Lords Sitting of 27 July 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 Blackburn.

LORD WEDDERBURN OF CHARLTON
Kenneth William Wedderburn, Esquire, having been created Baron Wedderburn of Charlton, of Highgate in Greater London, for life—Was, in his robes, introduced between the Lord Brockway and the Lord McCarthy, and made the solemn Affirmation.

MESSAGE FROM THE QUEEN
2.46 p.m.
Lord MACLEAN: My Lords, I have the honour to present to your Lordships a Message from Her Majesty the Queen signed by her own hand. The Message is as follows:
"I have received your Address praying that the Location of Offices Bureau (Amendment) Order 1977 be made in the form of a draft approved by your House on 14th July last.
"I will comply with your request."

PARKING METER OFFENCES
The Earl of SELKIRK: 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 whether an offence is inevitably committed by parking a car on a parking meter, without having the correct coin immediately available.
Baroness STEDMAN: My Lords, an offence is committed if a car is parked at a meter without payment during the hours of control, except when the car's stay is covered by unexpired time on the
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meter, or if the meter head is covered by an "out of order" bag, or if the vehicle is parked solely to load or unload, or if the vehicle is exempted under the order designating the parking area.
The Earl of SELKIRK: My Lords, that Question was not perhaps the simplest, but does the noble Baroness accept the dictum of the Lord Chief Justice, that the time allowed at the parking meter is only that required to get out of the car and put a coin in the meter? If that is correct, and if it is rigidly enforced, would it not be fair and perhaps courteous that parking meters should show outwardly what coin is required—whether it be an old 6d, a new 5p or a new 10p?
Baroness STEDMAN: My Lords, I should not like to comment on the dictum of the Lord Chief Justice. I shall certainly bring the points raised by the noble Earl to the attention of my right honourable friend. I am not certain about the significance of marking all the meters with the exact coin that is required. I should have thought that by now they would all have been converted to new coins, but it is certainly a point which I shall take up with my right honourable friend.
Lord INGLEWOOD: My Lords, may I ask whether the noble Baroness would agree that my noble friend's point would be met if traffic wardens could be given some modest discretion, which at present is not allowed to them?
Baroness STEDMAN: My Lords, if there is difficulty because someone does not have the correct change in his pocket when he arrives at a parking meter, I am sure that, if a traffic warden is there and the situation is explained, the warden will be co-operative. The fact remains that traffic wardens are not in sufficient supply to enable one to be parked at every meter. Therefore, it is not possible for us always to have someone there to co-operate with the motorist who is without the exact change.
Lord BALFOUR of INCHRYE: My Lords, would it not be possible for traffic wardens, as well as having booking orders in their satchels, to be allowed

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to have a purse with a few 5p pieces? That would be a tremendous convenience and help to motorists who wish to pay, but inadvertently have no 5p piece.
Baroness STEDMAN: Yes, my Lords, in an ideal situation, if we had one traffic warden at every meter. But our manpower situation is not such that we can do that.
Lord ARDWICK: My Lords, is my noble friend aware that many traffic wardens look nicer than they actually are?
Baroness STEDMAN: That, my Lords, is a matter of opinion.
Lord SEGAL: Alternatively, my Lords, would the Government consider installing a coin changing machine at certain designated parking areas?
Baroness STEDMAN: My Lords, I should have thought that that might have been a very expensive project. But I will certainly bring it to the attention of my right honourable friend.
The Earl of SELKIRK: My Lords, is the noble Baroness aware that parking meters are very far from uniform? Quite a variety of coins is required, and, if inflation goes on, many more coins will probably be required. Have parking meter attendants any discretion at all in this matter?
Baroness STEDMAN: My Lords, as I have said, if there is a warden there and if there are problems and the driver explains the situation to him or her, I am certain that a period of grace will be allowed to enable the motorist to get change. But if you have a ticket, the only person who can cancel it is the chief officer of police.

FERTILISER PRICE INCREASES
2.51 p.m.
The Earl of ONSLOW: 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 whether they are pressing ICI to
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increase the price of its fertilisers and, if so, how they reconcile this with fighting inflation and with Food From Our Own Resources (Cmnd. 6020).
Lord WINTERBOTTOM: My Lords, Her Majesty's Government are consulting interested parties about the arrangements that might restore all firms in the fertiliser manufacturing industry to a competitive footing.
The Earl of ONSLOW: My Lords, am I correct in saying that, in other words, the Government are encouraging ICI to increase its prices for nitrate fertilisers?
Lord WINTERBOTTOM: My Lords, I do not know what is going on in these commercially confidential discussions, but it is hoped that arrangements might restore all firms in the fertiliser manufacturing industry to a competitive footing.
The Earl of ONSLOW: My Lords, could the noble Lord then say what is not competitive at the moment? Is it that ICI can sell its nitrate fertilisers at £65 per ton ex-farm gate while others cannot, and that therefore by restoring the competitive position the Government are trying to use the wartime fertiliser regulations to increase the price of fertilisers? Can this possibly be correct?
Lord WINTERBOTTOM: My Lords, the noble Earl has touched upon a complicated subject. ICI accounts for 80 per cent. of the ammonia produced in the United Kingdom, and it has a very favourable long-term contract with the British Gas Corporation for the supply of gas which only expires in 1984. Perhaps the arrangements made between ICI and the British Gas Corporation are causing some imbalance in the industry at the moment.
The Earl of ONSLOW: My Lords, in other words, am I correct in saying that the Government are penalising ICI for having had the foresight to make a good, long-term contract with British Gas, and that those who did not have such foresight will be subsidised by the British farming industry which, as we know, is not allowed to increase prices in order to keep pace with inflation?
Lord WINTERBOTTOM: My Lords, this is a very complicated economic subject. All one can say is that at the end of the day it is the housewife who pays. She pays either more for her gas or more for her food. If, therefore, one increases the price of gas, this is what happens.
Lord SANDYS: My Lords, will the noble Lord draw the attention of his right honourable friend to the matters which have been raised by my noble friend Lord Onslow and, in addition, draw his attention to the article which appeared in the Economist to which the noble Earl has drawn attention?
Lord WINTERBOTTOM: Yes, my Lords, I will do that.

THE NEUTRON BOMB
2.54 p.m.
Lord BROCKWAY: 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 if, as reported, the NATO States "want President Carter to deploy the neutron in Europe" and whether the United Kingdom is committed to this view.
Lord WINTERBOTTOM: My Lords, as my honourable friend the Secretary of State for Defence recently said in another place, the United States Government have made it clear that their devices are only in the development stage, and no decisions about deployment have yet been taken.
Lord BROCKWAY: My Lords, President Carter has stated that the neutron bomb:
"presents attractive options for Western Europe".
Is it not the case that The Times correspondent who was then in Brussels met the officers of NATO and that they expressed the opinion that is set down in this Question? Will Her Majesty's Government refuse to have anything to do with this new weapon, which would destroy life while retaining property?
Lord WINTERBOTTOM: My Lords, the weapon that we are discussing is not
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different in its nature from other tactical nuclear weapons. But certain elements have been excluded and fewer human beings would be killed if this bomb should ever be used than in the case of existing tactical nuclear weapons.
Lord GLADWYN: My Lords, is the noble Lord aware that the matter of the neutron bomb is a subject that I propose to raise later this afternoon in connection with my Unstarred Question? Therefore, is it not preferable to discuss the alleged advantages and disadvantages of this new weapon in the course of a discussion, however short, rather than in answer to a Starred Question?
Lord WINTERBOTTOM: My Lords, I am grateful to the noble Lord. This is a complex subject and a slightly longer discussion than is possible during Question Time ought to be held.
Lord GEORGE-BROWN: My Lords, since the noble Lord on the Liberal Benches has run a "trailer" for his Unstarred Question, may I put it to the noble Lord that, for good or bad reasons, we in the West seem to be closing so many of the conventional options which have been open to us that we ought to make sure that we do not close the only other options which might then be open to us?
Lord WINTERBOTTOM: My Lords, I assume that my noble friend's question is addressed to the noble Lord, Lord Gladwyn.
Lord GEORGE-BROWN: My Lords, with great respect, no. The noble Lord may also find that question to be complex, although I myself find it to be a good deal more simple. However, I am addressing it to him, as Her Majesty's Minister responsible to this House.
Lord WINTERBOTTOM: My Lords, Her Majesty's Government must keep all their options open.
Lord HANKEY: My Lords, in view of the colossal increase in Soviet armaments in the last two or three years, notably since the Helsinki Agreement, would it be sensible if, after all, Her Majesty's Government were to discourage any of their allies from undertaking further research on any lines of defence equipment?
Lord WINTERBOTTOM: My Lords, that would be an impossible request.
Lord DAVIES of LEEK: My Lords, is my noble friend aware that some of us have read about the withdrawal of 6,000 troops from Korea by Mr. Harold Brown, the United States Secretary of State for Defence, who was supported by President Carter? President Carter said that the use of the nuclear umbrella was not recommended, because its use would mean the end of those who used such weapons as well as the end of those who received them. Anybody who thinks that a nuclear weapon will solve our problems is living in "Cloud Cuckoo-land".
Lord WINTERBOTTOM: My Lords, only continued peace will solve our problems, and so far we have managed to achieve it.
Lord BROCKWAY: My Lords, may I be allowed to ask another question as an introduction to the later debate? When the Minister says that there is no difference in nature between this bomb and other nuclear bombs, is it not the case that the purpose of this bomb is to destroy life while not destroying property? Has the Minister seen the surprising but very welcome article by the noble Lord, Lord Chalfont, that appeared in The Times last Monday, in which he argued that this bomb should be absolutely banned because it would mean the destruction of human life while leaving houses, shops and factories still standing?
Lord WINTERBOTTOM: My Lords, I am in favour of lessening destruction in general, be it human or be it material. If this bomb were to reduce overall destruction, in particular the destruction of civilian life, perhaps the noble Lord might decide that it was worth considering.
Lord CARRINGTON: My Lords, will the noble Lord and the Government bear in mind, as I am sure they do, that the purpose of these weapons is to prevent war, not to wage it?
Lord WINTERBOTTOM: My Lords, I thought I had said that.
Lord BROCKWAY: My Lords, I apologise for asking another question. Is it not the case that this bomb, while at
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present intended for local use, would inevitably in war preparations be made more extensively available? Is it not also the case that the Hiroshima bomb killed 200,000 people? The Cruise missile can now kill 2 million people, so would not this bomb be used on an extensive scale to kill life everywhere?

