much favour in another place, where Members of that place use this Bill as a sort of dartboard at which to throw Instructions. In fact, on a Second Reading in another place this summer, there were two sets of Instructions which, luckily, were defeated on a vote. Of course, they may not be defeated in the future.

I should say that in the other place there was no reference to St. Paul's Field in the Instructions, although Mr. Stephen Ross, the Member for the Isle of Wight, mentioned the matter. So I hope that some steps will be taken to put an end to this ridiculous procedure, which must be very costly because even to promote a Private Bill which is unopposed is costly, and it is an entirely unnecessary burden on the ratepayers.

8.49 p.m.

Baroness YOUNG

My Lords, it has been suggested to me in the course of the day that I must be very angry, and that I am going to attack the noble Lord, Lord Pitt of Hampstead, and the noble Lord, Lord Cawley. Let me assure the House that I am not going to do anything of the sort. On the issue of the St. Paul's playing field site, I have gone through the complete range of feeling and thought. My first feeling was, and is, of great concern for the people of Hammersmith. That has been my entire motive in the whole of this matter. My second was hope when the House agreed to refer the St. Paul's field site to a Select Committee. The third feeling, I admit, was anger when I read the report of the Committee. But now, although my abiding feeling is still of concern, it is also one of sorrow for the fate of those who live in the inner city who are not always able to put their case as wisely or as well as perhaps are others but who nevertheless have a very real case indeed.

Once again I should like to make it clear that it is not my intention to be Party political. The noble Lord, Lord Pitt, has already told me on more than one occasion what in fact I already know, that the original decision on this matter was taken under a Conservative-controlled Greater London Council and a Conservative-controlled Hammersmith Borough Council. I do not now pretend, nor have I ever pretended, that no blame attaches to the Conservative Party. Staunch Conservative that I am, I have never pretended either that my Party has never made a mistake. I believe now that all of us, including Members of your Lordships' House, carry a very great responsibility for the position that we have today. I feel somehow that when I die "St. Paul's field" will probably be engraved on my heart.

As I said, I speak today in sorrow and not in anger. I do so because I hope that even at this late hour I can appeal to the noble Lord, Lord Pitt, to reconsider this issue, to see whether there is not any solution to it at all which will keep the open space at St. Paul's field. Let me put it to him, and to the noble Baroness, Lady Birk, who will be speaking for the Government, in this way. The noble Baroness indicates that she is not speaking. Never mind, perhaps I may address her anyway. I do not believe it is good for democracy when many people feel deeply aggrieved that justice has not been done.

I know, because I have read the entire proceedings, that the Greater London Council were upheld in a High Court case on the issue of the St. Paul's playing field. But, as I indicated on 12th July, that is not really the issue. The judge was not asked whether the decision was right; he was asked whether it was legal, which is quite a different matter. Even now your Lordships may well ask why people should feel aggrieved. The objectors have never argued about the legality of the case since the High Court ruling, nor indeed have they argued their case on planning procedure, though I am bound to say, having looked into this matter, that a great deal is wrong. They have said that they have never been allowed to put their case anywhere and this is the injustice they find. The noble Lord, Lord Vaizey, shakes his head, but I hope that by the time I have concluded what I have to say he will agree that there has been a grave miscarriage of justice.

If we begin in 1970, which I referred to on 12th July, an advertisement was put in the local paper in August to indicate the development of the site as a substantial departure from the development plan. This is quite right; it is the proper procedure and it was quite legal. It was one advertisement in August one summer, and not surprisingly only 51 objections were received. No objection was put in by the Hammersmith Borough Council. The then Secretary of State decided 18 months later that there ought not to be a public inquiry. So the first fact is that a public inquiry was refused.

Then it came time for the detailed planning application, and this occurred in 1975, when there was an exhibition in Fulham Town Hall headed, "New Housing in Hammersmith". The advertisement appeared in three local newspapers and it looked like this. For anybody who cares to see, it is quite a small advertisement, headed "GLC New Housing in Hammersmith", and it goes on to say that it would be held from March 26th to 30th 1974. Accompanying the advertisement was a leaflet very nicely set out with a picture. It is here for anybody to see. In the whole of this leaflet, which is entirely devoted to GLC new housing in Hammersmith, St. Paul's School site, there is only one sentence about the College of Further Education, and it reads: The site is approximately 5.98 hectares and has been allocated for both GLC housing and ILEA educational purposes, that part to the south, approximately 2.71 hectares, being developed for the West London College and Hammersmith College of Further Education and also at a later date for the rebuilding of Hammersmith College of Art and Building. Nobody can say that the residents did not know. But I ask you, my Lords, is it fair, when you circulate a leaflet with this amount of printing on it, that that is the only reference to the development of the College of Further Education? One would have thought that people in Hammersmith would have taken the trouble to circulate all the local residents. There is indeed an extremely good local magazine circulated from Hammersmith called the Hammersmith News. I found from one of the local residents that he in fact first heard of the exhibition from the Hammersmith News, which, unfortunately, reached him ten days after the exhibition had closed. He therefore wrote to the borough architect to ask why this had come very late. Your Lordships might like to hear the reply, written on 7th May 1974: The Hammersmith News would normally have been published on or about 13th March, well in advance of the exhibition, but the March issue had to be reprinted in order to publicise the important matter of the domestic support grant affecting rates. Reprinting entailed a delay in distribution. Again, of course, they have gone through the motions. The local residents were circulated. Unfortunately, it was just too late. So the kind of people who might have waited to get something pushed through their letter box did not get it. May I add in passing that the Fulham Town Hall is very nearly a mile and a half from the site, and, although that perhaps does not sound very much, anybody who has struggled a mile and a half across London knows that this is quite a way. Never mind if all these things are wrong, the fact is that at each stage the law has been complied with. There is nothing illegal about this. But imagine, if you are a resident in Hammersmith, what you feel at the end of this matter.

At the end of the exhibition the West Kensington Environment Campaign was formed, and they did what was absolutely the proper thing. They wrote to their two Members of Parliament, the honourable Member Mr. Stewart and the honourable Member Mr. Townley. Unfortunately, both Members of Parliament declined to take up the case. So the natural way they would have expected to put their case was not carried out.

We now come to the question of your Lordships' House, and the first time this was raised was in a Question from the noble Baroness, Lady Phillips, who on 22nd March 1976 asked the noble Baroness, Lady Birk, a Question about this to which she replied (col. 435): It is a problem"— That is the building of the college— but I know that the noble Lord is aware that certainly in London the overwhelming demand for housing and education must take priority. There will be four acres of open space in any case. I think this must have been a slight mistake, because on looking very carefully at the site, so far as I can see there will be one and a half acres of open space within he housing area, and there will be a small adventure playground for 15 years only.

Baroness BIRK

My Lords, if I may intervene, as I understand it, Hammersmith had been given the opportunity to purchase the four acres of open space but they said they could not do so. There were actually four acres of open space available at that time.


Not at that time.

Baroness YOUNG

My Lords, I will come to this point about the purchase between the Greater London Council and Hammersmith, but I think by March 1976 this was water under the bridge. The Petitioners, as they could not get anybody else to take notice of them, wanted to take a deputation to see the Secretary of State, who was by this time Mr. Crosland. He looked at the case, and he felt that all the legal requirements had been carried out. He declined to receive the deputation. So we have this situation: the residents were refused a public inquiry. They got no help at all from the two Members of Parliament. The Secretary of State declined to see the deputation. And at last the matter arrived at the House of Lords, and it came on a Second Reading debate on the Greater London Council (Money) Bill on 12th July.

I appreciate that five wise men have considered the case in the Select Committee but I would ask them to look at the report that they have written through the eyes of someone affected by this development. I see that they do not expect to do this because that is not the job of a Select Committee. Nevertheless, it is one of the functions of those taking part in the whole democratic process to use one's imagination, to think what it is they are doing. I realise that they went through my speech on 12th July as if I was addressing a court, and not looking to find out what exactly it was that I had hoped to achieve. Had I thought that I was addressing a court, though I am not a lawyer I would have made a different speech. As it was, I believed that I was addressing your Lordships' House, and although it might be called a court it was not on that occasion sitting in a judicial capacity. I would, of course, have expanded on any of my remarks had I been called to give evidence or say anything further, but I was not. I am bound to say that I have come to the conclusion that the Select Committee did not answer what my Instruction asked them.

I have read their report so many times that I could almost recite it by heart, but I can find an answer only three-quarters of the way through paragraph 9, in which they say: Having regard to the shortage of amenities and public open space in this densely populated area, the Committee regret that the provision for public open space on the St. Paul's site should have been so sharply reduced; … That seems to me the only point that they make. They make a great many other points, very well put by the noble Lord, Lord Pitt, and by the noble Lord, Lord Cawley, and they have said in effect that I ought not, on a Bill like this, to have raised the question of the St. Paul's School site, although of course it is perfectly allowable under the rules of the House.

I will not take exception to paragraph 12, although I am bound to say that I find it very difficult to compare what the Committee has said with what the noble Earl, Lord Listowel, said on 12th July at column 104, He said: But this, of course, is not a Money Bill in the technical sense of this expression. There is no constitutional reason why this House, or any one of its Committees, should not amend any Money Bill promoted by the Greater London Council if it wishes to do so. Either one or the other must be right, and as I had taken advice before moving my Instruction I do not believe that there was anything constitutionally wrong in what I have done.

It seems to me that the Greater London Council has two options: either it can accept that it should be treated exactly like all other local authorities and have to get permission and agreement from the appropriate Secretary of State for its capital expenditure, or it must face the consequences of having its own Money Bill with the option of Instructions. I take the point of the noble Lord, Lord Pitt, about the time-table of it. It may well be that this is at fault, and it is something which we should jointly look at; but the fact that this procedure has not been used since 1869—that is the date when this procedure was first introduced—does not mean that it cannot be used, or should not be used.

The Committee goes on to say that, of course, the whole matter should have been brought up much earlier. Regrettably I was not in your Lordships' House in 1968 when the merger first came up, nor indeed was I here until the middle of 1971, just in time in fact for the Greater London Council Money Bill, but it was hardly likely that my maiden speech would have been to question the expenditure of the Greater London Council. So asking me to take it up earlier seems to me to be very difficult.

For the reasons I hope I have already explained, those who have objected did not take it up earlier because at each step of the way they genuinely believed, either by a public inquiry, their Members of Parliament, or the further inquiry into the detailed plan that they would have an opportunity to put their case. It then came to the Money Bill, and the noble Lord, Lord Cawley, has made a very important point about the previous expenditure in 1975. I have not had the time to look up the details, but I suspect that this was probably money on architects' fees—common practice in local authorities when the fees and costs of drawing up the plans, which are always very considerable, are included in the capital expenditure before the contract is let, and then appear later on.


My Lords, may I interrupt the noble Baroness? There was evidence that the £190,000 was the sum expended on architects and similar fees.

Baroness YOUNG

My Lords, I am most grateful for that piece of information. We do not know of course what the rest of the money is; we know only that the contract was let subsequently in May 1976 and work started almost immediately. Therefore, I suspect that the contract was not let until this year. However, as I say, I do not think that that invalidates the case because even last year the Petitioners must have expected that they would have received redress from some other course.

First, I feel that the Committee did not answer my Instruction. I feel that it is not an argument to say that it was too late, and I am disturbed that they dismissed all my constructive proposals on alternative sites with one sentence at the top of page 5, when they say: On the evidence adduced, none of the other sites proposed for the West London College appeared to the Committee to be reasonably satisfactory. I am bound to say I found that statement surprising. I have already on 12th July quoted from the letter from Mr. Mulley, who was then Secretary of State for the Department of Education and Science, indicating that the former college of education could, with suitable adaptations, be used.

There is another letter, this time from Mr. Armstrong, saying that there is no reason to suppose that with adaptation the Post Office site could not be used for a college of further education. I understand that the Select Committee considered otherwise. It does not give its reasons, so we do not know what they were. However, as the noble Lord, Lord Cawley, referred to the letter from the noble Viscount, Lord Hanworth, it is very interesting to note that in a reply to Lord Hanworth, who was worried about the Select Committee's report from Lord Brimelow, one reason he, Lord Brimelow, mentions is that the Committee could not consider Lord Hanworth's suggestion of what was called a "kick-about site" of one and a half acres because the Committee was not professionally qualified. If the Committee was not professionally qualified to decide that issue, I cannot see how it was professionally qualified to decide the other, which, with such firmness, it says it did.


My Lords, will the noble Baroness kindly read out all the arguments that I gave to the noble Viscount, Lord Hanworth?

Baroness YOUNG

I should be happy to do so, my Lords, if the House will bear with me and would like to hear them.


My Lords, it depends how long they are!

Baroness YOUNG

The passage reads: I should like however to make it clear that had I been consulted about the inclusion in the report of a recommendation regarding a provision of a kick-about area, I should certainly have had misgivings and should probably have objected or suggested wording which did not amount to a recommendation. My reasons would have been:

  1. (a) The Committee was not asked to make recommendations about alternative possibilities for the development of the site. (This is tantamount to your alternative (a) namely, that the matter was beyond the terms of the Committee);
  2. (b) The Committee was not professionally qualified;
  3. (c) The Committee, in the absence of complete cover in its terms of reference, should be careful not to encroach on the prerogatives of those who, under the law, are the custodians of the public interest; and
  4. (d) Procedurally, it would be open to objection if the Committee were to recommend one alternative scheme of development without having examined alternative schemes and formulated its reasons for not recommending them."
I have read out, I think Lord Brimelow will agree quite fairly, the whole of that section of his letter, but I do not see that it in any way invalidates my case. Even if it did, I do not see that the case to the Committee is proved.


