Lords Sitting of 25 January 1977

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

FOREIGN AFFAIRS AND THE EEC
Lord CHELWOOD: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what agreement has now been reached with the other EEC countries to further political co-operation in foreign affairs and defence policies; and whether all procedural distinctions between these and subjects explicitly covered by the Treaties have at last been abolished at all levels.
The MINISTER of STATE, FOREIGN and COMMONWEALTH OFFICE (Lord Goronwy-Roberts): My Lords, the European Council on 30th November endorsed the view that when the Foreign Ministers meet, whether in the Council of Communities or in the political co-operation framework, they should be able to take into consideration all aspects of questions under discussion. As the current holders of the Presidency, the United Kingdom has the job of making this possible in practice. The appropriate procedures for work falling within the framework of the Communities and for inter-Governmental co-operation will continue to be followed. As to the first part of the noble Lord's Question, Her Majesty's Government continue to attach importance to political co-operation among the Nine, of which the aim is the search for a common external policy.
Lord CHELWOOD: My Lords, does that reply, which is encouraging so far as it goes, mean that the artificial separation between foreign policy and matters covered by Treaty really has been brought to an end, as was recommended in one of his
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most practical and realistic suggestions by M. Tindemanns in his report?
Lord GORONWY-ROBERTS: My Lords, I think the noble Lord has summed it up very fairly. In substance and in practice there is a unity of consideration of both categories of foreign questions. Procedures continue to be as they have been, until of course further thought, discussion and decision as to procedure in both categories take place.
Lord GLADWYN: My Lords, would not the Government agree that they are unlikely to get much "forrader" in the practical harmonisation of foreign policy, and indeed of defence policy, until they can establish some kind of secretariat—one might call it a political secretariat—in a centre in which the political directors can habitually meet and in which the agendas for their meetings can at least be prepared?
Lord GORONWY-ROBERTS: My Lords, the question of what is called "a centre" with no doubt some at least of the implications mentioned by the noble Lord, is, as he knows, a matter for consideration. There is much force in what he has said.

THE ROMANOV FAMILY: HISTORICAL RECORDS
2.39 p.m.
Baroness WARD of NORTH TYNE-SIDE: My Lords, I beg leave to ask the first Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will give an assurance that there are no documents connected in any way with the fate of the Romanovs retained by any Department or branch of the Government including the files of the Intelligence Services which are not open to inspection by the public under the 30-year regulation.
The LORD CHANCELLOR (Lord EIwyn-Jones): My Lords, I am answering this Question in view of my general responsibility for the Public Record Office.

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As my noble friend Lord Goronwy-Roberts told the noble Baroness on 14th October last, all the available documents in the possession of Her Majesty's Government relating to the fate of the Romanov family are open to public inspection at the Public Record Office and I have nothing to add to my noble friend's statement.
Baroness WARD of NORTH TYNE-SIDE: My Lords, I thank the noble and learned Lord for that Answer. In view of the fact that the Question answered by the noble Lord, Lord Goronwy-Roberts, is a bit "scarce", is the noble and learned Lord aware that my interest is to get history accurately recorded; and is he further aware that, until fairly recently, a document containing a great deal of interesting information was retained in the Foreign Office, and I have an affidavit from a certain friend of mine to that effect? Am I right, therefore, in assuming that all documents are now available?
The LORD CHANCELLOR: My Lords, my noble friend gave assurances to the noble Baroness that nothing is being withheld from the historian or the public in this matter; that we are anxious that anything that is known about the Romanov tragedy should be published. I admire the impeccable historical interest of the noble Baroness, but I hope that now she will accept, for at least the second time, this assurance from me.
Baroness WARD of NORTH TYNE-SIDE: My Lords, I beg leave to ask the second Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government who has been given access in the past eight years to a document produced at the Foreign Office and identified at the time as a section of the Brest-Litovsk Treaty dealing with the safety of the Romanov family.
The LORD CHANCELLOR: My Lords, any document which could conceivably meet the description given by the noble Baroness which might exist among the records of the Foreign and Commonwealth Office would probably have been transferred to the Public Record Office
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by now, but I regret that from the description given in the Question it has been impossible to identify the document in question.
Baroness WARD of NORTH TYNE-SIDE: My Lords, while thanking the noble and learned Lord the Lord Chancellor for that Answer, may I ask whether he is aware that a document was seen? I have seen the affidavit to this effect. Am I to understand from him that the particular document, which is slightly controversial from the British point of view at that time in the War, has been transferred?
The LORD CHANCELLOR: My Lords, again I can assure the noble Baroness that we have made every endeavour to find any document that might correspond to the document she has described. The indexes of the Foreign Office have been searched and no such document has been found which could be described as a section of the Brest-Litovsk Treaty dealing with the safety of the Romanov family. So, in so far as such a document exists, it is not known to exist by any Government Department. I again want to assure her—I do not think I have persuaded her even now—that the Government are very willing to disclose every jot and tittle of information available.
Baroness WARD of NORTH TYNE-SIDE: My Lords, while thanking the noble and learned Lord the Lord Chancellor, may I ask whether the United States of America have any documents?
The LORD CHANCELLOR: Alas! my Lords, my jurisdiction does not extend to the Library of Congress.
Lord BLYTON: My Lords, could the noble and learned Lord the Lord Chancellor say that, when the Russian Revolution took place and the Romanov family were disposed of, there was tight censorship and no relations existed with the outside world? Can he guarantee that the documents now in question are authentic?
The LORD CHANCELLOR: My Lords, I can give no guarantee as to what might have happened in that time of bloody revolution. Anything might have happened to the documents. I can only answer for documents which we know to

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exist. There is reasonable belief that they are authentic; but even as to those I cannot give an assurance on oath.
Lord CAMPBELL of CROY: My Lords, while the Government are making sure that documents relating to the Romanovs are made available, may I ask whether they will also ensure that documents of the period relating to Trotsky are made available for study, especially for the benefit of researchers at Transport House, in view of the rising influence which Trotsky and his theories seem now to be exerting within the Labour Party?
The LORD CHANCELLOR: My Lords I cannot believe that that question was seriously intended.
Lord BRUCE of DONINGTON: My Lords, arising from that question and reply, will my noble and learned friend also ensure that there may be made available to the House some of the documents relating to Suez, which might also throw interesting sidelights up on our history?
The LORD CHANCELLOR: My Lords, that again is interestingly irrelevant to the original Question put to me.

FOOD HYGIENE REGULATIONS
2.45 p.m.
Lord AYLESTONE: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government how frequently hotel and restaurant kitchens are inspected for cleanliness and food hygiene; and whether, following successful prosecutions for dirty kitchens, as in the recent case in Sutton, Surrey, the kitchens are closed down until the required standards are attained.
Lord WELLS-PESTELL: My Lords, responsibility for enforcing the Food Hygiene Regulations rests with the local authorities. The Regulations do not specify how frequently inspections should be carried out and this varies according to local factors, such as the previous standard of particular premises, the availability of staff and any complaints that
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may have been received from the public. The Food and Drugs (Control of Food Premises) Act 1976 empowers the courts, under certain conditions, to order the closure of food premises, following conviction for offences against the Regulations, where there is danger to health, and also empowers the courts to order immediate closure, pending prosecution, when there is imminent risk of danger to health.
Lord AYLESTONE: My Lords, while thanking my noble friend for his reply, may I ask whether he is aware that in this particular case prosecution took place some nine months after the inspector first discovered that the kitchens were, in his own words, "filthy, infested with cockroaches, with refrigerators that do not work" et cetera? At the end of nine months he again inspected the premises and found that they were far from satisfactory. It is perfectly true that a successful prosecution was carried out; but it is extremely disturbing to those people who during that period of nine months may have been eating there.
Lord WELLS-PESTELL: My Lords, I share my noble friend's concern. It is perfectly true that from the application of a summons to the hearing of the case there is in many instances quite a prolonged period; but that does not prevent the public health officer from issuing instructions—as were issued in this particular case—for certain things to be done during the intervening period. In fact that was done. Since the convictions to which my noble friend refers, the conditions of the premises have improved quite considerably, and the public health officers are obviously watching the situation.
Lord DERWENT: My Lords, does not the Minister think that the House has done rather well today—four Questions in 11 minutes?
Baroness LLEWELYN-DAVIES of HASTOE: Yes, my Lords.

GOVERNMENT STATEMENTS
Baroness LLEWELYN-DAVIES of HASTOE: My Lords, with the leave of the House, at a convenient moment after 3.30 my noble friend the Leader of the

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House will repeat a Statement on the visit of the Federal German Chancellor. This will be followed by my noble friend Lord Goronwy-Roberts repeating a Statement on Rhodesia.

RENT (AGRICULTURE) AMENDMENT BILL [H.L.]
The PARLIAMENTARY UNDERSECRETARY of STATE, DEPARTMENT of the ENVIRONMENT (Baroness Birk): My Lords, I beg to introduce a Bill to impose time limits on the duty of housing authorities to notify their decisions on applications under Section 27 of the Rent (Agriculture) Act 1976. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read 1a —(Baroness Birk.)
On Question, Bill read 1a, and to be printed.

DEER BILL [H.L.]
Lord NORTHFIELD: My Lords, I beg to introduce a Bill to repeal and re-enact with amendments the Deer Act 1963; to provide for the better management of deer in England and Wales; to prevent the poaching and the illegal taking, killing and injuring of deer in England and Wales; and for purposes connected with the matters aforesaid. I beg to move that the Bill be now read a first time.
Moved, That the Bill be now read 1a.—(Lord Northfield.)
On Question, Bill read 1a, and to be printed.

PUBLIC LENDING RIGHT BILL [H.L.]
Lord WILLIS: My Lords, I beg to introduce a Bill to provide public lending right for authors, and for connected purposes. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read 1a.—(Lord Willis.)
On Question, Bill read 1a, and to be printed.

TOWN AND COUNTRY PLANNING (SCOTLAND) BILL [H.L.]
2.49 p.m.
The MINISTER of STATE, SCOTTISH OFFICE (Lord Kirkhill): My Lords, I beg to move that this Bill be now read a third time.
Moved, That the Bill be now read 3a.—.(Lord Kirkhill.)
On Question, Bill read 3a.
Clause 4 [Stop notices]:
The Earl of SELKIRK The Earl of SELKIRK moved the following Amendment:
Leave out Clause 4.
The noble Earl said: My Lords, I feel that I must apologise to the House for moving an Amendment on Third Reading, but the Committee stage was taken a good deal later than I thought it would be and there was no Report stage. Moreover, in the other place, a Bill has been produced which has some bearing on what we are discussing in this Bill. My intention—and I think it is a reasonable duty—is to try to clarify some of the issues in this Bill, which has certain (shall I say?) rather strong, perhaps even Draconian, powers taken into it. Under Clause 4, which is new Clause 87, stop notices are limited by three conditions. Those three conditions—(a),(b) and (c) in subsection (2)—start respectively with the words "shall", "may" and "may". I know that we have had a great many discussions at one time or another on what the words "shall" and "may" mean. However, there are two peculiarities about this. The first is that instead of the Secretary of State being the subject of the clause, the planning authority is the subject. The second peculiarity is that in each case the word "shall" or "may" is followed by the word "not". In each case is that requirement obligatory? Is it a categorical imperative imposed on the planning authority?
The word, "may" is a very peculiar word. If one were to say, for instance, "He may not come into the House", those words would have two meanings. They may mean that he may or may not come into the House or they may mean

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that he is not allowed to come into the House. I take it to be—and I believe it is—the Government's intention that each of these conditions is imperative. I should like to have that assurance. I also want to ask the noble Lord why he does not use the word, "shall", which would leave the Government's intention beyond any doubt. This is not unimportant because if the word means, "allow", it would leave a discretion with the planning authority which I do not think is intended in the Bill.
Subsection (2)(b) says that a planning authority may not put a stop notice on a permanent residence. That would be quite reasonable. If a person is living in a permanent residence, to put a stop notice on it, which I suppose would mean pulling down the house or something like that, would probably be rather harsh. Secondly, a stop notice may not prohibit the continuation of an undertaking which has been in existence for 12 months. I should like a categoric statement on that and I should also like an explanation why a more definite word has not been used.
The second matter to which I draw attention arises in subsection (2)(a) of the same clause. It says:
"A Stop Notice—(a) shall not prevent any person from taking any steps necessary to comply…"
What do the words, "any person" mean? For instance, do they mean that if someone erects an unauthorised garage next door to my house I can pull it down? Do they mean, in effect, that if someone stands a caravan next door on someone else's ground I can take it away and perhaps burn it? Is that the intention? The words, "any person" are very wide and I should like to know whether that sort of interpretation is the Government's intention or is permissible under the Bill.
The third matter I wish to raise arises in subsection (5)(b) of new Clause 87. It says that on conviction or indictment a person would be subject to a fine. There is no indication what the fine should be. Is it intended that the fine should be based on the wickedness of the individual, on the cost of putting right what he has done or on the conceivable profits that he might make by doing some nefarious deed? Would it not be better to indicate to the courts what that fine should be? There is a limit as regards summary offences and this is only on indictment. I know that this
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will come before the sheriff court or the Court of Session but should there not be some indication of the fine? I ask those questions because, above all, it is important in town and country planning, which heaven knows is complicated enough, to be clear about the Government's intention and whether the Bill effectively carries out their intention. I beg to move.
2.55 p.m.
Lord CAMPBELL of CROY: My Lords, this clause is a completely new departure in the planning Acts, both North and South of the Border. I moved a like Amendment in Committee, when my noble friend Lord Selkirk was unable to attend. However, a great deal has happened since that debate in Committee. When I inquired whether a completely new departure was taking place in England and Wales, the Minister informed your Lordships' House that a Private Member's Bill was being introduced in another place. The following day it was announced that such a Bill was being introduced and later we discovered that a Member in another place who was successful in the ballot had adopted a Bill, with Government support, with the equivalent for England and Wales of Clause 4 in this Scottish Bill. The matters that we are discussing in the Scottish Bill are of interest to England and Wales as well as Scotland. Moreover, the Bill in another place affecting England and Wales was published and printed only in the last two or three days—it has only just become available. We have been comparing its text with Clause 4 of the Scottish Bill.
Although I received some representations before the debate in Committee on my Amendment, I must make it clear that the body which seems primarily concerned is the Confederation of British Industry. It is not the landowners or property developers, but the CBI who have expressed concern, because they believe that unless this clause is carefully drafted it could cause delays to industry and to industrial projects. I remind your Lordships' House that the Prime Minister himself has said that the Government wish to give priority to the interests of manufacturing industry. Therefore, I hope that the Government will consider carefully the wording of this clause.
As my noble friend said, the clause seeks to extend the use of stop notices. Although

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we on this Bench are not opposed to stop notices being used in circumstances additional to those in which they are now authorised, this clause is very far-reaching. The Explanatory Memorandum says:
"A stop notice will be able to prohibit unauthorised uses of land and breaches of conditions or limitations attached to planning permission, in addition to operations alleged to be in breach of planning control."
There may well be difficulties in practice about interpreting the situations which are visualised. There could be disputes about whether a change of use has or has not occurred. At present I would remind your Lordships that the planning Acts, both North and South of the Border, apply with regard to stop notices only to building operations, engineering or mining. It is not very difficult to prove that those sort of operations are taking place or whether they have been authorised. However, in cases of other uses of land, alleged changes of use and whether or not a use has been established for a period of time in the past, there is great scope for differences of opinion and argument. I warned the Government in Committee that there was this concern and the Minister certainly registered the point.
I turn to what is being proposed for England and Wales. I understand that the weeks between the Committee stage of this Bill and the publication of the Bill for England and Wales two or three days ago have been usefully spent in consulting the organisations and interests concerned. I believe that the Government have had a quick round of consultations—certainly they have been in touch with the CBI. I hope that any changes which they have thought worth making and which have been included in the Bill for England and Wales will be considered also for Scotland.
The Bill for England and Wales has been adopted by my honourable friend Mr. Dudley Smith, it has sponsors from both the Labour and Conservative Parties, and I understand that it has Government support. It is the second item of business on this coming Friday. In another place only the first six Private Member's Bills are first business on a Private Member's Bill day, but if the Bill which precedes it, that on insurance brokers' registration, is considered well before four o'clock, then there is every opportunity of the Bill for
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England and Wales having a Second Reading debate this week, in three days' time. I hope that the drafting of that Bill will also have taken account of the comments which were made here, before Christmas, during the debate on Committee stage of the Scottish Bill.
I would urge the Government not to be shy about having second thoughts and proposing changes to the Scottish Bill if, in the light of the consultations which they have been having and the representations they have received, they think that some changes are necessary. The drafting of the Bill for England and Wales is different at various points from Clause 4 in the Scottish Bill, although it follows the same general form. I would not ask the Minister to describe the differences now, but I hope that when the Scottish Bill reaches another place the Government will avail themselves of any good advice they have received, and will suggest such changes as they think necessary to the Scottish Bill in its further stages.
To sum up, we from this Bench are ready to help with improving the present situation as regards stop notices under the planning Acts, provided that the new proposals are well thought out and practicable; and this applies both North and South of the Border.
3.3 p.m.
Lord KIRKHILL: My Lords, the noble Earl, Lord Selkirk, and I have been in correspondence in regard to his Amendment. I think we are agreed that the noble Earl is concerned mainly with subsection (2) and subsection (5)(b) of Clause 4. The noble Earl is worried by the use of the words "may not" at the beginning of paragraphs (b) and (c), whereas paragraph (a) uses the phrase "shall not". As I have explained to the noble Earl in writing, there is no difference in the practical effects of these different forms of wording. I am advised that the difference is purely a matter of drafting preference. I can perhaps draw a distinction between paragraph (a) on the one hand, and paragraphs (b) and (c) on the other hand which will help to explain the difference in wording.
Paragraph (a) states that a stop notice shall not prevent any person from taking any steps necessary to comply or secure compliance with an enforcement notice.

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It is really concerned with a possible unintended consequence of a stop notice. For example, if a wall is being erected without planning permission, the planning authority might decide to serve an enforcement notice on those responsible, requiring them to remove the wall and restore the land to its former condition. At the same time they might serve a stop notice prohibiting further operations on the site, meaning building operations, but unintentionally including demolition operations as well. This could put the recipients of the enforcement notice and stop notice in an impossible position, because they are prevented by the stop notice from doing what is required by the enforcement notice, in this case carrying out operations to remove the wall. The purpose of paragraph (a) is simply to provide that in this kind of circumstance the enforcement notice overrides the stop notice, and the latter cannot stop anyone who is required to comply with the enforcement notice from doing so.
If I understand the noble Earl correctly—and from some informal conversation we had on this point I think that I do—he has somehow got the impression that paragraph (a) makes a stop notice almost like a vandals' charter, whereby all and sundry can go around knocking down walls declared by the planning authority to be in breach of planning control. Let me say at once that this is not the case. This provision is concerned only with people who, but for the stop notice, would legally be in a position to take the steps required by the enforcement notice. It in no way disturbs the protection of people's private property afforded by the criminal and civil law, even if that property was built without planning permission.
If I may return to the distinction between "shall" and "may", while paragraph (a) deals with an unintended consequence of stop notices, paragraphs (b) and (c) are concerned with the intentional actions of the planning authority. These provisions say what the planning authority, in serving a stop notice, may not do. A stop notice which purports to prevent someone from using a house or caravan site as his permanent residence has no effect whatever—and I think the noble Earl mentioned that point—and a planning authority who attempt to serve such a notice will be overstepping their
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legal authority. There is no way in which a stop notice can have that effect, or in which it can stop an activity commenced more than 12 months beforehand. The words "may not" therefore have the same effect as "shall not", the only difference being that in the former case we are dealing with the conscious decisions of responsible local authorities, whereas in the "shall not" case of paragraph (a) we are dealing with unintended consequences. It is for that reason that the drafting distinction is made.
I welcome the comments made by the noble Lord, Lord Campbell of Croy. He very correctly says that this, as we see it, improvement to Scottish planning procedure, carries a fair measure of cross-Party support, as is evinced by the fact that one of his honourable friends in the other place is sponsor of a Bill which will have some Government support. I shall certainly take note of his observations remarking, as he has, that it will be necessary to make sure that the English and Scottish legislation march in step. In so far as this is practical within the terms of my responsibility I shall undertake to see that this is done.
I think I should say to the noble Lord that over the last three years there has been an ongoing review of Scottish planning procedure, largely in response to pressures upon the Scottish Office from those most concerned and interested, and this is one more example of just that. I think it is right to remind your Lordships' House, on the assumption that in the not too distant future there is the creation of a Scottish Assembly, that then of course Scottish planning matters will stand devolved, and this is a factor which T would have to consider.
I should also say to the noble Lord that I am not impressed that the CBI need to worry too much. Planning authorities must be regarded as responsible bodies. I think we should accept that as an a priori assumption, and that it is in their own interests to assist and not to hinder industry in their own area. With that observation, I would urge on the noble Earl, Lord Selkirk, that his fears are without foundation, and in the light of my explanation I am confident that he might feel able to withdraw his Amendment.
The Earl of SELKIRK: My Lords, I should like to thank the noble Lord for what he has said. I have no intention of continuing this discussion. I still think that subsection (2)(a) is a trifle wider in meaning than the noble Lord suggests, but I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Lord KIRKHILL: My Lords, I beg to move that the Bill do now pass.
Moved, that the Bill do now pass.—(Lord Kirkhill.)
On Question, Bill passed, and sent to the Commons.

MARRIAGE (SCOTLAND) BILL [H.L.]
3.10 p.m.
Lord KIRKHILL: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, that the House do now resolve itself into Committee.—(Lord Kirkhill.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD ABERDARE in the Chair.]
Clause 1 agreed to.
Clause 2 [Marriage of related persons]:
Lord KIRKHILL Lord KIRKHILL moved Amendment No. 1:
Page 1, line 12, leave out ("of paragraph 1").
The noble Lord said: I think it would be for the convenience of the Committee to discuss at the same time Amendments Nos. 2, 4, 25 and 26. As these Amendments are framed at present, Clause 2 and Schedule 1 would be unlikely to cause any practical difficulty because marriages involving the forbidden degrees are rare and those involving the remoter degrees are well-nigh non-existent. The Bill has been criticised, however, by a university lecturer writing in the Scots Law Times who has suggested that the proposals as set out would give rise to as much confusion as exists at present. While it is arguable whether all of the criticisms made are well founded, it may be accepted that some of them seem to have force. Certainly in the view of the Government if there is any area of doubt, that doubt should be removed.
The Amendments, by setting out comprehensively the position with regard to related persons, will ensure that the forbidden degrees in Schedule I represent the complete list of forbidden degrees and that any marriages between persons related outwith the specified forbidden degrees will not be invalid because of the relationship. The separation of the relationships by consanguinity, affinity and adoption as is done in the Amendment to the Schedule will render the list more easily understandable. There is no change in the composition of the list as presently set out in Schedule 1. It accords with the recommendations of the Kilbrandon Committee, apart from the question of adoption, and is in effect the same as the list which is currently applied in Scotland and in England and Wales. While arguments may be advanced for the inclusion or exclusion of particular relationships, there does not seem to be any good reason for amending the existing law, which has worked acceptably in the past; and very strong reasons would need to be advanced to justify establishing different forbidden degrees for marriage in Scotland as compared with those in the rest of Great Britain.
The Schedule to which Amendment No. 26 relates, which is Schedule 1, amends the list of forbidden degrees foreshadowed by the Amendments to Clause 2. The list is precisely the same as it is in the print of the Bill except that it has been broken into its component parts of relationships, as I have been saying, by consanguinity, affinity and adoption. This change clarifies the groups and makes the list more easily understood.
Lord CAMPBELL of CROY: One of the Amendments which the noble Lord, Lord Kirkhill, suggested should be discussed with No. 1 is No. 25, in my name, and I agree that it is best to have a general discussion on the subject of the forbidden degrees of relationship where marriage is concerned. The intention is excellent—that the Bill should set out afresh and clearly the forbidden degrees and so attempt to clarify the law as it exists at present—and the list must be considered under the three heads which the Government have now put in by their Amendment No. 26: consanguinity, which is common ancestry; affinity, which is relationships through marriage; and adoption.