POLICE CADET ENLISTMENT
3 p.m.
Lord INGLEWOOD: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what action they are considering following the representations by the Association of Chief Officers of Police that some small part of the substantial sums now being spent on job creation might be directed towards making good part of the cut-back in the enlistment of police cadets.
Lord WALLACE of COSLANY: My Lords, the purpose of the Job Creation Programme is to provide short-term, worthwhile jobs for people who would otherwise be unemployed, on projects of community benefit. Projects must provide new employment opportunities on work which would not be carried out without JCP funds. Job Creation Programme funding may not be used to restore cutbacks in areas of public spending, and therefore cannot be used to subvent or replace the employment of police cadets.
Lord INGLEWOOD: My Lords, may I ask the noble Lord whether he really believes in that Answer which he has given me? Will he not accept that there are a great many people in this country who think it far more sensible that some small part of this money should be used to provide permanent jobs for which training facilities are already in existence, rather than temporary jobs for which special arrangements and supervision have to be made? Has he not observed that recruiting for the police is at the moment falling and that wastage is not being made good by new recruits, and that what I suggest would be an admirable course looked at from several different points of view?
Lord WALLACE of COSLANY: My Lords, it is not possible for these funds to be used, but in point of fact the JCP fund is used to help the police force in another direction by assisting in the provision of civilian jobs with the police. To date Manpower Service Commission grants totalling £1,226,762 have been allocated to 38 police projects approved under the Job Creation Programme, creating 761 jobs.
Lord INGLEWOOD: My Lords, since police recruits are civilians, would it not be easy to widen the scope of the operation that the noble Lord has just mentioned so that it can be used to support the cadet service which has been cut back so cruelly?
Lord WALLACE of COSLANY: My Lords, the noble Lord is in some confusion in regard to this matter because the Job Creation Programme is a short-term programme. The police cadet scheme is a long-term programme of preparing young people between the ages of 16 and 18 by means of existing relevant training and experience for careers as permanent police officers, and the cost of training each cadet is estimated at £6,000.
Lord TAYLOR of GRYFE: My Lords, would the noble Lord agree that the cut-back in police expenditure has resulted in a reduction in overtime for existing manpower in a period of an increasing crime rate, and would he agree that funds might be made available in order to take care of this situation?
Lord WALLACE of COSLANY: My Lords, it is not correct to say that police expenditure has been cut. It has not been reduced. In order to keep within the public expenditure limits the police authorities have been asked to keep total civilian staff numbers, including cadets, to 1 per cent. above the September level. Some police forces have reduced the numbers of cadets, but it is not correct to say that police expenditure has in fact been cut.
Lord TAYLOR of GRYFE: My Lords, is it not true that the regional local authorities are cutting police expenditure as part of the cut-back in public expenditure, and this has resulted in a reduction of overtime opportunities for
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members of the police force in areas with increasing crime rates?
Lord WALLACE of COSLANY: My Lords, that is a matter for the local police authorities to decide in their wisdom, but the Government have not cut police expenditure.

PALACE OF WESTMINSTER: SECURITY
3.4 p.m.
The CHAIRMAN of COMMITTEES (Lord Aberdare): My Lords, I wish to inform the House of certain decisions which have been taken following the consideration of a report about security in the Palace of Westminster made to me and to Mr. Speaker by the informal Joint Committee of both Houses under the chairmanship of the right honourable Member for Wakefield, Mr. Walter Harrison.
The House will recall that Sir James Starritt, formerly Deputy Commissioner of the Metropolitan Police, made a comprehensive report on security here in 1975, and a number of proposals he then made for improving physical security have since been carried into effect.
He also recommended, however, some major changes in the organisation of security arrangements.
In particular, he recommended the establishment of a combined security force for the whole Palace of Westminster under a single command and the integration of the existing custodian force, at present employed by the Department of the Environment, into the Metropolitan Police organisation.
It was with this aspect of security that the Joint Committee have been concerned, and following their report and consideration by Ministers of the consequential financial arrangements, it is now proposed to go ahead with the implementation of these recommendations. The aim is to set up a combined security force for the whole Palace of Westminster; to raise the operational standards of the officers concerned, particularly by giving to the police responsibility for the recruitment and training of custodians and to

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improve co-ordination between the security staff within the Palace and the Metropolitan Police generally.
The necessary steps are accordingly now being taken by the Departments concerned, in consultation with the police authorities and the staff directly affected, with a view to the new structure being operational by 1st October.
It has been agreed that expenditure on security within the precincts of the Palace of Westminster should in future be wholly borne on the Votes of the two Houses, and this will involve the transfer of public expenditure at present being borne by the Department of the Environment and the Metropolitan Police. The additional public expenditure involved in these organisational changes will amount to about £100,000 a year. These proposals were agreed to yesterday by the Offices Committee.
I believe that these changes in our security arrangements will be to the advantage of Parliament and the personal safety of Members and staff of both Houses, and I am grateful to the Members of both Houses who served on this Joint Committee, and particularly, to its chairman, Mr. Walter Harrison.

HOUSING (HOMELESS PERSONS) BILL
3.7 p.m.
Report received.
Clause 1 [Homeless persons and persons threatened with homelessness and priority need for accommodation]:
Lord WADE Lord WADE moved Amendment No. 1:
Page 1, line 12, leave out ("considers") and insert ("consider").
The noble Lord said: My Lords, I hope I shall be able to take the House through this Bill without confusing either myself or your Lordships. There are a number of Amendments, but I can assure your Lordships that most of them are drafting Amendments. Amendment No. 1 is, in fact, a drafting Amendment. I beg to move.
On Question, Amendment agreed to.
Lord WADE Lord WADE moved Amendment No. 2:
Page 2, line 30, leave out ("a result of").
The noble Lord said: My Lords, this is a drafting Amendment. I beg to move.
Baroness YOUNG: My Lords, this was an Amendment which was moved in the name of my noble friend Lord Sandys and myself, and we are, of course, grateful that this drafting point has been cleared up. I am bound to say that we shall find ourselves in considerable difficulties this afternoon with four sheets of Amendments before us, some of which we have actually seen only less than an hour ago. I hope we shall take this subject at a reasonably steady pace so that we understand what we are doing. It would be very unfortunate if a second housing Bill got itself into the same situation as the Rent (Agriculture) Act did and required supplementary legislation because the House was unable to follow in detail the very complicated series of Amendments. On this side of the House we are not at all happy about having so many alterations to alterations to deal with at extremely short notice.
Earl ST. ALDWYN: My Lords, I should like to add a few words. When I was asked originally whether we would agree to take the Report and remaining stages today I agreed, on the assumption that there would be a proper Marshalled List of Amendments and that there would be reasonable time to study them. That has not been adhered to, and I feel we must reserve our position as to whether we are prepared to take Third Reading today or whether it may have to be postponed until a later date.
The PARLIAMENTARY UNDERSECRETARY of STATE, DEPARTMENT of the ENVIRONMENT (Baroness Birk): My Lords, I take that point. I would only point out that it certainly was not my wish that we should have a list of manuscript Amendments. There is one down in the names of Lord Wade, Lord Kirkhill and myself, one in the name of the noble Baroness, Lady Young, and her colleagues. The rest are in the name of the noble Lord, Lord Gifford I take the point of the Opposition Chief Whip. I hope that what he suggests will not be necessary. Of those manuscript Amendments, the main ones, falling

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on Clause 16, are in the name of the noble Lord, Lord Gifford, and are really all tied up with a certain amount of discussion which took place in Committee and will presumably take place again today on Report. The point is the definition of "intent". That leaves two other manuscript Amendments. Certainly we did not wish to add to this list in this way, and most of the Amendments are already on the Marshalled List.
Lord GIFFORD: My Lords, I must plead two mitigating circumstances. One is that the switchboard of this House was not working last night. The second is that serious changes in this Bill were made by the noble Baroness, Lady Young, only three days ago in Committee.
Baroness YOUNG: My Lords, with the leave of the House, this is in no sense a criticism of the noble Lord, Lord Gifford, who is, of course, perfectly entitled to put down manuscript Amendments. I have no objection to that. I take his point about the Committee stage but for those of us who are trying to take the Bill seriously and to follow it, to have this complex series of Amendments coming up at the last moment makes it very difficult. It is difficult for the noble Baroness, Lady Birk, and it is difficult for those of us on these Benches. I think it arises because for some inexplicable reason we are not having a spill-over period in which we should have had proper time to study these Amendments and debate them.
On Question, Amendment agreed to.
Lord WADE Lord WADE moved Amendment No. 3:
Page 3, line 3, at end insert—
("(7A) Any reference in this Act to a person having a priority need is a reference to his having a priority need for accommodation within the meaning of this section or any order for the time being in force under subsection (6) above.")
The noble Lord said: My Lords, in moving Amendment No. 3, may I say that I certainly do not wish to be in any way discourteous to the House and I hope I shall be pulled up if I attempt to deal with drafting Amendments with undue haste. I am anxious that as much time as possible should be available for the Amendments of substance. I think in this
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case that it might be helpful to the House if we could consider Amendments Nos. 3, 4, 16 and 17 together. After the remarks that have been made, I hesitate to use the word "drafting", but I think that these are primarily of a drafting nature.
May I explain that the purpose of Amendment No. 4 is effectively to improve the Bill by dividing Clause 1 into two parts. The first deals with the definition of homeless persons and those threatened with homelessness, and the second with the definition of priority need. The other Amendments are consequential. It would seem to me that these Amendments deal with the structure of the Bill and not in any way with the effect of the Bill. I beg to move.
On Question, Amendment agreed to.
3.15 p.m.
Lord WADE Lord WADE moved Amendment No. 4:
Divide Clause 1 into two clauses—

(a) the first consisting of subsections (1) to (3), and

(b) the second consisting of subsections (4) to (7A).

The noble Lord said: My Lords, I beg to move Amendment No. 4. Amendment No. 4A is a drafting Amendment which makes clear, in Clause 2, that the areas in relation to which a housing authority may make inquiries as to an applicant's local connections, if any, are the areas of housing authorities. They could not, for example, be areas outside Great Britain. I hope that that explanation will satisfy your Lordships.
On Question, Amendment agreed to.
Lord WADE Lord WADE moved Amendment No. 4A:
Page 3, line 23, leave out ("any area other than their own") and insert ("the area of another housing authority").
On Question, Amendment agreed to.
Lord WADE Lord WADE moved Amendment No. 4B:
Page 3, line 25, leave out ("has") and insert ("have").
The noble Lord said: My Lords, I think that this is clearly a drafting Amendment. I beg to move.
On Question, Amendment agreed to.
Lord SANDFORD Lord SANDFORD moved Amendment No. 4C:
Page 3, line 37, after ("satisfied") insert ("(i)").
The noble Lord said: My Lords, I beg to move Amendment No. 4C, which is on the list of manuscript Amendments, and to speak at the same time to Amendment No. 5, which is on the first of the Marshalled Lists. This is little more than a drafting Amendment. It was tabled at Committee stage but ruled out of order—I think mistakenly, if I may say so—by the Table at the time, and has therefore had to be retabled. All it does is to import into Clause 3(2)(b) that classification of people which one could describe in short-hand as the "emergency homeless". I do not think any further explanation is required. I would suggest that, as there are plenty of other matters of more substance, I could move this Amendment with that explanation.
Lord GIFFORD: My Lords, it occurs to me that this is not quite a drafting Amendment, and I wonder whether the noble Lord can satisfy me on one point. The "emergency homeless", as he has described them, are, under this Amendment, to benefit from the duty to be furnished with advice and assistance, and again, under subsection (3), they will benefit from the duty to have accommodation made available to them for a reasonable period. Is it not right that they also benefit from the duty under subsection (5) to have accommodation secured for them for their occupation, because they are of course priority needs? The effect of the noble Lord's Amendment is possibly to create some confusion as to exactly how far the duty with respect to the emergency homeless stretches. With this Amendment they will, as I see it, fall within subsection (2), subsection (3) and subsection (5). I am not opposed to that but I hope that it is appreciated, for the avoidance of doubt.
Lord SANDFORD: My Lords, I think that, with a clause as complex as this, it would be foolish to say that the issue was without doubt, but I am satisfied that, when it is examined carefully, the case is as the noble Lord and I would want it to be.
Lord WADE: My Lords, I do not want to be awkward while we are proceeding
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so amicably, but I am a little unhappy about this Amendment. Perhaps I may explain as clearly as I can my reasons for saying that. This Amendment, as I understand it, would mean that, where people become homeless in an emergency, the authority would not be obliged to secure accommodation for them but only to offer advice and assistance, and ensure that interim accommodation was available. The Amendment makes a slight alteration clarifying the position.
I turn to the main point which concerns me. I understand the reasoning behind the Amendment. No doubt most of those people who become homeless in an emergency will not be in need of permanent rehousing, but will need shelter for only a limited period—perhaps while repairs are being carried out. Where that is the case, the authority will simply arrange temporary accommodation for those people. Obviously, the authority will not offer a permanent council tenancy to someone who has a home of his own. Nor do I see any danger that people who are not happy with their previous accommodation could compel the authority to give them a tenancy.
In any event, when the emergency was over, the authority's duty would cease because accommodation would, presumably, be available to the people concerned. Nevertheless—and this is the main point that I wish to make—there will be some people who become homeless in an emergency and who will, or may, be in need of permanent rehousing. It may be that their house has been totally destroyed. If they were owner-occupiers one hopes that they would be insured to cover such a situation. However, if they were private tenants they might find themselves in real difficulties through no fault of their own. In such a case, I think that the duty under Clause 4(3), which deals with temporary accommodation, would not be adequate.
Persons becoming homeless in an emergency were included in the priority groups laid down in the joint circular. It would not be right, in my view, for them to find themselves in a worse position under the Bill than under the circular. Therefore I feel confident that the Bill is right as it now stands. It ensures that all emergency cases will be provided with accommodation while allowing for them to all be