My Lords, would not the noble Baroness admit that what she has just read from Lord Brimelow completely contradicts the impression that she has been trying to give to the House?

Baroness YOUNG

No, my Lords. I am saying that Lord Hanworth made a suggestion about the development of the St. Paul's School site. Lord Brimelow, quite properly, wrote back and gave four reasons why it could not be included. I was talking about another development of the college of further education at another site. The Select Committee said that they were quite qualified to pronounce on alternative sites, and they have made this bald statement in their report, yet Lord Brimelow says that they were not qualified to pronounce on the development of that site.

I am not a lawyer, so I cannot argue all these fine points of law that arise, and I feel certain that the Committee had no intention of misleading the House when they said—they kindly quoted part of my Instruction, which was carefully worded—in paragraph 7: Having regard to the interests of the inhabitants of West Kensington in particular and of Greater London in general in the preservation of this valuable open space…". When one goes on to the opinion of the Committee, it begins: St. Paul's playing field has never been a public open space. I know enough about planning law to know that "public open space" has a very precise meaning, and for that reason I did not put it in my Instruction. I know that the site was originally acquired by the LCC for public open space; before that it had been a school playing field, and that is not public open space, although it is open space. In the long period between 1964 and 1976 it has been used as open space by the residents and by 30 schools as a playing field.

It confuses the issue to talk about "public open space" in this context when that was not what I was talking about because I knew that it had not been used as public open space, and I wish to make that point quite clear. It is true that the report does not say that the GLC could not provide public open space, but they use very curious wording about this in paragraph 9 when they say: The abandonment of this intention"— that is, to provide public open space— was due to the historical accident that in 1965 responsibility for the transformation of the playing fields into public space passed to the Hammersmith Borough Council, which decided that it could not afford the cost. It goes on to set it out and a number of people, including Mr. Reg. Goodwin, Mr. Ashley Bramall and Lord Pitt, have said at intervals that the GLC could not provide public open space. The last person to say it was the counsel for the GLC, and we read on page 18 of Day 3 of the proceedings of the Select Committee: The crucial ratio decidendi was that Hammersmith could not afford to buy the land to provide the open space which, at that time, they and they only were statutorily empowered to do. Again, I am not a lawyer, but I should like to quote from a letter from the Department of the Environment dated 3rd February 1976, which begins: I have been asked to reply to your query concerning the powers of the Greater London Council under Part VII of the London Government Act 1963. The Greater London Council, as a local authority, have powers under Section 164 of the Public Health Act 1875, as applied to Greater London by Section 58(1) of the London Government Act 1963, to provide a park or open space by way of appropriation of land, provided that the application is made with the consent of the Secretary of State. My point is that the Greater London Council had reserve powers, and I believe that a great many people have been under a misunderstanding on this point. It is very difficult to avoid the conclusion that the Select Committee was itself misled in this matter. Is it surprising that the Petitioners feel a sense of grievance? I was very interested to see a Press notice which reached my desk today on a speech by the noble Baroness, Lady Birk. It is dated 29th September, 1976, and, at the end, she says: But at least we are not sitting back in comfortable complacency mesmerised by sophisticated planning machinery. The machine is not the message and we must be constantly self-critical about what planning is, or is not, achieving for our environment."— with which sentiment I entirely agree. I think, when we have heard what has happened here, we may well wonder whether the planning machinery is working as it should.

I have already indicated that the noble Viscount, Lord Hanworth, would have liked to say something, had he been able to be here, about the need to provide a kick-about area. Also, I am delighted to see my noble friend Lord Crawshaw here who will also speak because I believe that he is not entirely happy about the report. It has been suggested that I should have argued my case of my Instruction on cost: I deliberately did not do so because I thought the case rested on its merits on the need for public open space. However, perhaps I may just finally quote an article which appeared in the Sunday Times on August 22nd 1976. It was taken from a report which was still secret from the Department of the Environment. Part of it said: Given the cost of the Greater London Council Building programme—£174 million budgeted this year—to produce a mere 5,500 dwellings, then much of it must be unduly expensive. Covent Garden, Thamesmead and the St. Paul's School site are three fairly obvious cases. I have not raised the question of the housing shortage but I wonder whether, if the Greater London Council and the noble Lord, Lord Pitt, cannot look at the College of Further Education site, he might look at the other site. I have never argued on that point, because I accept the need for housing, but it may well be that, in one of those curious quirks of fate, the present economic crisis may just intervene to help the residents of Hammersmith. If so, this would indeed be something to be said for it which I should applaud.

When I was preparing for this debate, I read again a poem about London which was written in the middle of the 19th century when people were worried about the rebuilding which was going on. It said: Who builds? Who builds? Alas ye poor, When London day by day removes, Where shall ye find a friendly door When every day a house removes? It is so apposite today that I felt I should quote it. We all pay lip service to those who dwell in the inner cities. I hope I shall never hear from noble Lords who vote happily for this development talk about the problems of those who want open space and who live in deprived areas, because I shall know that, when they had the opportunity actually to do something about it, they declined.

9.19 p.m.


My Lords, I think it only right that somebody should say something from these Benches. I should like to confirm what the noble Baroness, Lady Young, has just said. I, too, have had the same information that it was apparently not true and never has been true that the Greater London Council are unable to preserve this land as open space. If that is so, then the Select Committee has been misled, your Lordships have been misled and I can only think that the noble Lord, Lord Pitt, himself has been misled—and nobody can know more about the affairs of the Greater London Council than he does. If that is the case, I do not know what the present situation is. I leave that to those who are more learned in the law. But I feel that it should be emphasised and remembered when considering the Select Committee's report.

There is another point. A Petition was handed to Mr. Tony Banks, the GLC councillor for Hammersmith, which contained, if you can believe it, 11,320 signatures. Mr. Tony Banks received it, but later when there was a Motion of protest against the taking of this land Mr. Banks voted against it. To me that makes a nonsense of everything that we like to call democracy. A councillor is elected by his local citizens and he then pays no attention whatsoever to what they desire. Is that democracy? If so, I really would opt for a different system.

Everybody who knows London, particularly that part of London which is in question, knows that it is very badly off for open space. There is no earthly reason why the GLC should not preserve it as an open public ground. Admittedly, it has not been a public ground before, as the noble Baroness pointed out. But there is no earthly reason why it should not become so. In a part of London such as that, which is very densely populated, it seems to me absolutely criminal to take away any opportunity of providing some open land. That is all I have to say.

9.21 p.m.


My Lords, when I read the Report of the Select Committee, I expected to find the noble Baroness coming here in sackcloth and ashes, but she is as elegant as ever and was extremely eloquent in the speech she has made on behalf of the citizens of London. She, of course, lives in Oxford. I live very near the St. Paul's site and indeed my children go to the St. Paul's Schools. I think I know something about this matter because I sat on the higher and further education committee of the Inner London Education Authority when the new higher education college for Hammersmith was approved. Consequently I have a greater direct knowledge than the noble Baroness of the processes which have been passed through in this whole affair, though I realise that she feels very strongly and has a very warm heart, and has perhaps to some extent been misled by the correspondence she has had and the interest she has lately assumed in the affairs of London. When they come to pay their increased rates, I only hope that Londoners will thank her for her intervention on their behalf—

Baroness YOUNG

I am sorry to interrupt the noble Lord, but does he not agree that on a matter like this any Member of the House of Lords is perfectly entitled to raise a question? The fact that I have no axe to grind on this matter might be considered a point in my favour.


My Lords, I perfectly well concede that point. It is a perfectly fair point. However, there were earlier occasions on which this matter could have been raised without introducing this extremely heavy cost on the ratepayers of London.

It seems to me that the central point which was made by the Select Committee is absolutely essential. If this kind of Parliamentary device is to be used to view every planning procedure in the country—


My Lords, will the noble Lord allow me to interrupt? He has just said that this matter could have been raised earlier. We have just heard that the Minister of State would not even consider a deputation.


My Lords, I will come to that matter later in what I hope will be a brief speech.

The Select Committee makes a central point that these kinds of procedures cannot be used on any regular basis to review planning decisions. I think that the noble Lord, Lord Cawley, who spoke earlier made a very important point that this power of the Greater London Council to raise money through a Parliamentary Bill, rather than the way in which other local authorities do, is a matter which should be reviewed. It is important to realise that this is a consequence of the London Government Act which was passed in the 1960s, and perhaps at that time people might have thought more carefully about this particular issue.

However, I should like to turn to the issues of substance which the noble Baroness dealt with. I would concede perfectly willingly that on all these issues of the use of inner city space the arguments for the use of land for different purposes are very narrowly balanced. Anybody who has taken part in decisions about the use of land in London knows this perfectly well. The fact is that land is short, land is expensive, and the alternative uses to which it may be put are very many and varied.

The competent authorities to decide this are quite clearly the Hammersmith Borough Council and the Greater London Council. I cannot speak about what was going on in the Hammersmith Borough Council; nor can I speak fully about the Greater London Council; but I can certainly speak about the West London College. I can say that when I sat on the higher and further education committee we were fully presented with the alternatives. I have looked up my notes on this and have gone through the files that I kept at that period, and there is absolutely no doubt that all sorts of alternative schemes were put before the members of the committee. Both major Parties were represented on that committee, and we went through a very searching examination with the authority's architects at that time as to whether or not the college could be housed in an alternative way. I think my noble friend Lord Pitt will confirm what I say; he was then also sitting on that authority.

It seems to me, if I may say so, a very strange argument that because 11,000 people have signed a Petition and presented it to the GLC member Tony Banks then, when he, as he is duty bound to do, presents it to the Greater London Council, he has to vote in favour of the people who have signed the Petition. I think that really is an entirely new constitutional doctrine; or that because you write to your Member of Parliament, because you write to Mr. Stewart or Mr. Tomney, it is therefore Mr. Tomney's or Mr. Stewart's duty to come straight down to the House of Commons and say, "I have had a letter, and I have decided to vote in accordance with the way the letter tells me". This is a very strange kind of doctrine. There is absolutely no evidence which has been adduced by the noble Baroness, or by other people who have bombarded us with literature on this particular issue, to show that the representatives of the people of Hammersmith have not fully understood the issues and have in fact come to an extremely difficult decision about the use of this land.

Baroness YOUNG

My Lords, I am sorry to interrupt the noble Lord, Lord Vaizey, one again, but I never said that I thought the Members of Parliament for the area should have voted in favour of it. All I said was that they never provided it with a chance to be debated in the House of Commons.


I am sorry, my Lords, but if the noble Baroness really wants every planning decision up and down the length and breadth of the country debated in Parliament, what on earth is Parliament going to do about foreign affairs or the economic situation? It will be sitting day and night for years. There are hundreds and thousands of planning decisions taken. You really cannot bring them all to the Floor of both Chambers, to be debated. The issue which the noble Baroness raised was whether or not the people of Hammersmith and the people of London have had this issue—

The Earl of ONSLOW

My Lords, would the noble Lord give way for one moment? There have been planning issues raised on the Floor of this House. There have been successful planning battles fought on the Floor of this House when a council has had to introduce a Private Bill to do it. I myself have been involved in one.


My Lords, I am not suggesting it has not been done; I am suggesting it is a rather bad way of going about planning procedures. The fact of the matter is that the use of this space, which was a large school playing field, has been very thoroughly debated by the elected representatives of the people of Hammersmith, and there is no doubt whatever that the consensus of the opinion of those people—and we also considered it very deeply on the ILEA committee on which I served—was that there was urgent need by that college for a purpose-built building, which serves the deprived youths of that area, and that the need of the people was for that rather than for additional open space. There is also absolutely no doubt whatsoever that the need of the people for new housing in that area is greater than the need for open space in that area. I also do not concede for one moment the point made by the noble Lord, Lord Somers, that it is an area which is grossly deficient in open space.


My Lords, would the noble Lord give way? As a resident of Hammersmith taking part in this debate—possibly the only resident of Hammersmith living within walking distance of the field and born in Fulham—I should like to say to the noble Lord that the ILEA committee that he has referred to surely cannot have explored the possibilities of alternatives in a borough where we are constantly told we have a shrinking child population, where there are schools which are under-used, and where, certainly to my knowledge, one college is empty.


My Lords, that is a powerful argument; I concede that. But the fact is that Fulham Town Hall is a mile and a half away, apparently further than the noble Baroness's legs could carry her. Holland Park is only three quarters of a mile from the St. Paul's School site. One of the arguments included in the enormous volume of material with which I have been deluged is that the primary use of the playing field site should be for the playing fields of the local secondary schools. Any open space used for local secondary schools cannot be used—and this was another argument—as a public park for the elderly people of the neighbourhood.