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Schedule 1 as amended also appears to carry out the recommendations of the Committee chaired by the noble and learned Lord, Lord Kilbrandon, but the Law Society of Scotland considers that there is an additional relationship which should be prohibited, and that is dealt with in my Amendment No. 25, to which I shall come shortly.
As Lord Kirkhill said, there may still be some confusion because of the existence of common law and because of the Incest Act 1567. It was the university lecturer, Mr. David Sellar of Edinburgh University, who wrote about this in the Scots Law Times. He has averred that by repealing all the Scottish marriage laws, but not the Incest Act, doubts and anomalies will remain and, to quote from his article:
"The proposals in the Bill are ill-thought out and poorly drafted and would, if translated into law, give rise to as much confusion as exists at present."
I recognise straight away that the Amendments which the Governent have put down at least meet some of that criticism. At the time that the Incest Act was passed in Scotland in 1557 a Marriage Act was passed, in the same year, and the two measures were then complementary; but since then there have been alterations to the latter, the Marriage Act, without corresponding adjustments to the former, and this has created what Mr. Sellar describes as a labyrinth of confusion law. This could of course be happening again because the Kilbrandon Committee was asked to consider the law in relation to marriage and not the incest legislation.
Mr. Sellar contends that, for example, marriage with a deceased husband's brother could again become forbidden because the previous legislation on marriage is being repealed but not that on incest. This reminds us of the 1906 Election issue; whether the law should be changed to permit a man to marry his deceased wife's sister. This could all come up again. As a result of that Election issue the law was changed by the 1907 Act, but not before one leading politician at that General Election, when needled on the subject at a public meeting, declared that not only was he in favour of enabling marriage to a deceased wife's sister—it should be compulsory.
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The Government's response to Mr. Sellar's views has been the Amendment to Clause 2, and I think the new subsection (3) attempts to clear up the general point about confusion. The Law Society of Scotland certainly welcome it, but that Society draw attention to certain ambiguities which they believe remain in the Bill, this arising from the fact that the Kilbrandon Committee, on whose recommendations the Bill is based, was dealing with marriage and not incest. They now suggest that Clause 2 and Schedule 1, which we are now discussing, should be taken out of the Bill altogether and that a new Bill should be introduced on that. I recognise that this may not be practicable in Parliamentary terms for the Government to do, but I must tell the noble Lord that that is what the Law Society are now suggesting.
Now I come to my particular Amendment, Amendment No. 25. The effect of this would be to prohibit marriage with a grandchild through adoption. There are not many cases where this is likely to present itself as a possibility because of the difference of age that is likely in such cases. None the less, the Law Society of Scotland believes that it should be included and, certainly, some marriages which have received publicity recently have involved very wide differences in age.
The Kilbrandon Committee on pages 15 and 16 of its report stated that one object of these prohibitions was to preserve the stability of the family, in particular where a person was likely to become in loco parentis. This is a case where this could well happen; in a situation where both parents of an adopted child had died and a grandparent was still alive, that grandparent would in most cases be the person who would be expected to act in loco parentis.
That is the kind of reason why the Law Society believes that this relationship should also be added to Schedule 1 as a prohibited relationship. The adopted son or daughter relationship is already covered and this just takes it a generation further. There may be good reasons why the Government have decided not to do this; we shall be interested to hear what they have to say on Amendment No. 25.
Lord KIRKHILL: I should like initially to respond to the comments of the noble Lord, Lord Campbell of Croy, anent

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Amendment No. 25. I concede that a case can be made out for the extension of the list of the forbidden degrees in the adoptive relationship and I agree that this was recommended by the Kilbrandon Committee, as the noble Lord has just said. However, the whole question of the forbidden degrees in the adoptive relationship was considered by the Houghton Committee on Adoption. That Committee rejected the proposals of the Kilbrandon Committee and recommended that only the existing prohibition on the marriage of an adoptive parent with his or her adopted child should be continued. The Houghton Committee's recommendation was given effect to in the Children Act 1975. The Government do not think it desirable to make a further change so soon after Parliament has confirmed that the forbidden degrees in the adoptive relationship should remain as at present. It is the Government's view that it is desirable that the list should continue to be the same on both sides of the Border.
The noble Lord, Lord Campbell of Croy, has mentioned, as I did in earlier remarks, criticism of part of the Bill by Mr. David Sellar in an article in the Scots Law Times. It might be helpful to your Lordships if I were to set out as briefly as possible the Government's response to a number of points that have been raised. Mr. Sellar's main criticisms were as follows: first, the Bill would nullify all the amending legislation of this century in relation to forbidden degrees, or at least render its effect doubtful. The noble Lord, Lord Campbell of Croy, has made mention of this. Existing marriages within the degrees permitted by the Marriage (Enabling) Act 1960 would arguably become void. My comment on that is that, in his reference to previous amending legislation, Mr. Sellar referred specifically to the Marriage (Enabling) Act 1960 and suggested that its repeal would revive the prohibitions on marriage which that Act permitted. It is probably the case that, with the repeal of the 1567 Act, all the forbidden degrees in respect of marriage fall because the terms of the 1567 Act do not allow there to be forbidden degrees other than those specified in "the Word of God" made part of our law by that Act. However, the new subsection (3) puts the matter beyond doubt. The forbidden degrees listed in the Bill are to be exhaustive.
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A further criticism made by Mr. Sellar is that, as the prohibition on the grand uncle/grand niece marriage rests on common law, it will still be prohibited under common law because the Bill does not say that marriages contracted outwith the prohibited degrees are valid. I would comment upon that that there cannot be common law forbidden degrees other than those specified in the 1567 Act.
A further criticism made was; that there is doubt as to the validity of a marriage of a man with his wife's illegitimate sister, or with her niece and that between grand uncle and illegitimate grand niece. I would comment upon that that any such doubt will be removed by the new subsection (2), combined with the fact that marriages outwith the list of forbidden degrees as specified in the Schedule will not be invalid because of relationship between the parties.
Mr. Sellar argued that it should be made clear that marriage between a man and his adopted sister and marriage between direct ascendants or descendants by adoption (apart from a adopter and child.) are valid. I would comment that no charge is being made in the existing law on this matter, but in any case, the Government Amendments will make it clear that such marriages are not invalid because of the adoptive relationship.
It was further averred that the Bill does not remedy the confused state of the law regarding what constitutes incest. Specific reference has been made to this point by the noble Lord, Lord Campbell of Croy. I would comment that it is recognised that there may be a good case for amending the law on incest, but the law on incest and on forbidden degrees for marriage is based on two separate Acts. Incest is a criminal matter. In the Government's view, it would have been inappropriate to deal with it in a Bill on the civil law of marriage. It may be the case that there is some social relationship between the purposes of the two laws, but the forbidden degrees of marriage should not necessarily coincide with those for incest, nor should they necessarily be dealt with in the same Statute. Certainly, in the Government's preparations for the Bill the law of incest was not ignored. It is accepted by the Government that the law is obscure and that modifications may be required in the specifications of the relationships

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within which sexual intercourse constitute the crime of incest, but the law of incest has not been the subject of the kind of study that is appropriate for the modernisation of an ancient law. The Kilbrandon Committee was clearly of the opinion that incest was outwith their province and so did not make recommendations about it. So it is no part of the Bill's contention to deal with incest. To do so would be outwith the ambit of the Long Title.
However, the Government have concluded that a study of the law of incest should be made before any restatement of that law is attempted. They consider that a reference to the Scottish Law Commission is the most appropriate course. The Government are now engaged in consultations with the Law Commission about the remit and the form it might take.
Lord CAMPBELL of CROY: It does not seem that anyone else wishes to discuss these Amendments and I shall start by saying that, in the light of the noble Lord's reply about the difference of opinion between the Kilbrandon Committee and the Houghton Committee, I am only sorry that neither noble Lord is with us. Having chaired their respective Committees with distinction, they could have argued the point out here in our debate.
However, I see that the Houghton Committee considered the whole question of adoption and that its recommendations related to the United Kingdom and were not confined to Scotland, whereas the Kilbrandon Committee was considering the marriage law in Scotland. I agree that, in the interests of uniformity, there ought to be one law covering the whole country in these matters. What the noble Lord has said will no doubt be read carefully by the Law Society of Scotland and we shall hear at later stages in the Bill whether they have any further comments to make.
The noble Lord also answered the comments which the Law Society of Scotland had made about the Incest Act by saying that this was not an appropriate Bill for making changes on that subject because there was a difference between altering the criminal law and making the changes proposed in this Bill to the Marriage Acts. I do not know whether that will satisfy the Law Society
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of Scotland. That is the Minister's answer, but no doubt in due course we shall hear further observations from the Law Society on the Minister's reply.
In the light of his reply I would commend to the Committee the Minister's Amendment No. 26 which is the same in substance as Schedule 1 to the Bill but puts in headings, helpfully. I would not press my Amendment No. 25, but I was glad to have the Minister's views expressed upon it, and I think that the other Amendments which the Government have tabled, including Amendment No. 1 which has been moved, are acceptable and are improvements to the Bill.
On Question, Amendment agreed to.
Lord KIRKHILL Lord KIRKHILL moved Amendment No. 2:
Page 1, line 14, leave out ("paragraph") and insert ("Schedule").
On Question, Amendment agreed to.
Baroness LLEWELYN-DAVIES of HASTOE: My Lords, I think it would be for the convenience of the Committee if I beg to move that the House do now resume.
On Question, Motion agreed to, and House resumed accordingly.

FEDERAL GERMAN CHANCELLOR'S VISIT
3.32 p.m.
The LORD PRIVY SEAL (Lord Peart): My Lords, with the leave of the House, I will repeat a Statement being made in another place by my right honourable friend the Prime Minister, about the visit of the Chancellor of the Federal Republic of Germany from 23rd to 24th January.
"This was one of the series of regular six-monthly visits between the British and German Heads of Goverment.
"Chancellor Schmidt was accompanied by Herr Genscher, Vice-Chancellor and Federal Minister of Foreign Affairs; Dr. Apel, Federal Minister of Finance; Dr. Friderichs, Federal Minister of the Economy; and Herr Leber, Federal Minister of Defence. On our side the Chancellors

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of the Exchequer, the Foreign and Commonwealth Secretary, the Secretary of State for Energy and the Secretary of State for Defence took part. We began with a general discussion between all Ministers followed by a series of bilateral talks and then we came together again for a final session. This pattern worked well, and the Federal Chancellor and I agreed to repeat it at our next meeting.
"The talks covered a wide range of international and Anglo/German bilateral matters. I expressed to the Chancellor the appreciation of Her Majesty's Government for the support which the Federal Government has given us in recent weeks in connection with the IMF loan and the Safety Net; both of which have contributed greatly to more stable conditions in the international money markets.
"Much of our talks was concerned with the present world recession and how we should approach the series of international meetings which are in prospect over the next few months. We were agreed that a properly prepared meeting of leading industrialised countries would be helpful in co-ordinating our policies for bringing the world out of recession.
"Britain's prospects for recovery in 1977 are based on growing exports and I emphasised the importance we attach to continuing expansion in the economies of the world, including those of the United States, the Federal Republic of Germany and Japan, as a means of generating greater expansion and more employment in the rest of the world.
"We reviewed the present position of the negotiations between the industrialised countries and the developing countries in the C.I.E.C. [Conference on International Economic Co-operation].
"We also discussed our relations with the Soviet Union and the preparations for the talks that will take place in Belgrade this summer to follow up the agreements reached at Helsinki.
"On defence matters, we welcomed the declared intention of President Carter and of the Soviet Union to seek a new agreement on Strategic Arms Limitation and agreed that the Vienna
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negotiations on reducing conventional arms should be given a new impetus.
"We did not attempt to reach a final agreement on the question of offsetting the cost of stationing our troops in Germany on which our two Governments hold different positions. The Federal Chancellor pointed out that similar arrangements with the United States had already been brought to an end. Our discussions will continue and we are both confident that we shall with time reach a conclusion on this matter.
"Our joint interests with the Federal Republic of Germany cover many areas—in the European Community, in NATO and more recently in the Security Council of the United Nations. I am glad to report that in all these fields our relations are close and in good repair."
My Lords, that concludes the Statement.
3.36 p.m.
Lord CARR of HADLEY: My Lords, of course from this side we welcome regular and close exchanges between the British Prime Minister and the Chancellor of the Federal Republic, and we hope that this is a series of meetings which will continue in a constructive manner. But I should tell the noble Lord that there are two things on the economic side which worry us. First, the need to tackle inflation worldwide is very great—and not just in this country. Therefore we believe that we should do ourselves a poor service in the long run if we were to be successful in persuading the Federal Republic and other countries to take action which might set in train a new burst of inflation worldwide. So I cannot help saying to the noble Lord: are we wise to be doing this?
Secondly, it seems to us that we as a country are in no position to tell countries like Western Germany, or Japan, or the United States, how they should manage their economic affairs when we have been so patently unable to manage our own. Again we would say to the Government: are we wise to be trying to lecture other countries much more successful than we are on how they should manage their economic affairs?
With regard to the defence aspect, we note the closing sentence of the Prime

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Minister's Statement in which he says that he is,
"glad to report that in all these fields our relations are close and in good repair."
But I am bound to say to the noble Lord that it seemed that in the particular reference to the vital subject of offsetting the cost of our troops stationed in Germany, they were very far from close agreement. I wonder whether the noble Lord can say something more to us about that and indicate when we might hope for a conclusion which will be satisfactory to both sides.
Lord GLADWYN: My Lords, we on these Benches can only welcome the Statement which has been read out by the Leader of the House. We welcome the obviously satisfactory nature of the conversations which have taken place. Whether this is due in any way to the fact that we hear that Chancellor Schmidt gets on better with the present Prime Minister than with his predecessor, we do not know. If that is the case, then it is very welcome to us also.
I have only two questions to ask. First, I note that in the final paragraph of the Statement it says:
"Our joint interests with the Federal Republic of Germany cover many areas "—
notably in the European Community, which I am sure is true. Therefore, can we take it that there was some discussion of the best way to handle Community problems in the Community, now that Britain has the Presidency of the Community? Was that matter at all referred to in conversations with the Chancellor? And if not, would it not have been a good thing if it had been?
With regard to the second question I have to ask, I note also that there was some discussion on defence matters which was, however, confined, if I understand it rightly, to the,
"declared intention of President Carter and of the Soviet Union to seek a new agreement on Strategic Arms Limitation ",
and so on. That is all very well and very good, but was there perhaps any discussion of the possibility of some kind of reorganisation of European defence within the framework of the Atlantic Alliance? That is a question which in any case seems to us on these Benches to be becoming
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increasingly urgent, and I should have thought that it is something to which it might be supposed that the Chancellor of the German Republic might lend a sympathetic ear.
Lord PEART: My Lords, I hope noble Lords will appreciate that I was not in the talks and that I have to rely, naturally, on what has been conveyed to me in documents. All I can say first to the noble Lord, Lord Carr, on the question of inflation, is that of course I am not saying we should lecture the German Government; but I think we have made commendable progress here. I referred to this when we had an economic debate, and no doubt we can develop this theme further tomorrow; but we need not apologise on this. There was no question of lecturing the Germans: it was a friendly discussion between two Heads of Government. I think we should regard it as such; and we welcomed it. On the question of defence and offsetting, yes, there were discussions on that. There was no agreement, but I understand this matter will be pursued further.
In reply to the noble Lord speaking for the Liberal Party, as to how best we should handle matters in the Community, undoubtedly there were informal discussions on that. I believe it is quite right that we should, wherever possible, with our Community partners, play our part and be Communautaire. I learned that lesson, even though I used to be a critic. I was once a critic of the Community, but we are in and I believe that we must make it work. Some people forget this. Again, mention was made of defence and as to whether or not some reorganisation of defence in Europe can be speeded up. I think we must work through NATO. I think that that is the right channel.
Lord DOUGLASS of CLEVELAND: My Lords, is my noble friend aware that, on the economic side, Herr Vetter, the Secretary of the German TUC, has declared that unemployment will not be cured by investment and has suggested that there ought to be a work-sharing system introduced into Germany? This, of course, has been resisted by the unions in Germany, who are calling for longer holiday periods and things of that character. But if we have arrived at a point wherein the economy of Germany, which has been so satisfactory in the past, now

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visualises that investment will not cure unemployment, are we giving any consideration to this aspect of the economic problem facing not only this country but every country in the world, including Germany and Japan?
Lord PEART: My Lords, I am afraid I could not comment in detail about the position in Germany. I think my noble friend has raised an interesting point, but I think it is a matter which he could well pursue in our debate tomorrow. It is a very important point.
Lord WIGG: My Lords, would the Minister not agree that the offset costs to this country are not less than £1,000 million a year and that the German contribution, under the agreement which expired last March, was only £20 million; and could he tell us whether this enormous gap between the outlay of £1,000 million and the German contribution of £20 million remains as large as ever, or has it been narrowed?
Lord PEART: My Lords, I cannot say specifically, but it was discussed, and I did reply to the noble Lord opposite on this matter. I am sorry that I cannot give details of the discussion; but I am prepared to follow it up.
Lord BALOGH: My Lords, would my noble friend agree that it is not for noble Lords opposite to blame us for the cost of the Rhine Army, because that matter was not included in the Bonn Agreement giving back to Germany its sovereignty?
Lord PEART: My Lords, I do not want to pursue this matter. I think I made my position clear. There has been a discussion about this, and at this stage I will leave it at that.

RHODESIA
3.44 p.m.
Lord GORONWY-ROBERTS: My Lords, with permission, I shall repeat a Statement on Rhodesia now being made by my right honourable friend the Secretary of State for Foreign and Commonwealth Affairs in another place. The Statement is as follows:
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"With your permission, Mr. Speaker, I wish to make a Statement about Rhodesia.
"As I told the House on the 14th December, I authorised Mr. Richard to adjourn the Geneva Conference and to undertake intensive consultations in Southern Africa with a view to laying the foundations for an agreement on an interim Government. In particular, I asked him to develop with the parties some new and positive ideas, including our ideas on the direct role which Britain would be ready to p ay in the transitional period.
"Following Mr. Richard's first round of consultations, we set out what we had in mind in a document, copies of which have been placed in the Library. This document was given to each of the Geneva delegations, the four African Front Line Presidents and Mr. Vorster.
"The suggestions in the paper did not constitute a cut and dried British plan. Nor were they presented on a ' take it or leave it' basis. They were intended to provide a serious and detailed basis for negotiations, and were open to amendment and modification in the light of those negotiations.
"But in our view these proposals represented a reasonable way forward. They were designed to meet the concern of the Nationalists that the transfer to majority rule should be rapid and irreversible, and of the white Rhodesians that it should be peaceful and orderly. They would have led to the ending of the war, and the lifting of economic sanctions. They were supported by the American Government, and would have set the stage for an international trust fund to help develop the Rhodesian economy and give financial reassurance to Rhodesian Europeans. They would have provided a basis for a prosperous, independent and non-racial Rhodesia.
"It was therefore with a deep sense of disappointment that we learnt yesterday that Mr. Smith, alone of the parties, had rejected the ideas which we had put to him, even as a basis for further negotiation. Mr. Smith claims to have left the door open for further negotiations by expressing his readiness to implement the 'Five Points' put to him by Dr. Kissinger in September last year. But it was clear from an early stage of the Geneva Conference that the Nationalist

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delegations could not agree to accept these proposals as a basis for negotiation. That was why we put forward our own ideas which we believed offered a reasonable way of bridging the gap between the parties.
"Mr. Smith has claimed that our proposals would have led to chaos and Marxist rule. But if there is such a risk, it is much more likely to be created by his rejection of these proposals. He has once more shown his inability to face reality.
"We have to accept that this present round of discussions is at an end. We now need—all of us—to take stock and to make a cool appraisal of the new situation. I have instructed Mr. Richard to remain in Southern Africa for a few more days to discuss these latest developments with some of the parties. He will then return and report to me with a full assessment of the attitudes and expectations of those concerned.
"Mr. Speaker, yesterday's events represent a serious setback to all our hopes for peace in Rhodesia. We must now give intensive study to any options which may still be open to us in this new situation. For our goal remains a peaceful and orderly transfer to majority rule in Rhodesia."
My Lords, that is the end of the Statement.
3.49 p.m.
Lord CARRINGTON: My Lords, the House will be grateful to the noble Lord, Lord Goronwy-Roberts, for repeating that Statement, which I think will be received in all quarters of the House with disappointment and a good deal of foreboding. I must say that I think this has been a lost and wasted opportunity. If one considers the enormous stride forward that was made by Mr. Smith's acceptance of the five Kissinger points and compares that agreement with his statement not so very long ago that he would not accept majority rule in a thousand years, it seems to me that there has been a really wasted opportunity. I must also say that I think it a very great pity that the Geneva Conference was not based on what had seemed to be the general acceptance by all parties of the Kissinger proposals. It should be noted that Mr. Smith—and he has been greatly criticised—has never deviated from those five points.
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I do not understand the phrase in the Statement that it was clear from an early stage of the Geneva Conference that the nationalist delegations could not agree to accept these proposals as a basis for negotiation. I had thought that that was exactly what they had done; and that it was exactly on that basis that the Geneva Conference was called. I must also say that I think it a very great pity that the Africans did not accept what was in essence an enormous step forward, with only a short interim period before majority rule, and refused to negotiate on the basis of the Kissinger proposals. Certainly if a genuine settlement was wanted without bloodshed, a great opportunity was missed.
My Lords, I also think—and I must say this frankly—that it was a very great pity that the Front Line Presidents insisted on Mr. Nkomo and Mr. Mugabe as, it seems, the sole representatives of the Rhodesian Africans. That made it very much more difficult for the negotiations to be successful. I think that one must be very careful about criticising negotiations when one is obviously not in possession of all the facts; but I must also say that I do not think that these negotiations were carried out with the sense of urgency that one would have expected; and I am afraid—and this is no reflection on Mr. Ivor Richard—that I do not think he carried the authority that was necessary in a negotiation of this kind.
It is very difficult now to see what is going to happen. I agree with the noble Lord that we must sit down and take a look at it. It may be that the only possible step forward is an initiative by the American Government. But it is a new American Government and we shall have to wait to see what happens. In the meantime, perhaps I might ask the noble Lord whether the Foreign Secretary, who at one stage, I think, said that he was prepared to visit Africa if he thought it useful, intends to do so in the near future.
Lord BANKS: My Lords, we on these Benches are grateful also to the noble Lord, Lord Goronwy-Roberts, for repeating the Statement made in another place. We very much regret the breakdown of these negotiations. We think it is much to be deplored that Mr. Smith should have refused to negotiate on the basis of the British proposals. He was not asked

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to accept them as they stood; they were put forward as a basis for negotiation, as the Statement made clear. Indeed, Mr. Smith has been fortunate as a rebel Prime Minister—which is what he is—to have had the opportunity to negotiate at all.
We should certainly welcome more information about the precise nature of the proposed British proposals. We must admit that the outlook for Rhodesia today seems bleak, but we can only hope that a return to negotiation will be possible before long. In the meantime I should like to express appreciation of Mr. Ivor Richard's very considerable efforts.
3.54 p.m.
Lord GORONWY-ROBERTS: My Lords, may I thank both noble Lords for the restrained character of their contributions this afternoon and express thanks particularly for the agreement of the noble Lord, Lord Carrington, that we should give ourselves a period of time for a cool appraisal of what is bound to be a difficult and dangerous situation? He referred to lost and wasted opportunities. Indeed, there have been five such in the last eleven years. It depends upon what point of view one takes towards the reasons for the breakdowns of the five attempts to reach a reasonable solution. He said that Mr. Smith's statement on 24th September last was a step forward. It was. He accepted majority rule within a short time. But I must take momentary issue with the noble Lord when he says that the so-called five points, Five Principles, which have been fathered on Dr. Kissinger, were greatly different from our own new proposals. I appreciate that it is only now that the full statement of our new proposals is available generally in the Library of the House.
I should like to assure him—and he can test this from his own reading of the proposals—that they are not fundamentally at variance with the content and spirit of the so-called Five Principles. I agree with the noble Lord, Lord Banks, on this point. Mr. Smith might well have consented at least to negotiate on that basis if he was genuine about negotiating the Five Principles. I think that on examination the House will agree he could easily have negotiated on the basis of the
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new proposals put to him and to the African leaders by Mr. Richard. Mr. Smith is the only one of the Parry to have refused to negotiate on these new proposals.
Naturally, a question arises whether in fact he genuinely wishes to negotiate. I very much hope that he does. I know that Her Majesty's Government, and certainly the Secretary of State, are most anxious that he should reconsider the position, and I do not think I am going beyond the bounds of propriety when I say that we understand that the South African Prime Minister also takes this view. As I have said, the American Government supported the proposals which we put forward. My Lords, as to the intentions of the Secretary of State, naturally he will want very carefully to consider the situation, but, as he said in his statement of 14th December, if it seems necessary and advisable that he should visit Africa, he holds himself in immediate readiness to do just that.
Lord PAGET of NORTHAMPTON: My Lords, the noble Lord might well recollect that when this caper to Geneva was first proposed I warned him that it had no chance of success and would only bring discredit upon Her Majesty's Government. I take no pleasure in having been right. We backed the Kissinger proposals; we committed ourselves to them and we have now reneged on them. Mr. Smith has stood by them. We now propose that Smith should negotiate to hand over immediate power to guerrilla forces who are committing gross atrocities in his country and should ask his defence forces opposing those guerrillas to put themselves under the command of the guerrilla leaders. What seriously does he expect Mr. Smith to say to such proposals? I take little pleasure in finding my Government and my country disgracing them selves in this manner.
Lord GORONWY-ROBERTS: My Lords, may I commend to the noble Lord, Lord Paget, a cool appraisal of the Statement of the Secretary of State which I have repeated in this House together with a study of the document that I have put into the Library this afternoon before he launches himself once more on his own kind of tremendous philippic on Southern Africa.
Baroness GAITSKELL: My Lords, despite the Minister's very kind words to the noble Lord the Leader of the Opposition, for whom I have the greatest respect, may I say that I do think that the words of the noble Lord the Leader of the Opposition showed a great ignorance of the situation in Southern Africa, of the United Nations and of everything concerned with the situation in Rhodesia? The statement of the noble Lord the Leader of the Liberals was far nearer the facts of the situation. May I further ask, because there have been criticisms of Mr. Ivor Richard, whether it would not be true to say that he was the best man to take on the chairmanship of the Geneva Conference because of his great experience of the law, of the United Nations and of the Africans in the United Nations with whom he has dealt for quite a long time?
Lord GORONWY-ROBERTS: My Lords, I would not wish to set up a kind of transitional Government between my noble friend and the noble Lord, Lord Carrington. I join very much with my noble friend in the tribute she has paid to Mr. Ivor Richard's attempts to seek to obtain a solution to this extremely difficult problem. No one in this House will minimise the difficulties and dangers of this problem, and we have among us some of the best minds of the country who have experience of these difficulties. I am very grateful to my noble friend for giving voice to the general appreciation of the efforts of Mr. Richard.
4 p.m.
Lord HOME of the HIRSEL: My Lords, I am sure everybody will feel that it is extremely disappointing that the Geneva Conference has failed. It is not surprising from the way the events unfolded. I want to ask the noble Lord one question about the Statement. What basis is there for the sentence in the Statement that says that, with the acceptance of the British proposals, the war would have ended? It was my impression that Mr. Nkomo and Mr. Mugabe made it clear that the war would go on. In those circumstances, it is not surprising that Mr. Smith refused the present proposals, ft is" however" difficult to get a complete picture in a short time, and the exchange of question and answer is rather unsatisfactory. I wonder whether
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the noble Lord the Leader of the House and my noble friend would consider, when the Government have carried out their re-assessment, holding a short debate on the Rhodesian question?
Lord GORONWY-ROBERTS: My Lords, I have no doubt that if the noble Lord and others engage in discussions through the usual channels a suitable opportunity for an exchange of views on these matters can be arranged, and the opportunity to clarify some of the points, such as the question put to me by the noble Lord, will then be more available. I will only say at this point on that question that we have always said that the end of the war and of sanctions would inevitably follow the setting up of a transitional and interim Government.
Lord HOME of the HIRSEL: My Lords, if the noble Lord will forgive me for one second, we could guarantee the end of the sanctions; but the Africans have not guaranteed, as I understand it, the end of the war.
Lord GORONWY-ROBERTS: My Lords, I agree that it is a matter for argument. I should have thought that the two would go together because of the fact of the setting up of a transitional Government. Such an act would be an historic and impactive new event, a fact of life, in Rhodesia. I would not underestimate its effect upon all parties concerned. No doubt in debate we can discuss and argue about these matters.
Lord NORTHFIELD: My Lords, may I ask my noble friend whether he appreciates that noble Lords on this side and in all parts of the House understand that Her Majesty's Government have been engaged in a thoroughly thankless task in Rhodesia? They will get no joy and no credit in the world for trying to bale out a rebellious régime and a most unhappy historic situation. Despite the grave disappointment in the outcome so far, will my noble friend confirm that Her Majesty's Government will not abdicate, will remain ready to intervene again as soon as the situation indicates that such intervention will be helpful and that we will, as a Government and as a country, continue to contribute positively and openly to finding a solution to the Rhodesian problem rather than deserting the scene?
Lord GORONWY-ROBERTS: My Lords, the Statement that I have repeated explicitly gives an affirmative to the question put by my noble friend towards the end of his supplementary question. I gladly repeat it now. I should also like to say that I am sure that my right honourable friend will appreciate what my noble friend said at the beginning of his interjection; namely, that he appreciates—as we all do—the peculiarly difficult and dangerous character of the situation and the difficulty of the negotiations.
The EARL of ONSLOW: My Lords, as what we are all striving for in Rhodesia is to make sure that the European contribution to African civilisation is preserved, but with access for all races under a free régime, would the noble Lord comment on the following three points: First, we over-indulged the African susceptibilities and did not give due credit to Mr. Smith's susceptibilities. I am sure that it is perfectly reasonable to argue that the susceptibilities are intrinsically unimportant, but in negotiations this is how human beings work. Also Mr. Smith, with his essentially suburban mind and with his back totally against the wall because he is frightened, is more likely to be over-sensitive of his personal and the Rhodesian Fronts' point of view. Thirdly, on the point which my noble friend Lord Carrington raised, the fact that the so-called Front Line Presidents recognise the Nkomo/Mugabe faction, did this not further push Mr. Smith into a corner?
I am sure that the noble Lord is aware that I have no sympathy with Mr. Smith. I regard him as a rebel against the Crown. Is the noble Lord aware that if one is to keep the one object in one's mind, which is to maintain the best civilisation which Europeans brought to Rhodesia, together with wealth and employment, somehow we have to get round these problems in a free society?
Lord GORONWY-ROBERTS: My Lords, on the matter of Mr. Smith's personal feelings, he is not, of course, the only person in Rhodesia in a leading position who has personal feelings about what has been happening there for so many years. So far as I know, he has not been imprisoned; others have. But I take the point that in these negotiations
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it is always important not to affront people's personal susceptibilities, especially when they are in a leading position. I believe that Mr. Ivor Richard in his broadcast a few days ago in Rhodesia made it clear that he, on the spot, did not believe that there was any real reason for Mr. Smith to feel affronted in a personal sense.
The second point which the noble Earl raised referred to the action of the so-called Front Line Presidents in endorsing the patriotic front; and this indeed they did. We understand however that, having done so, they in no way ruled out the possibility of other delegations attending a resumed conference or a future conference. So while there was a necessary gesture, as they saw it, it did not prejudice the all-embracing nature of a resumed conference or a new conference. I have not a note of the third point the noble Earl mentioned; perhaps he will help me.
The Earl of ONSLOW: My Lords, the third point was the over-indulgence of African susceptibilities as opposed to the under-indulgence of Mr. Smith's susceptibilities.
Lord GORONWY-ROBERTS: My Lords, perhaps I answered that in my reply to the first point, and the noble Earl will no doubt do me his usual courtesy of examining what I said in cold print tomorrow morning.
Lord GORE-BOOTH: My Lords, I have one precise question to ask May I first associate myself with those noble Lords who have the impression which I have, that Mr. Richard has handled this almost impossible negotiation with considerable spirit and authority. One should not underestimate the position in the world held by the British Representative at the United Nations. The noble Lord used the word "alone" applying to Mr. Smith. Does that imply something in regard to the all important attitude of South Africa? If I may give the Minister an escape route, if he felt that question was prejudicial at this moment, if there is a debate he will possibly then be able to tell us more about that matter as it is so important.
Lord GORONWY-ROBERTS: My Lords, I am most grateful to my noble