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dealt with, I hope sensibly, according to the circumstances. I appreciate that this also covers the single person and others not otherwise in priority groups, but as I have explained, there is a wide range of ways in which the duty can be satisfied by the housing authority. In the light of the perhaps exceptional circumstances, we must not forget them. I hope that the noble Lord, Lord Sandford, will feel inclined to withdraw the Amendment.
Lord SANDFORD: My Lords, with the leave of the House, which I hope will, in our special circumstances, be granted, I should say that, in circumstances such as those about which the noble Lord, Lord Wade, is concerned, subsections (2), (4) and (5) are available for the local authority to come to the view that, although the householder in question is in the category which I have described as "emergency homeless", he has, because of those special circumstances, a priority need, in which case it can act under subsections (4) or (5). I am satisfied that that would be sufficient to secure for him the accommodation that he would need.
Baroness BIRK: My Lords, I have also looked at this matter very carefully. I see what the noble Lord, Lord Sandford, is getting at and I agree with the noble Lord, Lord Wade, and my noble friend Lord Gifford, that it could mean that, when people became homeless in an emergency, the authority would not be obliged to secure accommodation for them but only to offer advice and assistance and secure that interim accommodation was available. That possibility is something which I do not think should be accepted within the Bill. Therefore, I must join with the other noble Lords who have spoken and ask the noble Lord, Lord Sandford, to withdraw the Amendment.
Lord JANNER: My Lords, before the noble Lord, Lord Sandford, replies I should like to say that I, too, believe that this might especially affect the situation of the single person who is seeking accommodation. It might cause confusion as regards what is already, in my view, not a very satisfactory position and it might even add to the difficulties of the single homeless. I ask the noble Lord, Lord Sandford, whether he will be good enough to withdraw the Amendment.
Lord SANDFORD: My Lords, again with the leave of the House, I should like to say that I am happy to respond to the request that the Amendment should be withdrawn. I think that it would have improved the Bill, but it is not a matter of great moment and there are a number of other matters which are of more substance. It is a pity that we were not able to discuss this matter during the Committee stage when we could have handled it more readily and then reflected in a more leisurely fashion on the points of view that have been put forward. However, in the light of the importance of trying to get the Bill on to the Statute Book, I beg leave to withdraw the Amendment.
Amendment by leave, withdrawn.
Clause 3 [Duties of housing authorities to homeless persons and persons threatened with homelessness]:
[Amendment No. 5 not moved.]
Lord WADE Lord WADE moved Amendment No. 5A:
Page 4, line 2, leave out from ("that") to ("is") in line 4 and insert ("he").
The noble Lord said: My Lords, this is a drafting Amendment. I beg to move.
On Question, Amendment agreed to.
Clause 4 [Responsibility as between housing authorities]:
Lord WADE Lord WADE moved Amendment No. 5B:
Page 5, line 15, leave out ("he has no") and insert ("neither he nor any person who might reasonably be expected to reside with him as a").
The noble Lord said: My Lords, before dealing with this Amendment, I should like to express my appreciation to the noble Lord, Lord Sandford, for his helpfulness. I am sure that he is desirous of getting the Bill through. At the same time, we do not wish the House to feel that matters are not being adequately discussed.
Amendment No. 513 is a drafting Amendment. It is intended to ensure consistency of wording in Clause 4. Under subsection (1) an authority are not subject to a duty to secure accommodation for a person if they are of the opinion

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that, among other things, neither he nor any person who might reasonably be expected to reside with him has a local connection with its area, but that he or such person has such a connection with the area of another housing authority. In such a case, if the authority so notify the housing authority in whose area there is such a connection, the duty to secure the availability of accommodation becomes that of a notified authority in certain circumstances. As it stands at present, subsection (3) deals solely with the case where the applicant has no local connection with the notifying authority's area. This Amendment therefore brings subsection (3) into line with the rest of the clause. I beg to move.
On Question, Amendment agreed to.
Clause 6 (Duty of housing authorities to provide temporary protection for property):
Lord WADE Lord WADE moved Amendment No. 5C:
Page 6, line 32, leave out from ("authority") to ("and") in line 34 and insert ("have become subject to a duty towards a person under any provision of this Act to which this subsection applies (whether or not they are still subject to any such duty)").
The noble Lord said: My Lords, I think that it would be helpful to the House if we considered Amendment No. 5C together with Amendments Nos. 5D and 5E, which relate to furniture. They are drafting Amendments designed to make clear that the duty to protect furniture arises in each case when housing authorities have a duty to secure the provision of accommodation. I beg to move.
On Question, Amendment agreed to.
Lord WADE Lord WADE moved Amendment No. 5D:
Page 6, line 41, at end insert—
("(1A) The provisions of this Act to which subsection (1) above applies are—

section 2(4);

section 3(3), (4) and (5); and

section 4.")

The noble Lord said: My Lords, this is a consequential Amendment. I beg to move.
On Question, Amendment agreed to.
Lord WADE Lord WADE moved Amendment No. 5E:
Page 8, leave out lines 12 and 13 and insert—
"(b) have not become subject to a duty towards him under any provision of this Act to which subsection (1) above applies,".
The noble Lord said: My Lords, this Amendment is consequential.
On Question, Amendment agreed to.
3.31 p.m.
Lord WADE Lord WADE moved Amendment No. 5F:
Page 8, line 3, leave out from beginning to ("to") in line 13 and insert ("or").
The noble Lord said: My Lords, it might be helpful also to deal with Amendments Nos. 5F and 5GG together. I apologise again to the House for the fact that noble Lords are having to consider so many Amendments. This Amendment deals with furniture and again is a comparatively small point. The Amendment would mean that the authority's duty to protect property would cease in the same circumstances as in the power in subsection (2), when the person concerned is able to protect it himself. I hope that that seems reasonable and obvious.
Amendment No. 5GG is consequential. It seemed to us that the original clause did not quite provide adequate protection. If a homeless person was placed in furnished accommodation, the authority's duty to secure accommodation might well be fulfilled, but a need to protect the furniture might remain. This Amendment would therefore strike out subsection (6) and allow the duty to continue—which would still be only temporary—until the person concerned is able to look after the furniture himself or herself. That is the purpose of the Amendment.
On Question, Amendment agreed to.
Clause 7 [Duties of notification]:
Lord WADE: My Lords, I apologise for the delay, but my papers seem to have got slightly mixed up.
Baroness BIRK Baroness BIRK moved Amendments Nos. 5G and 5H:
Page 9, line 25, after ("or") insert (",subject to subsection (6A) below,")
Page 9, line 30, at end insert—
("(6A) An authority who cease to have the power conferred by subsection (2) above in

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respect of the property of any person need not notify him that they have ceased to have the power unless they have exercised it.")
The noble Baroness said: My Lords, perhaps I can help the noble Lord. I think that we are dealing with Amendments Nos. 5G and 5H. The effect of these Amendments would mean that authorities would have to notify a person that their power to protect his property has ceased only in cases where they have exercised the power. We expect authorities to have to exercise their power to protect property very rarely, but on reflection it seems rather excessive to ask authorities to notify people that the power has ceased even when the power has, in fact, ceased. This would only add unnecessarily to the work of the local authorities. Therefore, the Amendments provide that notification is required only when the power has been exercised. I beg to move.
Lord WADE: My Lords, I have just arrived at the same conclusion having found my notes. I support these Amendments.
On Question, Amendments agreed to.
Lord WADE Lord WADE moved manuscript Amendment No. 5GG:
Page 9, line 30, leave out ("have so ceased") and insert ("are of the opinion mentioned in section 6(8) above").
On Question, Amendment agreed to.
Lord WADE Lord WADE moved manuscript Amendment No. 5HH:
Page 9, line 30, at end insert—
"(6A) An authority who cease to have the power conferred by section 6(2) above in respect of the property of any person need not notify him that they have ceased to have the power unless they have exercised it.")
The noble Lord said: My Lords, I hope that this is a drafting Amendment.
Baroness YOUNG: My Lords, I believe that the noble Lord, Lord Wade, is now amending an Amendment that has just been moved by the noble Baroness, Lady Birk. It would help the House to have on record the difference in effect of this further Amendment from the one that has just been moved.
Lord WADE: My Lords, I am afraid that I must call in aid the noble Baroness, Lady Birk.
Baroness BIRK: My Lords, the words "Section 6" were evidently omitted from the other Amendment. That is all that this Amendment amounts to. I do not seem to have a note of the Amendment, but it was an error of words being omitted.
Baroness YOUNG: My Lords, we are of course grateful to the noble Baroness, Lady Birk, for explaining this and I appreciate that she is in considerable difficulty. But it makes it very difficult for us on this side of the House to follow this when no one seems to be fully briefed on the detailed effects of all these altered Amendments.
On Question, Amendment agreed to.
Lord WADE Lord WADE moved Amendment No. 5J:
Page 9, line 33, after ("him") insert ("only").
The noble Lord said: My Lords, this Amendment also deals with notifications. I hope that I shall explain it this time with clarity, which I was unable to do on an earlier Amendment. The effect of this Amendment would be that a notification required under Clause 7, other than under subsection (6), which relates to termination of the duty or the power to protect the property under Clause 6, must be made available for collection at the authority's office. That does not mean that all the authority has to do is to have it available at the office. This is an additional duty.
The object of this Amendment is to specify that where an authority is required to give a notification under this clause, with the exception of a notification relating to the protection of personal property, it must make it available for collection at that office. In addition, if it wishes and if it knows that it is likely to reach the applicant, it may send it through the post or deliver it by any other means. But in any event it must be available for collection. That is the only way in which to ensure that people whose addresses may be uncertain are reasonably certain of receiving the notification. I am sure that the noble Baroness, Lady Young, appreciates that sometimes difficulties arise when people just cannot be found. The addresses