We are dealing here, in my submission, with a fairly common occurrence in public life recently: a small and vociferous group which has popularised this case which they feel strongly about. They have collected a Petition. It is very easy to collect a large number of signatures. They have told the noble Baroness and the noble Baroness's heart has bled about this issue. On the whole, I should have thought that the argument that she presented—that the local elected representative of the people have not weighed up the issue carefully—is, with respect, not wholly correct.

My Lords, I must conclude by saying that these issues about the proper use of land in inner cities are extremely difficult. I feel from my own knowledge of the area that the primary need of the area is for rebuilding of the college, a very important part of the higher education provision in the area; and, furthermore, for housing. I do not believe that the use of St. Paul's site for a public park comes first.

9.32 p.m.

The Earl of ONSLOW

My Lords, I am not going to speak on the rightness or wrongness of public open spaces being developed—and I use "public open space" not in its strictly legal sense but in the sense of St. Paul's Field—except possibly to note in the case of Hammersmith that they are short of open spaces. The noble Lord, Lord Vaizey, refers to Holland Park. Holland Park is not one of the bigger parks in London. I am not going to speak of the flood of irreconcilable statements which have been made. There has been ample evidence produced today to show that the true situation has been befogged. I am going to speak on only one aspect and that is the difficulty of citizens appearing to get justice. The noble Lords, Lord Pitt and Lord Cawley, in their speeches seemed to suggest that the citizen's rights before Parliament should be curtailed. I am sure that neither of them, both being democrats, would really want that to happen.

The West Kensington Environment Campaign was not allowed locus standi, as we have already been told. The reason, as the noble Lord, Lord Cawley, told us, is that they were not properly constituted. This was probably so; but they certainly represented the people of West Kensington; otherwise how would they have obtained 11,000 signatures? I know the argument about how easy it is to collect signatures. As I indicated earlier, I have been involved in one of these battles myself. It is not quite so easy to collect signatures as those who disagree with the Petition will glibly assert. Let us, however, be charitable and discount 50 per cent. of those signatures. That still leaves over 5,500 people and I am sure that any councillor who got 5,500 votes in his ward would be extraordinarily happy with that figure. The fact that in two weeks this environment group raised £3,000 to pay legal fees—and this is a working class area, a deprived area—shows how well their views represented the people.


My Lords, it is a mixed area, with great respect. Extremely rich people live within a stone's throw of the St. Paul's site.

The Earl of ONSLOW

I thought, my Lords, it was designated as a deprived part of London. Perhaps I am misinformed. That is something that happens to me frequently, my Lords.


My Lords, to comfort the noble Earl, I am not a rich person and I live in the middle of that area. I am not sure, but perhaps the noble Lord, Lord Vaizey, lives in Hampstead—


With great respect, my Lords, I live in Hounslow.


A mixed area! If I may comfort the noble Earl who is speaking, part of that area is very much a derelict area, as anybody will know who has gone down the West Cromwell Road. It is a deprived area rather than a rich area.

The Earl of ONSLOW

I thank the noble Baroness, but then I have always things for which to thank the noble Baroness. We have heard from the noble Lord, Lord Crawley, how many witnesses were not called. That seems unfair. As I said, we had a similar experience at my home. A similar association was formed to fight the Surrey County Council's plans to build on what they said was not public open space and what we said was open space; but that is another matter. We won that argument. I live in obviously what the noble Lord, Lord Vaizey, will call a plutocratic area. It is an area where many people live with many skills and they commute to London. So it is that much easier for us to be competent. It is that much easier to avail ourselves of the skills to pilot our way and find our way through the procedural minefield that Private Bills produce.

These people in the Association, I regret to say, were not competent. It did not take advice very well; they felt too passionately. One felt so passionately that I believe he may have even alienated some of your Lordships. Despite this, a feeling of injustice prevailed among the ordinary people of Hammersmith. I know that my noble friend Lady Young has had pathetic letters pleading with her for help on this issue. They feel that they were denied a fair hearing by the Committee. I am sure the Committee acted within the letter of the law; but did it act within the spirit of justice? Will this whole episode not have furthered the feeling of distrust and dislike of authority and the Establishment? Will this not have made Parliament just that little less respected?

Having said this, may I appeal to the noble Lord, Lord Pitt of Hampstead, for whom every Member of your Lordships' House has a genuine respect and great liking, to use his considerable influence with the GLC to see whether something cannot be done to prevent the "concretisation"—and I use that horrible word for a horrible process—of one of the few open spaces in the West part of London. Then children, mothers, senior citizens, people on holiday and ordinary folk can continue to sit in the sun or, for that matter, walk in the rain—perhaps exercise their dogs—play football or take part in any other innocent amusements. I know that the noble Lord is a kind and sensitive man. I know that he cares for his fellow citizens. I know that he will listen.

The noble Lord is now shaking his head and says he does not care for his fellow citizens. I am sure he would not like that to be noised abroad. I am sure he will take into account some of the pleadings from us who are not making any Party political point at all.


Before the noble Earl sits down, would he allow me, as a member of the Select Committee, to remind him that the Committeee, having felt bound to deny locus standi to the West London Environment Campaign, with its 11,000 signatures, then proceeded to call as a witness called by the Committee Mr. Fry, who was the agent and advocate speaking on behalf of this campaign, to put before the Committee the evidence which the campaign wished to put before it.

The Earl of ONSLOW

My Lords, the noble Lord, Lord Cawley, has told me that, and perhaps the noble Lord would care to say whether Mr. Fry was able to produce all the evidence he wanted or whether he was cut short.


My Lords, we shall be getting out of order if I begin answering questions.

9.41 p.m.


My Lords, as a member of the Select Committee, albeit somewhat reluctantly, I feel I should say a few words at this stage. I was one of the first to realise that this was a highly complex problem of long standing and also that the noble Lord, Lord Pitt, and indeed our chairman, the noble Lord, Lord Cawley, had very little room to manoeuvre. I felt they were in rather the same tight corner as Muhammed Ali was the other night. I agree entirely with the first eight paragraphs of the Select Committee's Report, but when I saw the first draft I informed the Clerk and, through him, the Chairman of the Committee; that I had some reservations about the opinion of the Committee and, as I intimated then, I thought I should relate them to your Lordships unless, of course, they could somehow be incorporated into the Report.

My first point concerns the undisputed fact that St. Paul's Playing Field was private property which had been acquired by the GLC and has not under either ownership been open to the public officially. But I would suggest that if one lives in the area one retains a considerable interest in what is happening to a 14-acre site such as this. The prospect of exchanging even the abstract advantages of fresh air and open space for concrete and buildings may well not be very appealing. To make a comparison, may I say that your Lordships are not allowed to sit in the other place but no doubt you would feel personally affected by those who do sit there and might well react very sharply, one way or the other, if the other place were suddenly used as a strip-tease club.

My next point relates to the intervention of Parliament at a very late stage—a matter which nearly all of us seem to think unsatisfactory. But how could we have done anything before we did in this case? It is true that a small sum of money was authorised in the 1975 GLC Money Act, but how could we have realised that St. Paul's Field was involved? I have a copy of the Act in front of me and I can see no mention of the project there at all. Of course, it was only the public outcry which drew the attention of Parliament to this subject. If anyone is at fault here, surely the GLC should not have proceeded with the operation when they realised that the whole matter had been referred to a Select Committee. It was disconcerting to me, and I think to other members of the Committee, to be taken clown there and to find bulldozers and excavators already at work.

So far as alternative sites for the West London College are concerned, it seemed to me at the time that the College of St. Mark and St. John is a very real alternative. The total area is sufficient. Some of the buildings need replacing anyway, arid I should be quite happy to see some of the listed buildings sacrificed if this meant saving St. Paul's Field, which is of far greater importance as part of the national heritage.

Since the Committee sat, Mr. Ernest Armstrong, the Under-Secretary of State for the Environment, has confirmed that the Post Office Savings Bank at Blythe Road, Hammersmith, is likely to be available for other use in the near future. This, I understand, is a very large building and it could be used for the purpose of a college, but I must admit that we did not see this building. As a general point, I do not think it is essential for all parts of the college to be housed on the same site. I saw a programme on the television the other night about Magdalen College, Cambridge, and I thought the point of the way in which the Oxford and Cambridge colleges are laid out was very well made. The other point in the Report which I would question is the final paragraph because, contrary to what has been said here, there may be good reasons why the GLC should have its capital expenditure approved by Parliament. We did not go into these reasons in depth. The size of the population under the GLC, compared with other authorities, has already been mentioned, and I well remember counsel for the Promoters confirming the opinion of the noble Lord, Lord Airedale, that it is done in this way because London is the capital of the United Kingdom, and is therefore in some way the property of all the people—not just the GLC, or even those who happen to live in London at any particular time. In this way, Parliament can be held to represent the national interest. I think that Hitler was probably well advised during the war when he tried to destroy the heart of the United Kingdom.

By way of general remarks and in conclusion, I was firmly convinced that there is a chronic shortage of open space in this part of London. Without space, frustration and claustrophobia thrive and this can so easily lead to the kind of incidents we witnessed in London three or four weeks ago. Playing fields, more than anything else, provide a safety valve for young men.

During the proceedings, I reminded the Select Committee and others present of the historic fact that the Battle of Waterloo was won on the playing fields of Eton, and that by the same token the Battle of Alamein was won on the playing fields of St. Paul's. I trust that Slough Corporation will not get any ideas if that is the case. Since then a thought has occurred to me which I hope is not too fanciful. Could not these fields be bought by public subscription at the GLC's original price of £2 million, plus some subsequent costs, as a memorial to the victor of Alamein and used by the young people of Hammersmith and the immediate area? I am sure that this would have appealed greatly to the late noble and gallant Viscount, and is it not for just such a purpose that the Queen's Jubilee Fund has been set up? That is only one idea which I would ask your Lordships to consider, and there may be others as well. But I believe that every avenue should be explored before we lose for all future generations a valuable and historic open space such as this.

9.49 p.m.


My Lords, I had expressed the hope that the issues which were debated in the Committee would not again be debated in this House, but it was a faint hope, which has not been realised. I will not prolong the debate or pursue it in the way in which it has been carried on. I will merely start by saying that it is not really true that the area that we are discussing is deficient in open space, because Holland Park is approximately three-quarters of a mile from the Northern part of the St. Paul's school site and is 55 acres in extent, while Ravenscourt Park is approximtely one mile from the St. Paul's school site and is 32.5 acres in extent. Therefore it is not strictly true that the area we are discussing is deficient in open space.

Baroness YOUNG

My Lords, I am sorry to interrupt the noble Lord, Lord Pitt of Hampstead, who I am sure has made statements which are absolutely correct, but would not he agree that the GLC report Open Space Provision in Urban Areas, April 1973 indicated that this area is short of 74.3 acres of open space?


Yes, my Lords, Hammersmith is short of open space, but the area we are discussing is not short of open space. That is all I am saying. I do not want to speak for the Hammersmith Borough Council because it is not my job to do so, but that is why the Hammersmith Borough Council was at no stage very anxious to do something about it. That is not the area in which they want open space. Therefore that is not the area in which they are prepared to spend money which is in short supply. The noble Baroness will know that for locally determined schemes the money available is very short. Those concerned have to select very carefully the areas in which they spend that money, and that area is not one of their greatest needs. That is where we start. It is an area of only 14 acres, and by—

Baroness YOUNG

My Lords, only 14 acres?


Yes, my Lords, only 14 acres. I have just spoken about 55 acres in the case of one park and 32.5 acres in the case of another, and the area we are talking about is only 14 acres. Of those 14 acres, five will be for open space as a result of the planning decisions which have been made. As my noble friend Lord Vaizey so rightly said, in determining how one uses land in the inner areas it is always very difficult to decide what are the right priorities.

It was felt that the college was very badly needed. I do not want to go over the same ground again but, as I said in the last debate, the college is now situated on 11 sites and needs to be brought on to one site. It is regarded as one of the immediate needs. What is more, I have been told only today, and I wrote it down, that 74 per cent. of the applicants for low level courses at that college have to be refused because of lack of space. Infact, the vast majority of them live in Hammersmith. There is therefore a need for this college in Hammersmith and this site is basic to it.

In addition, as the noble Baroness has conceded all along, there is the need for housing. What the Council has done is to divide the area, giving a part to open space, a part to housing and a part to the college. When you bear in mind what I have said about the distance between that site and Holland Park, which is a very big park, and the distance between that site and Ravenscourt Park, which is also a reasonably sized park, you will appreciate that the Council has tried to do its best for the people of the area.

As for the legal point about whether or not the GLC had powers to provide open space, I have here a long Opinion which has been given to me and which I could inflict upon the House if it wished. However, the point is that the London Government Act was framed in a way which indicated that local services were to be the responsibility of the boroughs and that strategic services were to be the responsibility of the Greater London Council. When it came to parks, in terms of the responsibility which we inherited the interpretation was that parks of local significance should be the responsibility of the local borough council, and that parks that have more than local significance should be the responsibility of the Greater London Council. In that setting, the St. Paul's School site was regarded as a park which would be of local significance and therefore the responsibility of the London Borough of Hammersmith. Had the London Borough of Hammersmith been willing to use it we should probably never have had this debate, but they found that they could not afford it and that is when all the consequential problems arose.