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friend. As to attitudes, I am not entitled to speak explicitly about the attitude of any other Government, but I think it is clear to all that the South African Prime Minister, Mr. Vorster, has made it perfectly clear that he is most anxious, and responsibly anxious, that there should be an early opportunity to resume the quest for a settlement of this matter. We very much welcome his attitude. As to the attitudes of the black Africans, the black Rhodesians, it is perhaps encouraging to note that Mr. Nkomo has referred to the new British proposals (the document I have put in the Library) as being objective and valid.
4.11 p.m.
Lord HANKEY: My Lords, with the advantage of hindsight, does it not appear that perhaps Her Majesty's Government and Mr. Richard have not been closely enough informed during these negotiations about the attitudes of the African nationalists in Rhodesia and, for that matter, of Mr. Smith and his Party? May I make a constructive suggestion to the Government? If there is the further chance of any kind of negotiation or settlement, the chances of success would be very much better if, despite everything that has happened, they could bring themselves to send a first-class diplomat—under any title one liked to give, such as, for example, diplomatic agent—to Salisbury, in order to keep in touch with the development of Mr. Smith's thoughts and of white and black opinion in Rhodesia. This would also keep Mr. Richard, if he continues the job, or certainly our own Secretary of State and Government, closely informed about developments—because without it one might reasonably doubt whether we could create opportunities or take advantage of them when they arise.
Lord GORONWY-ROBERTS: My Lords, I will certainly take note of the suggestions made by the noble Lord, Lord Hankey, and so will my right honourable friend.
The Marquess of SALISBURY: My Lords, may I ask whether it is true that Her Majesty's Government's proposals for the interim council which is to take control of Rhodesia are not very similar to those
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put forward by Mr. Mugabe and his faction? If that is so, it would appear that Her Majesty's Government are adopting his proposals and asking Mr. Smith to accept them or negotiate on something very close to them. In view of what Mr. Mugabe has said he will do in Rhodesia, surely it is not unreasonable for Mr. Smith to turn them down?
Lord GORONWY-ROBERTS: My Lords, I do not think I can be very helpful in discussing the details of a paper which perforce I have not been able to put to public use before today, and that includes the role of the council which has been raised by the noble Marquess. As to the motives and policy of Mr. Mugabe, he is one among a number who have a policy for Rhodesia. He is entitled to express his thoughts and to join in general discussion in conference. Beyond that, I would not describe Mr. Mugabe's rights or future actions.
Lord BROCKWAY: My Lords, all of us must deeply deplore the breakdown of these negotiations. I think we must be terribly fearful of what is going to happen in Southern Africa, which includes not merely Rhodesia but Namibia and the Republic itself, with the appalling prospect of violent struggle hanging over the whole area. I want to express my agreement with the noble Lord, Lord Carrington, when he said that the statement made by Mr. Ian Smith, accepting majority rule in two years, was quite momentous. The difficulty is this: in previous negotiations Mr. Smith has made statements which have been subsequently disavowed in later negotiations. I should like to make a particular appeal to my African friends. They may react violently in this situation: I hope they will not do so. I hope they will take the view, with Her Majesty's Government, that one has to sit back and consider.
May I also make this constructive proposal: that Her Majesty's Government should immediately ask the Security Council of the United Nations to discuss this situation as being one which carries a danger of war, and to seek to bring together all the elements involved with a view to reaching a solution.
Lord GORONWY-ROBERTS: My Lords, on the second point raised by my

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noble friend, I think it would be premature to consider steps of that kind; but I welcome very much what he has said about the need for his African friends—and they are friends of all of us—to cool it and to look to the future of their country in a rational spirit of co-operation, looking to an early resumption of conference. My noble friend has referred to his African friends. I hope his appeal reaches them and is listened to by them, because my noble friend is one of the very best friends they have had for many years.
Lord COLERAINE: My Lords, may I ask the noble Lord whether his attention has been drawn to an article in The Times newspaper today by Mr. David Spanier, the diplomatic correspondent at Geneva, in which he states quite categorically that it was not so much Mr. Smith who insisted that the Kissinger proposals were a package, but Dr. Kissinger himself, who made it a condition that they were not negotiable and that the whole package had to be either taken or left? I do not know whether the noble Lord can categorically deny what The Times correspondent said; but in any case would it not be more useful, if we really desire a settlement with the Rhodesian people rather than with the so-called Front Line Presidents, to take up the Kissinger proposals again and start off from there?
Perhaps that would be unacceptable to the Front Line Presidents, but may I ask the noble Lord what exactly is their locus standi in this affair? Why should they have more influence on what goes on in Rhodesia than, say, Her Majesty's Government should have in what goes on in France or Germany? Surely the people we have to negotiate with are the Rhode-sians, black and white, and not with these so-called Front Line Presidents, some of whom we know to be Marxist-directed and Marxist-oriented.
Lord GORONWY-ROBERTS: My Lords, the people we have to consider and principally negotiate with are the people of Rhodesia, and I gladly join in describing them as black and white Rhodesians, and indeed Rhodesians of other colours as well. However, Rhodesia is surrounded by other countries which have a natural interest in its future. My noble friend Lord Brockway pointed to the appalling
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consequences of failure to achieve a settlement in Rhodesia for the whole of Southern and Central Africa. Therefore, the South African Prime Minister and the so-called Front Line Presidents have a natural interest in what happens, so it is right that we should consult and even negotiate with them. As to his reference to The Times—I always read Mr. Spanier's contributions, with great respect—I have not had time to evaluate his article of today, although I have had time to evaluate the leading article which I found very fair to the role of Her Majesty's Government in all this.
Lord PEART: My Lords, I think that we have had a good innings on this, but I will allow one noble Lord to ask the last question.
Lord DOUGLASS of CLEVELAND: My Lords, I thank my noble friend the Leader of the House for this opportunity. As an old negotiator, may I ask whether we can escape the conclusion that we have sent Mr. Richard naked into the negotiating chamber? The strength of Dr. Kissinger was his military and commercial power arising from the strength of the USA itself. If this is the case, can we not, with all our experience of the Colonies and the Commonwealth, and with all the trust which they have in us, approach Mr. Carter, who is as yet undeclared on this problem, and get a collaboration with the USA that will put behind Mr. Richard the strength that Dr. Kissinger had? In this way, we would get a common sense solution of this problem, based on the experience of this country in dealing with these other countries, on the trust that they have in us and on the strength of the United States?
Lord GORONWY-ROBERTS: My Lords, I have referred to the very helpful and constructive attitude of the Government of the United States—that of the Administration of President Ford, and I have absolutely no doubt of that of President Carter—and I welcome my noble friend's reference to that. In support of everybody's attempt to keep this matter cool, may I say that my noble friend's reference to sending Mr. Richard naked into the conference chamber summons up visions of quite extraordinary vividness, knowing him as well

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as I do. May I close on this note? Like those who preceded Mr. Richard in the search for a solution of this problem, he has aplied himself, his considerable intellect and his complete integrity, in an admirable way and I am sure it is right that the whole House, whatever one thinks of the course of the negotiations, should express its appreciation of his efforts to achieve a solution.

MARRIAGE (SCOTLAND) BILL [H.L.]
4.22 p.m.
House again in Committee.
Lord KIRKHILL Lord KIRKHILL moved Amendment No. 3:
Page 1, line 15, at end insert—
("if solemnised—

(a) in Scotland; or

(b) at a time when either party is domiciled in Scotland.").

The noble Lord said: This is purely a drafting Amendment designed to make it expressly clear that a person who is domiciled in Scotland cannot contract a valid marriage, either in Scotland or elsewhere, with anyone to whom he is related within any of the forbidden degrees and brings it into line with the formula used in Clause 1. It reflects in statutory terms what is the common law rule of private international law. I beg to move.
On Question, Amendment agreed to.
Lord KIRKHILL Lord KIRKHILL moved Amendment No. 4:
Page 1, line 16, leave out subsection (2) and insert—
("(2) For the purposes of this section a degree of relationship exists—

(a) in the case of a degree specified in paragraph 1 of Schedule 1 to this Act, whether it is of the full blood or the half blood; and

(b) in the case of a degree specified in paragraph 1 or 2 of the said Schedule, even where traced through or to any person of illegitimate birth.

(3) For the avoidance of doubt, where a person is related to another person in a degree not specified in Schedule 1 to this Act that degree of relationship shall not bar a valid marriage between them; but this section does not affect any rule of law that a marriage may not be contracted between persons either of whom is married to a third person.").
The noble Lord said: I formally move this Amendment, which we have already discussed.
On Question, Amendment agreed to.
Clause 2, as amended, agreed to.
Clause 3 [Notice of intention to marry]:
Lord KIRKHILL Lord KIRKHILL moved Amendments Nos. 5 to 11 en bloc:
Page 2, line 10, leave out ("or").
Page 2,line 12, at end insert—
(";
(c) in any case where a certificate is required under subsection (5) below, that certificate.").
Page 2,line 20, leave out ("or subsection (5) below").
Page 2,line 30, leave out ("foregoing") and insert ("other").
Page 2,line 31, leave out ("Without prejudice to the foregoing provisions of this section,").
Page 2,line 33, leave out ("shall, if practicable, submit to the district registrar") and insert ("is required, if practicable, to submit under subsection (1)(c) above").
Page 2,line 37, leave out from ("marry") to end of line 45 and insert—
(":
Provided that such a party—

(i) may, where under the law of the state in which he is domiciled his personal law is that of another foreign state, submit in lieu of the said certificate a like certificate issued by a competent authority in that other state;

(ii) need not submit a certificate under paragraph (c) of subsection (1) above if he has been ordinarily resident in the United Kingdom for a period of two or more years immediately before the date on which he submits a marriage notice under that sub section in respect of the said marriage.").

The noble Lord said: I think it will be for your Lordships' convenience if we discuss Amendments Nos. 5 to 11 en bloc. Ideally, these Amendments should be taken together. They include a number of drafting Amendments, to make it clear that the certificate of freedom to marry is to be produced at the same time as notice of marriage is given to the registrar. They also cater for the situation where a party intending marriage, though domiciled in one country outside the United Kingdom, may be a national of another such country; in such a case the Amendment allows production of a certificate issued by the second country. That is Amendment No. 5.
On the first point, it is intended that when notice of marriage is submitted by a foreign person—that is, someone domiciled outside the United Kingdom—it should, unless he has lived in Scotland for two years or more, be accompanied by the certificate of freedom to marry

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provided for in Clause 3(5), just as notices of marriage are to be accompanied by birth certificates or other documents under Clause 3(1); production of the certificate is thus an integral part of the legal requirements of giving notice of marriage. The present wording of Clause 3(5) does not make this clear; hence the new paragraph (c) of subsection (1). The reason for seeking to link the certificate with the notice of marrige is to give the registrar the maximum amount of time to consider the certificate, or any reason advanced for its non-production.
On the second point, the Amendments take account of complications which arise from the different legal criteria applied in different countries to determine to what personal law a person is subject. In the United Kingdom, the rule is that a person's domicile determines what is his personal law. Other countries, however, apply nationality as the determining factor. The present subsection requires a person domiciled in a foreign country to produce a certificate from that country; but that country—for example, France—applying the test of nationality, would hold that it was not competent to provide such a certificate for an Italian national on the basis of his domicile in France. In such a case, the first paragraph of the priviso to Clause 3(5) would enable the submission of a certificate issued by the other State—in this case Italy—being the State of his personal law. I think that that explains the position in regard to these Amendments, and I do not think I can usefully add to what I have said. I beg to move.
The DEPUTY CHAIRMAN of COMMITTEES (Lord Derwent): Is the noble Lord asking that these Amendments should be moved en bloc?
Lord KIRKHILL: It appeared to me to be a very convenient way of dealing with them. But if there are those who feel otherwise, I will move them singly.
On Question, Amendments agreed to.
Clause 3, as amended, agreed to.
Clause 4 agreed to.
Clause 5 [Objections to marriage]:
On Question, Whether Clause 5 shall stand part of the Bill?
4.28 p.m.
Lord CAMPBELL of CROY: I should like to raise some points on Clause 5 stand part. I gave some notice to the noble Lord, Lord Kirkhill, that I would raise them, but I do not necessarily expect him to be able to give a full reply today, because I shall be raising some far-reaching matters. This Bill will abolish the reading of banns in church, which give an opportunity for objections to be raised to a marriage, and it introduces a new system whereby registrars will have to consider whether or not there is an impediment to a marriage. Obviously, there are the clear objections to a marriage—that is, the discovery that one of the parties is already married, even though he may not think he is, because of some divorce proceedings not being valid; or the fact that one of the parties is under age—and these are dealt with in the Bill. But then there is one paragraph which deals with other grounds for objection to a marriage. That is short and vague and is paragraph (e) of subsection (3), near the top of page 4, which states:
"a ground other than one mentioned in paragraphs (a) to (d) above, where the district registrar is of the opinion that the objection if substantiated might constitute a fundamental objection to the marriage."
So that provision gives the registrar discretion, in his opinion. Then it says that it "might constitute", lot that it necessarily would constitute. So it is vague. We have no indication in the Bill of the kind of objections which the Government have in mind.
Then there is an unexplained gap, because the immediately following subsection (4) begins:
"If the Registrar General is satisfied…that there is a legal impediment to the marriage…".
So we have jumped straight from what might be an objection to a legal impediment to the marriage. Subsection (3)(e) is the district registrar and subsection (4), from which I have just quoted, is the Registrar General. But there appears, anyway to this layman, to be an unexplained gap because there is a great difference between a ground which, in the opinion of the district registrar, might be a fundamental objection and a legal impediment. If there is no legal impediment, then the Registrar General informs the district registrar. As I say, there is

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nothing in the Bill to guide the Registrar General or the district registrar in a situation where there is no legal impediment but where there is an objection which could be fundamental. I am seeking, therefore, some description of what happens if a district registrar finds a ground for objection under paragraph (e) of subsection (3).
May I give an example which I think is the one that is most likely to arise; that is, in the medical field. The only reference in the Bill to medical matters and possible impediments or objections to marriage is to be found in subsection (4)(d); that is, in the paragraph at the top of page 4. There it is said that it is an objection to marriage if there is a doctor's certificate, but the doctor's certificate is to establish only that a person is of sound enough mind to understand the nature of the ceremony and what marriage is about. Consequently, that paragraph will cater for those unfortunate people who are so mentally retarded that they should not marry at all; it deals simply with gross idiocy. This is the only part of the Bill that refers to any medical objections. It deals with gross idiocy but not with mental illness. It is not clear whether there are any medical circumstances contemplated as falling within paragraph (e) of subsection (3)—that is to say, grounds other than those which have been enumerated in the earlier paragraphs.
If we turn to the report of the Kilbrandon Committee upon which this Bill is based, we see that the Committee recognised that medical conditions, probably unknown to the person concerned at the time, could cause unsatisfactory and unhappy marriages. The Scottish Marriage Guidance Council suggested in its evidence, which is at Appendix 4 of the report, that there should be a National Health Service medical examination on a voluntary basis before marriage to find out whether there was mental illness and what the Council described as "other barriers to marriage". In their evidence the Marriage Guidance Council appears to accept that some mental illness can be a barrier to marriage. The Kilbrandon Committee supported in paragraph 44 of their report the principle of a medical
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examination as a sensible step, but it did not propose that it should be compulsory. I agree straight away. I do not think that there is any question of a medical examination being made compulsory but, as the Kilbrandon Committee recommended, it is advisable.
Physical conditions which may wreck a marriage are easier to deal with than mental conditions. Usually they are known to the person concerned. But what does the district registrar do if he receives an objection, probably from a parent of one of the parties proposing marriage, that is based upon serious mental illness which is then fully substantiated by the appropriate specialist doctors? This is a subject which needs investigation now in a way which was not necessary when change and reform of the marriage laws was considered in the past. The reason is that in the last 20 years there have been great advances by the medical profession in the diagnosis and treatment of mental illness. With much more authority doctors can now certify that there is hereditary mental illness, although it may not necessarily afflict each and every descendent in every case. The danger can, however, clearly be seen nowadays and a warning can be given.
Further, we come to treatment. Many sufferers who, in the past, would have had to be in institutions are now able to lead a fairly normal life in the community in protected environments. This is possible with tablets, treatment and medical supervision. The young people whom I have come across in this situation deserve encouragement as well as sympathy, but who is to say whether they should marry? Can they marry if they agree not to have children? These are extremely difficult sociological problems which affect the community and individual freedom; and they are comparatively new, as I have said, because of the very welcome advances which have been made in the medical field. The Bill gives us no guidance. It is a complete blank on any medical grounds other than gross idiocy.
May I ask the noble Lord whether the Government have any views upon this problem: whether it is their proposal that it should be left to the discretion of registrars to cope with the situations which arise in their areas in the light of

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the individual circumstances of each case, or whether the Government have simply overlooked these problems in reforming the legislation because they were less evident, less frequent, and less pressing in the past when reform was being carried out and, therefore, were not previously catered for in the marriage laws of Scotland.
To sum up, I have drawn the attention of the Committee to what I believe is a gap between paragraph (e) of subsection (3) and the following subsection (4) and I have given an example of difficult problems which will arise that will need Parliamentary discussion. If the noble Lord cannot say very much at this stage I will understand completely and I shall hope that he will be able to give us some answers at the Report stage.
Baroness ELLIOT of HARWOOD: May I ask the noble Lord one question. I think that the noble Lord, Lord Campbell of Croy, said that this clause would abolish, if I am not using too strong a word, banns being read in church when people wish to get married. I realise that this does not happen if people wish to get married in a registry office. May I ask the noble Lord what this clause intends with regard to people who wish their banns to be read in church, as they have been read for centuries'? Would the clause alter the situation? If it would, that would be regrettable.
4.40 p.m.
Lord KIRKHILL: The noble Lord, Lord Campbell of Croy, very kindly gave me advance notice that he would touch and, indeed, more than touch, that is, discuss in some detail matters of considerable and wide-ranging import. I think it would be for the interests of the Committee if I were to outline in general terms the thinking of the Government in regard to Clause 5. It should be understood that, apart altogether from what is said in Clause 5, the registrar has the duty in every case of satisfying himself that there is no legal impediment to a marriage before he grants facilities to marry by completing the Marriage Schedule. Clause 5 deals only with cases where a member of the public lodges an objection on any of the grounds specified in that clause. Registrars will be instructed that they are not permitted
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to refuse facilities to marry to any person except with the authority of the Registrar General and this will apply particularly where an objection is submitted by a member of the public under Clause 5. Subsection (2)(a) makes it clear that where the registrar receives an objection on any of the grounds specified in subsection (3) he shall immediately notify the Registrar General. In accordance with subsection (4), it is the latter who will decide whether the objection does or does not constitute a legal impediment to the marriage. So far, therefore, there is no real area of discretion open to the registrar.
Two questions then arise about subsection (3)(e)—a subsection to which particular attention has been paid by the noble Lord, Lord Campbell of Croy, in his recent remarks. First, why is the wording so generalised, and, secondly, why should it be the registrar's opinion as to the possibly fundamental nature of an objection that determines whether or not he refers the objection under subsection (3)(e) to the Registrar General? This is another question posed by the noble Lord, Lord Campbell of Croy.
On the first point, subsection (3)(e) is included primarily to cover the situation where, although a proposed marriage conforms with the formal and substantive requirements of Scots law, it would be void under the laws of another country to which at least one of the parties was subject. There is no point in allowing foreigners to proceed with a marriage ceremony if the marriage would be void ab initio under the laws of their own country. District registrars, however, can hardly be expected to have sufficient knowledge of the laws of other countries to be able to determine such matters with confidence; the subsection enables them, if an objection on such grounds is lodged and if they think it may be justified, to notify the Registrar General for advice and to suspend proceedings. The general wording of the subsection also acts as a "catch-all" provision. For example, it would cover the (unlikely but not impossible) situation of an objection lodged on the ground that both parties to an intended marriage were males (or females).
On the second point, the district registrar will not in practice have any real area of discretion. If an. Objection

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is lodged with him on a ground other than those at subsection (3) paragraphs (a) to (d), and if he is not of the opinion that it might, if substantiated, constitute a fundamental objection to the marriage (as at subsection (3)(e)), it will fall to be dealt with by him in accordance with paragraph (5). In other words, he will have to notify the parties, make appropriate inquiries and, if the result means that any change or correction to any marriage document is necessary, for example, because of wrong names or ages given, he will notify the Registrar General to obtain his approval. If, of course, the outcome of the registrar's inquiries gave him any cause to believe that there was, or might be, a fundamental objection, he would then deal with it under subsection (3)(e) and would refer it to the Registrar General.
It is not the case, therefore, that the district registrar will be invested with wide discretion to accept or reject objections or otherwise to grant or refuse facilities to marry. I am advised that objections are very rare and so is refusal of facilities to marry. I think it would be fair to say that registrars do not act arbitrarily: they work under the direction and instruction of the Registrar General, and noble Lords may be assured that no registrar would refuse facilities to marry as a result of an objection without first consulting the Registrar General and being guided by him.
The various legal impediments to marriage in Scotland are set out clearly in paragraphs (a), (b), (c) and (d) of subsection (3). Perhaps at this point I might mention the question posed to me in the latter stages of the remarks made to the Committee by the noble Lord, Lord Campbell of Croy. It is certainly not the intention of the Government, within the confines of this Bill, to extend the present known and clearly enunciated legal impediments to marriage. I must emphasise that point. The last of the legal impediments, under subsection (3)(b) is that one or both of the parties is or are incapable of understanding the nature of a marriage ceremony or of consenting to marriage. It is important to note the very limited nature of this impediment—and hence the limited nature of the objection that may be taken into account. Such matters as mental illness, mental
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disturbance, mental backwardness or other genetic defects are not in themselves under Scots law legal impediments, and the clause does not provide for objections on those grounds. The text is the comparatively narrow one of whether the person or persons concerned can understand what is meant by marriage and can knowingly consent to enter into marriage.
It is indeed true, as the noble Lord, Lord Campbell of Croy, said, that striking advances in psychiatric knowledge and in the treatment of mental illness have taken place in recent years; and these advances may well enable mentally afflicted persons to enter into marriage. The Bill will not prevent this: in this respect it will apply only the limited test which I have already mentioned. It would be a new and, in the view of the Government, a very serious departure if we were to seek to forbid marriages on genetic grounds, however ill advised an individual marriage might appear to be in this respect. This is not a feature of the Bill which, therefore, does more than adopt the recommendation of the Kilbrandon Committee.
I listened carefully to what was said by the noble Lord, Lord Campbell of Croy, in his submission when he spoke about subsection (3)(e) and I acknowledge that the subsection is widely drawn. Therefore I give the noble Lord an undertaking to give this matter some further thought. Whether it will be possible for me to come back to your Lordships' House with subsection (3)(e) redrafted in a rather different manner, or whether the point will have to stand over for consideration in another place, is something to which I shall have to give further thought. At least the noble Lord has my assurance that we will take into account very seriously the comments that he has made this afternoon.
With regard to the remarks made by the noble Baroness, Lady Elliot of Harwood, this particular clause does not in any way prevent the proclamation of banns being read.
4.49 p.m.
Lord CAMPBELL of CROY: I am grateful to the noble Lord, Lord Kirkhill, for having told us how the Government see the operation of this clause. First I should like to comment on what he has just said to my noble friend Lady Elliot

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of Harwood, because the point I was making was that the effect of this Bill is that the system of reading out banns disappears if they can be read out but it is not necessary for them to be read out.
Lord KIRKHILL: Perhaps I may intervene for a moment. I thought the noble Baroness, Lady Elliot of Harwood, asked me whether banns could no longer be read out. The fact is that they can be read out if it is so wished.
Lord CAMPBELL of CROY: Simply in order to avoid misunderstandings, I wanted to be clear. The problem arises because a new system is being substituted for the old system of reading banns in church. But that does not mean that if people want notices to be read in church they should not be read. The actual system is now being changed so far as the official recognition of objections to marriages is concerned.
What the noble Lord, Lord Kirkhill, has told us is that the operation of the clause will be to give the district registrar no discretion. I was glad to be told that. It is the way the Government see it working. He is simply a repository for objections and he denies facilities until the matter has been cleared up, but he is in fact only a post office for the Registrar General. So far as dealing with the objections is concerned, they go to the Registrar General; he is the person who has to decide whether there is a legal impediment to marriage.
There is still one point to which I must revert. The noble Lord, Lord Kirkhill, said that paragraphs (a) to (d)—and in this he was confirming what I had earlier interpreted—include all the present legal impediments to marriage in Scotland. He then went on to say that it is not the Government's intention that any legal impediment should be added in this Bill. But we then have paragraph (e), which is the sweeping up paragraph, which then says that any other objections are none the less acceptable, even though all the main impediments are dealt with in paragraphs (a) to (d). Therefore, paragraph (e) I recognise as a sweeping up paragraph, but at present it looks as though there really is no matter which could be raised under paragraph (e) if it is not permissible to raise it under paragraphs (a) to (d).
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It is, if I may describe it in cricketing terms, a long-stop paragraph. But it is a very long long-stop; the fielder is almost on the boundary. So that we still have this query—at least, I do in my mind—as to what other grounds there could be under paragraph (e) which could be translated by the Registrar General under subsection (4) as legal impediments if all legal impediments have been dealt with under paragraphs (a) to (d). I do not expect an immediate reply from the noble Lord, because he did kindly say that he would have another look at paragraph (e), and we shall at Report stage know more about it. I think the noble Lord was indicating that he wished to say something.
Lord KIRKHILL: I had conceded that paragraph (e) was rather widely drawn. I was going to make the observation that a fundamental objection is not necessarily a legal impediment, but, of course, it would be for the Registrar General's consideration.
Lord CAMPBELL of CROY: I think the answer is that probably paragraph (e) has been put in for safety reasons, to cover the unknown that might arise, and I am not against that in drafting if it is going to make the Bill 100 per cent. But naturally we have a curiosity, when we see such a provision in a Bill, to know what kind of thing it is intended to catch.
As I say, I am exceedingly grateful to the noble Lord for having given us a statement at this stage. It is quite clear that medical grounds, other than those which might happen to be caught in paragraphs (a), (b), (c) and (d), are not in themselves regarded as a legal impediment, or in fact an objection or a barrier to a marriage where legislation is concerned. In my earlier remarks I pointed out that certainly in its evidence the Marriage Guidance Council in Scotland suggested that certain illnesses, including certain mental illnesses, were a barrier to marriage. So that remains, but it is clear that the Government are not intending to cater for that in this Bill.
Lord FERRIER: If the intention of the noble Lord, Lord Kirkhill, is that paragraph (e) should be very vague, I am reminded of an Indian lawyer's remark to me on one occasion that "if you want to be vague you must be very vague".
Clause 5 agreed to.
Clause 6 [The Marriage Schedule]:
On Question, Whether Clause 6 shall stand part of the Bill?
Lord CAMPBELL of CROY: There is one point which has been raised by the Law Society of Scotland on the procedure which is proposed in the Bill. I think this is the moment when I ought to inform your Lordships' Committee about it. It may be that the noble Lord will wish to look into this and give your Lordships' House the answer at Report stage. Subsection (5) of Clause 6 states that a Marriage Schedule issued under the clause shall be valid only in respect of a marriage to be solemnised on the date and at the place specified in the Schedule. But the clause is silent on the question of the validity or otherwise of a marriage solemnised on another date at another place. That is the first point.
In other clauses; namely, Clause 4(1), Clause 7(2), Clause 19(1) and subsection (4) of this clause, Clause 6, the Bill deals with the question of the dates of receipt by the district registrar of a marriage notice or approved certificate and the issue by him of a Marriage Schedule. In the case of an approved certificate, the date of receipt to be entered in the marriage notice book by the registrar, "shall be the date fourteen days before the actual date of such receipt". This could produce the curious result under subsection (4) of this clause of the registrar issuing in certain circumstances a Marriage Schedule (in the case of an approved certificate) before he had actually received the certificate. Similarly, under Clause 19(1) it would appear that a registrar could in certain circumstances solemnise a marriage before actual receipt of an approved certificate.
I received these points only in the last few hours from The Law Society, who have been working under some pressure, like the noble Lord, with the many comments that have been made on this Bill. I thought this was the moment when I should point out this difficulty about procedure which they see, and enable the Government to look into it.
Lord KIRKHILL: These are points of detail to which I shall certainly give my
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consideration. I am unable, of course, to respond at this stage.
Clause 6 agreed to.
Clause 7 [Marriage outside Scotland where a party resides in Scotland.]:
Lord KIRKHILL Lord KIRKHILL moved Amendment No. 12:
Page 6, line 10, after ("3(1)") insert ("(a) and (b)").
The noble Lord said: This Amendment is consequential on the Amendments made to Clause 3. I beg to move.
On Question, Amendment agreed to.
Clause 7, as amended, agreed to.
Clause 8 [Persons who may solemnise marriage.]:
The DEPUTY CHAIRMAN of COMMITTEES (Lord Derwent): The noble Lord, Lord MacLeod of Fuinary, is not moving the Amendment on the Marshalled List, but is moving a Manuscript Amendment in lieu.
4.57 p.m.
Lord MACLEOD of FUINARY Lord MACLEOD of FUINARY moved the following Manuscript Amendment in substitution for Amendment No. 13:
Page 6, line 38, at end insert—
("( ) a minister of the established Church of Scotland; or").
The noble Lord said: I regret that I have had to suggest this addition. I was under the impression that it appeared in the original, but that may have been my fault; I appreciate the action of Her Majesty's Government in putting out a cyclostyle so that people may understand the Amendment, which is of some importance. It in fact reads:
"a minister of the established Church of Scotland or a minister, clergyman, pastor…"
and so on to the end of the paragraph. However, right at the end of this very short speech I shall be repeating it in the light of what I am explaining. I thought the Amendment was in the original document I produced, and I apologise that it does not seem to be so.
I have two declaratory words: first of all, I want to make a personal statement, that I am a minister of the Established Church of Scotland, which is to declare an