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given by homeless persons or those threatened with homelessness are, in the nature of things, liable to change.
This Amendment does not mean, of course, that the applicant himself would have to call and collect the document. It can be collected by someone else on his or her behalf if that is more convenient. It is hoped that this will help to create as much certainty as possible that, where there is a notification, the person for whom it is intended will receive it.
Baroness YOUNG: My Lords, I take the noble Lord's point about this. It is, necessary because it will be essential to explain in the guidance that goes to local authorities, or some form of circular, that people must know that they can collect this notification from presumably the housing department of the local authority, otherwise its effect will be nullified.
Lord WADE: My Lords, I entirely agree with the noble Baroness. Although it does not arise on this Amendment, may I say that I hope that all the words of notification and other documents will be written as clearly and simply as possible.
On Question, Amendment agreed to.
3.41 p.m.
Lord WADE Lord WADE moved Amendment No. 6:
Page 9, line 41, at end insert ("only").
The noble Lord said: My Lords, this Amendment is also to do with furniture. It makes clear that the notification required by Clause 7(6)(b) that a housing authority have ceased to have a duty or the power to protect a person's property under Clause 6(1) or 6(2) may be given only in three ways specified. This Amendment makes it clear that where a housing authority have such a duty the necessary notification is given as specified in the form that I have just mentioned. As the clause stands, it would be open to doubt whether the ways specified are exclusive or whether the authority may, if they chose, notify the person in some other way instead; for instance, by making the notification available at their office to which I have just referred. That might be inconvenient since the person would not be expecting such a notification and might have to call repeatedly at the office.
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This Amendment is intended to clarify the position still further. I beg to move.
On Question, Amendment agreed to.
Clause 8 [Co-operation between authorities.]:
Lord WADE Lord WADE moved Amendment No. 7:
Page 10, line 17, after ("2") insert (",3").
The noble Lord said: My Lords, I think it would be helpful to take Amendments Nos. 7, 8, 10A and 11 and group them together. Amendment No. 10A will replace the original Amendment No. 10. I can honestly say that these are drafting Amendments. They deal entirely with cross-references which I hope will clarify the wording of the Bill. I beg to move.
On Question, Amendment agreed to.
Lord WADE Lord WADE moved Amendment No. 8:
Page 10, line 21, after ("2") insert (",3").
On Question, Amendment agreed to.
Lord WADE Lord WADE moved Amendment No. 9:
Page 10, line 23, leave out ("their functions") and insert ("the functions to which the request relates").
The noble Lord said: My Lords, this is essentially a drafting Amendment. It makes clear that a body which is required to co-operate with a housing authority is not required to exercise any of the latter's functions except those to which the request relates. I beg to move.
On Question, Amendment agreed to.
[Amendment No. 10 not moved.]
Lord WADE Lord WADE moved Amendment No. 10A:
Page 10, line 27, leave out ("reference to sections 2 and 4 above in that subsection") and insert ("the reference to sections 2, 3 and 4 above").
The noble Lord said: My Lords, I have already referred to this Amendment. I beg to move.
On Question, Amendment agreed to.
Lord WADE Lord WADE moved Amendment No. 11:
Page 10, line 28, leave out ("5") and insert ("6").
The noble Lord said: My Lords, the same remarks apply to this Amendment. I beg to move.
On Question, Amendment agreed to.
Clause 9 [Power to charge]:
Baroness BIRK Baroness BIRK moved Amendment No. 11A:
Page 10, line 34, leave out ("(3)") and insert ("(4), 3").
The noble Baroness said: My Lords, perhaps I can help the noble Lord, Lord Wade, here. This is an Amendment that is consequential on Amendments that were accepted during Committee stage, and these resulted in duties on housing authorities to secure the provision of accommodation being included in Clause 2(4) and Clauses 3 and 4. The power to charge needs to relate to these. I beg to move.
On Question, Amendment agreed to.
Clause 10 [Offences]:
3.46 p.m.
Lord GIFFORD Lord GIFFORD moved Amendment No. 12:
Page 11, line 13, leave out subsections (2) to (4).
The noble Lord said: My Lords, I beg to move Amendment No. 12. It is a very much more substantial matter. It concerns Clause 10 which deals with the offences introduced by the Bill which people applying for accommodation under the Bill might commit. Clause 10 (1) contains an offence which is similar to offences in legislation of this kind whereby if one makes a false statement in order to get accommodation from a local authority under this Bill one will be guilty of an offence. I have no quarrel with that offence. It parallels provisions in similar Statutes.
Subsections (2), (3) and (4), which are those I am seeking to delete from the Bill, deal with a different kind of offence. If one looks at subsection (4), the offence is if you fail to comply with subsection (2). If you marry that up with subsection (2), the offence will be committed if a person who has applied to a housing authority for accommodation fails to
"notify to the authority as soon as possible any change of facts material to his case".
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On reading that I found it somewhat grotesque that someone should be liable to be charged with failing to notify something as soon as possible, particularly when it is something so vague as a fact material to his case.
It smacks of the jackboot if you are committing an offence if you fail to tell something to somebody on your own initiative without being asked any questions. It is made worse when one looks at the provisions of subsection (3). Everyone who applies for accommodation under this Bill has to be told in ordinary language about this offence. What one has to imagine is that everyone who is homeless and comes to the town hall is going to have to be told something like this: "I have got to tell you that if you don't notify us as soon as possible of any change of circumstance which is material to your case, you will be committing a criminal offence." It is a duty on local authorities to give that warning.
It is stressful enough to be homeless and without a roof without having some official informing you, in language which cannot fail to be intimidating, that you are a potential criminal if you do not come along and tell them. What do you have to tell? What is a change of facts material to one's case? One can envisage the case of a woman driven out of a home by a violent husband, and applies for accommodation in desperation under this Bill. Let us suppose, as may well happen, that two or three days later the husband comes round and says, "I am sorry, darling. You can come back again. I won't do it again." Even if that has been said many times before, I suppose that it is a material fact that the husband says he has changed his mind and is not going to be violent or get drunk again. It is the sort of thing that someone would have to notify to the local authority as soon as possible.
I wondered whether there was any precedent to this offence. I looked at other legislation dealing with welfare benefits and relationships with authorities, such as the National Assistance Act 1948, which this modifies, the Supplementary Benefits Act, the Family Allowances Act, the Social Security Act. All those provisions have an offence similar to Clause 10(1), but it is an offence if you tell lies to the local authority or to the department concerned. None of them has the offence

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of failing to notify a material change of circumstances. Thanks to my noble friend Lady Birk, I have been informed that there is a precedent; apparently such an offence appears in the Rent (Agriculture) Act 1976. It seems therefore that this is a new offence which some official has begun to introduce into recent legislation. If so, I suggest that the less we see of it the better because it is totally unnecessary.
If somebody applies for accommodation, fills out a form and tells the truth, no doubt in due course, if that person obtains accommodation, somebody can ask, "Before you are admitted into this council house which we are prepared to provide for you, tell us if there has been any change in your circumstances; have you found somewhere to live?" If the person falsely answers, "No", he can be prosecuted under Section 10(1) as it stands. Therefore there is no need for this sort of vague offence, the effect of which can only be to intimidate people who are homeless.
The Earl of LONGFORD: My Lords, I support my noble friend Lord Gifford; having made out a strong case, I have no doubt that the Government will wish to agree with him.
3.52 p.m.
Baroness BIRK: My Lords, this provision is not designed to make life difficult for homeless people or to frighten them off by giving warnings about criminal proceedings. It is designed to protect the interests of the genuinely homeless by preventing housing authorities from being unreasonably burdened at a time when we are all aware that their resources are extremely stretched. We are trying to find ways to make the Bill not just something written on to the Statute Book but a measure which will work in practical terms. It is a counterweight to the duty on the authority to notify reasons for giving its decision; by giving those reasons in writing, that will act as a safeguard.
I could not agree with my noble friend Lord Gifford in the example he gave of a woman driven out of her home because of violence or a threat of violence and returning with the husband saying, "I will now behave myself", because that example meets the pattern followed in so many cases of battered wives, and a woman
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in that position would be absolutely protected under other clauses of the Bill. It would in no way be a fact which was material to the case in this instance.
It is important that authorities should make the position clear to applicants, clear in a way that is not threatening but clear in a way which will reveal the changes about which they need to know. I could not agree with Lord Gifford that this will be done, to use his words, in language that cannot fail to be intimidating. I accept that it could be done in such a way, but we are very concerned—I have discussed this because I am personally concerned about it—to see that it is made quite clear in the code of guidance exactly what the responsibilities are. It should be done in such a way that the applicant is given information and told about his rights and responsibilities, and of course this is a responsibility.
It may be that, when a person's circumstances change, it does not occur to him to report that. We do not expect ordinary people to refer to an Act of Parliament every time something needs to be dealt with—to expect that would be absolutely outrageous—but they should know their position because this is not simply a question of people trying to do something wrong. It is also a question of the housing authority needing to be made aware of a change of circumstances which can affect the rest, or certainly some, of its allocation of housing, both in terms of the long-term housing list and for homeless people.
The idea behind subsection (2), to which my noble friend takes exception, is that if a person applies to a housing authority and claims in good faith to be homeless, which he is at the time, then if, while the authority is considering his case, something happens—say, some other accommodation becomes available to him—he should be obliged to tell the authority so that it will not be required to secure accommodation for somebody who is no longer in need of it.
There is a certain degree of fairness here from the point of view of other people who are in a similar position. Somebody might want deliberately to withhold information, and that would be covered. But perhaps people simply do not inform about a change of circumstances, and in

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that situation it is extremely important to know the facts because every unit of accommodation counts. There is also the question of the need for careful monitoring.
I am sure we will hear about it if the provision is abused; local councillors, voluntary organisations and, I am sure, my noble friend will hear about it, and then, in the light of information which shows that it is being misused, something can be done about it. If it reaches the point of a person being guilty under the provision, being liable on summary conviction—and we do not envisage many cases coming into that category—the court would have to be satisfied; the local authority is not being given power to fine people on the spot.
Although this will not be used very much—it is, as it were, a fall-back clause—I do not think it will have the devastating effects my noble friend thinks it will have. It will also make local authorities feel that they have covered any loopholes and gaps that might otherwise affect their housing allocations and their ability to deal with other homeless people who are in equally desperate circumstances. I hope that my noble friend will accept that explanation and will not press the Amendment.
Baroness PHILLIPS: My Lords, having listened to the remarks of my noble friend Lady Birk, I am still rather mystified. If one is in need of accommodation one normally tries to get one's name on several lists. Obviously if one obtains accommodation, there is no reason not to inform the other lists that one is no longer in need of accommodation. I cannot visualise the case of a homeless woman, say a battered wife, not informing the local authority if she obtains accommodation. To make it an offence in the way proposed seems serious. It is all very well the Minister saying this power may not often be used, but is it wise to have such a clause, one which could be used? While listening to the Minister I tried to imagine the sort of case she had in mind and, frankly, I failed to do so. As I say, there seems no reason why, if one finds accommodation, one should not inform the local authority.
Lord WADE: My Lords, this is the old problem of trying to be fair and at
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the same time taking into account that there are a few who abuse the law, while the majority suffer in consequence. I should like to make a general point here. There are cases where legislation such as this is passed with the best of intentions—and I certainly hope that this Bill will reach the Statute Book—and there is perhaps only one case of somebody abusing the law. There is then an outcry, with the possible result being an amending Act which destroys the good work that has been done; and all of this is because of only one or two people. Those facts must be taken into account.
The main point here is that the Amendment would remove the applicant's duty to notify material changes of fact to the authority considering his case. I think it is reasonable that an applicant should be under such a duty, and I regretfully feel that we ought not to accept the Amendment. If the noble Baroness, Lady Young, makes a very persuasive speech in the other direction, it may affect the position, but I have explained how I feel about the matter, and that is evidently the view of the spokesman for the Government.
Lord GIFFORD: My Lords, I am not at all satisfied with what I have heard. Those who have spoken against the Amendment appear to me to be far too ready to introduce into the law new crimes of a very vague nature. We must remember that we are here talking about crimes. We are concerned with the crime of omission, of not doing something, or not doing it as soon as possible. We are introducing this kind of crime without thinking whether it needs to be on the Statute Book at all.
Having said that, I am grateful to my noble friend Lady Birk for the very full reply she gave me. To some extent, I am impressed by the fact that the guidance which is to be issued will deal with this aspect of the Bill. Those who have had experience of local authority officials in some districts—only a minority of districts, but it is perhaps the difficult minority of districts with which the Bill is most concerned—will know how callous officials can sometimes be. I am not at all satisfied that any guidance which may be given by the Department would encourage officials to be sympathetic in the way in which they administer this clause. I hope that I heard my noble friend aright