Baroness YOUNG

My Lords, I am sorry to interrupt the noble Lord. I am extremely glad to have heard his explanation, with which of course I entirely agree, but the fact is that it has been made as a categorical statement on a number of occasions that the GLC has no power to provide open spaces. That is not in fact what the noble Lord has just said, but he would agree with me that it has reserve powers.


My Lords, it is more than that and that is why, if we have to go into this whole matter, I must read the whole of the brief that I have here, because in actual fact the division which was agreed upon between the borough councils, the GLC and the Minister culminated in the GLC really not having powers to develop except for parks which are of more than local significance.

Let us try to understand this. The Borough of Hammersmith is only one of the 32 boroughs. If the GLC started by going to the Minister to get permission to do what some boroughs would regard as usurping their powers, the GLC would be in great difficulty. I said on a previous occasion, when we were speaking of local government here, that the London Government Act only works because there is this great co-operation between the GLC and the boroughs. In order that that co-operation may continue, the GLC must at all material times respect the powers of the boroughs. I repeat again that in so far as open space is concerned, the agreement has been from the beginning that parks of local significance are the responsibility of boroughs and that the GLC will only be responsible for parks which are of more than local significance. This is where the division occurs. If your Lordships wish, I can read this 20 page document but it will not tell you anything more than that.

The GLC has tried to do the best in consultation with the Hammersmith Borough Council on this matter. I do not honestly know what more I can say to the noble Baroness. After speaking to her earlier, I telephoned to the powers-that-be in County Hall to discover whether any bits of the housing could be removed in order to extend the open space from five acres to six, or something like that. I was told that if the housing was further reduced the economic cost of providing that amount of housing would be considerably increased and we should then be in a new situation of difficulty, coupled with the fact that we have already entered into contracts on both the college and the housing.

The Earl of ONSLOW



I am asked "Why", my Lords, and I have to repeat what I said at Second Reading. The GLC has never had its Money Bill challenged in this way, and once the Money Bill had passed the Commons the GLC thought it would be passed into law. What is more—although I did not mention it, and I am grateful to the noble Lord, Lord Cawley, for reminding me of it—the first expenditure on the St. Paul's School site was in last year's Money Bill. Therefore in effect the council was not expected to think that on this occasion an expenditure which your Lordships passed last year would be challenged in the way you challenged it.

Therefore, in effect, we must confess we were taken unawares. I say to the noble Lord that the truth of the matter is that contracts had been entered into and contractors were already on the site before the Committee was appointed and, in effect, there was nothing we could do unless we were prepared to pay compensation. We would have had to pay compensation anyway.

The Earl of ONSLOW

My Lords, there is a point which has been raised before, but the noble Lord, Lord Pitt of Hampstead, has not really answered it. Is it not really almost a gross disrespect of Parliament that you should charge contractors straight on to a site without being authorised by Parliament so to do, when it is the law that you have got to get Parliamentary approval?


My Lords, your Lordships had already given us permission last year. If we are to conclude that every year—this was the point I made earlier—we have to stop our building programme until the Money Bill is passed, we are going to be in a terrible situation. This is the reason why we have always had an overlapping Money Bill of 18 months; it allows us to carry on.

If I may take your Lordships away from West Kensington and St. Paul's School for a second, we are building the Thames barrier. Every year there is expenditure on the Thames barrier in the Money Bill. Are we going to have to come every year to defend the expenditure on the Thames barrier before your Lordships' House? We do not expect to. This was something agreed from the beginning. Once your Lordships have voted the first sum for the Thames barrier, the Greater London Council has a right to expect that every year the money required for the Thames barrier will be made available. Unless your Lordships are going to act in an entirely different manner from the manner in which you have always acted, I cannot see how your Lordships can expect the Greater London Council to act any differently from the way in which it has.

My Lords, I have spoken for long enough. I have tried to reply to some of the points made, and I hope I have satisfied your Lordships that, in effect, we have had a good "go" on this matter and we must now allow the Greater London Council to have its Money Bill.

On Question, Bill read 3ª, and passed.

10.3 p.m.

The MINISTER of STATE, HOME OFFICE (Lord Harris of Greenwich)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, that the House do again resolve itself into Committee.—(Lord Harris of Greenwich).

On Question, Motion agreed to.

House in Committee accordingly.

[The Lord Aberdare in the Chair.]

Clause 27 agreed to.

Clause 28 [Discriminatory practices.]:

Lord HARRIS of GREENWICH moved Amendment No. 39: Page 19, line 12, leave out from ("applied") to end of line and insert ("included persons of any particular racial group as regards which there has been no occasion for applying it")

The noble Lord said: I beg to move Amendment No. 39. This Amendment is a drafting Amendment. We are about to have a debate on the substance of this clause on the next Amendment.

On Question, Amendment agreed to.

Clause 28, as amended, agreed to.

Clause 29 [Discriminatory advertisments.]:

10.6 p.m.

Baroness ELLES moved Amendment No. 40: Page 19, line 25, leave out ("whether") and insert ("if")

The noble Baroness said: Clause 29 has already given considerable ground for concern; it is again one of those clauses which acts most unfairly against a person who has inserted any kind of advertisement. What is of particular concern is the fact that in the Bill, in line 5, the Committee will see that even if the act is lawful the individual will be liable for formal investigation in certain aspects. At this stage I think the noble and learned Lord might like to take over.


I apologise to your Lordships, but we have had many alarms and excursions and I was waiting in the wings for our proceedings to begin. I rise to move the first Amendment standing in my name in respect of Clause 29, and all three Amendments are really designed to achieve together a result. The present law, which is reproduced, I think exactly, but, if not, substantially, in Clause 29 is that advertisements are rendered unlawful whether the act which they advertise for is a lawful act or an unlawful act. That is the present law.

It has always been disputatious whether it is good law, and I have always maintained it was bad law. But whereas in 1968 in another place I contended that it was bad, I would now claim, with great respect, that it has been proved a bad thing in 1976. The case of Mr. Relf, to which I have made reference before, as have other noble Lords, is only one of a whole series of cases in which the Press, in my opinion quite rightly, have ridiculed the practice of rendering it unlawful for a man to advertise for people to co-operate with him in an act which is expressly allowed by the law.

I should have thought prima facie that must be right; it must prima facie be right that if you are entitled to do something, especially where the matter has been recently legislated, it is part of your general right of free speech that within the bounds of what is not offensive you can advertise for somebody to perform the service or co-operate in the act with you. In other words—let us give an example which we were discussing yesterday—if the Act says, and it does still say in Clause 10, that you can have five partners and within that bound have them of whatever race or ethnic origin you choose, you should be able to advertise to have up to five partners of any race or ethnic origin you choose. Otherwise you might not get them; otherwise you might not get the most suitable. It is part of the ordinary right of free speech which flows from the provision of Clause 10. Or if, as it does, the Act allows you to have your own choice about a paying guest in your own household, you ought to be allowed to advertise for such a guest, and there is nothing wrong in it. The Act has allowed it. There can be nothing intrinsically immoral about exercising your right to get the most suitable paying guest. I will come to Mr. Relf in a moment, because there are one or two extra observations I should like to make about that.

The fact is that it is an infringement upon the general right of free speech that you should not be allowed to advertise for what you may lawfully do. Of course in whatever form Clause 70 is ultimately passed—and we shall be turning to that in due course—if you advertise in terms which are calculated to arouse racial hatred, or if you advertise in terms which are otherwise unlawful, this is against the criminal law, or against the civil law. There is nothing in what I propose; there is nothing in this Act as I would amend it, to legalise the terms of an advertisement which is offensive, provocative, libellous, or obscene under the general law of the land. That would be struck down. But within the bounds of decent expression if the Act permits an act you ought to be allowed to get it by means of advertisement. Of course the case of Mr. Relf was a ridiculous one. I should like, because it has aroused so much emotion, to look at it for a moment in the light of this Amendment. A man may sell his house to whom he pleases. So far as I know he can do so now; so far as I know he can do so after the Bill becomes an Act.

It is extremely stupid to impose conditions of any kind, whether they relate to race, religion, sex, or anything else in the proposed purchaser, and that for two reasons. First, once the house is sold to a proposed purchaser, that purchaser can immediately the next day, or in the next ten minutes, pass it on to somebody else of exactly the opposite sex, race, religion, or what have you. Moreover, he can buy through a nominee of the permitted sex, race, religion, and what have you. So Mr. Relf was not only extremely unattractive because, if the newspapers were right—and of course I have not checked them, but they published the fact—he had himself been guilty of writing the most offensive letters to other people abusing them for their racial characteristics, but he was also extremely stupid because what he did could have absolutely no effect at all.

But because the law refused him permission to advertise in these terms, two things happened. One was that he became immediately the hero of the National Front—and because I criticised him on Second Reading I have had I should think a host of letters from the National Front abusing me for having criticised this unattractive character. He became the hero because he had advertised to do something which he was lawfully entitled to do, but which the law forbade him to advertise about. That was the first result.

The second result was that the excellent Mark Bonham Carter, who is and has been for many years a warmly beloved friend of mine, and his apparatus got into play and brought him before the county court. The county court judge had no option but to tell him that he must not advertise that he will sell his house only to an English family, and so he disobeyed the law and became not only a hero but a potential martyr to the National Front.

I am sorry that there is no member of the Judiciary present, and I hope it will not pass wholly unnoticed by the Judiciary—it is not my practice to criticise judges or the Judiciary—but I would, as a general rule, lay it down as a custom of prudence that when somebody defies an injunction in a civil court the judge should always contemplate the use of a fine rather than the use of imprisonment for contempt. I am saying this in the presence of the noble and learned Lord the Lord Chancellor, whom I am glad to see with us tonight. If he thinks I am talking nonsense I hope he will say so because I am saying it as the result of a good deal of experience in the practice of the law in humbler capacities and indeed in the noble and learned Lord's Office.

The LORD CHANCELLOR (Lord Elwyn-Jones]

My Lords, the judge in question is an extremely able and conscientious judge who, in the circumstances of the case, thought he had no other alternative; and I hope that the noble and learned Lord, bearing in mind his immediate antecedence, will not press a criticism in the circumstances in which this judge found himself.


My Lords, I am not applying it to this judge at all because I think he was applying what has become very largely a general practice. However, I hope it will not be forgotten that among the remedies for contempt is a fine as well as imprisonment. The effect of a fine is that one can send in the bailiffs and sell the television set instead of sending the man to Brixton or wherever else. The advantage of a fine is that one does not have a martyr and one secures that the law is obeyed. The learned judge followed what I believe to be the general practice in these cases, in civil cases; he applied the remedy of imprisonment straight away and without attempting to fine.

That may have been perfectly right in the particular case, but I am pointing out in general—I hope that some notice will be taken of it; and I am speaking in Parliament now and not in court—that where one gets these highly sensitive cases in which potential martyrdom is at stake, a fine is a better remedy for contempt than imprisonment. That is my contention and it is based on fairly wide experience of both ends of the profession, if I might put it like that. At any rate, imprisonment was applied and the result was that he went on hunger strike; so the potential martyr became an actual martyr, and being evidently a man of some resolution and perhaps of frailer constitution than I appear to be by looking at me, he had to be let out. The result was that he became an actual martyr and trebly a hero.

I ask the Government Front Bench to reflect on the facts of this case in the light of the Amendment—I will not recall the turbulent history of the trade union cases; they have been discussed more than once, no doubt with the noble and learned Lord, who, although he was not yet here, would have been here spiritually on the other side of the fence—since we must consider these cases because they are becoming not altogether infrequent in one way or another. Here we have a law which I believe to be ridiculous fundamentally because it is an infringement of the right of free speech. It is challenged after a number of years, not in one case but in a number; this was the extreme and latest case. It resulted in the challenger winning the battle. The damage to the law in question is serious, but more important than the damage to the law in question is the damage to that respect for the law which I regard as something which we should do our utmost to uphold at the present time.

I propose the Amendment not because I have the smallest sympathy with people who advertise in offensive terms. On the contrary, if they do that they will be caught by Clause 70 or some other rule of the general law. Nor do I approve in the smallest degree of racial discrimination in any field at all. But when we are imposing restrictive Statutes we do not achieve our object by passing regulations which offend against general principles of legislation which have commended themselves over the centuries and which, when they are challenged, prove to be paper tigers.


I rise to support the Amendment because of the words, might reasonably be understood as indicating an intention to discriminate. In Standing Committee in another place on 25th May, the Minister of State made it quite clear that the clause was not only designed to catch overtly discriminatory advertisements but also that any matter in an advertisement that could reasonably be interpreted as discriminatory would be illegal as the clause now stands As I understand it, that means that, supposing a notice were to go up on an Earl's Court notice board saying, "Young South African supporter of Mr. Vorster seeks fellow student to share flat", this would almost certainly be caught by the clause as drafted.

There is another point which does not seem to have been noticed by anybody at any stage. Anyone who has travelled in the Indian sub-Continent and has read English language Indian newspapers will have been struck by the classified matrimonial columns. Advertisements more often than not include the phrase, "seeks fair skinned or relatively fair skinned marriage partner", because a relatively fair skin is esteemed in India. I must admit that I have not read any Indian newspapers published in English in this country, but I should not be surprised if they contained similar advertisements. These would appear to be made illegal by the clause. I shall be very interested to hear what the noble Lord has to say about this.