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interest; and, secondly, that I have in my hands a communication from the Administration Committee of the Church of Scotland, who have examined the Bill in its present form. They asked me to say that with one exception they not only accept its contents but are preparing a "Declaratory Act" for the General Assembly of the Church of Scotland in May to bring the Church's regulations into line with certain of the contents of this Bill. They have already communicated, both to the Secretary of State for Scotland and to the Registrar General, what they intend to do.
The one exception is what brings me to my feet. It is the total absence of any reference to the Established Church of Scotland in the present Bill. This is not simply a technicality. In what might be called the last relevant Act of parallel content to this Bill for England—namely, the Bill enacted in 1949—there are no fewer than ten pages devoted entirely to the implications of the marriage law for the Established Church of England. Only then does the 1949 Act proceed to other and non-conformist denominations comparable to the clauses that are before us. However, in this Bill the Established Church of Scotland is not mentioned at all. The Established Church of Scotland is merged with other Christian non-conformist denominations, and thus becomes subject to regulations that may be made by the Secretary of State, as is stated in Clause 8.
Everyone present knows that the Established Church of England is Episcopalian and that the Established Church of Scotland is Presbyterian. Everyone knows that the constitutional relationship of the Sovereign to the Church of England is well declared and that there is a constitutional relationship between the Sovereign and the Established Church of Scotland. Indeed, its General Assembly cannot convene without the authority of the Crown. In this Jubilee year Her Majesty has graciously consented to be present in person on the throne at the opening of our General Assembly in May. Everyone here knows that when the Sovereign cannot be present the Lord High Commissioner represents her and lives at Holyrood while the Assembly is in session. Again, the Sovereign is constitutionally identified with the Church of England while in England and she is constitutionally identified with
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the Presbyterian Church in Scotland because, for instance, she attends the Presbyterian parish church at Balmoral at Craithie.
The only royal chaplains in Scotland are drawn from the ministry of the Church of Scotland. The numerical memberships of Churches are notoriously difficult to compare because of different interpretations of what constitutes membership. However, if Whitaker's Almanac is correct the population of England is around 44 million, while the Church of England seems to claim as members around 4 million or one in every 11 persons. In parallel, if Whitaker's Almanac is still correct, there are about 5 million people in Scotland and the recorded membership of the Church of Scotland is around 1 million. That indicates that one in every five persons is a member of the Church of Scotland. I quote these figures not for their own sake but lest anyone imagines that the Established Church of Scotland is a dwindling historic remnant when it has by far the largest membership in Scotland.
As the Bill stands the Church of Scotland is equated with non-conformist counterparts. Its unique establishment is as it had never been. Is it really the Government's intention, for this is how the Bill seems to read, that the Sovereign should convene the General Assembly of the Church of Scotland as the national Church, but that the Secretary of State for Scotland will then decide to make regulations as to its status as a suitable body to conduct marriages? The Established Church of Scotland is not asking that 10 pages of the Bill should be devoted to the exact relationship between Church and State in Scotland in this matter. It is simply by my Amendment asking that it be recognised as a suitable body—right now—to conduct marriages by reason of its already established status. I therefore move that Clause 8 should read—and this includes the last Amendment:
"A marriage may be solemnised by and only —
(a) a person who is—
(i) a minister of the established Church of Scotland or a minister, clergyman, pastor or priest of such religious body as may be prescribed by regulations made by the Secretary of State."
I beg to move.
5.6 p.m.
The Earl of SELKIRK: I support the Amendment moved by the noble Lord, Lord MacLeod of Fuinary. I found it hard to understand quite how this clause came to be drafted at all. Apart from questions of forbidden degrees, we are dealing primarily with facilities for minor religious bodies, particularly non-indigenous bodies—Sikhs, Moslems and others—for which arrangements can be made. However, here we are delegating from the major Christian religions which exist in Scotland.
There was a time in this country when only one religion was permitted. It existed before the Reformation and after the Reformation, when the only Church was the kirk. At the end of the 17th century ideas of tolerance began to filter through. In 1711 the Episcopalians received statutory rights to conduct marriages, as subsequently did the Roman Catholics, in 1834. Churches are wholly dependent on the goodwill of the Secretary of State as to whether or not they are allowed to conduct religious marriages at all.
I do not understand the purpose of this. I do not like to suggest this, but is it really simply bureaucratic convenience, because we are taking from the well known Churches a right that many of them have had, particularly the Church of Scotland, for a very long time? It is really a little more serious. In the first place, whatever is prescribed—and I refer to Clauses 25 and 26—does not even come before Parliament. Parliament had no say in what was or what was not prescribed.
We have learned today from a Cabinet Minister that in the Labout Party there are, and have been for a long time, Marxists. A number of people think that religion is a sort of opiate to the people. I dare say that that view is sincerely held. They may and probably do genuinely believe that religion is an evil influence on the life of people. They might very well refuse to prescribe any religion to conduct a religious marriage. They might even go further than that—they might bargain with one of the religious bodies on whether or not they should be allowed to conduct religious marriages.
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This is not a Bill to last simply for five or six years; it may be on the Statute Book for hundreds of years hence. This is a subject which indubitably will be devolved in the event of the Bill in the other place being passed. If that is the case we do not have the faintest notion who would be responsible for prescribing who is competent to conduct religious marriages. Religious marriages are very important. We complain a great deal about divorce and I believe that a sounder foundation for a lasting marriage is found in a church rather than outside it. I do not have statistics to prove that, but I believe that they would. It is of the utmost importance that recognition should be given in the Bill to the Established Church on grounds which the noble Lord, Lord MacLeod, has admirably explained. I do not understand why this clause has been drafted in the way it has. I hope that the noble Lord, Lord Kirkhill, will explain that. I very much hope he will agree that there is a case which requires answering. We expect the Government to answer it.
5.10 p.m.
Baroness ELLIOT of HARWOOD: I should like to support the speeches of the noble Lord, Lord MacLeod of Fuinary and the noble Earl, Lord Selkirk. It seems quite extraordinary that any one should have drafted a marriage Bill for Scotland without specially mentioning the established Church of Scotland. There are two things which I remember very clearly. At the time of the Coronation (this applies at any Coronation, but it happened at the last Coronation) I remember that my husband, who was present, said that the first oath that the King and Queen took was loyalty to the Established Church of Scotland. Curiously enough that comes before anything else.
Of course there are other denominations, but the Established Church of Scotland is something which takes precedence over everything else in legal and other matters in connection with marriage. If we just leave "a minister" like that it might mean any minister at all. The word "minister" means many other things besides a parson or a minister of the Church of Scotland. I think it would greatly improve the Bill and respond to what I am quite sure everyone in Scotland would look for that there should be as a first authority the

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words which the noble Lord has put into his Amendment. I hope that the Minister will accept this proposal because there does not seem to be any reason on earth why he should not. If you want to put in all the others—and I have no objection to their being put in—they can come in second, but the Church of Scotland is the most important religious organisation in Scotland today.
I had the experience of being at the General Assembly of the Church of Scotland when my husband was the Lord High Commissioner, and there is no question at all that if the Lord High Commissioner did not open the Assembly, the Assembly would not open at all. He had the authority from the Queen to open the General Assembly of the Church of Scotland. It was a direct order from the Monarch. I do not think that that happens in other Churches—although it may—but in Scotland it is absolutely essential, it is vital, it is part of the law of the land. To leave it out in a Bill like this seems to me either to show an extraordinary historical ignorance on the part of the people drafting the Bill, or to be a very unfortunate slip-up which would cause a great deal of distress in Scotland. I am quite sure that the Minister who, like me, is no doubt a member of the Church of Scotland and also lives in Scotland, would not want that. Therefore, I hope that the Government will accept this Amendment, which seems to me to be in every way correct.
Lord BALERNO: Like my noble friend Lady Elliot, I too was astounded when I discovered that the Church of Scotland had been omitted in the drafting of this Bill. It would have been understandable if the Bill had been drafted here in London, but assuming that the Bill was drafted in Scotland it is quite astonishing that those who are responsible for drafting it were unaware of the specific position of the Church of Scotland as the Established Church in Scotland. I think that the second oath that the Monarch takes on accession is to preserve the rights of the Church of Scotland, and this oath is more or less repeated at the Coronation ceremony. We are the Established Church, and we have been responsible primarily for the marriage ceremony and for the whole business of marriage, one might say, in Scotland over the
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centuries, except for that peculiar type of marriage which partially flourished at Gretna Green, which was marriage by mutual consent.
It would be wrong to fail to emphasise the ancient position of the Church of Scotland in this matter and fail to encourage the solemnisation of matrimony and, thereby, one hopes to reduce, as my noble friend Lady Elliot said, the amount of consequent divorces; and I hope that the Government will take another look at this point. If they do not accept the Amendment they are in for a mighty lot of trouble. The correspondence columns of the Scotsman and the Glasgow Herald will almost switch from devolution to this insult to the General Assembly—which may be a good thing for them to do.
I have one footnote to add. Two of my noble friends have stated that the Monarch, either directly or indirectly through the Lord High Commissioner, opens the General Assembly. The Monarch is not allowed to close the General Assembly. That was a battle that was fought long ago, so that if necessary the General Assembly could go on despite the Monarch's desire to close its mouth.
Lord FERRIER: I would go all the way with what has been said in support of Lord MacLeod's Amendment, and I look forward to hearing what the Government have to say about it. Though a member of the Church of Scotland, my first impression when I saw the Bill was one of surprise that the two Churches which my noble friend Lord Selkirk mentioned were not included as well. There may be technical difficulties about that.
From the point of view of a communicant, I should like the Church of Rome and the Episcopal Church also to feature, but I am not in any way detracting from the importance of what has been said about the Church of Scotland. I would refer to the words of the noble Lord, Lord MacLeod, when he mentioned the wording of the clause, and I look forward to what my noble friend Lord Selkirk will say when he moves the next Amendment, to alter the word "may" to "shall".
5.18 p.m.
Lord KIRKHILL: As I think your Lordships will know, where possible from the Government's point of view, I attempt to take on board for reconsideration matters debated in your Lordships' House, but I should say in response to the noble Lord. Lord MacLeod of Fuinary, that in this case the Government have to resist his Amendment. The Bill as it stands puts religious denominations into two groups: those in the regulations who are exempted from the requirement to nominate their celebrants for registration—and the Church of Scotland falls into this category of course—and those who would make these nominations.
But this division does not imply any judgment on the credit or the merit of particular religious bodies. It is not made because any are thought to be better or more eminent than others, and it should not be so construed. It is a strictly practical division for practical purposes involving the celebrants themselves and the registrars who complete and issue the Marriage Schedules. No difficulty arises for the registrars in being sure that individual ministers or priests are qualified and entitled to solemnise marriages where these clergymen belong to the main, long-established denominations and hold permanent charges in the locality. Registration of these clergymen, who are usually trained and ordained, is theoretically possible, but in the Government's view would serve no useful purpose.
Experience has shown, however, that problems can arise with other denominations, many of which are smaller and some of which are less firmly established, sometimes even transitory, often with lay celebrants and sometimes with itinerant preachers. It is largely to deal with this situation that there has grown up the existing practice under which, to the satisfaction I understand of all concerned, a considerable number of denominations keep the Registrar General informed of the names of their celebrants so that he in turn can keep local registrars notified of those whom they can accept in completing the marriage schedules as entitled to solemnised marriages.
The Bill gives statutory backing to this system which has grown up and which the smaller sects themselves find convenient.
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In the Government view it would be unfortunate if it were thought that the division of religious bodies into two categories meant any more than that. The Amendment, however, goes further. Its effect would be to create three categories; the single Church mentioned in the Bill, those to be listed in regulations and those which will nominate celebrants. It is surely questionable whether such detailed categorisation as is implied by the Amendment would, in these ecumenical times, be desirable or well-advised. I might say in passing to the noble Baroness, Lady Elliot of Harwood, that the Government feel that balance should be maintained in the Bill; that one Church should not be derogated as against another. For this reason, the Government seek to resist the inclusion specifically and mention solely of the Church of Scotland in the Bill.
Certainly the Church of Scotland has made representations to the Government exactly in line with the comments made by the noble Lord, Lord MacLeod of Fuinary, in his earlier remarks. Unquestionably the Church of Scotland, as the national Church, feels that specific mention should be made of it. But the fact that this claim has been advanced is, in the view of the Government, one more difficulty in a territory which is most involved. Accordingly, we do not view the Amendment with any enthusiasm, nor the three-tier arrangement which, if the Amendment were carried, would be introduced and which it seems to the Government would be unnecessary and inconsistent with what is essentially the limited and practical purpose which lies behind the clause. The Government therefore resist the Amendment.
Lord CAMPBELL of CROY: Perhaps I might add a comment from this Bench. The noble Lord, Lord MacLeod of Fuinary, has raised an important matter on which there will be a great deal of scrutiny in Scotland. It will not just be the heir-archies of the Church; many members of the Church of Scotland will be following this debate and perhaps any later debate on the subject. As my noble friend Lord Selkirk pointed out, the law at present clearly permits three Churches to conduct marriages in Scotland—the Church of Scotland, the Episcopal Church of Scotland and the Roman Catholic

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Church—and, as we have just completed a week designated Christian Unity Week, it would have been appropriate if all three could have been mentioned in the Bill. It was a surprise to find that not even the Church of Scotland, the established Church, was mentioned in it, and that is strange for the reasons that have been advanced by noble Lords on both sides of the Committee.
I suggest to the noble Lord, Lord MacLeod of Fuinary, that this matter needs further thought. In principle, I support his objective, but he has produced a manuscript Amendment at short notice and, in view of what the noble Lord, Lord Kirkhill, has said, I think that further consideration by everybody is needed. I hope that between now and Report we will be able to find a form of words which will meet the Amendment and be satisfactory to the Government, and I will try to do this in the days ahead. I hope that the matter will not be pressed and closed today because we did not have notice of the matter and time in which to look at the actual words of the Amendment. This subject deserves further thought following this initial debate.
The Earl of SELKIRK: I hope the noble Lord, Lord MacLeod of Fuinary, will accept the invitation of my noble friend Lord Campbell of Croy. The noble Lord, Lord Kirkhill, gave what I thought was an extraordinary and astonishing answer. He started by saying that it would not create difficulty for the Registrar General, and that is the point; that is the first rule to emerge from the argument. He went on to say that he was not degrading any church, but three churches which have the right to marry by Statute and which are named by Statute are taken out. What the noble Lord said will in no way enhance the standard of religion and I urge him to look at this matter again and to do so rather better. He pinned his argument on how this proposal would look in comparison with the next provision in the Bill which deals with other religious bodies; that it would be rather easier to deal with that subject if this Amendment were not made. I hope the noble Lord will look at the matter again.
Lord KIRKHILL: The spirit of ecumenism seems to be more apparent in
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Government Departments than perhaps among the Churches themselves.
Baroness ELLIOT of HARWOOD: It is not so much the ecumenical spirit which we appreciate but the history of the matter with which we are dealing. This has been going on for centuries and for somebody in 1977 to produce a Bill which ignores all the historical association of the Monarch, the people and the Church of Scotland seems incredible. I hope very much that while the noble Lord, Lord MacLeod of Fuinary, may not press this matter today, it will be raised again on Report, when noble Lords will vote on it, and I hope they will vote strongly.
Lord BALERNO: With respect to the noble Lord, Lord Kirkhill, I cannot understand his ecumenical argument, which I thought very superficial. I have served for many years on the Interchurch Relations Committee of the Church of Scotland, where we have had much communication and fellowship with the other churches. I have served for many years on the British Council of Churches and I have been vice-president of that Council. Never throughout those years in any discussions have I heard any of the other Churches with which we are in conversation and discussion object to the Established Church of Scotland and, in Scotland, to the Church of Scotland taking a lead, just as when we meet in England it has almost always been under the chairmanship of the Archbishop of Canterbury. The other Churches recognise that those are the two Churches in the United Kingdom which are by law established and to derogate from that in this Bill is, I assure Lord Kirkhill, just putting his neck in a noose.
Lord MACLEOD of FUINARY: In the light of what has been said, with most of which I entirely agree, I will confine my remarks to the minimum. I, too, regret the reply which the noble Lord, Lord Kirkhill, gave. He referred to the difficulty there might be for the Government by reason of having three categories, one the Established Church in Scotland, the second the recognised denominations and the other, the third category. I invite him to look at the 1949 Act and the last time in England the marriage law was reviewed, when precisely those three categories were accepted, presumably without difficulty, by the Government, the Government now or

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then; that is to say, as I said earlier, with ten pages of references entirely to the relationship between the Established Church of England and the Government in this matter. Then there come, as there come in this Bill, the other denominations that are recognised as denominations but not established, and thirdly the groups which must make special reference and inquiry. If the Government have any difficulty about that, they need only see what was done then, when there was no difficulty about the Established Church taking its place, and nobody referred to ecumenical disasters arising from it. It is simply a matter of sequence and of recognising a National Church.
However, in the light of what has been said and as we have already been informed that this Amendment cannot be accepted, provided it is understood that I shall bring it up at Report stage and shall raise not just the possibility of an ecumenical expression which might cause the largest possible difficulties, but simply on the grounds of the established nature of the Church of Scotland, possibly followed by something regarding the ecumenical situation, I shall withdraw the Amendment. I shall do so if it is understood by the Government that we shall bring the matter up at Report stage unless the Government do not wish it brought up at Report stage, in which case I shall have regretfully to press my Amendment as it stands. However, unless there is a categorical denial, I shall take it that it can be brought up at Report stage and I shall repeat, possibly in other words, the essential point that I have made.
Lord KIRKHILL: The Government cannot prevent any Member of your Lordships' House from bringing forward an Amendment at Report stage. The Government are of course making no statement as to their attitude to that prospective Amendment. I have stated the Government's attitude this afternoon.
The Earl of SELKIRK: Would the Government be prepared to consider or discuss this problem?
Lord KIRKHILL: The Government's position is as I have stated it this afternoon.
The LORD BISHOP of NORWICH: I wonder whether the noble Lord feels
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that this is a matter that is even wider than the very great and important relationship between the established church in Scotland and the nation in Scotland. I know that it is a dangerous thing for a Bishop of the Church of England ever to enter into an argument over anything happening in Scotland. There is a long history of our heads being cut off at times. None the less, on a more serious note, it seems to me that at a time when the nation needs all the help, encouragement and strength that it can get from the witness to the Christian Church in every stratum and every area of the nation, it would be a disservice to the national interest and the national cause if anything were done to weaken organised religion, because organised religion is but the expression of the mood of the spirit and the breath of God breathing through the nation. Clearly, those who can speak with very much greater knowledge than I can from across the Border see the importance of this and I hope that it may not be inappropriate for a Bishop of the Church of England to support those who have spoken so strongly yet so clearly.
The DEPUTY CHAIRMAN of COMMITTEES (Baroness Wootton of Abinger): Does the noble Lord wish to withdraw the Amendment?
Lord MACLEOD of FUINARY: I beg leave to do so while giving notice that it will be brought up at Report stage.
Amendment, by leave, withdrawn.
5.33 p.m.
The Earl of SELKIRK The Earl of SELKIRK moved Amendment No. 14:
Page 6, line 40, leave out ("may") and insert ("shall").
The noble Earl said: In moving this Amendment I should like to say that I shall not press it at this stage. In the event of the Church of Scotland not being mentioned, however, I regard it as essential that, whatever office is specified—whether it be the Secretary of State or the Chief Executive in Scotland—the holder shall be compelled by law to draw up such a list. It is in those terms that I move the Amendment but, unless anyone wishes to say anything about it, I shall withdraw it immediately. I beg to move.
Lord KIRKHILL: I had been going to say a great deal on this Amendment, running into several pages. It is really a question of whether the noble Earl would be satisfied if I gave an undertaking that I might be able to consider his point. We might perhaps find a more acceptable way and he could perhaps put down the Amendment again at Report stage. As the Government see the matter, these are difficult and troubled waters. The Government do not consider this to be straightforward or simplistic and they would certainly have to give very serious consideration to the form of words. However, the noble Earl has said that he will withdraw the Amendment and I certainly accept that withdrawal.
The Earl of SELKIRK: I am grateful for what the noble Lord has said, but I do not think that he has quite grasped the point that I am making. It is this: it lies within the power of the Secretary of State to prevent religious marriages taking place at all. This is really the point that I am getting at. I have quoted the example of a Marxist Secretary of State who does not believe in marriage. If no Church is mentioned, an absolutely clear obligation must be put on the Secretary of State to draw up a list. That is what I am trying to achieve. Different words could be used; it could read, "It shall be the duty of the Secretary of State". I have put in the simplest Amendment. But the point is that the Bill is taking away the statutory right of certain religious denominations to conduct marriages. One can see it in the Schedule. That is what worries me.
Lord KIRKHILL: In the light of the very forceful intervention of the noble Earl, I feel that I must make the Government's position clear. I am sorry to take up yet more of your Lordships' time but I think it necessary because the noble Earl has returned to this point to me informally on several occasions and before your Lordships' House.
In my view, the noble Earl is investing the regulations to be made by the Secretary of State with much greater significance than they are intended to carry. He has explained his belief that there is at present a specific statutory right to certain churches to solemnise religious marriages and that the Bill is
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reducing, if not removing, this right by making it dependent on agreement by the Secretary of State to make these regulations. This is not so. First, the solemnisation of religious marriages does not depend on specific statutory authority of the kind he envisages, naming individual Churches; and, secondly, the regulations do not have the effect he imagines.
Very briefly, regular marriage was originally confined by law to marriages solemnised by ministers of the Established Church of Scotland. This was achieved rather by imposing penalties on ministers of other Churches than by authorising the Established Church itself (this being taken for granted); and, in any event, all the old Acts of the Scottish Parliament so providing have been repealed. Later, by an Act of 1711, the prohibition was relaxed for ministers of the Episcopal Church and in 1834 it was further relaxed for priests or ministers not of the Established Church. The current position is that religious marriages may be solemnised by a minister, clergyman, pastor or priest of any Christian denomination or according to the usages of the Society of Friends or of persons professing the Jewish faith. This general position is continued by the Bill but the right to solemnise religious marriages will be widened still further by the extension to non-Christian denominations. So the noble Earl is mistaken in believing that there exists at present a prescriptive statutory authorisation for individual denominations to solemnise marriages or that the Bill removes or weakens such an authorisation.
Nor it is correct to believe that any such authority is dependent on the whim of a Secretary of State who may decide not to make regulations prescribing religious bodies. The regulations do not themselves provide this authority. They are no more than a means of exempting some denominations from nominating their celebrants for registration by the Registrar General. As I have emphasised earlier this afternoon, this is a strictly practical question, introduced for practical purposes, involving the celebrants themselves and the registrars who complete and issue the Marriage Schedules. No difficulty arises for the registrars in being sure that individual ministers or priests are qualified and entitled to solemnise marriages where these clergymen

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belong to the main, long-established denominations and hold permanent charges in the locality. I mentioned that earlier. Registration of these clergymen, who are usually trained and ordained, is theoretically possible but would serve no useful purpose. Experience has shown, however, that problems can arise with other denominations, many of which are smaller and some of which are less firmly established, and, as I was saying earlier, when we were discussing the previous Amendment, sometimes in fact transitory. It is largely to deal with this situation that the existing practice has grown up under which, to the satisfaction, so far as I know, of all concerned, a considerable number of denominations keep the Registrar General informed of the names of their celebrants so that he in turn can keep local registrars notified of those whom they can accept, in completing the Marriage Schedules, as entitled to solemnise marriages. This then is the practical reason for dividing religious bodies into two categories.
I now wish to turn briefly to the noble Earl's Amendment, although I appreciate that he has said that he will withdraw it. The significance of "shall" as compared with "may" has been argued on many occasions, and it is generally accepted that, where a continuing regulation-making duty is being placed on a Minister, it is "may" that should be used. I put it to the noble Earl, that to employ the Amendment "shall", while it is attractive at first sight, would raise such questions as: when must the power be exercised and within what time-limit? What happens if the power is not exercised, at all, or after a given time? What is to prevent the argument being advanced that, if the regulations are once made they can later be revoked with impunity, the terms of the Act having been complied with? This last doubt, in particular, suggests that the Amendment falls seriously short of achieving the noble Earl's intention. That is why I said earlier that the Government would be prepared, because of the noble Earl's intimation to withdraw the Amendment, to look at the form of words to see whether together we could reach an acceptable compromise.
The Earl of SELKIRK: I am grateful for the noble Lord's explanation, but if I
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tell him that it is not entirely clear I hope that he will not be offended. Of course he is repealing the 1711 Act and he is repealing the Act of 1834, and I do not know on what statutory ground. There is, for instance, the question of what would be the position if there was no such list. The noble Lord almost said that the whole of this could really come out and it would make no difference. I do not know whether or not the noble Lord means that, but it is very nearly what he is implying. He said that the right of carrying out marriages would still subsist. I will not continue this argument, but I am bound to say that I still think that two things are left in doubt. One is that the position of the Established Church is not mentioned and it should be, and secondly there is left in doubt what on earth the Secretary of State is going to do. On that subject nobody, except the Secretary of State, has any say. This matter does not come before Parliament; it comes before nobody. I beg leave to withdraw the Amendment.
Lord FERRIER: Before the Amendment is withdrawn I should like to say that although I am not a lawyer—the noble Earl is—it occurs to me that the whole thing is so vague, as the noble Earl suggested; so are we overlooking the question of legal marriage being marriage in law if we have the word "may" instead of "shall"? I hope that the noble Lord, Lord Kirkhill, will address himself to the whole matter as I suggested in my speech on the Amendment of the noble Lord, Lord MacLeod of Fuinary. The two references to this clause need to be taken together and a new approach made to them.
Amendment, by leave, withdrawn.
5.44 p.m.
Lord KIRKHILL Lord KIRKHILL moved Amendment No. 15:
Page 6, line 41, at end insert (", or who is recognised by a religious body so prescribed as entitled to solemnise marriages on their behalf;").
The noble Lord said: This Amendment is designed to take account of the fact that there are persons entitled to solemnise marriages who cannot properly be described as ministers, clergymen, pastors or priests. These include, for example, deacons of the Roman Catholic Church who are not priests but whose duties may include the solemnisation of marriages;