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when she said that the guidance would contain some provisions as to the way in which local authorities should deal with applicants and should explain to them their rights and responsibilities.
There is another comment which must be made. I think it was the noble Lord, Lord Wade, who talked about the need to be fair in this Bill. It is beginning to strike me that whenever a responsibility is laid upon a homeless person, failure to carry it out is immediately to be visited with criminal prosecution and penalty. On the other hand, if the local authority fails to do its duty, there is no such sanction, and I fear that this may appear in the working of the Bill. Having said that, I will—somewhat reluctantly, in view also of the support I have received from my noble friends Lady Phillips and Lord Longford—accept the invitation to see how this matter goes. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
4.5 p.m.
Lord WADE Lord WADE moved Amendment No. 12A:
Page 11, line 17, leave out ("3") and insert ("7").
The noble Lord said: My Lords, this Amendment is consequential on earlier Amendments. I beg to move.
On Question, Amendment agreed to.
Clause 11 [Guidance to authorities by Secretary of State.]:
Lord WADE Lord WADE moved Amendment No. 13:
Page 11, line 32, leave out from ("functions") to ("to") in line 33.
The noble Lord said: My Lords, I beg to move Amendment No 13, which would restore this clause to its former terms. A relevant authority must have regard to guidance given by the Secretary of State, but will not be required additionally to have regard to local circumstances and the facts of individual cases. Possibly the noble Baroness, Lady Birk, may help us on that point, but I understand that this matter arises from an alteration made during the Committee stage.
Baroness BIRK: My Lords, this matter arose because when the noble Lord,
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Lord Sandford, moved Amendments to this clause at the Committee stage, the noble Lord, Lord Wade, then indicated that he was not happy about it. Neither was I. But I think that the matter went through very quickly, as it was one of those occasions when we were speeding along. A degree of confusion then arose because we were discussing two Amendments together. The words which the previous Amendment inserted, and, which the present Amendment seeks to remove, have the effect of undermining the status of the guidance which is to be issued by the Secretary of State. As I understand it, an authority could effectively disregard the Secretary of State's guidance if it decides that the local circumstances, or the facts of individual cases, warrant it. The wording conveys that flavour to me.
I do not suggest that an authority should lose its discretion to determine the facts of a particular case, or what to do about a case in the light of local circumstances. But to suggest that an authority should be entitled to disregard the Secretary of State's guidance, or to have regard to it just to the extent that it suited it, is to misconstrue the purpose and nature of the guidance.
The general housing responsibilities and duties of authorities are set down in the main body of housing legislation from the 1957 Act onwards. Nothing by way of guidance from the Secretary of State under this clause can affect those responsibilities and duties. The purpose of the code is to provide a set of criteria, or an operating framework within which all authorities would be acting consistently regarding their functions under this Bill. It is very much to the benefit of authorities, as well as the homeless, that this consistency should prevail.
The code of guidance is not something that is to be imposed peremptorily. Drafts of it have already been the subject of detailed discussions with the local authority associations. These discussions will continue with the object of securing as broad a consensus as possible. But without doubt a code of guidance aimed at a consistency of approach is necessary, if only because even now getting on for 40 per cent. of housing authorities have not implemented Circular 18/74, which has no statutory backing. I hope, therefore, that your Lordships will agree that

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the position should be restored to what it was peviously. I do not think I am mistaken in saying that the noble Lord was quite surprised over the short period of triumph when the Amendment went through previously, by default, as it were.
Baroness YOUNG: My Lords, I regard it as a very unusual procedure for the Government to agree to an Amendment on Committee, and then decide to take it out on Report. I accept that this is a Private Member's Bill, but what I have just said is the effect of this Amendment. It is perfectly true that we, on this side, were not expecting the Amendment to be agreed in Committee. Nevertheless, it was agreed, and that is the situation. I have looked up the matter in Hansard, and I see at column 714 of the Official Report that the Amendment was agreed to without discussion. Although it was not discussed, there is a very real local government point which lies behind this matter; namely, the freedom of the local authority to consider the local circumstances and the facts of the case. Surely this involves a not unreasonable request so far as a public authority is concerned. Local circumstances vary, and the facts of any given case vary, and all that is being sought in the Amendment is that these factors should be taken into account, as well as the guidance from the Secretary of State. It is quite common practice in other matters of local government. It would not be an exception, and I am very surprised that the Government should seek to take it out again at this stage.
Baroness BIRK: My Lords, with the leave of the House, perhaps I might reply to that. At the Committee stage the noble Lord, Lord Wade, said:
"I am not entirely happy, but I do not wish to discuss the matter at the moment".—[Official Report, 22/7/77; col. 715.]
As the hour was late—and I think that at that time the noble Baroness herself was also anxious to get on with the business—the Question was quickly put, and the Amendment was agreed to. I took it, speaking from the Government side, the noble Lord, Lord Wade, having said that he did not wish to discuss it at that moment, that we would certainly be returning to it, and we have now in fact done so. All that is happening is that the discussion which would have taken place in Committee is now taking place
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on Report. I think that the points made by the noble Baroness and by her noble friend in Committee have been very well aired—in fact, they have now had two very good airings—and I hope that, with that, they will now withdraw their opposition and let the Amendment go through.
Lord SANDFORD: That may be, my Lords, but not just yet. The position that I should like to make clear first of all is that it did not at all surprise me that the Amendment which I moved in Committee was accepted, because I thought it was a good one, and I still do. Nor was it in any sense an Amendment that was accepted by default. We may have been wanting to get on—I as much as anybody else—but it was quite clearly moved. I thought I explained it briskly but nevertheless clearly, and the point is exactly as my noble friend has just indicated. The noble Baroness just now referred to undermining people's status. What will be undermined if this Amendment is now carried is the status of the housing authorities. They, as your Lordships know, are local authorities, which are controlled by locally-elected councillors, and they are not in any sense at all the agencies of the Secretary of State. This is the position we were anxious to secure.
The second point I should like to make is that it is one of the rules of the House that there should not be reversed at Third Reading, the last stage of a Bill, Amendments which have been accepted at an earlier stage. It is perfectly true that we are now at Report stage, but, as my noble friend the Opposition Chief Whip said at the beginning of these proceedings, we have agreed that Report and remaining stages should be taken today. So I think that, at any rate in the spirit if not in the letter, the rule that we do not reverse at this stage something which has been accepted at a previous stage ought to apply. I therefore take considerable exception to an Amendment which, if the noble Lord, Lord Wade, or the noble Baroness, Lady Birk, had wanted it so, could in fact have been debated fully at the previous stage.
Lord WADE: My Lords, if wrath is to fall on anyone, no doubt it should fall on my head for being too peaceful a person. I merely said at the time that I was not happy about this, but as there seemed to

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be a general desire to get on I did not press the point. No doubt I should have pressed it then and not left it till now. But I am bound to say that I hope the House, I having been duly rebuked and having considered it, will accept the Amendment.
On Question, Amendment agreed to.
Clause 12 [Financial and other assistance to voluntary organisations concerned with homelessness]:
Lord WADE Lord WADE moved Amendment No. 13A:
Page 12, line 12, at end insert—
("(3A) Neither the Secretary of State nor a housing authority nor the Greater London Council shall give a voluntary organisation assistance under this section unless the organisation have first given an undertaking—

(a) that they will use the money, furniture or other goods or premises made available to them for such purposes as may be specified in the undertaking, and

(b) that if the Secretary of State, or, as the case may be, the housing authority or the Greater London Council serve notice on the organisation requiring them to do so, the organisation will, within the period of twenty-one days beginning with the date on which the notice is served, furnish a certificate giving such information as may reasonably be required by the notice with respect to the manner in which the assistance given to them is being used.

(3B) Subject to subsection (3C) below, if it appears—

(a) to the Secretary of State, in a case where assistance has been given under subsection (1) above, or

(b) to a housing authority or the Greater London Council, as the case may be, in a case where assistance has been given under subsection (2) or (4) above,

that a voluntary organisation to whom the assistance was given have failed to carry out their undertaking under subsection (3A)(a) above, the Secretary of State or, as the case may be, the housing authority or the Greater London Council, shall take all reasonable steps to recover from the organisation an amount equal to the amount of the assistance.
(3C) No sum shall be recoverable under subsection (3B) above unless the Secretary of State or, as the case may be, the housing authority or the Greater London Council, have first served on the voluntary organisation a notice specifying—

(a) the amount which in their opinion is recoverable, and

(b) the basis on which that amount has been calculated.")

The noble Lord said: My Lords, this Amendment has been spoken to already. I beg to move.
Baroness YOUNG: My Lords, this Amendment is, I think, of a more serious nature, and it is one which was discussed at length in another place. I think it is designed to meet the sort of situation which, in the context of this Bill, can be conveniently summed up by saying it was described in the television programme, "Goodbye Longfellow Road"; and it is intended to cover the case of voluntary organisations which receive public money. It was the wish of my honourable friend Mr. Rossi and noble Lords on this side of the House, not only that the accounts of these voluntary organisations should be properly kept but that the local authority concerned should see that its intentions with regard to the keeping and the spending of the money should be properly observed. An exact parallel of this, I think, would be the case of trustees and a trust. It is not good enough simply that the money must be spent correctly; it must be spent in the way in which the trustees and the trust lay down.
I am bound to tell noble Lords that we on this side of the House are not entirely satisfied with the drafting of this Amendment. Nevertheless, I understand the position to be that it would be too late at this stage of the Bill to look at all the relevant law on trusts and then to write it into this Bill, and that in the time that is available this is the best that can be achieved. It is, I think, more than a drafting point. It is in fact an important matter of principle; and I am glad that the noble Lord, Lord Wade, has felt that this can be put into the Bill. We on this side of the House would have liked it to be a little tighter than it is, but at any rate it is considerably better than was the position originally.
4.18 p.m.
Lord JANNER: My Lords, I should like to support very strongly what has been said by the noble Baroness, Lady Young. I think that, in respect of the matter to which she referred and which was exposed some time ago on television, we had the experience of a terrible abuse of public funds. The position is one which requires extremely careful consideration. The idea that money can be abused in the way that was illustrated, particularly in view of the fact that homelessness is so prevalent and that housing associations are so terribly important for