I should like to state the reasons why the Government included the clause as drafted in the Bill. First of all, I should like to make clear what is the present law. It is the 1968 Act and under that Act, any advertisement which is discriminatory is unlawful, whether or not the intended act which is being advertised is lawful. There are therefore no exceptions. In looking at this, we felt that it went a little too far and that there were cases where there could be exceptions. We felt, for example, that, where there was a genuine occupational qualification which was accepted both in the Act and the Bill, it would be reasonable to permit a discriminatory advertisement because it could be done in a way which was not likely to be offensive. For example, if somebody of a particular race were required for a theatrical part, one could advertise for somebody of that race for the part in question.

So we felt that there were cases where it would not be offensive, and consequently we have done what was not done in the 1968 Act and have set out some exceptions in the clause. We could not see our way clear to give exceptions in the case of those acts which were excepted in the Bill because of personal and intimate relations. We felt that in that case it was unnecessary and would in fact be dangerous. The effect of the Amendment is that it would widen the scope of the exceptions to a discriminatory advertisement. While it would not be the short list that we have exempted in the clause, it would be a long list—all those which have an intended act which is lawful. As the noble Lord himself has explained, it would include the small partnership.

I should say that many of those who accepted the compromise of the figure of six, so that cases of the number of partners being under six form an exception and cases of six and more are not an exception, have been happy to accept that compromise because a discriminatory advertisement was unlawful—no matter what size the partnership. If the Committee accept the Amendment, it would undermine the spirit which was behind the compromise on partnership.

It would also affect the case of small dwellings, and I should have thought that there was nobody in this Chamber who would not wish it to be unlawful for a landlady to put up a notice stating: "One room available—no blacks." We would all be opposed to that; it is offensive and it would promote bad racial relations. Consequently we feel that it is good law to allow in the case of small dwellings where there will be close and intimate relations for there to be an exception so far as the intended Act is concerned, but no exception so far as the advertisement is concerned, because we feel that that would promote bad racial relations.

We recognise at once that we have the cost to pay; and the cost to pay is the Relf case. We regard that as a liability, as does the noble and learned Lord. But we say that against that one has to put the advantages, and we believe that it is an advantage to make discriminatory advertisements unlawful whether or not the intended Act is lawful. We believe that that is worth while because the majority of our people are law-abiding and are anxious not to break the law and so have the inconveniences of the consequences which would follow.

Accordingly, while the publicity of the Relf case made him a hero of the National Front there was also this advantage. All the readers of the newspapers, all the listeners to television and radio heard, many of them for the first time, that it was unlawful to do the kind of act which Relf had done. Consequently, since our people are law-abiding citizens the very fact that the law was being made known would help to get the law carried out. So we believe that even in the Relf case, even where there is a price to be paid, there are also advantages. It is for those reasons that we should prefer this clause to remain in the Bill—


Before the noble Lord sits down would he be kind enough to say whether he agrees that the two hypothetical advertisements I cited would in fact be illegal as the clause now stands?


We think not.

10.28 p.m.


I do not want to enter into potential cases, but I do not think the noble Lord has really met my doubts, although he has argued his case reasonably and courteously as he always does. He says that the Government's view is that the Relf case was in effect a desirable episode because all the readers—




Let me finish my sentence; I may have misunderstood the noble Lord, but I think not. I understood that the argument was that all the readers of the newspapers and all the listeners to the radio would have learnt for the first time that the practice of Mr. Relf was illegal and would therefore be more rather than less likely to regard what they now knew for the first time as the law, after they had learnt that Mr. Relf had defied it successfully.

That is a pure judgment of likelihood and probability, but it so happens that I take the view directly the opposite to the noble Lord. He is entitled to his opinion, which I do not think I have misrepresented and certainly did not wish to brush away with contempt. But there comes a point at which one has to state one's view on issues of that kind. If my judgment of the matter is right, I think he is wrong.

There is another aspect of the matter which I do not think he has really grappled with and perhaps I ought to have put it to him in my original opening. But I put it to him now. Let us assume that the noble Lord gets his way, that the law continues to be what it has been since 1968 and that advertisements of a discriminatory character are illegal even though the thing which is advertised for is perfectly lawful. That means assuming, of course, that a number of people obey the law who none the less intend to discriminate after the advertisement is answered, and that may well be so up to a point, although I fancy that we have not heard the last of Mr. Relf or his kidney in those circumstances. But that assumes that a person who deliberately wishes to discriminate in favour of, let us say, a British partner in a partnership of less than six is compelled to advertise and decides to advertise in the local newspaper: "Member of a partnership of six desires a partner", giving no indication at all that he intends to have no coloured people, or no people of a particular persuasion. He can lawfully do that if they are under six. I am sorry. If I inadvertently gave the wrong figure, I did not intend to; but he can lawfully do it. So he advertises without this precaution.

Now there answer the advertisement 15 or 20 persons, some of whom may be suitable, some of whom may be wholly unsuitable. When they come, they reach the door, they knock at it and the man says, "It is no good; you cannot come. I will not have you; I am having only white people". Which is the more offensive? I wonder whether the noble Lord has really thought that out. One knows the infinite damage, the infinite sensitivity of coloured people, if discrimination is overtly showed to them on the grounds of their colour. Is it that they should know that this door must be avoided, or is it that they should come full of hope to get a partnership, or a room as a paying guest or a small employment with the family in a family business, and then be turned away on account of their colour? Is it that they should know in advance that they are dealing with a man who wishes to discriminate them and not go near the place?

I ask that question, and I ask it partly rhetorically because it is late at night, but I believe I know the answer. I do not think I am less sensitive to other people's feelings than other people. I believe, particularly in the present situation of rather heightened racial tension and difficulties with employment and housing, that the policy pursued by the Government, for the best of reasons—and nobody hearing the noble Lord would doubt that—is a policy which is an error of judgment. It is because I have formed that view that I put down my Amendment, and it is because the noble Lord has said nothing to displace it that I remain of the same opinion still.


May I try to help the noble and learned Lord as someone who would obviously be affected by such an advertisement? I am afraid that I do not agree with him. The 1968 Act had its best effect in the reduction of what black people regarded as the insulting and obscene advertisements which said, "No blacks wanted—no coloureds". I am talking now about advertisements for rooms, and things of that sort. Although the Act allowed discrimination when there were only a few people and the owner was occupying the house, the fact that he was not allowed to advertise his insulting attitude was a consolation to most black people. In fact, one of the reasons why I raised on Second Reading the sort of advertisements which are disguised discriminatory advertisements in the B.M.J. where they say, "Only British-qualified persons need apply" is that, although I am a British-qualified person, I recognise that the general practitioners who were doing it were doing it in most instances in order to discriminate against Asian doctors. I resent it on those grounds. Therefore, I would say to the noble Lord seriously that, in terms of discrimination—although having listened to me earlier he will know I believe that the exceptions should be at the absolute minimum and that is really my argument about partnerships and so on—if you agree that there are going to be exceptions, then okay. But the one thing we must not do is to allow people to advertise in an insulting manner because that would be stepping way back to before 1968. One of the successes of the 1968 Act is that it curbed what was to most black people very insulting and obscene advertisements.


There is a question puzzling me. Perhaps I ought to know the answer to this following the debate on Clause 10 the other night. Could the noble Lord say whether the words "might reasonably be understood as indicating" do cover the sort of advertisements in the B.M.J. that we were discussing the other night. If I were a black doctor and saw this phrase used in the B.M.J., notwithstanding the fact I might have been qualified in Edinburgh University, I would think it likely that the partners in that firm would seek to discriminate against any persons with a black skin who presented themselves as applicants for the partnership. I want to know whether the words in Clause 29(1) do prohibit the sort of advertisements that the noble Lord, Lord Pitt, referred to the other night and which are so offensive to a large number of our fellow citizens.

I would say one word to the noble and learned Lord, Lord Hailsham, just in case he is thinking of testing the feeling of the House on this question of advertisements. May I put it to him that he is not going to achieve the objective he desired because this is one Part of the Bill which would certainly be restored by another place. So the effect of his Amendment being carried, if that was the result of pressing this matter to a Division, would merely be to give an additional triumph to Mr. Relf and the Fascists who have exploited the case so thoroughly up to now. They would be able to say that the vote in this House was a vindication of the martyrdom to which the noble and learned Lord referred.


The noble Lord put the case of the individual who without any advance notice presents himself and finds himself in a position which is offensive to him. In the circumstances in which the noble Lord said it, I would regard it as extremely offensive.


So would I.


On the other hand, we have to consider not merely the offensiveness but the effect upon race relations. I believe that the absence of an advertisement so that the offence is not widely publicised, the offence is private to the individual, makes it much less dangerous in relation to good racial relations. It is the publicity that, in my view, makes the difference.


May I make one comment to the noble and learned Lord, Lord Hailsham. It is simply that he has demonstrated this evening by his argument that it is possible for the law to deal firmly and decisively with people who break Clause 29 without creating martyrs or heroes. Does that very fact not, in itself, make it not necessary to press this Amendment?

10.40 p.m.


I am very grateful to the noble Lord, Lord Wigoder, who has divined my exact purpose in saying what I said. Despite the desire of the noble and learned Lord, the Lord Chancellor— and the perfectly legitimate desire—to defend the judge, whom I did not intend to criticise personally; indeed, if he had been open to criticism there could have been an appeal on his decision. His decision was perfectly within the law and he was driven to apply it.

I do not wish to criticise him in any way. I have had some experience of this, both as Lord Chancellor and in a humbler office as counsel, and I think I am right in saying that there are more ways of killing a cat than choking it with cream. The reason I made the particular observations to which the noble Lord, Lord Wigoder, referred, was I hoped that this would be noted. I feel absolutely certain that whether or not this Amendment is carried, those who seek to enforce the law of contempt in civil actions and who may give rise to attempted martyrdom, would be wise to remember that they may be fined instead of being sent to prison, and the grand piano may go out of the front door to pay the fine.


To the extent that the noble and learned Lord says that, the machinery the courts provide for dealing with contempt extends from the fine to imprisonment. The difficulty about the fine of course is if the offender manifests an intention to defy the law, he will contemptuously refuse to pay the fine. We are back again against that difficulty.


With respect to the noble and learned Lord, I think in this respect—and I say it with the greatest humility—I think I am right and he is wrong. No doubt the potential defier of the law will refuse to pay the fine. This was exactly the circumstance which I was contemplating whereupon a fi. fa. will be issued. This can be done because I looked it up when I was Lord Chancellor. A fi. fa. can be issued and the grand piano will go out of the front door, will be sold by the sheriff and the fine will be paid. The law will be vindicated, and the poor defier of the law will be without his grand piano.


This, of course, is on the assumption that there is a grand piano.


Mutatis mutandis, the principle will apply. Even if the noble and learned Lord is taking me perhaps au pied de la lettre I think the Committee as a whole has "tumbled" to my meaning, so I hope will the average county court judge. Having said that by way of gratitude to the noble Lord, Lord Wigoder, I should like to say a word to the noble Lords, Lord Pitt and Lord Jacques. I can only say to the noble Lord, Lord Pitt, that the advertisements to which he takes exception are of course very carefully worded. They are worded under a law which is exactly the same as the law which is going back into this clause if my Amendment is not carried. Therefore, it will not improve his situation if the Amendment is rejected.

If anybody can read the easily detected codes by which these advertisements can be inserted in the terms which will no doubt be defensible under this clause, he will only see that in addition to the other disadvantages which I have indicated will be the disadvantage of hypocrisy which will thereby be encouraged and which I do not myself approve either in public or in private life. However, I will say this to the noble Lord, Lord Avebury: if there were one single thing which was calculated to make me divide upon the Amendment it would he the belief that whatever I said and whatever argument I adduced, another place was bound to disagree with me.

I cannot imagine anything more likely to make me divide upon this Amendment than that. Nor do I know with what presumption the noble Lord, Lord Avebury, from the remote corner of the Liberal Benches (who has not once had his Party in support of him in the Division Lobby on any contentious matter since we engaged upon this Committee stage), ventures to speak for the House of Commons. Perhaps he has so totally failed with his own Party in the House of Lords he must look back on something we cannot verify in order to justify his self-esteem. This is evidently a matter of judgment. My judgment remains exactly the same as it was; but we are getting on rather slowly and a Division takes 15 minutes. Therefore, out of sheer decency, I am not going to divide the Committee. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

On Question Whether Clause 29 shall stand part of the Bill?


I wonder, before we leave this clause, whether the noble Lord, Lord Jacques, could indicate whether in the clause as now drafted the offence of advertisements to which the noble Lord, Lord Pitt, understandably objected would be quite legal so far as the clauses and subsections mentioned in subsection (2)(a) are concerned. It would not be necessary for anybody who wanted to be offensive to use the code to which the noble and learned Lord, Lord Hailsham, referred. As I interpret the subsection, it would be perfectly legal to say "Partner sought for practice: no blacks."


It is a matter of opinion. I do not think the subsection would apply.

Clause 29 agreed to.

Clause 30 agreed to.