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and the religious beliefs of the Society of Friends are such that they do not have ministers, clergymen, pastors or priests who are set apart from the generality of their members as in other denominations. Existing legislation, however, enables marriages to be solemnised in Scotland according to the usages of the Society of Friends, the practice at the moment being for the Society to appoint "registering officers" who sign the Marriage Schedule in place of the celebrant. It is not proposed to disturb this rather unusual system, and the Amendment, therefore, broadens the description of those persons who may solemnise marriages in order to admit the Roman Catholic deacons and to admit the arrangements made by the Society.
On Question, Amendment agreed to.
Clause 8, as amended, agreed to.
Clause 9 [Registration of nominated persons as celebrants]:
Lord CAMPBELL of CROY Lord CAMPBELL of CROY moved Amendment No. 16:
Page 8, line 41, leave out ("Secretary of State") and insert ("Court of Session").
The noble Lord said: It might be convenient if with this Amendment we also discuss Amendment No. 18, which is a consequential one of mine and Amendment No. 20, which is another consequential one of mine and Amendment No. 19, which is a Government Amendment and which appears to come some way to meet the point that I am making. If that is convenient to the noble Lord, we can have the debate now and take the decision on Amendment No. 19 when we reach it.
Lord KIRKHILL: I was not proposing to take Amendment No. 19, but if the noble Lord feels that this is suitable then I am not objecting.
Lord CAMPBELL of CROY: It might shorten our debates. Amendment No. 16, which I now move, proposes to make a change in Clause 9 where at present it is suggested that where a nominee for registration is entitled to solemnise marriages is rejected by the Registrar General, the body may within 28 days afterwards appeal to the Secretary of State. In my opinion it would be more appropriate for that appeal to be made to the Court of
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Session, so that it is a decision by a court rather than by the Executive and a Minister. I see in the Amendment which the noble Lord, Lord Kirkhill, has tabled, Amendment No. 19, that the Government have come a good way to meet this point. In that Amendment, to which no doubt the noble Lord, Lord Kirkhill, will speak shortly, the Government have said that in certain circumstances the decision should be referred to the Court of Session, as I have suggested, but it retains the decision in other circumstances for the Secretary of State. As I say, that comes a good way to meeting the point, and if the Government produce valid objections to my Amendment I should be happy to accept the Government's Amendment because it recognises the point that I am making.
I note that my noble friend Lord Selkirk has put down an Amendment, No. 17, to which no doubt he will speak in due course, in which there would be a reference to the sheriff for the sheriff court district of the area, and that is another possible course. But for my own part, if the Government cannot accept my Amendment then I am perfectly ready to consider the Government's alternative, No. 19.
Lord KIRKHILL: I agree with the noble Lord, Lord Campbell of Croy, that his Amendments Nos. 18 and 20 are linked to Amendment No. 16 and so I shall speak to all three at this stage. I have to resist these Amendments because in the Government's view the effect of them would be to allow a right of appeal direct to the Court of Session as the noble Lord has been explaining, against a decision by the Registrar General. In the Government's view, an appeal to the Court of Session would be costly and it would be neither appropriate nor desirable to provide for an appeal against rejection on the grounds specified in heads (b), (c) and (d) of the subsection as these are matters which it should be fairly easy to decide on readily ascertainable facts. It is accepted however, that a right of appeal to the Court of Session might be appropriate where the ground of the rejection is that the nominating body is not considered to be a religious body within the meaning of the Act. This raises wider issues and the Government agree that this is appropriate for judicial determination; hence my Amendment No. 19. I do not want to add more at this stage.
Lord CAMPBELL of CROY: The noble Lord has pointed to the expense which would be involved in my Amendment No. 16. I am prepared not to press that Amendment and to accept Amendment No. 19 which the Government have tabled.
Amendment, by leave, withdrawn.
The DEPUTY CHAIRMAN of COMMITTEES (Baroness Wootton of Abinger): I have to call the attention of the Committee to the fact that if Amendment No. 17 is agreed to I cannot call Amendments Nos. 18, 19 or 20.
5.50 p.m.
The Earl of SELKIRK The Earl of SELKIRK had given Notice of his intention to move Amendment No. 17:
Page 8, line 41, leave out from ("the") to end of line 44 and insert ("sheriff for the sheriff court district within which the registration district is situated.").
The noble Earl said: If the noble Lord can assure me that he is in fact going to move Amendment No. 19, I will not move this Amendment. As I understand it, what he is doing is leaving the choice of the individual to the Secretary of State, but the general principle as to whether he belongs to a religious organisation can be referred to the courts. This, if I may say so, seems a satisfactory arrangement, and I shall therefore not move this Amendment.
Lord KIRKHILL Lord KIRKHILL moved Amendment No. 19:
Page 8, line 42, leave out from ("may") to end of line 44 and insert—
("direct the Registrar General to accept or reject the nomination and shall inform the nominating body of his direction and the reason for it; and such direction shall be final:
Provided that if a reason given for a direction to reject a nomination is that the nominating body is not a religious body, that body may seek the determination of the Court of Session as to whether that reason is well-founded; and if—

(a) the court determine that the reason is not well-founded; and

(b) that reason was the only reason for the direction,

that determination shall be given effect to by the Registrar General as if it were a direction under this subsection to accept the nomination.").
The noble Lord said: I have already indicated the Government thinking which lies behind Amendment No. 19, and I now formally move it; but I would direct
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your Lordships' attention to paragraph (b), which should read:
"that reason was the only reason given for the direction…",
and not as it appears before your Lordships. I beg to move.
On Question, Amendment agreed to.
On Question, Whether Clause 9, as amended, shall stand part of the Bill?
Lord CAMPBELL of CROY: It is with the ecumenical spirit of your Lordships' Committee and also of Christian Unity Week in mind that I am very glad to tell your Lordships the following. The Scottish Churches Council wrote to me as long ago as June of last year pointing out that the Kilbrandon recommendations to recognise religious marriages other than Christian and Jewish had not yet been carried out, and I then offered to help promote a Private Member's Bill and to pilot it through your Lordships' House. I am glad to inform your Lordships' Committee that I consulted the Scottish Churches Council after this Bill was published and that they have now confirmed to me that it entirely meets the points which they originally raised with me—and, of course, this clause, Clause 9, is the main clause concerned. I thought your Lordships would like to know that a matter which had been bothering the Scottish Churches Council and on which they wanted to make progress they regard as being dealt with completely in this Bill.
Clause 9, as amended, agreed to.
Clauses 10 to 19 agreed to.
Clause 20 [Second marriage ceremony]:
On Question, Whether Clause 20 shall stand part of the Bill?
The Earl of SELKIRK: I wonder whether the noble Lord would read the first line of Clause 20. It says:
"Where two persons have undergone a marriage ceremony…"
Is that really the word one wants to use? Do we not "take part" in a marriage ceremony?
Lord KIRKHILL: Certainly this is a drafting point. It has been drawn to my attention, and I will examine it further.
Clause 20 agreed to.
Clause 21 [Registration of irregular marriages]:
On Question, Whether Clause 21 shall stand part of the Bill?
5.56 p.m.
Lord CAMPBELL of CROY: There is a point here to which I should like to draw the attention of the Government. Clause 21 makes provision for the registration of irregular marriages, and the court has to determine the date on which the marriage was constituted. It has been brought to my attention that no guidance is given as to how the court is to determine the date on which a marriage was constituted by "cohabitation with habit and repute", which the noble Lord will recognise as a Scottish term. This requires clarification, and if it cannot be done at this short notice it is because I have received only short notice of this point, but I hope the noble Lord will be able to clear it up before Report stage.
Lord KIRKHILL: These are interesting but somewhat esoteric matters. I will pursue the point which the noble Lord has raised, and I will inform him.
Clause 21 agreed to.
Clauses 22 to 24 agreed to.
Clause 25 [Regulations]:
On Question, Whether Clause 25 shall stand part of the Bill?
Lord CAMPBELL of CROY: On Second Reading the point was raised from this Bench by my noble friend Lord Mansfield that by Clause 25 the Secretary of State is empowered to make regulations subject to Negative Resolution by one House of Parliament, and he asked the Government to consider whether this should not be an Affirmative Resolution by one House, rather than adopting the negative procedure. This would ensure that there was proper consideration of the proposed regulations, rather than the possibility of regulations going through without the opportunity for Parliamentary discussion. This is an occasion on which the noble Lord can inform the Committee whether
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the Government have given further consideration to that point, and what their views are on it.
The Earl of SELKIRK: May I ask one question on this? There is only one type of Statutory Instrument which comes here for Negative Resolution, and that concerns fees. The Statutory Instruments which follow other regulations do not come to the House at all—at least, I do not think so. Do they? They certainly do not come for discussion.
Lord KIRKHILL: I confirm, as the noble Lord, Lord Campbell of Croy, has just said, that the noble Earl, Lord Mansfield, raised this point at an earlier stage, and I agree that it might be helpful to your Lordships' Committee if I were to explain that the Government consider that the regulations to be made under the powers in the Bill may be divided broadly into three categories. The first are regulations to be made by the Registrar General with the approval of the Secretary of State. In the main, these will be concerned with prescribing the de ailed terms of forms, notices, certificates and other documents which will be required for the purposes of the Bill. These are matters of detailed machinery, and it would be obviously inappropriate that the regulations embodying them should require Affirmative Resolution in Parliament. The procedure proposed, under which the regulations are made by the Registrar General, is not new. Since 1854 the Registrar General has had authority to make regulations, and this was confirmed, I understand, in Section 54 of the Registration Act 1965, which authorises exactly the same procedure.
The second category comprises regulations, also made by the Registrar General and approved by the Secretary of State, which prescribe fees. The fees involved will be the fee for the preliminaries to marriage, to be paid to the local registrar with the marriage notice under Clauses 3(1) or 7(1), and the fee for the solemnisation of a civil marriage under Clause 19(2). Under Clause 25(2) regulation; prescribing these fees will be subject to Negative Resolution. Again, this is exactly the same procedure as is applied in the Registration Act 1965 to fees for registration services. The third category comprises the regulations to be made directly by the Secretary

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of State for the purpose of listing certain religious bodies under Clause 8(1)(a)(i).These regulations, like those in the first category, are not subject to Affirmative or Negative Resolutions. That is the Government position.
Clause 25 agreed to.
Clauses 26 to 28 agreed to.
Clause 29 [Short title, commencement and extent]:
Lord KIRKHILL Lord KIRKHILL moved Amendment No. 24:
Page 18, line 16, at end insert ("the Marriage with Foreigners Act 1906,").
The noble Lord said: I think it would be for the convenience of the Committee if, in moving this Amendment, I spoke also to Amendments Nos. 27 and 28. They should be considered together. They are essentially drafting Amendments and their effect is to disapply the Marriage with Foreigners Act 1906 to British subjects residing in Scotland instead of completely repealing the Act so far as Scotland is concerned. By so doing, it will be made clear that the 1906 Act is still intended to apply to any British subject, including Scots, who are residing outside Scotland. A complete repeal might be interpreted as having a wider effect than the mere territorial extent intended. I beg to move.
On Question, Amendment agreed to.
Clause 29, as amended, agreed to.
Schedule 1 [Degrees of relationship]:
Lord KIRKHILL Lord KIRKHILL moved Amendment No. 26:
Leave out Schedule 1 and insert the following new Schedule—

SCHEDULE 1 DEGREES OF RELATIONSHIP
Column 1

Column 2

1.—Relationships by consanguinity

Mother;

Father;

Daughter;

Son;

Father's mother;

Father's mother;

Mother's mother;

Mother's father;

Son's daughter;

Son's son;

Daughter's daughter;

Daughter's son;

Sister;

Brother;

Father's sister;

Father's brother;

Mother's sister;

Mother's brother;

Brother's daughter;

Brother's son;

Sister's daughter;

Sister's son.

The noble Lord said: I move this Amendment formally. It has been previously discussed.
On Question, Amendment agreed to.
Schedule 1, as amended, agreed to.
Schedule 2 [Consequential amendments of other enactments]:
Lord KIRKHILL Lord KIRKHILL moved Amendment No. 27:
Page 19, line 50, at end insert—
("The Marriage with Foreigners Act 1906 (c. 40)
1A. In section 1(1) (British subject giving notice of intended foreign marriage), for the words "the United Kingdom" there shall be substituted the words "any part of the United Kingdom other than Scotland."
1B. In section 2(1) (provision for regulations in relation to foreigners intending to marry in Britain), for the words "the United Kingdom", in both places where they occur, there shall be substituted the words "any part of the United Kingdom other than Scotland.".").
The noble Lord said: I beg to move this Amendment formally. It has already been discussed.
On Question, Amendment agreed to.
Schedule 2, as amended, agreed to.
Schedule 3 [Repeals]:
Lord KIRKHTLL Lord KIRKHTLL moved Amendment No. 28:
Page 21, line 40, in column 3, leave out ("The whole Act") and insert—
("Section 5.
In the Schedule, the heading "Part I Provisions Applicable Except in Scotland"; and Part II").
The noble Lord said: We have already discussed this Amendment. I beg to move it formally.
On Question, Amendment agreed to.
Schedule 3, as amended, agreed to.
House resumed: Bill reported with the Amendments.

CRIMINAL LAW BILL [H.L.]
6.5 p.m.
The MINISTER of STATE, HOME OFFICE (Lord Harris of Greenwich): My Lords, I beg to move that the House do 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 again in Committee accordingly.
[The Baroness WOOTTON OF ABINGER in the Chair.]
Clause 6 [Violence for securing entry]:
The Earl of MANSFIELD The Earl of MANSFIELD moved Amendment No. 18:
Page 6, line 11, at end insert ("otherwise than in execution of legal processes").
The noble Earl said: I beg to move Amendment No. 18. In Part II of the Bill we are sailing into rather more political waters than perhaps we encompassed when Part I of the Bill was discussed. It may be helpful therefore if, when moving this Amendment, which is a technical and drafting Amendment to boot, that I should by way of preface make a few remarks about this Part of the Bill. I am comforted to some extent in what I might call this application to your Lordships by the fact that on Second Reading the noble Lord, Lord Harris of
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Greenwich, welcomed what he described in col. 868 of the Official Report as a, "particularly vigorous examination of the Government's purpose". In view of the hour, the examination may be perhaps a little less vigorous than it would have been before those Peers interested were discussing whether it is legally possible to marry in Scotland one's adoptive grandmother. Be that as it may, we now turn to matters of perhaps more English interest.
Unfortunately, the term "squatter" in this connection embraces a number of people having considerably different interests in what they do. I suppose basically speaking that they come under two heads: first, what I might call residential; and, secondly, for want of a better word, political. I see that the noble Lord, Lord Gifford, is not yet in his place and I say at once—and perhaps it will be the last time I say it in this debate—that where there are genuinely homeless squatters who are in that position by virtue of the failure of society to find a roof over their heads there is nothing but sympathy on the part of everybody on every side of the Committee. Nobody wants to exacerbate their position or to inflict any further pain on what must be a disagreeable position, almost imaginable by anybody lucky enough never to have been homeless.
Where squatting becomes (shall I say?) less agreeable or less excusable is in the case of homeless squatters who squat not so much because they cannot obtain a roof over their heads but because for one reason or another they do not want to go through what I might call the usual channels of obtaining a house and perhaps do not want to spend the money on rent and rates that the rest of us have to spend. Then there are political squatters who for one reason or another infest either a factory or university buildings or (dare I suggest it?) even a Ministry or some other place such as an Embassy because they wish to illustrate their political viewpoint and wish to ram home their political ideas.
Those types of squatters are entirely different from what I might call the residential variety. In their case where they break the law—and by trespass they do, to some extent in any event, break the law—it is in my suggestion

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undesirable that they should do so without some kind of check eventually being applied. If the role of the law in this general field is to define rights applicable to this kind of situation and to provide the appropriate remedies, it is perhaps possibly helpful to consider the present position and how the Government propose to change it, and then to discuss whether those changes proposed are going to ameliorate the position and if so, how much.
So first, in certain circumstances, squatters may be guilty as at present of a conspiracy to trespass; and that of course was discussed by my noble and learned friend Lord Hailsham of Saint Marylebone in the case of Kamara, and I will not presume to comment on that. Secondly, under the Statutes of forcible entry and forcible detainer, squatters run what I term a theoretical chance of being convicted, although such cases are rare. Thirdly, there is at present what is called the right of self-help. That was commented upon by the Master of the Rolls in McPhail's case, and it is in this instance available to the owner of any right to the possession or occupation of premises to take such steps to remedy the position as he sees it. It may be described as the right of the dispossessed owner of property to take it back into his possession and eject the trespassers, if necessary, by force.
So far as the changes proposed in the Bill are concerned, the common law offence of conspiracy to trespass is abolished by Clause 5. The statutory and common law offences of forcible entry and forcible detainer are abolished by Clause 13. Taking these two proposals in isolation, the provisions, if they were adopted, would strengthen self-help. However, Clause 6 of the Bill to a very large extent removes the right of self-help except in the case of what are described as displaced residential occupiers. No doubt we shall come back to them. As I understand the situation, the squatter, as a squatter, will be at no criminal risk in the future, unless he brings himself into a position where he may commit an offence under Clauses 7, 8 or 9. So far as the owners or occupiers of property are concerned, they will not be able to take physical steps to repossess their properties without running the risk of
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proceedings under Clause 6; although if they are displaced residential occupiers as defined in Clause 12 they then have a defence.
In such instances, therefore, any proceedings brought by the owner of a house will inevitably have to be in the civil courts, and there the owner renders himself liable to all the delay which is inherent in such proceedings. I was taken to task by the noble Lord, Lord Gifford, when on Second Reading I talked about delay. I should like to quote from the Law Commission. At page 58 a footnote to paragraph 2.45 says:
"We understand from our consultations that in the county courts the time between discovery of the occupation and obtaining repossession is commonly about two months, although in a very urgent case this could be reduced to about four weeks. In the High Court the period is usually a little longer".
If there is to be any attempt to minimise damage to property or any case—and no doubt we shall come back to this, too—where speed is of the essence, it would seem that civil proceedings, even under Order 113, are unlikely to be very effective.
I have put down, with the help of some of my noble friends, a series of Amendments to this Part of the Bill. The object of them, broadly speaking, is first to give an opportunity for the Committee to discuss the feasibility or desirability of enlarging the protection given under Clause 6 to persons seeking to reoccupy premises—in other words, persons other than those who are displaced residential occupiers—and, at the same time, to make the criminal law relating to squatters applicable in all cases where a person requiring the trespasser to leave has any interest in or right to possession or occupation of any premises.
At the same time, the Amendments would remove the protection a squatter has against the owners or occupiers of the property in the sense that, in the vast majority of cases, the criminal law under these provisions will allow a squatter to remain on the property without committing an offence while the owner—and I use the word loosely—will commit an offence unless he falls into one of the narrowly prescribed categories of exemption.
I find it disagreeable that in the last quarter of the 20th century we are proposing to sanction a measure which in effect allows one citizen to offer violence

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to another, because that is what Clause 6 implies. It means that where a displaced residential occupier wishes to regain possession of his premises, he is at liberty either himself, or by his employees, agents, friends, any body he can muster, to offer such violence as may be necessary for the purposes of securing entry into those premises again. It is not a very happy commentary on our state as a community that this is what is being considered.
The difficulties which this will cause to the courts have only to be visualised to be realised. One wonders what the degree of violence which can be exercised by the displaced residential occupier may be before he commits some offence. One wonders how—and we will come to this—the words "displaced residential occupier" are going to be interpreted. What is the definition?
This brings me to my main complaint against these criminal offences so far as a squatter is concerned. The behaviour of a defendent—in this case the squatter—is going to be adjudged not by what he has sought to do, what he has done, or what his intentions were, but by the physical state of the victim. I can illustrate it in this way: if one picks up a watch in the street it is, in the old language, a larceny by finding; it matters not to whom the watch belongs. If, as a squatter, I move into the owner's house and he asks me to leave, if he is a displaced residential occupier and I do not leave, I commit an offence; but if he is some wretch who has merely bought the house and not yet moved into it physically, then I commit no offence by remaining on the property. I do not believe this to be fair, and I certainly do not believe it to be good law. It is in this spirit that these Amendments were tabled and it is in this spirit perhaps that they will be discussed.
Coming back after what I hope has not been too long a preface to Amendment No. 18, as the Bill stands it is difficult to see how anybody can use or threaten violence without lawful authority otherwise than in the execution of legal processes, because the lawful authority can only exist in a case where, for instance, a bailiff or police officer has occasion to go to a house in these circumstances. As I have said, the displaced residential occupier, whatever he does, has no lawful
406
authority, but he may be judged not guilty of an offence if he comes into the exception clause in subsection (3). As I have said, this is really a paying Amendment. I beg to move.
6.20 p.m.
The Earl of KINNOULL: I should like briefly to support my noble friend and to congratulate him on his clarity in moving the Amendment on this difficult and complicated law. I regret that I do so with no special knowledge: indeed, I feel worse off than the noble Baroness, Lady Wootton, who said on Second Reading that she had not read Part II of the Bill and would not understand it even if she did. I have read it and regret that I still find it difficult and I get a little confused. This is no fault of the Law Commission's Report, where the difficulties, particularly n drafting, were put with admirable clarity.
If one were allowed to show one whiff of criticism of the Law Commission's Report on this part of the Bill, it is that I believe they devoted very little space to analysing the types of property primarily affected by squatters and how many cases reached the criminal courts. In the latter case, I believe that criminal charges against squatters have been rarely brought in practice, which supports the theory that for the private individual the protection of the criminal change against squatters is, in the main, treated as a reserve power. I do not know whether the noble Lord, Lord Harris, can tell us later whether he has any facts or figures as regards the types of property affected and of the numbers of criminal charges that have been brought in recent years.
As to the type of property, I think the noble Lord, Lord Gifford, with his great practical experience in this field claimed—and indeed it is what I have tried to discover—that 99 cases out of 100 dealing with squatting in residential property are concerned with empty houses in the local authority housing sector and do not really deal with the private sector. Yet in Part II of the Bill, we see, as my noble friend has described, particularly under Clause 6, that the private individual will lose what I believe was the quite valuable old common law protection of self-help. The suggestion under the Bill is to replace the remedies previously at the disposal of

407
the private individual with, frankly, a bare skeleton form under Clauses 6 and 7. I do not believe that Clause 6 is really an adequate successor to the old laws.
I would share the concern of my noble friend about the word "violence". Although the Law Commission's report logically argued the reason why they wished to use the word "violence" rather than "force", to the laymen like myself it seems to be something which can be wholly misunderstood. If one takes the case of how Clause 6 can affect the private individual, the owner or occupier, one must ask: is it fair that an intruder, occupying a property without having used violence, can remain there until the owner or occupier (other than a displaced residential occupier) has applied to the civil courts? As we know, that can take up to one month and can cost the individual a great deal of money, all because of largely, if not completely, having lost the protection that has been granted in the past. Is it really that a legitimate owner-occupier, finding perhaps, his small office premises occupied illegally and who then shouts angry threats, perhaps tinder standably, is liable to arrest? Is it sensible for a displaced residential occupier, under Clause 6, as my noble friend has said, to use violence, apparently legally? I do not myself believe that Clause 6 reaches the right balance in what is undoubtedly a very delicate and difficult area of the law.
Lord WIGODER: Might I indicate that I view with some concern the Amendments which have been moved to Clause 6 and those which are to be moved to Clause 7. I believe that your Lordships will want to recognise that squatting is an expression of an extremely serious social problem. There are a large number of people who squat, not because they have any desire to show their contempt for society or their contempt for the rights of property or because they desire to damage the possessions of others, or because they are seeking to make any point of political protest—they squat simply and solely because they are in desperate need of a roof over their heads. I would venture to hope that your Lordships will agree that it is not right that the criminal law should be extended to deal with people of that sort.
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The limitation in Clause 6, and again in Clause 7, which in effect means that the only rights that can be affected are those of a displaced residential occupier, in order that the criminal law should be brought into force, would seem entirely appropriate. There is the civil law to deal with a variety of other classes of squatter. It is capable of being used with expedition and efficiency, and I hope the noble Lord will indicate that the Government do not propose to extend the operation of the criminal law in the way which is proposed in these Amendments.
Viscount DILHORNE: I find this clause somewhat puzzling, and I think that part of the difficulty lies in knowing what is the content of the words "without lawful authority" which appear in line 11. As I read it—and no doubt I shall be corrected if I am wrong—the clause does not make it an offence for a displaced residential occupier to use or to threaten violence, whether directed against a person or against property, for the purpose of securing entry into premises which he is lawfully entitled to be in; but if he does not come within the heading of a displaced residential occupier he will commit an offence if he breaks a window to enter the premises, which he is lawfully entitled to be in, if he knows that there is someone in those premises at the time. He will not commit an offence if he breaks a window to get in, if he does not know that there is anyone inside. If, by chance, he knows there is someone inside and there is an open window, he can force his way in through that window without committing any offence at all.
It seems to me that that is a very narrow distinction to draw, and I am not happy about the drafting of this clause. I should like to ask the noble Lord, when he comes to reply, to tell me the answer to this problem. Let me suppose—it has happened—that a person has been kidnapped and is being held in premises: does not this clause make it an offence for any police officer to break into those premises by using violence—either by breaking down a door or by breaking open a window—to secure the release of that person and to secure entry to the premises? The police officers will not be displaced residential occupiers, but, as