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the purpose of meeting the needs of the situation, is something which should be given the most careful consideration, particularly in relation to the points raised by the noble Baroness. It is very important, I think, that, in a manner similar to that in which trusts have to be carried into effect, the use of this money should be subject to similar careful scrutiny, so that abuses such as that to which we have referred can be avoided. In the circumstances, whatever may be the wording of the Amendment—I have not examined the wording very carefully, but I think it covers the point—I think we should strongly support it.
Viscount GAGE: My Lords, I think the noble Lord, Lord Janner, not for the first time, has criticised the entire housing association movement on the basis of two bodies which are not registered and which are not really considered housing associations at all. I hope he will not go on expounding this view, because it is untrue. Although I will not contest what my noble friend has said, I sometimes wish that people would remember that voluntary bodies are voluntary, and if you make things too difficult for them they just will not work at all.
Lord JANNER: Of course, the voluntary bodies, although they do remarkable work, also have an obligation to see that any funds that come into their possession are properly dealt with. I am not going to say that they do not make mistakes. Of course, they do; otherwise no lawyer would be able to live. But, at the same time, it is of great importance that in the use of public funds the most careful consideration should be given to ensure that there is no abuse.
Baroness BIRK: My Lords, I think that this Amendment covers the point which was expressed by my noble friend Lord Janner and by the noble Baroness; but obviously it is not intended as an insult or as a weapon against properly run and properly audited voluntary societies, any more than the fraud laws are there to be used against people who do not commit fraud. Nevertheless, it is true that there have been cases in the past—and I am sure that the noble Viscount, Lord Gage, will agree—and that when these things happen they often tend to give the reputable bodies a bad name, and to smear them unfairly.
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What this Amendment does is to make sure that they keep proper books of account and have them audited. We have been pressed that Clause 12(4)—and the noble Baroness clearly said so—does not go far enough. We hope (and I think this convinces me) that we have found the right point. It is the point between what has been expressed by my noble friend Lord Janner and by the noble Viscount, Lord Gage. This Amendment, in requiring a procedure for obtaining repayment if the money is not used for the purposes for which it was given, meets the substance of this point. Local authorities are responsible to their ratepayers for the stewardship of substantial sums of money and I am confident that, with this now in the Bill, it can be left to them to judge whether the organisations which they propose to assist are responsible and trustworthy. In order to help them to do that, it seems sensible to introduce a safeguard of the sort envisaged in this Amendment against what we all hope is the occasional abuse which tends, as I have said, to bring discredit on the whole voluntary housing movement. I hope noble Lords will support this Amendment.
Viscount GAGE: My Lords, for the record, would not the noble Baroness agree that the purpose of the registration system which has been introduced was to circumvent these bad associations, and that it could not happen again with any new associations?
Baroness BIRK: My Lords, one hopes not. Of course, those in default were those who were not registered. But I think we need a safety net, which is what this is.
Lord WADE: My Lords, I want to make it clear that there is no implication on local authorities generally or on voluntary bodies generally.
On Question, Amendment agreed to.
[Amendments Nos. 14 and 15 not moved.]
Clause 15 [Meaning of accommodation available for occupation.]:
4.25 p.m.
Baroness BIRK Baroness BIRK moved Amendment No. 15A:
Page 14, line 10, leave out from beginning to ("available") in line 11 and insert—
("For the purposes of this Act accommodation is only available for a person's occupation if it is").
The noble Baroness said: My Lords, Amendments Nos. 15A and 15B are drafting Amendments. There are several references in the Bill to accommodation being available. Some are worded in different ways. These Amendments are simply to cover these more satisfactorily in drafting terms than does the present text. I beg to move.
On Question, Amendment agreed to.
Baroness BIRK Baroness BIRK moved Amendment No. 15B:
Page 14, line 13, at end insert ("and any reference in this Act to securing accommodation for a person's occupation shall be construed accordingly.")
On Question, Amendment agreed to.
Clause 16 [Persons intentionally homeless or threatened with homelessness]:
4.28 p.m.
Lord GIFFORD Lord GIFFORD moved Amendment No. 15C:
Page 14, line 15, after ("if") insert ("with a view to gaining an advantage under this Act").
The noble Lord said: My Lords, I beg to move Amendment No. 15C. This Amendment is to be found as a manuscript Amendment on the list of manuscript Amendments which has been circulated. Perhaps it will be to the convenience of the House if I were to speak also to the other four Amendments which stand in my name on that list. No doubt, also, there should be debate on Amendment No. 15E on that list in the names of the noble Lord, Lord Wade, and my noble friends Lady Birk and Lord Kirkhill. These Amendments all deal with the clause regarding intentional homelessness, so called.
In presenting this Amendment, it is necessary briefly to review the history of this concept. When the Bill was originally introduced in the House of Commons there was no reference in it to any question of intentional homelessness. However, in Committee in another place, concern was expressed by various Members that people
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would abuse the Bill; that, in effect, they would say to themselves, "Here we are with an authority that has a duty to house the homeless. Let us make ourselves homeless in order to benefit."
Because of that concern, Amendments were introduced on Report in the other place introducing into the earlier clauses the concept of intentional homelessness. There has been further amendment in this House and, as the Bill stands now, your Lordships will find, first in Clauses 2 and 3, various references to those who are homeless intentionally or threatened with homelessness. In respect of such people, the duty which the local authority has is very much less than it has to other priority need people. Their duty is only to secure interim accommodation, such accommodation as they would consider reasonable, and would be fulfilled, for instance, by providing shelter and bed and breakfast for a short space of time, a week or two; whereas the main duty is to secure accommodation on a permanent basis.
Once those Amendments had been made, a great amount of concern was expressed both in this House and outside that the introduction of this concept of intentional homelessness would provide a major loophole through which local authorities who did not wish to observe the spirit of the Bill could evade entirely their responsibilities. On Second Reading in this House many noble Lords—some of whom, like the noble Lords, Lord Soper and Lord Hylton, are not here at this moment—expressed serious reservations about that concept.
On Committee, I sought to move an Amendment to delete that whole concept of intentional homelessness and, receiving little support in the face of very stout opposition from both Front Benches, I withdrew it and I do not now seek to reintroduce it. However, also in Committee a whole new clause, now Clause 16 of the Bill, was moved by the noble Baroness, Lady Young, and carried. That clause as it now stands reads:
"… for the purposes of this Act a person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy".
Subsection (2) has similar provisions with regard to those threatened with homelessness; and subsection (3) reads:

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"An act or omission on the part of a person who was unaware of any relevant fact is not to be treated as deliberate for the purposes of subsection (1) or (2) above".
There is a further provision in subsection (4) allowing the authority to pay regard to local circumstances in determining what is reasonable.
On Second Reading, the noble Lord, Lord Soper, described the very phrase "intentional homelessness" as "gobbledygook". We now have a whole series of phrases, and if the phrase was originally gobbledygook, this new clause makes it far worse. It is my serious contention that, as it stands, the clause renders this Bill worse than useless. Any local authority is faced with different kinds of people who come to it for assistance: people who are in arrears of rent or mortgage payments; people who have had family disputes; people who have taken on holiday lets or short lettings. In almost all those categories, the loophole is there, if they choose to use it, to say: "No, you have become intentionally homeless. You have done, to quote Clause 16, a deliberate act".
Among the many appalling cases which have been brought to our attention by the charities, there is that of a family in Cleethorpes on Humberside. Because of the unemployment of the husband, they fell behind in their mortgage payments. They were required by a court to pay £19 a week off a mortgage when they were receiving benefits of only £30 a week. This is a family with one child. Of course, they could not keep up with that and they were evicted. The local authority refused to house them because they had intentionally made themselves homeless—intentionally, I suppose, because, being in receipt of benefits of £30 a week, they intentionally decided to spend some or all of that money on food or clothing rather than on paying a £19 a week mortgage instalment. Practically anything which leads to homelessness, apart from fire and flood and that kind of emergency, is the consequence of some kind of act which is deliberate in the sense defined by this clause; that is to say, it is not accidental.
My Lords, I have gone in some detail into the history of the Bill as it is so far, in order to explain the purpose of my Amendment. On Committee, the various spokesmen of the Front Benches agreed, after some pressure, that the wording of
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this new clause could be looked at. I have put down a series of Amendments which will have the effect of making Clause 16(1) read:
"… for the purposes of this Act a person becomes threatened with homelessness intentionally if with a view to gaining an advantage under this Act he does or fails to do anything the likely result of which is that he will be forced to leave accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy."
Subsection (2) is amended in a similar way. Subsection (3), with its very convoluted wording, "unaware of any relevant fact", would not be necessary.
That wording is put forward in a moderate spirit and a spirit of compromise. What it retains is the power to prevent those who have a deliberate intention of abusing the Act by getting an advantage under the Act from qualifying to be rehoused. It hits at those who have the motive which, so far as I understand it, is the motive with which people want to deal. The noble Lord, Lord Wade, who has steered this Bill with great moderation and courtesy, said on Second Reading that the "intentional" clause was designed to deal with
"people whose object is to abuse the system and jump the queue".
That is from column 1131 of Hansard for 15th July. My Amendment would cover such people who have a motive to gain an advantage under the Act. It would delete from the Bill this concept of deliberateness, with its very artificial definition, and would make the clause generally very much more simple to operate. If a local authority were satisfied that someone was abusing the Act, it could act accordingly and not be under a duty to rehouse such a person.
I do not know whether that wording, the final form of which I only put forward this morning because of the great shortage of time on this Bill, is acceptable to the various Front Bench spokesmen. From the fact that two Front Benches have put their names to Amendment No. 15E, it may be that it is not acceptable, and that they contend that Amendment No. 15E does the trick. Because of that, I will deal shortly with that Amendment.
Amendment No. 15E would insert in subsection (3) the words, "in good faith" It would read:

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"An act or omission in good faith on the part of a person who was unaware of any relevant fact is not to be treated as deliberate".
That narrows the Bill; it makes it even more difficult to get round the intentional homelessness criteria. It certainly does not go any way towards the vice which I say the Bill has. It only deals with people who, in good faith, are unaware of something. A lot of people, such as the person who defaulted on his mortgage payments, were not unaware of any relevant facts, but were just crippled with poverty. It is the people who are crippled with poverty, that we want to see rehoused under this Bill rather than allowing them to escape through loopholes of this kind. Having heard my noble friend Lady Birk I may have to come back to the Government Amendment. For the present, I commend most seriously the series of Amendments to which I have spoken. I beg to move.
4.37 p.m.
Baroness BIRK: My Lords, I agree with my noble friend that it will be helpful, save time and make a more coherent debate if we discuss his Amendments together with the Amendment standing in my name and that of my colleague. May I just say to my noble friend who said that if this clause is left in the Bill, the Bill will be worse than useless, that he should go and tell that to the people who are at this moment homeless, who have no other recourse, and for which there is no statutory rescue to which they can turn. To say that is not only going too far oratorically, but is taking a completely impractical and counter-productive approach to the Bill.
My noble friend is aware—and we discussed this at some length at Committee stage—that this Bill is the result of a consensus between the sponsors, the Opposition and the Government. I have been quite frank, and there are many of us who would prefer not to see this particular clause in the Bill. I and my colleagues in another place and in this House are not prepared to jeopardise the first Statute to go on the Book to deal with the homeless because we have had to come to a compromise on a clause.
I will explain why I think that the Amendment standing in my name should be accepted, and that the Amendment
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standing in the name of my noble friend should be rejected. I have explained that what is proposed narrows this clause as finely as possible to make it acceptable to get this Bill through. But this means it will have to have Royal Assent by the end of this week. These are the brutal facts of the case. Under this Bill, just about all who are homeless, or threatened with homelessness, are entitled to advice and assistance from their housing authority. Those in categories with a priority need are entitled to immediate shelter, and subsequently to permanent accommodation. As we know, the priority categories include families with children, pregnant women, and those vulnerable as a result of old age, mental illness or handicap or physical disability. Moreover, the homeless are explicitly defined to include those subject to violence or real threats of violence, so that a battered woman is entitled to advice and assistance from the housing authority and, where she has children with her, to shelter and permanent accommodation if she needs it.
The Bill also provides for arrangements to be made, subject to Parliamentary approval, governing the responsibilities of authorities for the homeless moving between one area and another. It can no longer be the case that the homeless will be shunted willy-nilly from one local authority area to another. I apologise to noble Lords for going over this once again, but I feel it important to stress that all these provisions represent very significant advances on the very limited terms of the National Assistance Act 1948, and on the joint Circular 18/74. Not only do they establish an integrated legislative and administrative system; they apply to all housing authorities, not just to those who, at their discretion, have adopted the joint circular in whole or in part.
However, the comprehensive character of this new system has created genuine fears in another place, in this House and generally among local authorities throughout the country, that it will be used by some people, quite deliberately, to gain an unfair advantage in competition with the genuinely homeless and at the expense of others, with a real need, on the waiting list. It is fair to say that this Bill commends itself to Parliament and to everyone outside, in so far as it deals with the intentionally homeless.