Clause 31 [Pressure to discriminate]:

10.47 p.m.

Lord HAILSHAM of SAINT MARYLEBONE moved Amendment No. 43: Page 20, line 27, at end insert ("and is made with the intention that he should act upon it.")

The noble and learned Lord said: I rise to move this Amendment, which I think requires a little explanation because it is a technical one, although it is not an unimportant one from the point of view of making this Bill a workable instrument. Incidentally, I think I should have said the other night when we were discussing the shop steward question that inadvertently I did not refer to Clauses 30 and 31 which would include shop stewards in their ambit, unless they were expressly excluded. At any rate, Clause 31 is one which makes it unlawful to induce or attempt to induce a person to do any act contravening Parts II and III.

Just to remind the Committee, Part II refers to employment and Part III refers to discrimination in other fields. Education is the first one, but there are others to follow. So it is unlawful to induce anybody to do anything which contravenes Parts II and III. If I may say so, I am not at all sure whether it is in the 1968 Act, but I have no objection to the principle. Subsection (2), with which this Amendment is concerned, provides that an attempted inducement is not prevented from falling within subsection (1)—that is, art inducement or an attempted inducement—because it is not made directly to the person in question, if it is made in such a way that he is likely to hear of it. That is the effect of it. In other words, if you say something which is likely to produce the same effect as an inducement would have if you made it to a person who would act on it, you are in the same position as if you induced the act.

That is fair enough—but on one condition, which is that if you make the remark that is likely to have that effect to somebody who is not himself likely to act on it, I do not think it ought to make it illegal on your lips unless you know that the other person is likely to hear of it and unless you intend that he should. In other words, a careless remark made perhaps to a member of your family who may be likely to pass it on ought not, by itself, to render the remark an inducement under subsection (2). I have added the words in the Marshalled List in order to ensure that only the guilty are caught by subsection (2). Those words are, … and is made with the intention that he should act upon it", and, of course, that must imply knowledge that he is likely to hear of it, so I did not add those words as an additional factor. I hope that I have explained the Amendment shortly, in such a way that it is clear to the Committee. I beg to move.


We entirely agree with the objective of the noble and learned Lord, but we do not think his Amendment is necessary and believe that it could possibly be undesirable. In order to fall within Clause 31(1), the inducement must, in our view, be made with an intention that the person at whom it is directed should act upon it. Unless this intention can be established, no inducement will have taken place. That expresses our view, and that is why we consider that the Amendment is unnecessary. We think it is probably undesirable, because it would apply only in the case of indirect inducements and this might cast some doubt on the need to prove intention in the case of direct inducements. We believe, also, that there is a danger that it would cast some doubt on the corresponding provision in the Sex Discrimination Act, which is similarly worded without the Amendment which the noble and learned Lord is seeking to make.


My withers continue to be unwrung by the Sex Discrimination Act, and that is all I propose to say about that on this occasion. If it is badly drafted, the noble Lord is speaking for the Government and he must put it right. But I had anticipated that the noble Lord might say that; indeed, I had thought of the argument and the point before I put down the Amendment. So if I agree to withdraw it at this stage, in order to reflect about the matter still further in the light of what the noble Lord has said, I hope that he will also agree to reflect upon something which I am now about to say in reply, which is not necessarily conclusive, because, as I say, the point had occurred to me.

On subsection (1) of Clause 31, my understanding of the word "inducement" is that it implies an intention to induce. I think that the noble and learned Lord is nodding his head and takes the same view. But subsection (2) adds something which would not otherwise be an inducement, and says that it does not fall outside subsection (1) if it is made to a third party and if it is likely that the person to be induced would hear of it. It occurred to me, and it occurs to me still, that having introduced the factor of his being likely to hear of it, a court might easily construe it in such a way that it excluded in those cases the intention to induce. But I am quite satisfied that the noble Lord and I are of the same mind as to what we wish the clause to mean, and the last thing I wish to do is hold up the Committee, since he assures me that the Government's advisers think it means what I already want it to mean. Therefore on the supposition that the noble Lord will do as I have asked—and I notice that he is nodding his head—I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 31 agreed to.

Clause 32 [Liability of employers and principals]:

10.54 p.m.

Lord MONSON moved Amendment No. 44: Page 20, line 29, after ("Act") insert ("save for section 12")

The noble Lord said: I am in something of a procedural quandary as regards this Amendment. If the House of Commons accepts the overwhelming verdict of the Committee yesterday, supported by noble Lords of all three Parties and of none—namely, that the iniquitous subsection (2) of Clause 12 should be removed—then, clearly, my Amendment is superfluous. However, if, unhappily, the other place should reject your Lordships' Amendment, then the only way in which subsection (2) can be ameliorated in any way is by means of my Amendment No. 44, which would effectively provide that a man seeking a professional qualification would not be held responsible for the actions, done without his knowledge, of his employees.

I believe that if the Amendment is not carried at this stage there is no possible way in which it could be introduced later in another place. In view of the opposition of honourable Members of all Parties in another place to subsection (2) of Clause 12, I believe also that it is possible that they might agree to this Amendment and that a quarter of a loaf is better than none.

The other problem is what the Committee decides to do about the Amendment which is to be moved by the noble and learned Lord, Lord Hailsham of Saint Marylebone, to delete altogether Clause 32. Perhaps the sensible course would be for me to wait to hear what the noble and learned Lord and the noble Lord on the Government Front Bench have to say. In any case, I formally beg to move.


I am not quite clear about the precise direction in which we are proceeding. As I understand the noble Lord, he wishes to hear what the noble and learned Lord is going to say on Clause 32. With great respect to the noble Lord, I do not think that his Amendment makes an enormous amount of sense without Clause 12(2). Indeed, the noble Lord said as much himself. It might be better to move off this Amendment and come to the substance of the matter which will be debated when the noble and learned Lord rises in his place. However, as drafted at the moment, this Amendment does not, with respect to the noble Lord, make a very great deal of sense without subsection (2) of Clause 12, and I am sure that it does not do what the noble Lord wants it to do.


I quite see that it means that the Bill is something of a nonsense. However, is it not correct to say that theoretically it would be possible for the other place not to reinstate subsection (2) of Clause 12, but to leave in my Amendment?


With great respect to the noble Lord, I do not think that I would want to answer procedural questions of this kind. All I am saying—I know that the noble Lord takes these matters seriously and I am sure that he will share this view—is that it would be rather curious to have a debate on an Amendment which does not make sense. I do not think that it would carry the support of the majority of the Committee. Indeed, I am sure that the noble Lord would hesitate before causing us to have a debate on an Amendment which, without subsection (2) of Clause 12, does not make sense.


That answers my question. In that case, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 32 shall stand part of the Bill?

10.58 p.m.


This Amendment, to leave out Clause 32, is a probing Amendment. The reason I probe is to try to make out what this clause does, for I am not quite clear what it does. If some of my apprehensions are not allayed, I intend to put down at Report stage a more precise Amendment than the one which now stands in my name, aimed at some of the evils which I apprehend. In the meantime, and taking advantage of the presence of the noble and learned Lord, besides that of the noble Lord, Lord Jacques, I venture to say this. We have a very elaborate system of legal rules providing for the circumstances in which at civil law a master is liable for the acts of his servant and we have a similar series of rules at civil law stating when the principal is liable for the acts of his agent.

The first question I want to raise is: why have this clause at all when those very sophisticated rules already exist? Are they intended to state the existing law, or are they intended to alter it? If they are intended to state the existing law, why do we need it?—because as the noble Lord, Lord Jacques, said to me a moment or two ago, if it states the existing law it will only cast doubt upon all the other principal and servant cases outside this Bill; and if it is intended to alter it, exactly how is it intended to alter it?

That gives rise to the second series of questions that I want to ask the noble Lord. In each case it is the liability of the principal or the employer, as the case may be, which may be, as the noble Lord will see from subsection (1), that he is responsible in a state of complete innocence as to what the employee is doing because it makes him liable, whether or not it was done with the employer's knowledge or approval". It is stated to be in both the subsections, "for the purposes of this Act". The Bill in the main deals with civil liability; in the main it provides that somebody shall be liable in damages if he commits an act of discrimination, and I can quite see that it is not unreasonable, if that is what is intended, to make the employer responsible for the acts of his servant done within the course of his employment, whether or not he is himself aware of what the servant is doing—provided, of course, he is not on a frolic of his own. The same, broadly speaking, might well be thought to be true in relation to principal and agent. Certainly it would not be a very startling change in the law if that was what is intended.

But of course the Bill is not limited to civil liability. Take, for instance, Clause 70, which, as it stands at the moment, although I have tabled Amendments to it, is solely dealing with the criminal law and is part of the Bill although it also takes the form of an Amendment to the Public Order Act 1936. Or take, for instance (although it is much less important), subsection (4) of Clause 33, which creates a summary offence rendering the person guilty under that section liable to a fine of £400. That also is the criminal law.

I want to raise the question as to whether it really is the intention of the Government to make the principal or the employer, as the case may be, liable in criminal law where the criminal law is altered or stated in the Bill, as well as at civil law. If they do intend to do that, they are intending to do the unjust, and I would propose an Amendment on Report which would be aimed at eliminating that possibility. My doubts and anxieties about this are slightly increased rather than diminished by subsection (3) of the clause, to which I address my next question—that is, Clause 32(3)—because this provides a statutory defence, the burden of proof of which is placed upon the employer or the principal, as the case may be, to show, before he can avail himself of it, that he took such steps as were reasonably practicable to prevent the employee from doing that act.

This type of defence is lifted mainly from the criminal law. I say this with feeling, because it is lifted from a section under which I was myself once prosecuted when one of my cows unfortunately put her foot into the bucket when she was being milked and my employee, without my knowledge, instead of emptying the resulting mixture down the drain, put it into a bottle, and it appeared by a singular mischance on the breakfast table of the chairman of the health committee of the local authority, to my infinite embarrassment and chagrin because the episode was widely reported at the time. I rather chivalrously did not avail myself of the statutory defence available to me because I would have lost my employee if I had, so I stoically paid the fine duly imposed on me by the Hastings magistrates.

But this subsection (3), as I know to my cost, mainly applies to criminal law. I doubt whether it has any reasonable application in civil law, because why should it be a defence to a principal or an employer whose employee or agent commits a civil wrong that he had taken reasonable steps to prevent him committing a civil wrong? And if in fact he was totally ignorant of what he was likely to do, which is the possibility contemplated in the last words of subsection (1), obviously he could not be expected to take any steps at all.

My question is really related to the drafting of this clause at the moment. What are the intentions of the Government? How do they conceive this clause alters the law in civil liability? Is it really their intention, as appears to be the effect of the draftsmanship, that it applies to criminal offences no less than to civil offences? What is the precise advantage of having subsection (3) at all? Having said that, I await the reply of the Government not with impatience, but with interest.

11.8 p.m.


The intention of the clause is to confine liability to civil liability, and I entirely agree that if by a side wind criminal liability was sought to be imposed upon the employer in the circumstances we are dealing with in Clause 32, that would be wholly unacceptable. That is not intended. If that intendment is not apparent and clear from the language and context of Clause 32, I am willing to have a look at it again.

The noble and learned Lord, Lord Hailsham of Saint Marylebone, will see that in Clause 32(1) the language of the subsection is that, Anything done by a person in the course of his employment"— are the critical words— shall be treated for the purposes of this Act as done by his employer as well as by him, …". That is a wider concept than the vicarious liability of the employer for the employee in the course of the employment, so that the clause places a wider area of responsibility upon the employer; but as, so to speak, an offset to some extent, a mitigation, of the wider concept of responsibility in liability there is the provision in subsection (3) for those particular circumstances.

In the case of responsibility for the vicarious liability of the servant, as the noble and learned Lord knows, it is no answer to say he did his best to prevent the employee from doing that act; so the words used in subsection (3) are, as I say, intended to mitigate the generality of the extension of responsibility placed in subsection (1) of the clause. I think that is really the explanation of what is meant, and what is intended. I hope that that will satisfy the noble and learned Lord.


May I ask the noble and learned Lord the Lord Chancellor this question? As he knows, these days employers receive a flood of requirements under various Statutes with which they have to comply or suffer penalties. Is it not asking rather a lot of the many tens and hundreds of thousands of employers that each one should immediately be aware of the meaning of the words "reasonably practical" and know what they imply, when perhaps many of your Lordships may be in doubt as to the steps that might have to be taken to ensure that this defence was a valid one?

I was talking to my noble friend on the Bench here and I asked her whether she thought it would be enough for the employer to draw the attention of his staff to the Act, perhaps by giving them a copy of it, and giving them a written instruction to comply with its provisions. My noble friend said that certainly would not be enough in the case of the Health and Safety at Work Act, that the responsibility of the employer would be to provide all kinds of training which would enable the provisions of that Act to be carried out. If it is not spelled out in any detail, the employer will have to be a better lawyer than many of us in this House to know what is required of him to give instructions to his employees to render himself immune from prosecution for the acts of his eeployees which he knew nothing at all about.