409
I read it, this clause is so wide in its terms that it would operate to make a police officer, who broke in when he knew that there was someone inside who was opposed to his entry—the words in line 15—guilty of an offence. That does not seem to me to be right, and I ask the noble Lord to give further consideration to the wording of this clause.
May I put this further point to him? Entry is effected, say, into premises without violence by someone who is not a displaced residential occupier. The premises are large, and violence is then used to break down an internal door in those premises, or to break into a flat if the premises are a block of flats. There is no definition of "premises" in this Bill, so far as I can see, and I ask the noble Lord this question. If someone enters premises without committing an offence in the language of this clause, but finds that there is someone inside a room—a squatter, if you like—and the door is locked, will he commit an offence if he breaks open that internal door? The clause does not seem so to provide. It should not be left up in the air, and I believe that the clause should make clear what the position is in that respect.
The noble Lord, Lord Wigoder, has rightly referred to certain types of squatters who are in desperate need. There are, of course, a great variety of squatters, and in some cases of which one knows the amount of damage done can be very considerable indeed, running into hundreds of pounds, to premises not always occupied by wealthy people, or people who can afford it. So I must say that I feel very considerable concern at the limitation—it may be necessary; maybe it cannot be extended a little wider—of subsection (3) to displaced residential occupiers. Let me put this kind of instance to the noble Lord, which I feel ought to be covered. Let us suppose that a man is occupying a flat in which he has all his possessions. He is taken ill and is sent off to hospital. Squatters then come in, because they know that he is away. There are all his possessions, some of which he may treasure greatly, although they may not be of great intrinsic value—perhaps he has left some money on the premises—and then that man dies in hospital. So far as I can see, it would take at least two months, and probably a great deal longer, before his
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executors would be able to resume occupation of that property and able to protect the possessions inside it. I may be wrong about that, and if I am, perhaps the noble Lord will tell me. But it seems to me that one wants wider scope to subsection (3) than just saying "displaced residential occupier".
6.35 p.m.
Lord HARRIS of GREENWICH: The noble Earl, Lord Mansfield, began this discussion on Part II of the Bill, as is his custom, with a moderate and most reasonable speech and, as he pointed out, I said during the Second Reading debate that the Government were particularly interested to hear the view of both Houses of Parliament on this Part of the Bill. Of course, it is a highly complex series of interrelated problems, of the kind upon which the noble and learned Viscount has just touched. Certainly, I indicated then that we had no rigid posture on this Part of the Bill, and we are particularly anxious to hear the views of both Houses on this question.
Not unreasonably, given the fact that the noble Earl touched on a number of problems relating to Part II, the discussion on this Amendment has ranged a little more widely than the rather narrow terms of the Amendment, and I will if I may, without any discourtesy to the Committee, deal with certain points when we come to later Amendments which cover some of the questions raised, particularly that raised by the noble Lord, Lord Wigoder, with which I found myself in some agreement. That obviously comes up to some extent on this Amendment, but it arises to a much more significant degree on an Amendment which I hope we shall be discussing in a few minutes' time.
If I may for a moment deal with the narrow terms of the Amendment which the noble Earl has moved, the Law Commission recognised in its report that the new offence ought not to apply to such people as bailiffs and those acting under their authority to execute a court order, and police officers acting within the scope of their authority under laws relating to search and arrest and to the prevention of crime. The words "without lawful authority" in line 11, which we are now discussing, are intended to safeguard

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bailiffs, police officers and others who have lawful authority to enter premises. The phrase "without lawful authority" appears fairly commonly on the Statute Book, and we have no reason to believe that it is inadequate or in any way unclear.
I would cite some precedents—the Theft Act 1968, the Road Traffic Act 1972 and the Local Government (Miscellaneous Provisions) Act 1976. The additional words suggested in the noble Earl's Amendment could not be substituted for "without lawful authority", because they would not cover, for example, a Gas Board official who was given a specific right of entry to deal with an emergency which could result in an explosion. The addition of these words might cast doubt on the meaning of "without lawful authority", not only here but throughout the Statute Book. In the circumstances, it is our view that this Amendment is unnecessary and would confuse the situation, so I very much hope that the noble Earl will not press it. The noble and learned Viscount asked a number of questions which I will certainly go into before the next stage of the Bill. But, if I may repeat the point, I understand that a police officer who enters premises for the purpose of making an arrest has lawful authority, and nothing in this Bill changes that position.
Viscount DILHORNE: I should just like to question that for a moment. I should like to ask the noble Lord to look into that, because I doubt very much whether a police officer has authority to break into premises, which is what we are considering, because he thinks that someone he wants to arrest is inside them. I feel that if this clause is left in its present form there will be a lot of argument, and perhaps unnecessary litigation, as to the scope of the words "lawful authority". It may be that they are used in different contexts in other Statutes—I am not challenging that—but in this context it would be a great improvement to make it perfectly clear that this clause does not apply to police officers acting in the execution of their duty.
Lord HARRIS of GREENWICH: Certainly, as I indicated a moment or two ago, I will look into that point and, indeed, the others which the noble and learned Viscount has raised. Obviously, we want the
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position of the police to be clear beyond any possible misunderstanding, and I will ensure that this point is looked at before the next stage of the Bill.
The Earl of MANSFIELD: Even thus far the debate has shown the wisdom of the invitation of the noble Lord, Lord Harris of Greenwich, on Second Reading. I do not know whether the noble Lord, Lord Wigoder, was here when I began my remarks, but he was, perhaps, less than fair. As I have stated already, nobody has anything but a very great degree of sympathy for the genuine homeless squatter. Unfortunately, so far as these clauses are concerned the law makes no distinction between the genuine homeless squatter and the thoroughly disagreeable political squatter. This is one of the points which the Committee, the House and, indeed, Parliament will have to pay attention to in the coming debates. So far as this rather narrow Amendment is concerned, as I said before, it was drafted to set the scene and that it has done. Now I beg leave to withdraw it.
Amendment, by leave, withdrawn.
6.41 p.m.
The Earl of MANSFIELD The Earl of MANSFIELD moved Amendment No. 19:
Page 6, line 14, after ("someone") insert ("lawfully").
The noble Earl said: It may be convenient if at the same time I speak to Amendment No. 21.
Lord HARRIS of GREENWICH: I do not want to press the noble Earl, but it could conceivably be for the convenience of the Committee if, together with Amendments Nos. 19 and 21, we took at the same time Amendments Nos. 20, 22 and 24.
The Earl of MANSFIELD: Amendment No. 20 is an attempt to improve the English. No Parliamentary counsel will admit that it should ever be improved and I did not have very much hope that the noble Lord would accept the Amendment. I will do what the noble Lord suggests, although I shall take Amendment No. 20 in a little detail on its own. When I read this part of the Bill it seemed to me that the word "which" made it slightly more agreeable, but no doubt the noble Lord has his briefing on that point.

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Amendment No. 19 inserts the word "lawfully" in line 14. Like Amendment No. 21, which inserts the words on line 16,
"but who has not committed an offence under sections 7, 8 or 9 below"
it seeks to make this legislation coherent and what I might call logical, looking at the matter from one point of view. In other words, the Amendment is saying that if you are going to allow violence by the citizen in these particular circumstances there should be no benefit, so far as violence is concerned, to somebody who in any event is not lawfully on the premises.
Putting the matter rather more simply, the Amendment says that this offence under Clause 6 should not be available for the protection, if that is the right word, of either somebody who is not lawfully on the premises at all—in other words, a squatter—or, alternatively, somebody who has committed an offence under Clauses 7, 8 or 9; and I need not go into those clauses. In effect, it would create a different offence which could be used only against somebody who was trying to secure violent entry as against a rightful occupier. I do not know whether the noble Lord, Lord Harris of Greenwich, suggested that Amendment No. 22 should be debated at this point?
Lord HARRIS of GREENWICH: I did indeed.
The Earl of MANSFIELD: Amendment No. 22 seeks to leave out subsection (2). I suggest that Amendment No. 24 goes with it.
Lord HARRIS of GREENWICH: Yes, it does.
The Earl of MANSFIELD: That is to say, the Amendment seeks to delete subsection (3) of the clause. I am not sure about this; it is making the debate on these Amendments into a general debate and perhaps it is all the better for that. But this, as it were, puts the boot on the other foot. Whereas the first two Amendments say that no offence is committed when the person on the premises is there as a trespasser, these two Amendments create a very much wider class of people who can resort to this type of
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violence than is envisaged by the Government. I know very well that in my preface I said that I was not very keen on this clause, but if we are to have it I suggest that it must be fair and logical.
I touched, first, on the fact that only certain people could commit the offence and that only certain people would, if they resorted to violence, have a defence. However, one of the effects of the clause as it is presently drafted is that it can apply only to a dwelling-house; it cannot apply to any building other than a dwelling-house. More especially, it cannot apply to offices, universities, or any building like that. Therefore I suggest that we have a potential series of absurdities which depend upon the type of premises and the person who seeks to regain possession of them.
If, for instance, a bank is occupied by squatters during the time when the bank is open and they infiltrate lots of people into the bank, they commit no offence by so doing if they have no intention to steal or commit theft but literally block up the entrance to the bank with their bodies. The staff of this branch of the bank, who perhaps number two, three or four, are, I suggest, entitled to resort to reasonable violence to resist the trespass on their employer's premises. They are entitled to use reasonable force to eject the squatters. What they are not entitled to do is to summon reinforcements, and if these reinforcements try to get into the bank they then commit an offence. Is that desirable?
The noble and learned Viscount gave one or two examples which also show the hazards in sight. One comes to the definition of a displaced residential occupier who is defined in Clause 12(1) as any person who is occupying any premises as a residence immediately before being excluded from occupation. First one asks: when does occupation become occupation? If somebody contracts to buy a house, exchanges documents and starts to get all his furniture and possessions into it but has not actually slept there before trespassers take possession of the house, I suppose he had not, within Clause 12, taken possession and is therefore not entitled physically to regain possession of his house. If that person has slept for a night in his new house and then goes out and the squatters get the timing wrong, he is a displaced residential

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occupier and can take such steps under Clause 6 as he likes. That is a capricious effect which I suggest is thoroughly undesirable.
If I buy myself a cottage on the side of some lake—what in Scotland we might call a "butt and ben"—and I go there for holidays with my family, and I go along one day and find that it has been taken into possession by squatters, am I a displaced residential occupier or not? If I use the cottage only once a year, do I fall into that category? If I use it once a month, do I fall into it? If I go there every weekend? In other words, does the regularity of the occupation make any difference? What is the effect of the user of the house if one merely resorts there for the purposes of pleasure or relaxation or recreation? Is it residence within the contemplation of the Government at all?
I hope that what I have said shows—I will not say "the folly" because perhaps that is offensive—the uncertainty that will be created by this legislation. Therefore, what we have sought to do is to give anybody who has a lawful interest in property the same rights as a displaced residential occupier envisaged by the Government. In other words, one's rights so far as Clause 6 are concerned are not determined by this somewhat "chancy" method of ascertaining one's tenure. They are determined, so to speak, by one's actual legal interest. I beg to move.
Viscount DILHORNE: I have listened carefully to what the noble Earl, Lord Mansfield, has said and I cannot think it would be right if this clause is intended to make it an offence when there is someone present on the premises who is opposed to the entry, to limit that "someone" to someone lawfully on the premises, because as I understand it that would mean that subsection (1) would apply only where the person was not a squatter, because a squatter cannot claim to be lawfully present on the premises. By its very nature it would mean that. But when it comes to the point of the residential occupier to which the noble Earl referred, T should like to urge, in addition to the point I put before, the position of someone who has bought a house, whose completion takes place on a particular day, work has to be done by
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builders immediately and arrangements are made, and the purchaser is not protected at all. If squatters get in while workmen are on the premises that purchaser, who is entitled to possession, will not be able to avail himself of this provision. That seems to me to be unduly narrow and, provided that paragraph (a) is left as it is, and the word "lawfully" is not inserted, I should have thought one could have dispensed with the qualification about the residential occupier. Does that need to be looked at again?
6.54 p.m.
Lord HARRIS of GREENWICH: I will begin by saying that points similar to that just raised by the noble Viscount are one reason why we were so anxious to encourage full discussion of this particular area, because an exceptionally complicated series of inter-related problems are dealt with in this Part of the Bill, and certainly I will ensure that the point is looked at very carefully before the next stage of the Bill.
With regard to the remarks made by the noble Earl, Lord Mansfield, I can start with some good news for him. He will be glad to know that the Government share his view on the grammatical point which he raised and are prepared to capitulate to him on that point. Therefore he will be overjoyed to hear that we are prepared to accept his Amendment No. 20. However, he will not be altogether astonished to hear that our enthusiasm for the other Amendments is not wholly unqualifield. Perhaps I may state why that is so, and I can really begin with the point raised a few moments ago by the noble Lord, Lord Wigoder. Our view was simply that this would take the matter a great deal further than we are convinced would be desirable at the moment. It would go far wider than our present intentions. It would cover landlords, landlords' agents, building societies and so on, and, given the fact that we are talking about a difficult concept—one in which in fact some degree of force should properly be used—I think it is important for us to bear in mind that it is necessary for us to regulate this matter with some degree of precision, to some extent, I may say, for the reason raised by the noble and learned Viscount on the last Amendment. So I regret to say that I start off with that cautionary note.

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The noble Earl's Amendment seeks to limit the scope of the offence in Clause 6, largely for the benefit of those with a legal interest in the property. The structure of the offence reflects its primary purpose, which is to prevent breaches of the peace. A breach of the peace may be occasioned even though the person on the premises and opposed to the violent entry is not there lawfully or has committed one of the other offences in this Part of the Bill, and even though the person who seeks entry has a legal interest in the property.
In their Working Paper on offences of entering and remaining on property the Law Commission proposed that violent entry should always be an offence, even in the case of a displaced residential occupier; but in response to comments which were made on the Working Paper, the Commission changed their mind and recommended in their final report that violent entry by or on behalf of a displaced residential occupier should not be a criminal offence, but they considered that to except from the offence the use or threat of violence to recover possession of other premises might too readily lead to breaches of the peace. The civil law provides a remedy for a person excluded from property which he has a right to occupy.
The noble Earl raised the question of what would be the situation if a person were temporarily absent from the house. So far as this matter is concerned, the important thing is to remember that one does not need to be physically present on the premises all the time in order to occupy them. Thus a person continues to occupy his home even when he is on holiday. Similarly, a person remains the occupier of premises which he may use only from time to time; for example, if he has a weekend cottage. But the terms of the Amendment—and I can well understand the noble Earl's anxiety on this point—I think would take the matter a great deal further, and he recognised when he spoke and when, if I may say so, he made his form of Second Reading speech on the second part of the Bill when speaking on the last Amendment, that this is a dangerous matter to carry too widely; and that is why at the moment we are not persuaded to extend it to the degree which is contemplated in these Amendments. Our position on this matter is not closed. We
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are perfectly prepared to listen to the views of your Lordships at this stage and the next stage and, of course, of those in another place, to decide whether this matter should be defined rather differently than appears on the face of he Bill at the moment.
I will now return to the sort of problem that would be involved if in fact we accepted the Amendments as drafted at the moment by the noble Earl. I think the question of administration of this law has to be taken very seriously into account. The police have to know exactly where they stand in enforcing it. I say at once that the offences in this Part of the Bill, as drafted at the moment, will not be straight-forward for the police to enforce. In our judgment, the Amendments would in fact make the offence in Clause 6 a great deal more difficult to enforce. Under the clause as introduced, a police constable confronted with a violent entry would have to establish, first, that there is a person present on the premises opposed to that entry; and, secondly, that the premises are not the home of the person by or on whose behalf entry is sought. If the clause were amended the constable would have to establish that the person on the premises was there lawfully, and that the person by or on whose behalf entry was sought did not have an interest in or right to possess or occupy the premises.
These matters are sometimes found to be complicated in the civil courts, but we are talking here about a situation of a policeman standing on a rainswept corner, perhaps with a crowd of people milling around, having to make a judgment as complex as this. For that reason, we are concerned that to accept an Amendment of the kind which the noble Earl has put down would in fact take the matter far wider than we consider prudent at the moment. But, as I repeat, we are perfectly prepared to consider the points which have been made, the points made by the noble Earl, the point raised by the noble Viscount, and indeed any others which may be made during the passage of the Bill. We are anxious to adopt a reasonable formula here, but I must repeat that this law has got to be enforced by the police, and it is, in my view, imprudent to define it in such ambiguous terms that all one will get is a great deal of confusion and also a large number of complaints against police officers.
Baroness HORNSBY-SMITH: Could the noble Lord tell us which of the Amendments we are discussing? I was not quite sure whether Amendment No. 24 was included in this general discussion or whether it was being taken separately.
Lord HARRIS of GREENWICH: We were taking Nos. 19, 20, 21, 22 and 24.
The Earl of KINNOULL: For the purposes of clarity, I wonder whether the noble Lord could consider the reverse case to the case put by the noble and learned Viscount, Lord Dilhorne, earlier. I think the noble Viscount was taking the case of someone moving their home; they buy a new home and before they can actually occupy it is occupied by squatters. Supposing one has the other side of the coin; the person moves into a new home but fails to sell his old home in time before he moves. What happens to the old home, and is an argument likely to arise as to what constitutes "residential occupation"? For instance, would a table and chair in the old home be sufficient to constitute that the person had not actually moved?
Viscount DILHORNE: I imagine that the answer to that case would probably be that he remained in occupation of both premises; although he had bought the new home he would still be in occupation of his old home. I support the noble Lord, Lord Harris, in his desire to make this clause concise and clear. It is not only for the police. We are here dealing with the creation of an entirely new criminal offence, and it is quite impossible for us to draft in the course of the Committee stage. I, for one, would thank the noble Lord for his assurance that he is going to look at all these points that are raised. I stress—even if he does not go to the full length suggested by the noble Earl, Lord Mansfield—that "displaced residential occupier" is too narrow a definition.
Lord WIGODER: Might I ask the noble Earl if when he replies he would be good enough to indicate whether I have correctly understood the effect of these Amendments and the subsequent Amendments to Clause 7 as meaning that not only the civil law but the criminal law might, in certain circumstances, be invoked against
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those who take part in what is sometimes called an industrial "sit-in"?
Baroness HORNSBY-SMITH: I should like to direct myself to the Amendment in the name of the noble Earl, Lord Mansfield, and the noble Earl, Lord Kinnoull, No. 24, which we are taking within this discussion. I am not terribly happy about the Bill being confined to residential premises. It is easy to say that up to this time there have been very few cases of squatters going into other than residential property, but it seems to my lay and perhaps rather practical mind that if we produce a Bill which imposes heavy penalties on people entering into residential premises, then it will not take long for some of these rather astute and politically motivated groups—who are not, we feel, genuine squatters—to jump to the conclusion that if they go into premises which are professionally occupied or commercially occupied they will not fall foul of the rigour of this Bill.
I should like to remind the noble Lord of the many areas in our big cities—one thinks of the centres of Edinburgh, Manchester and London—where large mansions, great Victorian blocks, are substantially occupied by professional bodies. Even in the streets around my own neighbourhood, if you go into Nos. 2, 8 or 16 they are residential property; the identical structures next door are occupied, one by a professional trade union, one by a charity; and as I understand it they are premises that would not be covered, as the Bill stands. I think some protection should be given to them, and that it should not be solely residential property, because it gives squatters an opportunity to drive a coach and horses through the intention of the Bill.
Viscount BARRINGTON: While, as I understand it, we are discussing a rather fine grammatical point on Amendment No. 20, may I ask the noble Earl, Lord Mansfield, why it is better grammar to insert a "which" in line 15—"the entry which the violence is intended to secure", but not to insert it in line 32 where the same expression occurs—"the entry the violence is intended to secure". I am not quite clear whether the grammar would be better or worse in either case, but I think it would be logical to put it in both or in neither.
The Earl of MANSFIELD: I really cannot be responsible for tidying up all the Bill. There are two further stages at which the noble Viscount can correct it if he wishes to. I am just grateful that my one suggestion, at any rate, has been accepted. I wish in a way that we were discussing Clause 7 before Clause 6, because I made very plain my distaste for Clause 6. I see the force of the arguments of the noble Lord, Lord Harris, especially over the question of squatters, or anybody else for that matter, being lawfully on premises. If I may say so, I think the noble Lord will have to do a little better over the question of "displaced residential occupier".
As several noble Lords have said, this is a very narrow definition. I sought to widen it by giving everybody with a legal interest in property the right to take action under Clause 6. Obviously the Government do not like that. They think it is too wide. However, for the life of me I cannot see how one is to enlarge the class, if one is going to, by removing the residential qualification without having protection for all persons who may be legally interested in this piece of property. Certainly this argument has nothing to do with enforcement by the police. They are not concerned and I should hate to think that a young police constable had to concern himself with whether the man battering on the door of a house did or did not qualify as a displaced residential occupier. As I foresee the situation, the unfortunate will be arrested and it will be for him—I shall not say "to persuade a court"—to put before the court the fact that he is a displaced residential occupier. He will then be entitled to an acquittal under the section as it will be.
I was also asked by the noble Lord, Lord Wigoder, if this section and indeed Clause 7 apply as regards our Amendments to premises other than housing. The answer is, Yes. I produced what I thought was not too bad an example about a bank. Clause 7 in particular is designed to apply to any premises, not only residential premises. I hope that we can all go away now and think a little more deeply about these difficult and intricate matters. For the time being at any rate I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
The Earl of MANSFIELD The Earl of MANSFIELD moved Amendment No. 20:
Page 6, line 15, after ("entry") insert ("which").
On Question, Amendment agreed to.
The Earl of MANSFIELD The Earl of MANSFIELD moved Amendment No. 25:
Page 6, line 31, leave out from ("property") to end of line 34.
The noble Lord said: Your Lordships will see that Amendment No. 25 in effect deletes subsection (4)(b) from this part of the clause. The noble and learned Viscount has already touched on this subject, in other words the motivation behind enforced entry. He produced two excellent examples of where someone might wish to break into a house which was in the possession of squatters, or of anyone else for that matter, not so much for the purpose of regaining possession of the house but either to secure property which might well be in it or, in the case of the police investigating some crime, to clear the matter up.
I intended to ask the noble Lord, Lord Harris of Greenwich, whether it is the Government's intention to draw the protection quite so closely round the citadel inhabited by the squatter. I must at the moment beg the question of residence. Let us take premises of any kind which are not residential but where, for instance, there is, as in a bank, a very large sum of money. Are the Government suggesting that the owner of the money or the property must go through Order No. 113 procedure in order to gain some sort of entry to these premises, using the civil process in order to ensure that his own property is still there? It is almost bizarre. If premises contain a large sum of money and the owner of the money has to wait anything up to two months before he can enter the premises, I fear that if that money is not under lock and key there just, "ain't going to be very much money left" after two months. Is that the Government's contemplation?
7.16 p.m.
Lord HAILSHAM of SAINT MARY-LEBONE: I should like to put a point to the noble Lord, Lord Harris of Greenwich. It is not altogether frivolous. However, I shall put it in a slightly

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frivolous way because I think that we should have some fun in this rather dreary little debate and it is not the less important for being frivolous. Let us suppose that the Foreign Secretary is occupying this room in the Foreign Office and that 25 people who do not like the Statement he made this afternoon—either because they are fanatically in support of Mr. Smith or because they are fanatically in support of Mr. Nkomo—decide to occupy that room as a protest against what he is doing. As we all know, the Foreign Secretary is a man of spirit. Let us suppose that he decides to re-enter his room by force, passing the pickets at the door of the Foreign Office who are demonstrating and who seek to prevent his entry. The Foreign Secretary, summoning to his aid the rather decrepit officials who occupy the Foreign Office and who assist Foreign Office Ministers, forces his way to the 25 occupants of his room and tries to throw them out. Where do we stand in that situation? Are they to be in possession? Would the Foreign Secretary be committing an offence? Where do the Government stand as regards public buildings? I know where they stand as regards foreign embassies and consular missions because that is dealt with in a separate section, but where do they stand as regards Government offices?
Let us take something that could have happened in a building in which I am quite interested, namely, the polytechnic of central London. The other day I read that the administrative offices of that educational institution, which is supported almost entirely by the Inner London Education Authority, were occupied by students. It so happens that we have a very responsible band of students and a very responsible administrative band. We know very well that these things happen in circumstances where relations are less good.
Let us suppose that the noble Lord, Lord Boyle, the Vice-Chancellor of one of our Northern universities, being a man of spirit, bashes his way back into the offices normally occupied by the Vice-Chancellor. Where do we stand in that situation? Are we to prosecute these spirited persons who wish to reoccupy their own property, and for what? Is it not the case, perhaps, that the deliberate
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occupation of public buildings for political purposes represents a danger which ought to be dealt with by the public law of this country? If we are to leave it simply to the owners of residential premises to resort to self-help and if we abolish the law against conspiracy to trespass, which I gather is the purpose of the Bill, are we not possibly leading to a situation where there may be more breaches of the peace and not fewer?
7.19 p.m.
Lord HARRIS of GREENWICH: Although the noble and learned Lord hinted at the beginning of his remarks that he was about to be frivolous or ask a frivolous question, he should realise, if I may be mildly pompous for a moment, that I had better be careful about indulging in jests on a matter quite as grave as the occupancy of the Foreign Secretary's room, just in case by any mischance in the future such a situation were to arise. Therefore, I will gladly look into the point.
Lord HAILSHAM of SAINT MARYLEBONE: I hope so.
Lord HARRIS of GREENWICH: I will study the point. As the noble and learned Lord rightly says, we have dealt with the question of diplomatic premises, for the reasons which I indicated on the last occasion. In the light of what has happened in recent years it is obviously desirable that we take steps along these lines, all the more so because we have some international commitments so far as this is concerned.
So far as this Amendment is concerned, which seeks to delete a paragraph in subsection (4) which declares that the new offence, in common with the offence of forcible entry which it replaces, is committed whatever the purpose of the entry, the Law Commission, as the Committee will recall, recommended and the Government accepted that the offence should not depend on the purpose behind the entry. If violence is used that factor alone justifies criminal sanctions.
This provision would indeed be needed even if subsection (3) provided an exemption for anyone with an interest in property. Other provisions in the clause are concerned with the rights in the