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Clearly, then, the wording of the Bill with respect to the intentionally homeless is of great importance, because I think I have shown that this fear has been expressed. Whatever the degree of fear, which varies between different people, it is there and it has been agreed that this aspect should be included in the Bill. I certainly do not quarrel at all with my noble friend Lord Gifford for raising this matter again. He is absolutely right, that I said in Committee that I would have a look at the drafting. I was very careful and scrupulous, in making it quite clear that the motivation of the intent clause would have to remain in the Bill in some form or another, without changing its meaning. The Amendment which stands in our joint names is the result of that look at the drafting.
None of us wants to disqualify from any of the benefits of the Bill anyone other than those who set out to "buck" the system. That is why the burden of proof is put on the housing authority—which I think my noble friend will agree is certainly an improvement on the original version—to determine that the applicant is intentionally homeless. Moreover, the authority can no longer hide behind any cloak of secrecy, because they are obliged to give their reasons in writing.
Nor do we want to leave without shelter those with a priority need, however deliberate their homelessness might be. That is why the Bill provides that even the intentionally homeless are to be provided with shelter for as long as is reasonable for them, with advice and assistance from the housing authority, to secure other accommodation. The area of the intentionally homeless is a very difficult and delicate one, and there is no getting around that. Having agreed that this is to be in the Bill, it is absolutely impossible to find a form of words which will be acceptable to everyone concerned, certainly in this House and in another place. So I am afraid that there has to be a considerable amount of compromise, if one wants to get the Bill through.
Let me therefore turn to the exact words in Clause 16:
"a person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy".
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My noble friend wants to insert "with a view to gaining an advantage under this Act"; he would also delete the reference to "deliberately" and with it subsection (3).
I have looked very carefully and sympathetically at these changes, but I cannot accept them, because they are not just a refinement of the present wording. They are not just clearer drafting changes. They constitute a significant change of meaning, and I do not think, from his point of view, that the deletion of "deliberately" helps. They require a housing authority to determine two highly difficult matters: first, that the homelessness was intentional; and, secondly that the intent was to gain an unfair advantage under the Act. In other words, the authority would be obliged to demonstrate the intention of an intention. That would put them in an impossible position and the Bill would lose credibility, both with housing authorities and with the general public.
We have studied the wording of the Bill very carefully, as I promised my noble friend, and I would commend the wording in my name, which would protect those who acted in good faith; for example, those who followed mistaken or misleading advice and became homeless in consequence. This wording means that you cannot say to someone "If you were unaware of the fact, ignorance is no defence in law". You have, in addition, to show that someone has acted in bad faith. I am a little surprised that my noble friend has not immediately found this acceptable, because I believe that a number of other people and colleagues feel that this strengthens the clause and makes it rather tighter, in that it gives an applicant greater leeway. It adds to his side of the problem.
This change will help to express in the wording of the Bill the concept that the sponsor, noble Lords opposite and we have agreed it should contain. Beyond this, we must see what can be done outside the Bill itself, bearing in mind that the provision is intended, above all, to be a deterrent. It is not intended that local authorities should use this provision in order to prevent eligible people, who are among the priority groups, from getting housing. In any case, they cannot do so, because of the way the rest of the Bill is framed. The point that it is only a

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deterrent has not been sufficiently emphasised. Those intending to "buck" the system are more likely than others to read the small print of the Bill, and be deterred. Those who are quite unaware, in the circumstances in which they find themselves, that it will have this result, and who are also acting in good faith, will now be covered by this Amendment. I should be surprised, and very much alarmed, if the numbers of intentional homeless proved to be large.
From time to time, local authorities take quite a lot of bashing and criticism, as well as praise, but the impression that all local authorities are waiting to pounce, and use this clause in order not to house any homeless, is not only untrue but grossly unfair. I do not believe this to be so. If one accepts that, one is saying that not only officials but also local councillors of each Party, and Independents, will be in cohort in order to stop the housing of homeless people. This is entirely contrary to what is taking place. I find in my Department that there is passionate lobbying in the form of letters and deputations from local authorities which are anxious to find some way to increase their housing resources. If one carries it too far, one will reach the position where the tail will wag the dog. However, this is not so and we must keep the problem in proportion.
We shall make clear in the circular on the Act and in the code of guidance what we see as the purpose of the provision and its appropriate consequences. We shall also monitor the situation through the statistics on homelessness which we collect from local authorities. The House will be glad to know that in the light of this Bill we have already started to discuss with the local authority associations arrangements for the collection of statistics. The statistics will certainly deal with the intentionally homeless. They will enable us to watch what is happening and—to pick up the point made by the noble Viscount, Lord Amory, at Committee stage—in dealing with the question of the allocation of resources which must follow the Bill we shall take account of the possibility that in some cases social service authorities may have a residual responsibility.
I appreciate the fears of those who feel that many for whom homelessness is a
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disaster may be branded as intentionally homeless, but I do not share the fear that this will apply to a great many people. Now that we accept that "homelessness and poverty" is not just a phrase and believe that something should be done about it, the idea that any of us could sit back and quite happily see human beings branded as intentionally homeless when they are nothing of the kind would be quite unfair to everybody concerned. If the purpose of the provision is respected by authorities and by everybody concerned—which includes the locally elected representatives, Members of Parliament, the voluntary organisations, the ordinary, interested citizen and ourselves as Members of this House—then not only will there be little to fear but we shall know what is going on. If there is abuse, obviously we shall have to deal with it. We shall be monitoring the situation very carefully and will be ready to act, if required. One cannot be completely certain at this stage just what the particular effects will be. However, I repeat that it would be folly of the utmost order to jeopardise the benefits which this Bill can begin to bring to the homeless, and which I described when I began, if we allowed what I believe will turn out to be exaggerated fears to overturn our common sense.
I apologise to the House for taking up so much time, but I believe that this is an extremely important point. It is the most important basis of difficulty, contention and discussion, and I am glad that by putting forward his Amendments so that we could bring the matter out into the open again and discuss it my noble friend Lord Gifford has given me the opportunity to state the position as I see it. In the light of what I have said, I hope that my noble friend will not press his Amendments and that the House will accept the Amendment which stands in the name of the noble Lord, Lord Wade, my noble friend Lord Kirkhill and myself.
4.55 p.m.
Baroness YOUNG: My Lords, I very much support what the noble Baroness, Lady Birk, has said in explanation of the Bill as it stands at present. I intervene to make two points. First, I was very glad to hear in the course of the explanation given by the noble Baroness that the

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Government acknowledge that social service departments may well have residual responsibilities under the Bill, and I hope that they will enter into discussions on the financing of those responsibilities. My noble friend Lord Amory has asked me to say that he is very sorry not to be in his place this afternoon, because unexpectedly he has had to go to a funeral; otherwise he would have intervened on this point.
Secondly, I should like to say to the noble Lord, Lord Gifford, regarding his Amendments and the Bill as it stands at the moment that I hope he will feel that Amendment No. 15E, which stands in the name of the noble Lord, Lord Wade, helps his case. I drew the inference from what he said when he moved his Amendments that he felt it made the position worse—or, at any rate, no better. I should have thought that this was not true. It means that somebody who becomes homeless because he has accepted had or misleading advice will be helped, as provided in Clause 1; therefore he is not covered by the position set out in Clause 16.
We on this side of the House are quite prepared to accept Amendment No. 15E. It is a reasonable compromise which I should have thought the noble Lord, Lord Gifford, could accept. I hope very much that he will not press his Amendments. I believe that to do so would disturb the basis upon which agreement has been reached on the series of Amendments that we on this side of the House have moved. I should like the noble Lord to believe that we have moved at least some way in his direction since the Committee in terms of Amendment No. 15E, which we are happy to accept. In that spirit I hope that the noble Lord, Lord Gifford, will withdraw his Amendments.
Lord WADE: My Lords, I need to say only a few words. First, I was glad to hear what the noble Baroness, Lady Young, had to say about the noble Viscount, Lord Amory, because the noble Viscount mentioned several times to me this particular worry of his, and I understand that the noble Baroness, Lady Birk, will be writing to him on the matter.
There are three points which I wish to make. I am very glad to hear that the
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noble Baroness, Lady Young, is prepared to accept the Amendment which stands in the name of the noble Baroness, Lady Birk, the noble Lord, Lord Kirkhill, and myself. I must admit that I find the words "intentionally homeless" emotionally repugnant. I am sorry that we have to use the expression at all; if we could find some other words which had the same meaning I should be happier. Nevertheless, there are certain cases which, even if a different term were used, would amount to this and we have to recognise that fact.
I do not intend to quote examples; several were quoted in the other place. The disadvantage of quoting examples is that it tends to arouse feelings both ways and does harm. Therefore I shall not go into details. However, in both Houses a great deal of time has been spent upon trying to find the right wording and finally reaching this rewording, and I hope that, as the best compromise we can reach, this Amendment will be accepted.
4.59 p.m.
Lord GIFFORD: My Lords, with the leave of the House, first may I reply to the two noble Baronesses who have spoken about the "good faith" Amendment. I accept what they say: that this Amendment improves the Bill if it includes the little word "or". To say:
"An act or omission in good faith or on the part of a person who was unaware of any relevant fact",
would go a long way towards meeting the kind of objections which I have been making. However:
"An act or omission in good faith on the part of a person who was unaware of any relevant facts"
must restrict the ambit of Clause 16(3).
Clause 16(3) already allows into the scope of the duty of the local authorities people who are unaware of any relevant fact. With the Amendment, only those who are unaware of the relevant fact and are also in good faith are to be within the ambit of that duty. It certainly goes nowhere to meet the objections that have been made both by myself and outside Parliament. It may not make that much difference because no doubt those people who are unaware of material things are also people who are acting in perfectly good faith, so it probably does not advance