The phrase, "reasonably practicable" is well known to the law. I do not think it would be possible within the Bill to define it and give examples. The intention of the clause is to encourage employers to ensure that their employees know about this legislation and carry it out. A mere publishing of a copy of the relevant section of the Act in some part of a factory might be deemed to be wholly inadequate where there was evidence of actions by employees in defiance of the provisions of the Act. I think one has to be reasonably practicable as to how much one can put in an Act by way of illustration. This is a frequent phrase used in legislation like workmen's compensation legislation, Factory Act legilation, and I should have thought the courts are familiar with dealing with this kind of problem. I am not unduly worried that those words are not illustrated by example, because I think illustration by example is really unnecessary.

11.12 p.m.


I hesitate to intervene in the discussion because I know that my noble friends on the Front Bench would rather these Bills be passed than discussed. We have imposed on us a timetable not of our making which I think is tending to show, to coin a phrase, that your Lordships' House is being turned into a kind of Parliamentary factory farm. Things must be pushed through, and we are confronted with the horrible prospect of long sittings to make up for delays which have occurred in another place. Listening to this debate and the debate yesterday, the thought occurs to me how unreal much of our debates are in the context of what people are saying in the pubs and clubs and on the streets and on the football grounds on many of the affairs of the day.

I hope that no proceedings will have to be taken under a number of clauses of the Bill, the present clause under discussion being one of them, because I fear that in this Bill lies the possibility of recruitment to the National Front. I think probably our debates have been weakened by the lack of plain speaking at times on this very difficult and delicate issue. We are all afraid, or many of us are afraid at times, to express our thoughts lest we be accused of adopting an attitude which is contrary to the general trend of enlightened thought. It is a fact that the strength of the National Front has increased as this kind of legislation has been enforced. That has to be borne in mind.

I recall when I was in the United States some years ago hearing that the ruling of the Supreme Court on the question of segregation had put back by ten years the educative process on non-discrimination in the United States because there is a pace at which public opinion cannot be pushed. We have to be careful that the niceties of the law, and the refinements that can be introduced in it, can possibly do more harm than good.

I feel that the people who are responsible for drafting this Bill were told to go away and think of everything, and when they had done that they were told to go away again and think of everything they had not thought of before. One finds here the extremity of refinement of provision, anticipation and safeguard. I am very uneasy about a lot of this. This clause, which seeks to place responsibility on persons who have no knowledge of what may be going on but are going to have that responsibility pinned upon them unless they can show, as in subsection (3), that they took such steps as could be reasonably practicable to prevent an employee doing something, means really that employers have to be guided in what defence would be reasonable in the circumstances.

The noble Lord, Lord Avebury, mentioned a point just now: would it be enough for the employer to give a general direction that there is an Act in existence, and everybody must conform to it, and their behaviour and conduct in the course of their employment must be governed by the provisions of the Act. There are many pitfalls here for quite innocent people who may be fixed with responsibility for something which it is probably not reasonable to place upon them. I hope that we shall have something a little clearer in this clause before it is finally disposed of, otherwise I am quite sure that if prosecutions are undertaken, and proceedings taken under some of these clauses, and more martyrs are created, then the harsh judgment of a great deal of public opinion upon the provisions of the Bill when it becomes an Act will have repercussions in attitudes towards race relations generally.

I fear also that the more we put in Acts of Parliament the less trouble will be taken to accompany the changes in the law by the necessary education, the propaganda. It is really publicity to a point of view rather than the announcement of obscure provisions of an Act of Parliament that is going to achieve the purpose that we all desire. There is a big psychological question here and one can make errors of judgment in achieving a common aim; there is more than a suggestion that we may be along that path at the present moment.


I do not know whether my noble friend will be comforted by the thought that a provision similar to this appears in the 1968 Act and that there is no evidence to show that it has given rise to any difficulties. That may comfort him.


I apologise for troubling the Committee again. I do so to ask the noble and learned Lord the Lord Chancellor to reflect again on the words "such steps as are reasonably practicable" and their interpretation by employers. The term may appear in a variety of Statutes and it may be familiar to lawyers but, as I mentioned earlier, it has to be interpreted by many hundreds and thousands of employers, large and small, not all of whom may be as well qualified to interpret it as are the members of the noble and learned Lord's profession.

Perhaps he will consider the suggestion, made by my noble friend Lady Seear on Second Reading, that codes of conduct might be developed in consultation between trade unions and employers and then be approved by the Commission, perhaps separately from one industry to another. For example, where there are employment agencies, there would be codes of conduct dealing with particular aspects of interviewing. Once such codes of conduct were promulgated in a similar way to the codes of conduct that have to be approved under the health and safety at work legislation, everybody would know precisely where they stood, and conforming to the code of conduct agreed between representatives of employers and employees would be an essential and important ingredient of the defence under subsection (3).


As I have said, this provision has been in the law for eight years and does not seem to have given rise to difficulty. But of course we will ponder again on that suggestion. I am not sure that we want to elaborate too much codes and matters of that kind. I should have thought that the simplicity of the language here meets the needs of the situation. Nevertheless, I am certainly willing to look at the matter, without, I am afraid, being able to give any commitment.

Viscount SIMON

Will it not be necessary, in any case, to do some redrafting of the clause to remove the implication, which is otherwise there, that this also applies to criminal acts?


In the context, it seems to me to be apparent that it does not do so, but, as I said to the noble and learned Lord, I am willing to have a look at it because it is too serious a matter to leave uncertain.


I am grateful to the noble and learned Lord for his answers to my questions and I have only a few comments to make. First, I particularly welcomed his reiteration, in his answer to my noble friend Lord Simon, of the promise he gave to me because I am anxious about the drafting in this respect and the matter should be put beyond peradventure. I hope that he will give me the answer which he promised in time for me to reflect upon it before Report so that, should I feel inclined, I could if necessary try to devise an Amendment, though I should prefer it to be a Government Amendment in view of the resources at their disposal.

Secondly, I should be grateful if the noble and learned Lord would examine a possible inconsistency between the last words of subsection (1) and the special defence in subsection (3). It seems almost impossible to believe that there could be any circumstances in which an employer could avail himself of sub-section (3) with the burden of proof on him if he did not in fact know what his employee was doing. Subsection (1) makes him liable even if he did not know. I should therefore be grateful if the noble and learned Lord would pay actual and specific attention to that point too.

I am glad to know of his enthusiasm for these particular words, although I do not know that I can share it. I would remind the noble and learned Lord that while I was Lord Chancellor a case came to the House of Lords, in which I had the pleasure of sitting judicially, in which a caterpillar appeared in a tin of Smedley's peas and Smedley made use of these particular words. The matter arose, in its dignified fashion, from the Dorset magistrates to the Divisional Court, presided over by the Lord Chief Justice of England, and from the Divisional Court to the House of Lords; and if the noble and learned Lord will look at the various Opinions stated by myself and my noble and learned friends on that occasion he will see that a great deal of learning was spent on the exact meaning of words which were either identical to or, so far as I remember, not easily distinguishable from these about this poor immolated insect.

In the end, Smedley's were convicted. They themselves could not have done anything that I could see to avoid the presence of the caterpillar, which had thoughtfully rolled itself up into the exact dimensions and was already the exact colour of the rest of the contents of the tin. Indeed, so much did the case appeal to the compassion of the noble and learned Viscount, Lord Dilhorne, that he issued a great indictment against the authorities for prosecuting at all. Nevertheless, Smedleys were convicted and they had to pay, and they had to pay for the appeal. So I do think that the noble and learned Lord is taking a—I will not say complacent—but rather too rosy view of the situation. In the meantime, I shall not proceed with this matter.


May I draw the attention of the noble Lord, Lord Avebury, to the provisions of Clause 47. The clause provides for the issuance by the Commission of codes of practice containing such practical guidance as the Commission thinks fit for the purpose—and I mention only the first as relevant to what we have been discussing—of the elimination of discrimination in the field of employment. It may well be that, within the ambit of what is contemplated there, the kind of suggestion the noble Lord was making earlier may be conveniently fitted in. I cannot promise, but that looks a promising line of advance.

Clause 32 agreed to.

Clause 33 [Aiding unlawful acts]:

On Question, Whether Clause 33 shall stand part of the Bill?

11.27 p.m.


I do not think we need spend much time on this. I put down the Motion in order to ensure a very short debate on the clause and not for the purpose of removing it from the Bill. I wonder whether one can ask the noble and learned Lord for a short exposition of what it does to the existing state of the law. How is it better with this clause than without it? I must say that I was very much struck and wholly in agreement with the speech of the noble Lord, Lord Houghton of Sowerby, a moment ago. I believe that his apprehensions are very well founded and I felt that his speech was not only wise but also a little courageous in the circumstances. None of us likes to be tarred with the brush of racialism and it is very easily flung about nowadays. I wonder whether the noble and learned Lord on the Woolsack would give a short exposition of why the clause is necessary at all and how the law would be different if it were not in the Bill, with the exception of subsection (4), which is of course only made necessary by the rest of the clause.


Again, this provision is in the 1968 Act and it is thought to be an essential part of the Bill. Subsection (1) ensures that a person who knowingly aids another to do an act of unlawful discrimination is treated as doing that act himself. That provision would apply, for example, if an employer with redundant employees made available lists of those employees to another employer and, at the request of the second employer, excluded the names of workers from a particular racial group because the second employer discriminated against coloured workers. If the first employer knew that the second employer wished to use the list for an unlawful discriminatory purpose, he would knowingly be aiding and abetting the latter's unlawful act. It is our view that the aider should be caught by the Bill, as he was under the 1968 Act.

The clause is also important in relation to Clause 32 which we have just discussed and which makes the employer liable for the unlawful acts of his employee in the course of his employment but, if Clause 33(2) were not in the Bill, the employer would stand alone in taking responsibility for the employee's unlawful act. Subsection (2) makes it clear that in a case like that, the employee is treated as aiding his employer, so that they are both responsible for the unlawful act. That would cover, were the facts so justified, for instance action by a shop steward, but I do not want to go into the details of that controversy. But this has value in completing the scheme of this part of the Bill.


I should like to ask the noble and learned Lord a question, particularly about subsection (1). This follows on what the noble and learned Lord on the Opposition Benches was saying just now. Would he tell me whether the word "aids", in the phrase: A person who knowingly aids another person is wider or narrower than the well-known words, "aiding, abetting, counselling and procuring"? Does the noble and learned Lord take the view that the word "aids" diminishes those other words, or does he take the view that it is wider than those words which are so well-known to us all?


All I say is that I think that it is wide enough for the purposes of the clause. Abetting is a form of aiding, and I have often thought that those other words were merely a colourful addition to the first word, "aid". I think that "aid" in general covers all the contingencies of aiding and abetting.


Does the noble and learned Lord agree that the word "aids" does not in its ordinary meaning include the "counsel"? Does not the word "aids" suggest that the person who is aiding is doing some act, or is doing something more than advising or counselling or procuring that the act should be done?


I am not sure whether "counselling" and "procuring" would not qualify in the clause as aiding. I should have thought that they could well do so. But I do not know that I can throw any further light on this point at this late hour, standing up where I am.


May I ask the noble and learned Lord whether the question of "aiding" and "counselling" are the same depends upon the counsel? Some counsels may aid, some counsels may not.

11.33 p.m.


That is a very good point. I must say also that in fifty years at the law I have never yet discovered what the verb "abet" means, and I have never yet found anyone else who did. However, I am not altogether reassured by the noble and learned Lord. He seems to be very happy about the 1968 Act, but this is something which I view with very great reserve. He says that it has been on the Statute Book for eight years and there has been no trouble about it, but the fact is that it has scarcely ever been used, it has scarcely ever been tested in court. No doubt Mr. Mark Bonham Carter is very active behind the scenes, aiding and abetting the various persons who might otherwise come within this question. But despite the propaganda which some people sometimes urge against him, he has in fact been extremely cautious about taking proceedings under the Act, and I put that wholly to his credit.

But I must tell the noble and learned Lord this. I do not believe that it would make a ha'porth of difference if this clause were omitted altogether. I do not agree with him that subsection (2) is necessary, because I think that exactly the same law would be applied if it were not there. I entirely agree with what the noble Lord, Lord Houghton of Sowerby, said a few moments ago. In 1975 there were three volumes of Statutes—or rather there will be three volumes, because they have not got round to printing them yet—of 1,000 pages each, with 10 volumes of subsidiary legislation of 1,000 pages each, making 13,000 pages of legislation for the year 1975 alone.

Then one gets this kind of business, that some clever young man in the draftsman's office in 1968 thinks that it is a good thing to put in a Statute something that is never tested for years and years, and so every other Statute has got it, and the Sex Discrimination Act has got it. Then, when we get it again in 1976 we are told: "It is in the Consumer Credit Act; it is in the Sex Discrimination Act; it is in the Race Relations Act; it is in the health regulations, and nobody has ever found any trouble about it"; and so the great snowball of statutory legislation gradually accumulates. I am the little boy who says that the Emperor has no clothes, in spite of the beautiful appearance of the Lord Chancellor. It would be exactly the same if they were not there.