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property of a person seeking entry. The noble Earl's Amendments on the scope of the offence and the right of self-help have already been discussed, but even if the Committee were to accept them on a future occasion we would not advise your Lordships to accept this particular Amendment. Whatever its intention it is aimed at a provision in the clause which is concerned with another point.
It may help to explain the point at which Clause 6(4)(b) is directed if I mention one matter of legal history. Although it was long thought in respect of the offence of forcible entry that the entry had to be made with the intention of asserting a right in the land, it is now clear that the word bears its ordinary meaning. Thus, in R. v. Brittain, reported in 1972, it was held that gatecrashers at a bottle party had been rightly convicted of forcible entry. The Law Commission recommended that entry for whatever reason should be caught by the new offence; paragraph (b) of subsection (4) gives effect to this recommendation, and it is this paragraph which the Amendment seeks to remove.
Subsection (4)(b) deals with the purpose of entry and, of course, it covers a person who intends to secure possession although he has no interest in the property, as well as a person who has an interest. The Amendment would not in general, in our view, further the interests of those with an interest in property. In the light of the explanation I hope that the noble Lord will not press this Amendment today, though I shall certainly deal with one or two of the other matters with which he dealt in moving it.
7.24 p.m.
Lord MORRIS of BORTH-Y-GEST: May I ask one question of the noble Lord. Would the subsection as it stands cover almost every case of housebreaking where there are people in the house, or any case of factory breaking where there is somebody looking after the premises, or a bank? Suppose in a bank there is somebody whose purpose there is to look after the premises. The words in Clause 6(1)(a) read:
"there is someone present on those premises at the time who is opposed to the entry…"
Does "opposed to the entry "mean "who is offering opposition to the entry",
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or does "opposed to the entry" mean," Well, if he knew that entry was taking place he would be very much opposed to it because he is there to try and stop it if he knows of it"? Supposing the house holders are asleep in bed and somebody breaks into the premises—they are using violence—are they opposed to the entry? Then if the man is merely a burglar, or somebody who wants to take from the bank anything he can find, he is not merely there to acquire possession, he is there "for any other purpose".
I do not say that this is at all a defect of the subsection; but, just by way of inquiry, does it in fact cover almost every case of housebreaking where there is somebody in the house; almost every case of factory breaking, or bank breaking, provided there is somebody in the premises even though that person is oblivious of the fact that somebody breaks in?
Lord HARRIS of GREENWICH: I should like to take a view on this particular matter. I apologise to the noble and learned Lord. I thought we were on the later Amendment and I realised suddenly that he was on the earlier one. I should like to look into it if I may, and I shall communicate with him when I have done so.
The Earl of MANSFIELD: Again I think that this debate has shown that the proposed legislation, if it is not defective comes somewhere close to it. I shall pray in aid my noble and learned friend's instance when we come to the next Amendment on Clause 7. Going back to his analogy, it is slightly ridiculous that at the moment if the Foreign Secretary merely uses the Foreign Office as an office, proceedings must be by way of civil process. If, on the other hand, he has a bed there for the night quite different considerations apply.
Being serious, it is quite wrong that these accidents, or haphazard chances, should decide our criminal law. If a bank has a flat somewhere in it, then I suppose Clause 6 immediately comes into play. If it has not, it does not. I suggest to the Committee that that is far from satisfactory. At present, however, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 6, as amended, shall stand part of the Bill?
7.28 p.m.
Lord WIGODER: May I raise one not very substantial matter in relation to Clause 6(6) at the top of page 7, which also applies to Clause 7, perhaps to Clause 8, and again in Clauses 9 and 10. Where a squat is forcibly ended by the action of the police there is frequently a situation of considerable emotional disturbance. Frequently large numbers of people are involved if there is a multiple squat. There is a scene of substantial confusion and a very real risk of breaches of the peace. In those circumstances, is it not important that those who are squatting should be able to appreciate at once that those who are carrying out the law are in fact police officers? I should like to ask the noble Lord, Lord Harris, to consider between now and the next stage whether it might not be in the interests of public order generally that the powers of arrest under these various clauses should be given to officers who are in uniform, which would thus put the matter beyond doubt.
Lord HARRIS of GREENWICH: I would not, as the noble Lord would appreciate, want to commit myself on a point of that sort. I understand exactly the motivation behind the point which he has just put to the Committee. I should like to reflect upon it. It is arguable that it would in fact be undesirable to do this in certain circumstances, if by chance a plain clothes officer came into contact with a situation of this sort and had to wait for uniformed officers to arrive. But I should prefer not to commit myself at the moment. I should like to think about this.
Clause 6, as amended, agreed to.
Clause 7 [Adverse occupation of residential premises.]:
7.30 p.m.
The Earl of MANSFIELD The Earl of MANSFIELD moved Amendment No. 26:
Page 7, line 11, leave out ("a displaced residential occupier") and insert ("any person having an interest in or right to possession or occupation").
The noble Earl said: We come to the clause which I regard as being potentially
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—not at the moment, but at least potentially—far more satisfactory both to the citizens who will have to abide by it and to the authorities. As I said earlier, I do not favour a clause in a Bill which in effect allows the citizen to take the law into his own hands, for whatever purpose, and show violence to other citizens; that is a sort of modern form of trial by battle which I find distasteful. However, the circumstances in which society must take action is when people engage in unlawful acts, and society then does not have the courage to provide the mechanism by which those unlawful acts can be acted upon, but merely throws its hands into the air and says, "You, the injured party"—because that is what there are in many of these cases—"must go through the civil courts taking your chance as you find it". That I regard as unfortunate, and it will be equally unfortunate if, having this Bill and this part of it, we do not improve it to try to make better sense of the present situation.
We have talked much about residential premises. It is a fact that most of the squatting—the vast preponderance of it as I understand it—takes place on local authority property. It is housing which they are perhaps seeking to improve or redevelop and, for one reason or another, squatters take possession of the property—either before it can be redeveloped or perhaps after it has been almost completed—and then a number of things happen. First, the local authority is unable to carry out its programme; secondly, people who may well be on some sort of waiting list on which they had hoped to be reaching the top are unable to move into the property which they had been allocated; and, thirdly, the squatters in such instances are to some extent defrauding their fellow ratepayers or citizens of the rates and so on which would accrue to that local authority if it were able to put proper tenants into those housing units. For all those reasons, it is, I suggest, a proper cause for Parliament to try to devise some means by which, in proper instance, the owner or occupier of this type of premises can take action quickly, using the resources of the State, to remedy the defect so far as that position is concerned.
Then there are what I would call political squats. Again, I would be the last to try in any way to prevent citizens from making peaceful protests or in

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other ways enjoying their civic rights of civil demonstration, but where, for example—and it has happened—premises are taken over (as, for example, at universities and offices) simply as a political demonstration or, to put it another way, as a political manifestation, at the moment there is no possibility of the owners of those premises being able to take quick and effective action. It is time the community looked at the law to see what can be done to make it better; to make it better, I hasten to emphasise, without being in any way onerous on anyone and their particular civil rights.
So far as Clause 7 is concerned—and for the purposes of this Amendment I can speak at the same time to Amendments Nos. 27 and 28 because all three go to the same matter—what do we have? First, a person may be guilty of an offence as a trespasser if he is on residential premises. If he is not on residential premises, he cannot be guilty of an offence under Clause 7, and that comes about because he can be required to vacate the premises only by a displaced residential occupier. We have had a debate already on a displaced residential occupier and I have sought to show that I regard such a definition as unfair and capricious, and I hope the Government will take this definition away and try to improve and enlarge on it. The definition in this clause is, of course, much more important because it also limits the type of premises which can be the subject of a prosecution under Clause 7.
It is really a matter of chance in the future, I suggest, as to whether squatters in this particular instance are or are not guilty of an offence. For example, if they invade an Embassy because they dislike the politics of the Government concerned, then immediately, however quiet or orderly they may be and however transient their desire to occupy the Embassy, they will be guilty of an offence. On the other hand, if they occupy the premises of a bank which happens to have large investments in a country which does not enjoy favour, there is no offence. If, as we have heard, a Government office is occupied in these circumstances, there is no offence and no possibility of taking any action. If it is a residential house owned by somebody who is a displaced residential occupier, there is an offence. But if it is owned by a local
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authority, there is no offence. On the other hand, if it is owned by a landlord, unless his tenant will take action, there is no offence. If it is a house which may be between owners, there is no offence; but if it is a house which may be used by a man for the purposes of enjoyment with his mistress, there is an offence. It is all delightfully British and haphazard, but it is not logical and it is not fair.
What can be done to make it better? I have suggested—and all the Amendments I have so far moved are in this spirit—first, that "the premises" should be enlarged in this instance to "any premises "on the basis that only by so doing can there be a quick form of relief where it may be important that it should be quick; and, secondly, as your Lordships will see from the Amendment, relief would be extended to anybody who has a legal interest in the premises.
Viscount DILHORNE: The offence of trespass by a squatter is an offence only if it is trespass with a weapon of offence, and then it is an offence under Clause 8. But here we are dealing with, adverse possession. A squatter being a trespasser is not per se guilty of an offence under Clause 7. He is guilty of an offence only if he fails to leave the premises on being required to do so by a displaced residential occupier or somebody on his behalf. I approach this from a slightly different angle from that of the noble Earl, Lord Mansfield. There is much to be said for discouraging the use of violence; Clause 6 deals with that and we are not concerned here with violence, and Clause 6, as I understand it, applies not only to residential property but to all classes of property.
I urge the noble Lord, Lord Harris of Greenwich, to consider this: if the sanction against trespassers who refuse to leave when asked is not adequate, the chances of persons resorting to violence in fury and desperation to secure possession of property to which they are entitled is increased. It seems to me that there is a case here for drawing a distinction between Clauses 6 and 7 and not limiting Clause 7 to requests to leave by displaced residential occupiers or by a slightly widened definition of that term. I cannot help but feel that it might be for the reduction of the prospects of breaches of the peace if it were made an offence for a trespasser who is asked to leave by someone entitled to

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occupation of the premises in question or by someone acting on the latter's behalf—someone who could show that he was entitled or acting on behalf of the person entitled—to remain on the premises. This might well be made an offence not limited simply to residential property. If Clause 7 were made to have that kind of application, it would assist in the case that the noble and learned Lord, Lord Hailsham of Saint Marylebone, referred to.
If the noble Lords, Lord Harris of Greenwich or Lord Donaldson, went back to their room and found it occupied by trespassers, they would perhaps not be so inclined to resort to violence, being persons of high spirit, if they could say to the individuals in the room, "Please leave, this is my room." Refusal to leave the room then would constitute a criminal offence. It seems to me that, if Clause 7 were of general application, it would probably be righ.t and beneficial and that it is really wrong to limit Clause 7 to the request by a displaced residential occupier. It ought to be a request by anyone who can show that he is entitled to possession of the premises. Then, if he is in fact entitled and the person does not leave, there will be an offence.
One could test it in this way: someone goes along and asks the trespasser to leave and he refuses. The person who asks says, "I am entitled to possession of these premises" or "I am authorised by the owner, the resident or the occupier of these premises to require you to leave." The person addressed refuses to leave and can then be charged with an offence, but he may establish as part of his defence that he was not asked to leave by a person acting for or on behalf of the occupant. If so, he will not commit an offence. That seems to me to be logically justifiable and it would improve the Bill to widen the scope of Clause 7 to make it apply to persons who refuse to leave when asked by persons who are entitled to ask them to leave.
Lord WIGODER: I hope that the Government will not seek to extend the law to the extent where it might become wholly unenforceable and to the extent where serious breaches of the peace might take place as a result of the attempt to enforce it. I have in mind the danger of extending the law on the lines indicated
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by this Amendment, as a result of which, for example, the owner of a factory might inform his workforce of 1,000 people this morning that the factory has to close down this evening. This is, unhappily, a situation that sometimes arises and is one in which those 1,000 people might decide to stay on at the factory to indulge in an industrial sit-in by way of protest or by way of seeking to start up their own form of enterprise. As I understand the Amendment, in that situation, if the owner of the factory were to say to his 1,000 workers, "You must leave" and they do not, it would be the duty of the police to try to arrest them. I can think of no clearer recipe for civil disorder than a provision of that nature.
Lord GIFFORD: I want to apologise for not having been here at the beginning of the Committee's proceedings. I was called away on an engagement which started at precisely the moment when the Committee began to consider the Bill, but I was able to hear the greater part of the speech of the noble Earl, Lord Mansfield, on his Amendment.
I am expecting and hoping that my noble friend Lord Donaldson will be announcing the Government's rejection of this Amendment or anything like it. What the noble Earl is seeking to do is to take us back to the original, or something very close to the original, proposal of the Law Commission's Working Party which, when it reported in June 1974, tentatively recommended the creation of a general offence of failing to leave property when requested to do so by a person entitled to occupation. This Amendment comes very close to that proposal.
After the proposal in question was promulgated, there was a great amount of public debate, much of it on the lines of the argument which has just been used by the noble Lord, Lord Wigoder, to the effect that this would be bringing the police and the criminal law into areas of social conflict where they should not come, for it comes close to making trespass a crime. Trespass would become a crime under the clause as the Conservative Front Bench seeks to amend it, if that trespass is continued after a request, however couched, to leave by the person entitled to possession. The noble Lord, Lord Wigoder, gave the example of the

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factory owner who orders a large work-force to leave when it is occupying a factory in an industrial dispute. It can also happen that large numbers of persons squatting in local authority buildings which have been left empty for an unconscionably long time may also receive requests to leave by letters or loud hailers. Once those persons do not leave, under the clause as the noble Earl seeks to amend it, the police would, as I understand it, have a duty to intervene. This would not even be a discretion; it would be a duty because, if it were against the criminal law that some dozens or perhaps hundreds of people were staying in a place after they had been ordered to leave, the police would be required to go in and seek to turn them out. What a recipe for social conflict and what a deplorable way to resolve the kinds of conflict that result in the occupation of either work places or dwellings!
I hope that my noble friend will not only reject this Amendment but will indicate that there are not to be put forward by the Government any similar Amendments to this clause. This is the clause on which, on Second Reading, my noble friend Lord Harris indicated that the Government had an open mind. He said:
"The Government are not committed to the view that the criminal offence in Clause 7 ought inevitably to remain as narrow as this."
There was an invitation to all and sundry to put forward Amendments. The only Amendments that have been put forward have been those of the noble Earl, and they are clearly unacceptable. The Government have put forward no Amendment and what I should wish to ask is when we are to have the opportunity to consider any Government Amendments, if such Amendments are to be put forward. I hope that my noble friend can say that the absence of any Government Amendment from the Order Paper indicates that there is not to be any extension of Clause 7 as it now stands.
Before I sit down, I should like to make very clear one last matter as far as displaced residential occupiers are concerned. In my view, it should be an offence to displace a residential occupier. I would have no support for anyone who did so. It is, in fact, already an offence for a landlord or indeed anyone, I think, to evict, or to harass, or to seek to remove a
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tenant or someone staying on after his tenancy has expired. The proper approach would be to make it an offence for any residential occupier to be protected by a similar provision. Just as I would not wish to see anyone coming in and squatting or trespassing upon someone's home when he is absent, so I should not like to see landlords or owners of property coming in and evicting or ejecting people who are using a place as their residence, either lawfully or in disputed circumstances, or even unlawfully. The courts and the protection of a court order is the right way to remove persons who are resident and whom someone else wants to displace. I would have no sympathy for displacing residential occupiers.
Lord DONALDSON of KINGS-BRIDGE: If I may just fill in the last point, the case of the tenant who is overstaying his lease without paying his rent is specifically excluded right through the Bill, so we need not waste time any longer on that. My noble friend Lord Gifford asked me whether the Government would give an undertaking that there would be no further Amendment to this clause. As my noble friend Lord Harris of Greenwich asked for a debate on Second Reading and as we have had a debate on this subject, it would be very uncivil of the Government to do any such thing; they certainly have no intention of doing so.
The width of the problem has been well shown up by the speeches we have had from the two angles. First, I should say that the objective of the clause was to put into law the recommendation of the Law Commission Report, which was dealing only with the residential occupation that we have been talking about. So the noble Earl and the noble and learned Viscount are asking us to go further than the Law Commission went, and my noble friend Lord Harris of Greenwich said that the Government's mind was not closed to this. He referred on Second Reading to various particular problems where squatting interferes with the rights of a new owner or tenant, and we have had two or three instances today which do not seem to be properly covered by this clause. Saying that does not amount to saying that it should be a criminal offence in any circumstances for a trespasser to refuse to leave premises at the request of a person with an interest in the property,

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which I think is what the noble and learned Viscount was suggesting, more or less specifically——
Viscount DILHORNE: I did not say "interest in the property" because that would be too wide, but rather the person entitled to occupation of the property.
Lord DONALDSON of KINGS-BRIDGE: I thank the noble and learned Viscount for making that point. In this clause we are already extending the criminal law. It is one thing to do so on behalf of a person excluded from his own home; I think that even my noble friend Lord Gifford has no objection to that. But it is quite another matter when the property is empty and there are no plans for it to be occupied, or rehabilitated or demolished for some time to come. Of course, occupation in such a case is unlawful. But there would not be much widespread support for a provision making it a criminal offence for a homeless family of squatters to refuse at the request of a property company to leave an empty and previously derelict property which the squatters had perhaps made habitable when the property company intended only to board up the premises and leave them empty.
That is the extreme case which I think the Amendment of the noble Earl would enforce. I think that it is fairly clear that the Government will not go so far as that. I can give my noble friend that assurance. But something between there and the law which applies only to the displaced residential occupier is a matter to which I think my noble friend Lord Harris of Greenwich and his colleagues will give very serious attention. The Government's mind is not closed on this.
One of the really evil things about squatting in local authority empty properties is that it holds up housing. On the other hand, I do not think that anybody could doubt that the noble Lord, Lord Wigoder, is right in that if something is made a criminal offence the policeman then has to deal with it, and if there are a hundred men in a factory there is a very serious situation. This is the problem that we are up against. My noble friend has said already that he will look at this matter again with his
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colleagues. My noble friend Lord Gifford asked when would there be any further comment and the answer is: at the next stage of the Bill.
Viscount DILHORNE: I should like to suggest that the noble Lord, if he is to deal with the matter in that way, should look at it not by making it a test as to who is asking for possession of the property, but by defining the class of property which falls within the scope of Clause 7. For instance, factory premises might be excluded from that. Perhaps it can be dealt with on that approach. This is only a suggestion for the drafting and I do not want a reply now.
Lord DONALDSON of KINGS-BRIDGE: That is a perfectly helpful suggestion; I entirely agree. My noble friend whispered to my ear that we may not be able to deal with all these matters before the next stage, but I think that we can make a good step towards doing so.
Lord GIFFORD: Can the Committee be assured that such Amendments as the Government see fit to make to Clause 7 will be open to debate in this House and will therefore be before the House at the Report stage?
Lord DONALDSON of KINGS-BRIDGE: Either on Report or through Amendment in another place these matters are bound to come back to this House; so the answer to my noble friend's question is, Yes.
Lord GIFFORD: I suggest that it would be unsatisfactory for the matter to be left first of all to be debated in another place when we are here giving much time to debating a Bill which the Government wish to put forward in this House. For the matter to be left to debate on whether we accept Commons Amendments is putting it far too late, and I suggest that this House should have the right to hear the Government's proposals on Committee, or, if not on Committee, at Report stage so that our views can be heard.
Viscount DILHORNE: I cannot believe that the Government can possibly commit themselves not to make an Amendment to this clause during consideration in another

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place. It seems to me somewhat unreasonable to ask the Government to preclude the possibility that they will make, or accept, an Amendment to this clause in another place.
Lord DONALDSON of KINGS-BRIDGE: The question really does not arise.
Lord GIFFORD: That is not what I am asking the Government to do. There has been a specific reference to Clause 7. The Government say that their minds are not closed; therefore, they may—we know not—seek to extend it. If they seek to extend it and change it, can that be done on Report? That is my plea.
Lord HARRIS of GREENWICH: I should like to intervene, since I dealt with this matter in the course of the Second Reading debate. What I made clear then—and I repeat now—is that the Government wish to take the view of both Houses of Parliament on this important question. The point which the noble and learned Viscount has just made is perfectly correct. It may well be that there will be a Commons Amendment on this matter at some stage in the future, and we could not possibly undertake today not to consider Commons Amendments which may be made on the matter. We want to be as reasonable as possible, but both Houses of Parliament have to be consulted. That is a perfectly normal way to proceed. I can assure my noble friend that there is no anxiety on our part to prevent this House participating in that discussion; indeed, the value of this debate today is that we have been in the happy position of being able to initiate that discussion.
Lord GIFFORD: I perhaps naively thought that the normal course of events was that the Government made proposals by way of a Bill and Parliament then debated those proposals, and may be they were amended. In this case we have Parliamentary debate first and the Government proposals will be second, which is a curious way of proceeding. But since the question of future amendment is up for grabs, I should like to take the opportunity to ask the Government not to consider the possibility of further amendment of this clause on the basis that squatting in local authority accommodation holds up housing. In far more cases
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the presence of squatters in local authority accommodation has created housing. By going into local authority property squatters have drawn attention to the fact that that property is lying fallow and empty, and is likely to do so for a number of years. In many cases, what started off as an unauthorised occupation, an unauthorised squat, has become and has been turned into, by the agreement of all parties, a licensed use of short-life accommodation. To give local authorities carte blanche to evict, with the help of the police, those whom they deem at a particular time to be holding up their housing programme, short-cutting what is in any case a very short civil process, would be a retrograde step, and I hope that will be borne in mind.
Lord DONALDSON of KINGS-BRIDGE: Of course it will be borne in mind. If any Amendment along these lines is suggested, this is one of the things which will have to be discussed. Most fair-minded people, I think, would admit that violent protests, or even very energetic protests, produce results. I do not want to say anything particularly hostile against people who try to protect the homeless, which is a thoroughly worthy thing to do. They have trespassed in a literal sense on local authorities' rights and have woken up local authorities, and good luck to them. But we are not at that stage today. We are discussing extending a perfectly narrow conception, and I do not think we need go into the further complications at this stage.
The Earl of MANSFIELD: I think that this debate has shown that in various parts of the Committee there is certainly a realisation that this clause will have to be amended in one way or another. When that moment will come, we do not know; and I felt some sympathy for noble Lords opposite when there were those who wanted to pin them down—and fairly rapidly, at that. But I think the noble Lord, Lord Gifford, has this point, that it would be a pity if the Government were determined to keep their powder so dry that they merely used this House as a sieve for ideas and then waited, perhaps until the Committee stage in another place, before producing the plum out of the pudding. That, I think, would be slightly unfortunate; but I have no

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indication, and I do not think the Committee has any indication, that that is in the Government's mind.
In the case of this particular clause, we have seen both ends of the spectrum so far as possible Amendments are concerned. I reject the contention of the noble Lord, Lord Donaldson, that it is in any way unseemly for a property company to try to get squatters out of its property, any more than it is unseemly for a local authority to do so; and that, I suggest, should not be the criterion which is used if and when an Amendment comes to be tabled and accepted or voted upon.
Lord DONALDSON of KINGS-BRIDGE: I did not use the words "unseemly" or "intended". I thought it would be in danger of producing a serious confrontation, which is quite a different thing.
The Earl of MANSFIELD: The point really is: In the terms of Clause 7, who is to require the occupier, the squatter, to depart? My point is that we should not be concerned with the identify of the person who has the particular interest which entitles him to require the squatter to go. I was a little sorry about the argument of the noble Lord, Lord Wigoder, because what he was really seeking to establish was that there should be "no-go" areas for the criminal law. That I regard as an unfortunate argument.
Lord WIGODER: I was raising that only because the noble Earl was suggesting an extension of the criminal law.
The Earl of MANSFIELD: I think that many of the troubles we have in this country are brought about because we enact laws and then are not prepared to carry them through and face the consequences. If people break the law or defy it, that is something which has to be considered by the authorities when they try to enforce it. I see the difficulties, but I regard it as unfortunate that at this early stage we should be saying that we cannot do anything merely because a lot of men happen to wish to make a protest.
The other end of the spectrum is, I suppose, to make it a criminal offence
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for a trespasser not to leave after having been required to do so by anybody with an interest in property. I, for one, seriously seek to put that view forward; but, equally, I suggest that the ambit of Clause 7 as it presently is in this Bill is much too narrow, as we have seen from the various examples which have been held up to us tonight. I think this is something which, again, we shall return to at a later stage of the passage of the Bill through your Lordships' House. I hope that others will respond to the invitation of the noble Lord, Lord Harris, to table Amendments, and that it will not merely be for me to think of different ways of saying approximately the same thing. On that note, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 7 agreed to.
Clause 8 [Trespassing with a weapon of offence.]:
The Earl of MANSFIELD The Earl of MANSFIELD moved Amendment No. 29:
Page 7, line 28, leave out ("weapon of offence") and insert ("offensive weapon").
The noble Earl said: I can speak to Amendment No. 30 at the same time. This is really on a point of information. I wondered why the draftsman of this clause left aside the good old "offensive weapon" and the definition thereof in the Prevention of Crime Act and adopted what I regard as the slightly more prissy phrase "weapon of offence" and the definition in the Theft Act. It is no more than that. I beg to move.
Lord DONALDSON of KINGS-BRIDGE: I hope I can persuade the noble Earl not to press this too hard. It is not a matter of very fundamental difference, but the definition in Clause 8(2) is the definition from the Theft Act, which was 15 years later than the definition of "offensive weapon", which was used by the Law Commission. The Government thought the former was the better. It is a tiny bit wider. It includes incapacitating, which means handcuffs and things of that sort, and it was thought the simplest way to proceed.
The Earl of MANSFIELD: That is really what I wanted to know: what was

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contemplated by the definition of a weapon which incapacitates. I must say that handcuffs had not occurred to me. I did not know that squatters went around with handcuffs. I had thought of some aerosol bomb, or something. But I am perfectly happy, and I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 8 agreed to.
Clause 9 agreed to.
Clause 10 [Obstruction of court officers executing process for possession against unauthorised occupiers]:
8.10 p.m.
Viscount DILHORNE Viscount DILHORNE moved Amendment No. 30A:
Page 9, line 13, leave out ("solely").
The noble and learned Viscount said: It might be for the convenience of the Committee to consider this Amendment and No. 30B at the same time. We are now moving into a rather different field. I must confess that I have not looked at Section 8(2) of the Sheriffs Act 1887, which is not affected by Clause 10, but subsection (1) of this subsection makes it an offence to resist or intentionally to obstruct:
"any person who is…an officer of a court engaged in executing any process issued by the High Court or by any county court for the purpose of enforcing any judgment or order for the recovery of any premises or for the delivery of possession of any premises."
I should have thought that that was a very desirable improvement in our law, if that is a gap which requires to be filled.
These Amendments relate to subsection (2). Subsection (2), if I read it correctly, is a very curious one; because obstruction of an officer of the High Court or of a county court will not be an offence unless the proceedings that have lead to that particular order of the High Court or the county court are of a particular character. I must say that that seems to me to be wrong and to be an undue refinement of the law to say that you can, in certain circumstances, lawfully obstruct an officer of the High Court who, himself, is lawfully acting for the purpose of enforcing any judgment or order for the
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recovery or possession of any premises, unless the proceedings which have led to the order of the High Court or of the county court are of a particular character. That, I would suggest, must be wrong.
If your Lordships look at subsection (2), you will see that it will only be an offence to obstruct an officer of the court carrying out the process of the court if the claim for possession of the premises alleges that the premises in question are occupied solely by a person or persons who entered into or remained in occupation of the premises without the licence or the consent of the person claiming possession. Subsection (1) will not apply if the premises are occupied by a tenant or tenants holding over after the termination of the tenancy.
The noble Lord, Lord Donaldson, referred to the tenant or tenants holding over. This is quite a different provision. This is dealing with obstruction. If the High Court or the county court—after the interval of two months to which the noble Earl, Lord Mansfield, referred as being the likely interval of time—make an order for possession of the premises, surely it must be wrong to obstruct the officer seeking to carry out that order. The wrongness of it does not depend on whether the order is made against a person who was a tenant and is holding over and has no right to be there or against anyone else. It should be an offence to obstruct an officer of the court lawfully carrying out the duty that he is charged by the court to carry out. It should not depend upon the nature of the proceedings or the persons against whom proceedings are brought.
I hope that I am not misreading this subsection, but if it has the meaning that it appears to me to have, then it seems to me to be both wrong and unnecessary. I hope that I may be successful on this occasion, although it is not merely a linguistic difficulty, in persuading the noble Lord to say that he thinks there is force in what I have said.
Lord HARRIS of GREENWICH: I think this is rather more substantial than a linguistic difficulty. I will, if I may, begin by setting out the intentions of Clause 10 in dealing with what the noble and learned Viscount has raised. I think that that is the most sensible course.