While I am not wearing my predecessor's clothes, he certainly distinguished himself in similar garments. But I should like to say one thing. The implication seems to be that you ought to judge the value of legislation of this kind, which is to establish standards of decent, civilised behaviour in our community, and to set the standards, by the number of cases that are brought under it. That is a wholly false test of the value of legislation of this kind. It is intended to instil, so far as guidance in legislation can do so, in the generality of the public, that racial discrimination is offensive and insulting; and, in order to make a reality of that, the law has got to establish enforceability and provide sanctions for refusal to live up to the standards which the law imposes. So I am not at all impressed by the argument that because there have not been a number of cases the 1968 Act has been ineffective.


But unfortunately the noble and learned Lord has not understood the argument. Of course nobody says that the mere number of cases proves that the Act is either good or bad, but it does so happen—and the noble and learned Lord would be the first to recognise it if he were not here polemically arguing across the Table with me—that it is the only way, if the Lord Chancellor will not tell us, that we can find out the meaning of Statutes. The matter arose because the noble and learned Lord was asked about the meaning of this clause, and his defence was: "Well, it has been on the Statute Book a long time, and there has been no trouble about it".

All I can say is that, if the noble and learned Lord will not tell us about it and only tells us that it has been in the Sex Discrimination Act, the Race Relations Act and the health regulations, and cannot say what it means, the only way you can find out what the Statute means is to have litigation about it. Nobody wants litigation about it; but the fact of the matter is that I simply do not believe that all this elaboration of the modern Parliamentary statutory machine, which is devised to prevent the most elaborate and unlikely forms of evasion, really improves the administration, knowledge or understanding of the law. It is getting to the stage at which the Bible was getting when it was written entirely in Latin. No lawyer knows what it is and no lawyer knows what it means, and the noble and learned Lord the Lord Chancellor, with a solemn face, tells us at nearly midnight that all the people in this country will be vastly inspired to understand the odious character of race discrimination when they have read, as they will avidly do in the Daily Mirror tomorrow, the provisions of Clause 33, the exact purpose of which he is unable to tell us.


It is too late at night for me to quarrel with the noble and learned Lord, but I made it perfectly clear that if Clause 33 did not exist, then the offending employee who gets the employer into trouble would get away scot free, which seems to us to be a wholly unsatisfactory arrangement. If that would make the noble and learned Lord happy, we will consider getting rid of Clause 33.


I believe he would be just as liable as he is under subsection (2) if the common law was applied instead of any part of Clause 33 of this Act. I remain of that opinion; and although I would not go so far as Judge Kerr did once to me when I was arguing in front of him, when he said, "Young man, do not cite the Sale of Goods Act to me; the common law was good enough when I was at the Bar", I would at least suggest this to the noble and learned Lord the Lord Chancellor. I would not accuse him of trying to bluff his way out of this difficulty. He is not that sort of man. But I do not believe that subsection (2) adds tuppence to the common law position.


May I put the layman's point of view? The noble and learned Lord seems to be taking the line that it is not necessary to repeat this clause in this Bill and in previous Bills because it is the law anyway. That is roughly his attitude. I want to say that I have spent a lifetime, not in the law but in management; and if I wanted to look up something on race relations to know my position as a manager, I would hope that the Act would tell me if there was a liability for aiding and abetting. It would not expect me to be a lawyer and to know it. I think it is helpful to the lay public that the law should be spelled out in the Statutes and not left to the lawyers.


May I mention one matter to the noble and learned Lord the Lord Chancellor? I have no doubt he would agree that it is highly undesirable that there should be in a Statute words which are sufficiently vague to give any opportunity for the raising of wholly unmeritorious defences. I mention that because I am a little perturbed at the point that has been made about the use of the word "aid". I have at the back of my mind cases which have indicated that a person aids and abets if he is present at the time the offence is committed. He counsels and procures if he is not present at the time the offence is committed. If it is desired, as it might properly be, to catch the counsellor and procurer as well as the aider, might it not be better to go back to the time-honoured form of wording in this subsection if it is going to remain in the Bill?


I hesitate to fall further into the trap of over-elaboration and over-extension; but I will look at the point.


Noble and learned Lords on the Front Bench are geniuses at obstructing their own business. I suggest that we are ready to reach a conclusion on this clause.

Clause 33 agreed to.

Clause 34 [Charities]:

11.43 p.m.

Lord WELLS-PESTELL moved Amendment No. 45: Page 22, line 6, leave out subsections (4) and (5) and insert— ("(4) In this section 'charitable instrument' means an enactment or other instrument passed or made for charitable purposes, or an enactment or other instrument so far as it relates to charitable purposes, and in Scotland includes the governing instrument of an endowment or of an educational endowment as those expressions are defined in section 135(1) of the Education (Scotland) Act 1962. In the application of this section to England and Wales, 'charitable purposes' means purposes which are exclusively charitable according to the law of England and Wales.")

The noble Lord said: On behalf of my noble friend Lord Harris of Greenwich, I beg to move Amendment No. 45. This is a technical Amendment designed to ensure that the Bill affects charities in Scotland to the same extent as it affects charities in England.

On Question, Amendment agreed to.

On Question, Whether Clause 34, as amended, shall stand part of the Bill?


Before we leave this clause, I wonder whether the noble Lord could explain, to me at any rate, how the repeal of the 1968 Act and Section 9 with it, which is achieved by Schedule 5 to this Bill, plus the introduction of Clause 34 here, gives effect to the intentions expressed in the original White Paper in paragraph 79; and in particular where is the broad exemption or exception—both words are used in that paragraph—similar to that in the 1968 Act, Section 9, now to be found in the Bill we have before us?


I shall have to look at this. I cannot give the noble Lord a good answer at this stage. I will write to him.


I am not sure that that is very satisfactory. All I am asking is how Clause 34 works. That is not unreasonable in a Committee stage, is it?


The Question is, That Clause 34, as amended, shall stand part of the Bill?


Have we reached the stage where one can ask a basic question about a clause and not get an answer? It really is not very good.


The English and Scottish legal definitions of "charitable purposes" differ. Therefore, where it is desired to achieve uniform application of legislative provisions affecting charities, it is necessary to define "charitable purposes" as being the same thing in both countries for the purpose of the legislation in question. For all practical purposes, this means adopting the English definition for Scotland. It is reasonable to do this in the case of charitable purposes because the English definition covers a much wider area of the United Kingdom in terms of population than does the Scottish one, because inasmuch as there is a Scottish definition of "charitable purposes," it is more restrictive than the English definition. However, there are presentation difficulties in that the definition reads as a simple application of English law to Scotland. The definition of charitable purposes currently used in the Bill seeks to meet those presentation difficulties, but is defective in that it does not achieve the uniformity desired and would create in Scotland the anomalies as I tried to describe earlier on. The definition substituted by the Amendment avoids these anomalies and achieves uniformity of application to Scottish and English charities.

Although that uniformity results in the application of English law to Scottish cases, the new definition avoids offending Scottish susceptibilities by attracting a definition already used in the Scottish—


We must not take up too much time in Committee. If the noble Lord will read paragraph 79 of the White Paper, he will see that nothing he is saying now has any bearing on it at all. Let us leave it for now. Perhaps the noble Lord will write to me between now and the next stage.

Clause 34, as amended, agreed to.

Clause 35 [Special needs of racial groups in regard to education, training and welfare]:

11.48 p.m.

Lord O'HAGAN moved Amendment No. 46:

Page 22, line 24, at end insert— ("Provided that it can be shown that the group in question will remain at a disadvantage if no special provision is made.").

The noble Lord said: Part VI of the Bill deals with general exceptions from Parts II and IV, and Clause 35 makes lawful some kinds of discrimination. Under it it will be possible to make special provisions for a particular racial group in certain defined circumstances where they have special needs of educational or welfare nature. But for the time of night, it would be very valuable to have a debate about the urban aid programme and the operation of Section 11 of the Local Government Act 1966, and so on. I wish to ask one question: Are the Government satisfied that the clause as it stands without my amendment restricts sufficiently narrowly the special provision that can be made under this clause? Would not the aim of the clause be more clear if the words I now add were included in the Bill? I beg to move.


The Government are not of that opinion. The noble Lord is expressing a fear that Clause 35 is too widely drawn. He would prefer to see it drawn rather tighter. The Bill is based on the principle of non-discrimination. But as the White Paper pointed out, in paragraph 57, this principle must not be applied with blind inflexibility. Where there is good reason for permitting an exception to the formal principle of legal equality the Bill should provide for it.

Clause 35 is such an example. The racial minorities experience special needs which are not shared by the rest of the population. The most obvious example is the need for special language training, but needs arise equally in the welfare field. The Government believe that it is right that special measures to meet such needs should be permitted by the Bill even if this involves an exception to the general principle of non-discrimination. It is clearly important to ensure that, if Clause 35 is to be of any real value, it goes sufficiently wide to allow all the needs peculiar to particular racial groups to be catered for adequately. On the other hand, it is equally important to ensure that the clause is not so wide as to allow its provision to be abused. We believe that as it stands the clause strikes about the right balance the two between requirements.

The clause is not a general exception applying across the face of the Bill. In it we have been careful to identify those fields in which special needs are most likely to be found—education, training and welfare—and the exception can only be claimed for a need arising in one of these areas. However, within the broad limits, the exception covers all the acts associated with the provision of the facilities or services designed to meet the needs of members of a particular racial group. Thus, it covers the arrangements an employer makes to enable his employees to attend language classes, as well as the actual training itself. Any tightening of the clause which would exclude such acts would severely limit the practical application of the exception and is therefore undesirable.

Given the need to ensure that the exception can be made use of in all cases where it is required, and given the safeguards that have already been written into the clause, we believe that it would be unwise to restrict its availability further. The Amendment, if it were made, would limit it to those special needs which can be shown to place the racial group in question at a disadvantage. Is such a restriction necessary? Surely a "special need" experienced by members of a particular racial group—that is to say one that is not shared by the rest of the population—cannot do other than place them at a disadvantage. In these circumstances, I wonder whether a "special need" that did not constitute disadvantage could be described as a need at all. And if it could, would it be right to prevent special measures being taken to meet it? In the absence of any compelling reasons why this Amendment should be made, I would hope that the noble Lord would be able to withdraw it.


I wonder whether I might give the noble Lord an example of a special need which is not covered by the Bill as drafted and which would be covered by my noble friend's Amendment? Take the case of the substantial Italian population now residing in Bedford and in Peterborough. Until they have been educated in the use of English, in relation to the rest of the population, they will remain at a disadvantage when it comes to employment and other things. But that group of people, and particularly their children, have a further special need: namely, to be educated in their mother tongue and mother culture—a matter which w e had in a EEC Directive only a few weeks ago. But a failure to meet that special need does not put them at any disadvantage with the rest of the English population.


I should like to support the very reasonable Amendment of the noble Lord, Lord O'Hagan. The noble Lord, Lord Houghton of Sowerby, told us a moment ago what the people in pubs and clubs are saying—the man in the street, in other words—and the kind of thing they are saying, in a nutshell, in connection with legislation of this nature, is that the immigrant population is being favoured at the expense of the indigenous population. They do not put it in that way, but that is what they mean. Surely acceptance of the Amendment of the noble Lord, Lord O'Hagan, would demonstrate to the public that their assumptions are mistaken.


I am advised that if the Italians have a special need in English, or Italian for that matter, they are covered by Clause 35.


I do not put down Amendments to waste time, and I do not put down Amendments because I disapprove of the principle of the Bill. I have been interested in this subject for some years, and I put down this Amendment for much the kind of reason that the noble Lord, Lord Houghton of Sowerby, mentioned earlier. It is essential to underline that the Bill does not create a whole range of privileges for black people; otherwise, it becomes counter-productive. There are inner areas in cities in which people, both black and white, are disadvantaged by reason of their living in decayed urban centres. There are some associated disadvantages which black people suffer in addition to other social disadvantage, because they are black as well. If there are special disadvantages that they suffer because they are black, it may be necessary to make special provision for them. That is the objective of this clause. That is the objective which I wholly share. But it is necessary to reassure people that it does not open the door to a whole cornucopia of special benefits.

I am not going to press this Amendment to a Division tonight, because I think we should be more constructive than merely scoring points. But I put it to the noble Lord, Lord Wells-Pestell, whom I like very much, that it is not good enough to read out a long brief, most of which has nothing to do with the very narrow drafting point that can be important to the general public's view. It is not good enough, and I hope that when I put down the Amendment at the next stage we will get a more satisfactory answer. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 35 agreed to.

Clause 36 [Provision of education or training for persons not ordinarily resident in Great Britain]:

11.58 p.m.

Lord JACQUES moved Amendment No. 47: Page 22, line 26, leave out from ("done") to ("access") in line 28 and insert ("by a person for the benefit of persons not ordinarily resident in Great Britain in affording them")

The noble Lord said: when I spoke to Amendments to Clause 6 I also spoke to these Amendments, which correspond to them. Therefore, I formally move them.

On Question, Amendment agreed to.

Lord JACQUES moved Amendment No. 48: Page 22, line 29, at end insert (", where it appears to him that the persons in question do not intend to remain in Great Britain after their period of education or training there.")

On Question, Amendment agreed to.

Clause 36, as amended, agreed to.

Clauses 37 to 40 agreed to.


It is now just on midnight, and I suggest that this may be a good moment to halt the Committee. I beg to move that this House do now resume.

Moved accordingly and, on Question, Motion agreed to.

House resumed.