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Subsection (1) provides that it shall be a criminal offence for a person to resist or obstruct a court officer in the execution of any High Court or county court judgment or order for the recovery of any premises or for the delivery of or possession of any premises. Subsection (2), to which the noble and learned Viscount referred, limits the scope of the offence to cases where the judgment or order in question follows proceedings under rules of court applicable only in circumstances where the person claiming possession of the premises alleges that those premises are occupied solely by a person, not being a tenant holding over after the termination of the tenancy, who entered into or remained in occupation of those premises without licence or consent. In effect, this limits the offence to cases where court officers are seeking to enforce orders for possession under the summary procedure introduced in 1970 specifically to provide a speedy remedy in the case of squatters. The procedure is provided in Order 1133 of the Rules of the Supreme Court and Order 26 of the County Court Rules. It would be natural to think that subsection (2) would be easier to follow if it simply referred directly to Order 113 and Order 26 but, of course, that would make nonsense of the offence if the procedure has to be amended and is then contained in Orders with different numbers.
I understand clearly the point which the noble and learned Viscount has made. I will certainly undertake to reflect on what he has said; but the Amendment, as I understand it, is designed to widen the offence to cover all cases where a court officer is executing process for possession, whether or not it is issued under the summary procedure. These Amendments will not achieve that purpose, which could best be achieved by leaving out subsection (2) from the Bill; but I cannot advise the House to accept any Amendment designed to widen the scope of this offence.
The Law Commission recommended this offence on the grounds that there is an increasing tendency for those occupying property without licence seriously to obstruct court officials seeking to enforce court orders. The Commission pointed out that it is mainly in relation to the enforcement of orders for possession under the summary procedure that the
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problem of enforcement has arisen on a widespread scale. If we were now to extend the offence to cover all orders for possession, it could add to the already heavy burden on the police, especially in London, where the pressures are inevitably greatest. The Government recognise that there has been a serious problem in relation to squatters and this clause is intended to help to alleviate that problem. In other cases, the police do their best to co-operate with court officers where, for example, it is anticipated that a breach of the peace is likely to occur.
I must say—and I am quite sure I anticipate a point that the noble and learned Viscount might make in his reply—that I recognise that the views of the police in a matter of this sort should not necessarily be decisive; but I think it is important to recognise that the police would not welcome an extension of this offence into areas where in the past the problems have not been so serious. In deciding what the police should be asked to do, it is frankly necessary, as in so many areas of public policy, to assess the priorities. There is still a substantial shortage of policemen in the Metropolitan Police district and we are bound to take the views of the police in matters of this sort very seriously.
I recognise the force of the argument which the noble and learned Viscount has put and, as I have said, I will certainly reflect on what he has said. All that I must say clearly is that at the moment we are not persuaded that it would be right to widen this offence. However, I shall reflect on what he has said, without, I regret to say, being able to give any form of commitment to change our position in this matter.
Lord WIGODER: While the noble Lord is indulging in his reflections, might I ask him to reflect upon two associated matters? The first is whether it would be desirable to provide that the exemption for the class contained in the brackets in lines 14 and 15 should depend not on the judgment or order of the court but on the allegation made by the person claiming possession of the premises. It would appear, on my reading of the subsection, that it would be open to a plaintiff to make an allegation of the sort in that subsection and thereby avoid the provisions

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of the parentheses; even though judgment was given on the ground that the tenants were holding over after the termination of the tenancy.
The other matter is this. If it is desired to persevere and exclude from the operation of Clause 10 a particular class of people—namely, tenants who are holding over after the termination of the tenancy—ought that not to be extended to cover those persons who innocently take a sublease which has been granted in breach of a covenant not to assign, as a result of which they wholly inadvertently find themselves technically in a position of squatting? If it is thought that there should be protection given to tenants holding over, do not people in that position deserve similar assistance?
Viscount DILHORNE: As I read this clause, it is not concerned with protection to persons holding over or to protection of tenants. It is concerned with protection for officials who are carrying out court orders—nothing else. I do not question the desirability of making it a criminal offence for obstructing court officers seeking to enforce orders for the recovery of premises or for the delivery of possession of premises. I, too, take the point that it probably would have been better to put down an Amendment to leave out subsection (2), because at present that subsection is unnecessary surplusage and unnecessarily complicated. I do not think that the protection given by the clause should be limited only to the court officials who are seeking to enforce orders for possession if those orders for possession are based on certain claims and not on others. I hope that I have made that clear.
The noble Lord, Lord Harris of Greenwich, talked about the position of the police. I am sure the noble Lord will agree that we are not solely concerned with the police on this. There is a power given to a constable to arrest without warrant. There is no need in every case for an arrest to take place. What I am concerned with is the protection of the court officials. A court official who is obstructed may think fit to bring proceedings for an offence under this clause. One does not know. I should have been happy if the noble Lord, Lord Harris of Greenwich, could have assured me (perhaps I should know, but
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I have not looked it up) that, quite apart from the provisions of this clause, there is adequate protection for court officials who are seeking to enforce orders for recovery of possession mace against persons to whom the clause does not at the moment apply. It may be that there are those powers. I am afraid that I am not aware of them, and I would be content if they came in other ways.
If there are not those powers, I cannot think that the exclusion of subsection (2) would add appreciably to the number of instances upon which the police might be called upon to act. If this criminal offence of obstruction of court officers acting in the course of their duty is made a general offence, I cannot believe that there would be many more people who would be convicted of that offence if it extended to all persons obstructing court officers who are seeking to enforce orders of the courts. The noble Lord will look at it again, I am sure.
Lord HARRIS of GREENWICH: I will gladly look at it again. As the noble and learned Viscount has had rather more substantial experience in speaking both from this Box and, no doubt, in another place than I have, I would not wish in any way to give the impression that I can give this point away. We have had discussions with the police on this matter. There is substantial anxiety on their part that by widening this and covering all sorts of situations, there would be demands for the police to be involved in all sorts of problems.
Viscount DILHORNE: If I may interrupt the noble Lord, I was not suggesting that he should make any concession now. Perhaps he will write to me before the next stage and deal with it. I ought to know what protection there is now, apart from this.
Lord HARRIS of GREENWICH: I will gladly do that, of course.
Viscount DILHORNE: I ask leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 10 shall stand part of the Bill?
8.25 p.m.
Lord WIGODER: When the noble Lord, Lord Harris of Greenwich, is considering the position as to whether police officers should be in uniform when carrying out arrests, would he also ponder for one moment whether it is wise, as in line 26 at the moment, to give the power of arrest without warrant to an officer of the court? He is not only a person who does not wear a uniform, but he is a person who has no training of any sort in carrying out those duties.
Lord HARRIS of GREENWICH: This is one of the many problems about any possible extension of this provision, as the noble Lord will recognise. I take the point completely. We have thought it right to give these powers in this clause. Clearly, there might well be problems if we were to extend it, as has been suggested by the noble and learned Viscount.
Lord GIFFORD: Is the power, even in this limited case, right? There have been cases—there was one in Ilford some years ago—when court officers or persons acting in execution of court processes misbehaved themselves. I should be sorry to see wide powers of arrest given to persons without adequate training.
Lord HARRIS of GREENWICH: I cannot obviously comment on a particular case in Ilford. Unhappily, the situation is that on various occasions allegations can be made against court officers; they can be made against police officers and other members of the public on some occasions. Of course power will be misused. But there is a procedure for complaints against a public servant. So far as this provision is concerned, we think that it is reasonable given the limitation that at present exists in this particular clause.
Clause 10 agreed to.
Clause 11 agreed to.
Clause 12 [Supplementary provisions]:
8.28 p.m.
The Earl of MANSFIELD The Earl of MANSFIELD moved Amendment No. 33:
Page 10, line 24, at end insert—
("( ) In this Part of this Act "premises" means the whole of the building (together with land and erections within its curtilage) in one
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occupation or entitlement to occupation provided that if the building is in two or more parts which are occupied or entitled to be occupied as separate units then "premises" means all those parts of the building having a common entrance.").
The noble Earl said: This is a simple matter; it is really a probing Amendment to ask the Government whether they are satisfied that the definition of "premises" so far as this part of the Bill is concerned is adequate. One can visualise various contingencies. I will not worry the Committee with examples at this time of night. This Amendment is designed to secure within this part of the Bill buildings which are larger than a simple dwelling-house. I beg to move.
Lord HARRIS of GREENWICH: I considered this matter when I first looked at the noble Earl's Amendment. Our view was that the definition of "premises" would not necessarily be precisely the same in the case of Clause 6 as it was in the case of Clause 7. We were not sure that it was right to put a definition in the Bill. I have listened to what the noble Earl has said and I should like to consider the matter further without making any commitment at this stage. Perhaps we may come back to this point.
The Earl of MANSFIELD: I suppose it depends whether the Bill is amended at a later stage. If it were substantially amended, then obviously the definition would have to be reconsidered. Meanwhile, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 12 agreed to.
Clause 13 agreed to.
House resumed.

SOCIAL SECURITY (CONTRIBUTIONS, RE-RATING) ORDER 1976
8.30 p.m.
Lord WELLS-PESTELL: My Lords, I beg to move that the Social Security (Contributions Re-rating) Order 1976, a draft of which was laid before this House on 7th December, be approved. Under the Social Security Act 1975, the Secretary of State for Social Services is required to review each year the general level of

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earnings in Great Britain and to consider what changes in National Insurance contributions need to be made in the light of movements in earnings and other relevant factors. This year's review has been completed and the draft order now before your Lordships provides for increases from next April in certain of the rates and levels of contributions. I will deal first with the details of the proposed changes and then explain the background to them.
Under the order, the lower earnings limit for Class 1 contributions—that is, the contribution paid by employed earners and their employers—is to be raised from £13 to £15 a week and the upper earnings limit is to be raised from £95 to £105 a week. The percentage rate of employed earners' and of employers' contributions will remain unchanged at 5·75 and 8·75 per cent, respectively. The effect will be that under the order increased contributions will be paid where earnings are £95 or more a week. These increases will be at a maximum where earnings are at or above the new upper earnings limit of £105 a week, and will amount to 58p a week for employed earners and 88p a week for employers. Perhaps I ought to make the admission at this stage, before I am reminded of it, that I acknowledge that employers will also be liable to pay a surcharge under the National Insurance Surcharge Act. Your Lordships, and in particular the noble Lords, Lord Banks and Lord Sandys, will realise that this is outside the scope of my own Department. It is a tax measure, and perhaps they will not mind if I say no more about it.
The order also provides for increases in the contributions of the self-employed. On this occasion, the increase is shared between the flat-rate Class 2 contribution and the earnings-related Class 4 contribution. After being held steady at £2·41 a week since summer 1974—and I should like to emphasise that date—since which time the rate of retirement pension has increased by 53 per cent., the Class 2 contribution is being increased by 25p a week to £2·66 a week.
No increase in the rate of Class 4 contributions is proposed. This will continue to be 8 per cent. However, the range of profits or gains on which the contribution is levied is being raised.
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Under the order, the liability for Class 4 contributions will not begin until the profits or gains reach the new lower limit of £1,750 a year, in place of the present limit of £1,600 a year. The upper limit of profits or gains will be increased from £4,900 a year to £5,500 a year, which corresponds with the new upper earnings limit for Class 1 contributions, to which I have already referred.
The effect of the revision of these two limits will be to remove the liability for Class 4 contributions on those whose profits or gains are less than £1,750 a year, to reduce the liability on any particular level of profits between £1,750 and £5,050 a year and to increase the liability where that level is more than £5,050 a year. The maximum increase in the Class 4 contributions will be £36 a year and will be payable where profits or gains are £5,500 or more a year. I hope that your Lordships will feel that these changes in Class 2 and Class 4 contributions match the intentions of my right honourable friend the Secretary of State for Social Services who said, when announcing the changes, that,
"we continue to seek—within the confines of a mixed flat-rate and earnings-related contributions structure—to be fair both to the self-employed as a whole and as between those with different levels of profits".
The draft order also raises the level of earnings below which a self-employed person can be exempted from liability for Class 2 contributions from the present limit of £775 a year to £875 a year. The remaining change made by the order is an increase from £2·10 to £2·45 per week in the rate of the Class 3 contribution which is paid weekly by some contributors on a voluntary basis and paid also by other contributors who wish to make good deficiencies in their contribution records. At this point I think I should mention that under a separate order, which was also laid on 7th December, the rate of Class 2 contributions for women is increased from £2·20 to £2·55 a week. I think your Lordships will know the reason for that, and therefore there is no reason for me to go into it at any great length. The rate is being brought in stages up to that for men and there will be a common rate from April 1978 when the new pensions scheme commences.

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My Lords, I will now explain why my right honourable friend seeks to increase contributions in the way I have described. I am, of course, aware—as your Lordships will be—that questions were asked in another place about the need for any increase in contributions, given that the National Insurance Fund is expected to have a substantial surplus of income over outgoings both this year and next.
We are not unmindful of the feeling—it has been made perfectly clear to us—but in spite of that we consider it is the right thing to do. It was to provide reassurances on this, that my right honourable friends the Secretary of State for Social Services and the Minister for Social Security produced an explanatory note, which I made available in your Lordships' Library. I personally sent one to the noble Lord, Lord Banks, and another to the noble Lord, Lord Sandys, in, I hope, good time to give the Government's thinking behind this matter, even if they perhaps find that they are unable to accept the Government's thinking on it. The points covered in that note are very important, and I think it is necessary that I should give some kind of explanation of them to your Lordships.
The Government Actuary's Report on the draft order shows that, on certain illustrative assumptions as to the levels of earnings and unemployment, the income of the National Insurance Fund will exceed the outgoings by about £932 million in the current year, and by about £875 million in 1977–78. As to the first of these amounts, I have to say that this estimated amount is very much greater than had previously been forecast by the Actuary. There are two main reasons for this. The first is that the yield of contributions had been under-estimated. The new earnings-related system of contributions began as recently as April 1975, with the result that earlier reports had to be based on more speculative information about the yield of these contributions than is now available. The second reason is that the cost of unemployment benefit is proving to be less than had been allowed for. This is because the proportion of the unemployed entitled to unemployment benefit has turned out to be lower than had been expected. Here, again, the Actuary's original estimates had to be based on information which, in the event, proved
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to be a less reliable guide than he would have hoped—in this case, because at the time those estimates were made there were no statistics of the relevant characteristics of such a high level of unemployment as we now have.
Two factors enhance the effect of these developments on the surplus. First, the receipt of more money by way of contributions than had been expected leads automatically to a higher Treasury supplement. Secondly, the increased balance in the Fund means a bigger income by way of interest. The result of all these factors is, as I have said, that the Government Actuary now expects that the current year's surplus will be about £932 million.
I am sure that your Lordships will ask the significance of such a surplus. The answer is that it would increase the balance in the Fund at April next to about £3,000 million. This is, of course, a very large sum of money, as we are aware. However, what one must also take into account is the rate of expenditure on all the benefits that we meet as a Government. The fact is that the balance now in the Fund represents no more than about three months' expenditure on benefits. If my memory serves me correctly—because I do not have the figures before me—we pay out something like £10,000 million a year in benefits. By way of comparison, I should mention that for many years after 1948 the balance represented about two years' expenditure. So we are away from a balance representing two years' expenditure, down to something like a balance representing three months. Not to produce a re-rating order—as some critics have suggested—at a time when the general level of earnings was rising, would, in the Government's view, be an unreasonable step to take, as I shall explain, given the nature of an earnings-related system of contributions.
In relation to the majority of the contributors to the National Insurance scheme—that is, to employed earners and their employers—the contributions arrangements are fully earnings-related. Their contributions are equal to particular percentages of earnings, subject to an upper limit; and, where earnings are below that limit, contributions increase automatically as earnings rise. Subject, therefore, to adjustments to the earnings limits—to match changes in the general

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level of earnings—the arrangement is buoyant and automatically provides additional income to set against the increased expenditure on benefits resulting from their link with increased prices and earnings. Even without any change in the earnings limits for 1977–78, most of the Fund's income would be assured, because, as I have indicated, people who earn less than the present upper earnings limit of £95 a week would pay additional contributions as soon as they received a pay rise next year. Indeed, out of an estimated increase of about £650 million in Class 1 contributions between the current year and 1977–78, only about £100 million will result from the increase in the upper earnings limit.
I have been a long time explaining this matter, but I realise that there is a certain hostility to it and I think it is only fair to explain it in some detail, even though the number of Members of your Lordships' House who are present is few at the moment. But I hope that I have said sufficient to indicate the reasons why my right honourable friend proposes to increase the earnings limits for Class 1 contributions for 1977–78. The limits must be adjusted periodically as the general level of earnings increases; otherwise the dimensions of the scheme would contract in real terms; and if the limits were not increased, the result would be unfair, because the effect would be that a minority—those with the highest earnings—would be shielded against any increase in contributions next year.
At this point, I ought to mention that when the new pensions scheme starts in April 1978, the upper earnings limit for Class I contributions will be linked to the basic rate of retirement pension. It will, in fact, be about seven times that rate. This relationship was established by the Social Security Pensions Act 1975. The maintenance of the upper earnings limit at that level provides a stable basis for the new pension scheme. It has been used as a firm structure for pensions planning, both in regard to those who will be in the scheme, and, by the pensions industry, in regard to those who will be contracted out as members of occupational pensions schemes. My right honourable friend took account of this new relationship for 1978 in determining the new limit of £105 a week for 1977–78, which is less than
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might have been justified on the basis of the increase in the general level of earnings.
What my right honourable friend has done, therefore, is to propose increases which fit the structure of the scheme and are fair to individuals, but which are restricted to those necessary to secure a smooth transition to the contribution arrangements of the new pension scheme. The effect in money terms is, as I have said, to create the expectation of a surplus of about £875 million in 1977–78. This is not an excessive amount, given that it is an estimate based on certain illustrative assumptions which, in the present economic situation, may not be borne out by events. Nor is it excessive when viewed against the scale of operations to the Fund, with income and outgoings of something like £10,000 million a year.
Perhaps I may now add the further thought that the National Insurance scheme does not operate in a vacuum, but has an impact on the public sector borrowing requirement. The balance held in the National Insurance Fund is invested, in accordance with Section 133 of the Social Security Act, in public sector stock. Besides providing substantial interest for the Fund, to the benefit of all contributors, this reduces the Government's need to borrow from other sources to finance its overall borrowing requirement. It would, therefore, be unreal to think that having, by a normal use of the machinery by which contributions are adjusted each year, acquired the expectation of a healthy surplus of income for 1977–78 my right honourable friend should deliberately reduce that surplus by taking on additional benefit commitments. In the present period of severe restraint on spending there could be no justification for such a course. What is more, any additional benefit expenditure which involved a continuing commitment would mean higher contributions than would otherwise be necessary in the years to come. Further, a reduction in the estimated surplus would require further Government borrowing or a reduction in forecast public expenditure.
Perhaps I could finally say this. Our prime reason for introducing this order is to maintain the structure of contributions. It is true that this assists with the management of the public sector borrowing

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requirement. My right honourable friends and I have not attempted to conceal the fact, and I hope that your Lordships will feel that we have been perfectly honest about it. This is a situation in which the proper management of the National Insurance scheme and the needs of the national economy both point in the same direction. Yet the way, if I may say so—although I do not want to make any political points out of this—that some Opposition spokesmen in another place have talked would lead one to think that something particularly sinister and underhand was going on. I think that anybody who has looked at the situation will realise that this is not so. Surely the fact that our management of National Insurance will have beneficial and important side effects cannot be regarded as some form of discreditable and covert manipulation.
I apologise again for having spoken at some length about the draft order which is now before your Lordships. Although the increases for which it provides are comparatively small, I have been aware of some very real misunderstandings about it. I like to think that they are misunderstandings, although I realise that there is another point of view. I hope that I have said sufficient to remove them. Therefore I conclude by asking your Lordships to accept the order. I commend it to the House for approval.
Moved, That the draft Social Security (Contributions, Re-rating) Order 1976, laid before the House on 7th December be approved.—(Lord Wells-Pestell.)
8.55 p.m.
Lord SANDYS: My Lords, at this late hour I shall be brief. However, in opening my remarks may I say that I am grateful to the noble Lord, Lord Wells-Pestell, for sending to me a copy of the note which was given in explanation by his right honourable friend the Secretary of State.
The base from which we start is Section 120 of the Social Security Act 1975. Justification for the whole of the order is given by that section. However, may I remind the noble Lord that at the end of an annual review the Secretary of State is not bound to make a re-rating, because under subsection (7) he may report to another place that his determination is otherwise. It is our submission
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that on this occasion there was a strong case for doing that. The noble Lord said that there was no justification for new benefits in the present circumstances, and in view of the extreme pressure on public finance I think that we would probably agree with him. At the same time, however, we would most strongly emphasise that there is no justification for increasing the contributions.
I should like to go into the question of the substantial surplus, because I believe that its history requires to be examined in a little detail. As it stood at March 1974, there was a total surplus of £1,461 million; in 1974–75 a total of £638 million was added; in 1975–76 a total of £319 million was added; and in the current year, as the noble Lord, Lord Wells-Pestell, has rightly reminded your Lordships, a total of £932 million is added. We estimate, therefore, that at 5th April 1977 a total of £3,350 million will have been invested, as the noble Lord again reminded us, in public sector stock under Section 133 of the Social Security Act 1975.
This is an enormous sum of money which, of course, is substantially assisting the Government in a quite different direction from social security benefits. It is assisting them in their public sector borrowing requirement. We are more than ready to acknowledge that this is perhaps a mere three months' amount which is being set aside to act as a cushion; but this emergency is wholly unlikely to arise, because it is impossible for the Government to switch off the contributions at some particular instance. Therefore this enormous sum of money has been credited to a totally different purpose from that for which it was actually designated.
I read with interest the remarks of the Secretary of State when he introduced the order in another place on 7th December. At column 157 of the Official Report in another place he said this about the surplus of £932 million:
"…this favourable balance will be of advantage in view of the economic uncertainties and in moving towards the higher contributions needed from April 1978 under the new pension scheme."
I do not think that that statement can be justified in the circumstances. To be told that in order to await the increased contributions in 1978 we have to suffer at some mid-point in 1977, and that therefore the contributions must be raised

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now in anticipation, is an argument which it would be very difficult to advance.
Further, in the notes supplied by the noble Lord's Department, it is interesting to see the situation in regard to the numbers of unemployed. It is of further special relevance today that the Prime Minister in another place referred to the numbers, when he said:
"I do not think it is possible that this figure"—
and he referred to the figure of 1,448,193, the worst January figures for 29 years—
"will be reduced for some time. As long as we are trying to squeeze inflation out of the economy this is one of the consequences we have to bear."
The situation as we understand it is extraordinarily complex, because although there are nearly 1½ million registered unemployed persons, figures supplied for us by the Government of those who are seeking unemployment benefit at the present moment are approximately 750,000. Therefore, it would seem that very nearly the same number again of unemployed persons are for some reason not claiming that benefit. They may be ineligible for any one of a number of complicated reasons. But to advance the case that has been advanced, that this surplus was unexpected because of factors which were unforeseen, is difficult, especially when we must appreciate the Actuary's report in which the position is set out very clearly.
Finally, we must recognise that the Government's reason for advancing a re-rating order is wholly unacceptable to this side of your Lordships' House. We do not believe that they have advanced a case of sufficient strength to enable them to put forward this order as it stands. We are not going to add further to the argument this evening in a very sparse House, but I should like to say to the Government that I believe in the statement made by the Secretary of State on the 7th December, he advanced a very slight case for these enormous increases in relation to the position as it stands today. I will not go into the figures, but I believe that should the Secretary of State consider introducing a further uprating in the course of the next twelve months he will have to make a much better case.
9.4 p.m.
Lord BANKS: My Lords, I should
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like to thank the noble Lord, Lord Wells-Pestell, for explaining the provisions of this order with his customary thoroughness and clarity. It is clear that the reason why the upper limit and the lower limit are being raised is to take account of inflation and also to maintain the seven-to-one ratio which is to be applied to benefits and contributions under the new pension scheme to come into force in April 1978. If there are upper and lower limits, it is understandable that these should be adjusted periodically to keep pace with inflation. However, having an upper limit at all gives rise to an anomaly to which I have previously drawn attention. Every time the upper limit is raised, it is those between the old and the new upper limit who are most heavily penalised. This year inevitably they will again bear the heaviest percentages increase. Those below the old upper limit have no increase, and those above the new upper limit have a progressively lower percentage increase the higher their income is, and those on £105 a week—the new upper limit—in two years have had their National Insurance contributions raised by 60 per cent., having been caught by the two extensions of the upper limit 2nd the last one having been quite a considerable one.
The answer which was given in another place by the Minister for Social Security was that benefits had gone up and pensions had risen by 50 per cent. in the same period, but pensions rose because of increases in prices matched by almost exactly the same increase in average earnings, and increases in earnings should produce—and indeed the noble Lord, Lord Wells-Pestell, explained how they were producing—a buoyant revenue, and that is what is happening.
But when we say that people on £105 per week—and I hope the noble Lord has the point which I have just been setting out—have had their National Insurance contributions raised by 60 per cent. we are assuming no increase in their earnings at all, so Mr. Orme's figure of a 50 per cent. increase in pensions to justify that 60 per cent. increase in their contributions is not relevant to his argument.
Would it not be better and fairer to have no upper limit of contributions so that a lower percentage contribution would be levied on all earnings? Since tie scheme is "pay as you go", and since an individual's

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contributions do not fund an individual's own benefits, it surely would not matter if there was an upper limit on benefits but no upper limit on contributions. But if we have upper limits, then those upper limits have to be raised. What then about the surplus? The balance is a considerable balance. As the noble Lord said, it is a balance on three months: it is a quarter of the annual requirement which in a "pay as you go" scheme is a very substantial precaution and more than most people would regard as being necessary from the point of view of ordinary prudence.
The comparison with the earlier years is not exactly reasonable, because in 1948 there was a build-up of benefit; the scheme was new, there were not many people with entitlement and, in any case, the whole basis of paying for National Insurance has been altered over the years from what it was at that time. If we are to have these substantial surpluses, and if we say that the limits should be raised, as I believe they should, then, surely, either the benefits should be increased or new benefits should be introduced, or the percentage rate should be reduced. Since increases in benefits or new benefits are outside the scope of this order, and in any case are rejected by the Government, the rate per cent. should be reduced, at least, I would suggest, by the one quarter of 1 per cent. each side which was most recently imposed.
It is clear that the reasons for the refusal to make this reduction have nothing to do with National Insurance. I think this was made clear in the latter part of the noble Lord's speech and is implicit in the final paragraph of the note which he was good enough to let us have in advance. It is clear that the refusal is not made for reasons which have anything to do with National Insurance. It is made as part of the exercise of reducing the public sector borrowing requirement, and it is very similar in effect to the effect of the 2 per cent. surcharge, except that the surplus raised, unlike the proceeds of the surcharge, must be held in reserve and cannot be spent other than on National Insurance. In conclusion, I am bound to say that I am not happy at the unduly heavy burden thrown onto national insurance contributions for reasons which are quite separate from national insurance itself.
Lord WELLS-PESTELL: My Lords, I am very grateful to both the noble Lord, Lord Sandys, and the noble Lord, Lord Banks, whose contributions, if I may say so quite sincerely, are always worth having and worth listening to, even if the Government are unable to accept some of the things said. I think perhaps I ought to re-emphasise that the Class I contribution rates have not been increased. All that has happened is that the earnings limit, as both noble Lords know, has been adjusted in line with the movement in average earnings. I would, with very great respect, say that this is absolutely essential to maintain the structure of the scheme. The surplus for the year which has arisen—let me be quite frank and say so—in a sense was quite inadvertent. Having arisen one would expect it to be invested, and this is precisely what has happened. This will happen, and the economy as a whole—I think we have got to face the fact—will benefit. Next year's surplus is only an estimate, and the estimate, as I said a moment or two ago, is subject to a good many variables.
I think the one point I should like to make in respect of what the noble Lord, Lord Banks, has said is that those with earnings between the upper and lower limits have contribution increases automatically as their earnings increase. The scheme is an earnings-related scheme, and that being so, I feel that what my right honourable friend the Secretary of State has done is really in keeping with what is required of him. I am most grateful to noble Lords for their contributions. I hope what they have said, and perhaps the inadequacy of my replies, will nevertheless enable them to approve this order.
On Question, Motion agreed to.

CITY OF LONDON (VARIOUS POWERS) BILL [H.L.]
EMU WINE HOLDINGS LIMITED AND SUBSIDIARY COMPANIES BILL [H.L.]
HERITABLE SECURITIES AND MORTGAGE INVESTMENT ASSOCIATION, LIMITED BILL [H.L.]
IMMEDIATE TRANSPORTATION (DELIVERY WARRANTS) BILL [H.L.]
INTERNATIONAL PLANNED PARENTHOOD FEDERATION BILL [H.L.]
KENSINGTON AND CHELSEA CORPORATION BILL [H.L.]
NEATH BOROUGH COUNCIL BILL [H.L.]
NORTH WEST WATER AUTHORITY BILL [H.L.]
UNIVERSITY OF LONDON BILL [H.L.]
WEST MIDLANDS COUNTY COUNCIL BILL [H.L.]
Presented, and read 1a.