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or retard very much, but strictly speaking it restricts the ambit. If any of those who have spoken could indicate that at Third Reading they could agree to the insertion of the little word "or" I would withdraw the Amendment.
Baroness BIRK: My Lords, I must tell the noble Lord, Lord Gifford, that I am sorry but it would be quite impossible. I should not like him to spend time needlessly pursuing that line because inserting the word "or" would open the whole controversy again. The noble Lord was good enough to say that he believed that this improved the Bill and I hope he will accept that. In many ways, I think the words "in good faith" and "unaware" work together and in a rather odd way can work as alternatives, but we really cannot insert the word "or" into the Bill. I hope the noble Lord will accept that.
Lord GIFFORD: My Lords, that really underlines the next point that I want to make. It is the question of a consensus. As I have understood the speeches of the noble Lord, Lord Wade, and my noble friend Lady Birk, from time to time, Amendments have been tabled to this Bill which both would have been quite happy to see accepted and yet those Amendments have been rejected in this House with their approval because there is no three-Party consensus. As I understand that, it means that, because of the late stage in the Parliamentary Session at which this Bill is being taken through Parliament, the Tory Party has an effective veto on any Amendments which the other two Parties would have been able to pass, even if they would have carried the majority here or elsewhere. That kind of consensus passage of legislation is not the way in which I should wish to see a Bill carried through Parliament. But there it is: if it is to be a law at all it seems that it must be carried through by Friday.
Next, I wish to reply to my noble friend who accused me of being unfair in taking such a pessimistic view of the consequences of this Amendment and appealed for common sense in support of her appeal. The difficulty is that a minority of local authorities, although nevertheless a substantial number, are, here and now, without this Bill being on the Statute Book,
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praying in aid the excuse of intentional homelessness in order to refuse to rehouse people in the most deserving and devastating of cases. If they are praying that reason in aid now, how much more will they do so when, as a specific exception to their duties, they are able to turn away anybody who has deliberately done something in consequence of which they have become homeless? Common sense requires us to appreciate that people who are doing something now will go on doing it if the law allows them to do so, as this law will.
Of course, a large number of local authorities are complying with Circular 18/74. Nothing that I say is an attack on local authorities in general. A great many of them—indeed, the majority—are housing the homeless. Those who are not doing so will not, with the Bill as it now stands, be required to, except, in my judgment, in a minority of cases. I do not at all see how the Amendments that I have finally tabled are in any way unworkable. In fact, they bring into the Bill those people who—to quote my noble friend—"set out to buck the system", and why the law cannot be clear in that way I do not know. I do not feel able to withdraw my Amendment because I believe that these Amendments are as reasonable as can be and I must see what their fate is to be.
On Question, Amendment 15C negatived.
[Amendments Nos. 15CC, 15D, 15DD, and 15DDD not moved.]
5.6 p.m.
Lord WADE Lord WADE moved Amendment No. 15E:
Page 14, line 26, after ("omission") insert ("in good faith").
The noble Lord said: My Lords, this Amendment has already been discussed. I beg to move.
On Question, Amendment agreed to.
Clause 18 [General Interpretation]:
The DEPUTY SPEAKER (Lord Jacques): My Lords, to keep the Amendments in proper sequence in relation to the Bill, I shall now call Amendment No. 18.
Lord GIFFORD Lord GIFFORD moved Amendment No. 18:
Page 16, line 7, at end insert —
(""a person vulnerable as a result of old age" means a person who has reached retirement age or any other elderly person who has a special need.")
The noble Lord said: My Lords, my noble friend Lord Longford has asked me to make the first speech in moving this Amendment which stands in our joint names. This is an Amendment which seeks to make more precise the duty of local authorities towards the elderly. At present, the categories of priority need include those who are
"vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason".
The word "vulnerable" of course imports a considerable amount of judgment and, so far as the other categories of mental illness, handicap or physical disability are concerned, it is inevitable that some element of judgment must come into play as to how handicapped or how disabled one has to be. But, so far as old age is concerned, that is something that is measurable in years, and this Amendment seeks to define a person vulnerable as a result of old age as a person who has reached retirement age or any other elderly person who has a special need. In other words, it requires local authorities—as I am sure the great majority do—to treat as having priority need anybody of pensionable age.
Noble Lords may think that any humane authority would indeed do that and that no person of pensionable age who was homeless would not be rehoused by the authorities, but the information that I have is that that is simply not the case. There are authorities which say of certain elderly people who approach them that they are not vulnerable, and can fend for themselves. They say, "You are a hale and hearty person". That may be so, but are we really to allow any authority to turn away any pensioners—even if they appear to be as spry as many of your Lordships are—who have not a roof over their heads? The information that I have comes from Age Concern and if it is true—and I have no reason to doubt it—it is scandalous. I hope that those who are responsible for this Bill will feel able to accept this very modest Amendment. I beg to move.
The Earl of LONGFORD: My Lords, I should like to support the Amendment moved by the noble Lord, Lord Gifford. In a way, it might be thought that I was better equipped—or perhaps more biased—to deal with this Amendment. A person "vulnerable as a result of old age" would apply to me much better than to him. I come here with a travel permit on the buses, a senior citizens' rail card and no doubt other signs of old age.
Take the case of a travel permit on the buses. I think we must agree that it would be a great mistake to allow a bus conductor to say, "You do not look as old as that". They would not say it to me of course, but they may say it to other noble Lords who do not seem so old. Or take the case of a rather tiresome ticket collector who may refuse to accept your permit. These things must not be left to the whim of a minor official. They must be handled in the methodical and objective way the noble Lord has proposed. So I support him strongly.
Lord SANDYS: My Lords, although the aims of this Amendment appear to be very helpful and straightforward, I suggest to both noble Lords that perhaps the result of their Amendment may be quite contrary to what they wish. They are placing here a quite specific age, that is
"a person who has reached retirement age".
It has been suggested to me that there are those persons perhaps a few years below retirement age who would come within this category, and if this Amendment is written into the Bill those persons will be turned away by the local authority who will say, "You have not reached retirement age and are therefore not eligible". If the Bill stands as it is at present drafted, they will have an opportunity, as the noble Earl, Lord Longford, so rightly said, of a judgment. Nevertheless, it will have to be a judgment based not on a specific age. I think the Amendment may be a little too restrictive.
Lord WADE: My Lords, I am glad the noble Earl, Lord Longford, has had his opportunity. I felt that he rather missed his chance during that very long Committee stage. I am sure no one would regard him as elderly. I do not think I need to add a great deal to what has been said. We must be quite clear what this Amendment means. It would mean that

1023
all persons of retirement age would be classed as having priority need, together with any other elderly persons who have special needs. This would diminish the discretion which authorities would have under the present wording to decide whether persons are vulnerable as a result of old age. Of course, one would like to say that all elderly people should be in the same category, but there is the problem to which we have referred over and over again of limited resources and the question of priorities. We discussed whether youth should come into the priorities. Here we face the problem again. I am hound to say that I would advise the House not to accept the Amendment, although f think we all have tremendous sympathy with the point of view that has been expressed.
Lord MONSON: My Lords, I, too, should like to oppose the Amendment. Surely it is extremely insulting to imply, as the Amendment does, that men of 65, and even more so women of 60, should be classified as elderly. What is more, it is not only insulting but it is not in accordance with the facts, given that the great majority of men and women in their 60s and their early 70s cannot possibly be bracketed as helpless or incompetent or senile, and they certainly do not wish to be treated as such. What is more, as I think the noble Lord, Lord Wade, was hinting, if the Amendment were carried it would mean that a millionaire of 65 could apply to be housed under the Act. I think the Amendment is misconceived and unnecessary, and I hope the House will reject it.
Baroness BIRK: My Lords, I will not go over the arguments that other noble Lords have used, except to agree that the Amendment would oblige local authorities to use retirement age as a measure of vulnerability, and it would take away the choice of criteria in the case where somebody below retiring age could be considered, for all sorts of reasons, to be vulnerable because of old age. But I should say that the Government do intend to include a passage on this problem in the code of guidance to be issued under Clause 9. There we shall recommend that retirement age should be one of the
1024
main criteria, and authorities will be obliged to have regard to this recommendation. I hope that this will go part of the way—I can see that it will not go the whole way so far as the noble Earl is concerned—to show that this aspect is not being omitted, that this will be used as a criterion. With our restricted use of priority groups at the moment because of resources, I think this is the best way to deal with it.
Lord GIFFORD: My Lords, we have had some contradictory reasons for disagreeing with this Amendment. When the noble Lord, Lord Sandys, indicated his view, that less people would be rehoused if this Amendment were passed, I thought he was going to support it, he being one who does not wish to see local authorities' resources being overstretched. But the noble Lord, Lord Wade, said it would cause perhaps more people to be rehoused and that resources were limited, which was a contradictory reason for opposition, coming from what has been so far a very monolithic consensus. However, having heard my noble friend Lady Birk say that this will be covered in guidance, and having aired the matter, and knowing, as we do, that the working of this Bill can be monitored over the years, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 17 [Meaning of "local connection"]:
Lord WADE Lord WADE: moved Amendment No. 16:
Page 16, line 7, at end insert—
(""priority need" shall be construed in accordance with section 1(7A) above;").
The noble Lord said: My Lords, a very long time ago, at the beginning of the Report stage, this Amendment was discussed with an earlier Amendment. I therefore formally beg to move.
On Question, Amendment agreed to.
Lord WADE Lord WADE moved Amendment No. 17:
Page 16, line 28, leave out subsection (2).
On Question, Amendment agreed to.
5.20 p.m.
Lord WADE: My Lords, I beg to move that this Bill be now read a third time.
Moved, That the Bill be now read 3a.—(Lord Wade.)
Lord GIFFORD: My Lords, I would not wish to prolong these proceedings unnecessarily. There is at this stage only one plea I would wish to make. I and other noble Lords, and people outside Parliament, have expressed grave concern because the Bill as it has been amended has become very flexible. It has all sorts of words in it such as "intentionally homeless", "vulnerable", "reasonable", which enable a considerable amount of discretion to be imported into its working. That has been a direct consequence of this consensus approach. We fear that the effect of the consensus will produce a very woolly Bill.
I ask my noble friend Lady Birk whether, where vague phrases occur—especially in Clause 16, which deals with intentional homelessness and which contains a number of flexible words—the guidance that the Government are to give to local authorities will really be specific and clearer than perhaps the Bill is as regards the way in which it should be implemented in the most common cases? I am thinking in particular of rent arrears and family disputes. The most common causes of homelessness are well known. Such a situation will, perhaps, in some cases of difficult local authorities, tip the scales. I hope that that assurance can be given.
5.22 p.m.
Lord JANNER: My Lords, I, too, should like to make a few comments. As your Lordships have undoubtedly gathered from the speeches that have been made during various debates on the Bill, some of us have been very disturbed about certain aspects which have been included in the Bill, as well as some which have been excluded. What has prompted most of us to ask leave to withdraw our objections has been the fact that there is no doubt that the Bill itself is useful as regards most aspects. Consequently, I think that it is necessary to emphasise once again that that is the reason why we have refrained from obstructing the passage of the Bill. There has not been sufficient time to press certain points, but
1026
we do not want to destroy that part of the Bill which is good, in the hope that when instructions come from the Government they will be of such a nature as, in some ways, and possibly entirely, to meet the points that we have raised.
I should not like the various voluntary organisations who have been so devoted and dedicated to their work, to feel that what they have in mind and what they have already done as regards various matters—from my own experience the fear of single homelessness is such a matter—has not been properly expressed or considered. It is really due to the fact that we want certain persons or certain categories of people to be included, as they are in the Bill, in the list for priority consideration by the local authorities.
This is an extremely bitter pill for some of us to swallow, but I hope that it will not have the terrible effects that some of us fear. I point out as a warning—I hope that my noble friends will not take it unkindly—that, if, in the course of the operation of the Act, we find that those points that we have put forward are not dealt with in one way or another, they must understand that some of us may, and probably will, be prompted to raise these matters again, perhaps through Questions, but more likely in a Private Member's Bill, with the intention of making improvements.
I believe that the Bill will give special, important and necessary treatment to certain categories of people. As a result, I feel that, although there are surrounding difficulties, we ought to pass the Bill so that those people at least may benefit from it.
5.24 p.m.
Lord SANDYS: My Lords, the noble Lord, Lord Janner, speaks from long experience of over 40 years in Parliament. However, he reminded his noble friend, the noble Baroness, Lady Birk, that he would conceivably bring up certain matters at a later stage. My Lords, I think that the House—I say this in no mood of self-congratulation because I have taken almost no part in the discussions—should be extremely pleased with the way it has managed an extremely difficult Bill over a period of nine sitting days.
Lord JANNER: My Lords, I hope that the noble Lord, Lord Sandys, will forgive me for interrupting him but I should like to congratulate the noble Lord, Lord Wade, and the others who have participated in the debate on both sides of the House for the manner in which they have conducted it.
Lord SANDYS: My Lords, I am sure that those views are most appreciatively expressed from this side of the House. Nevertheless, I think that that should be coupled with our comment, which was most eloquently expressed by my noble friend Baroness Young, that we were invited to look at the Bill on Friday 15th July. I think that this is the ninth sitting day. We have proceeded at a smart gallop, but the Government had the opportunity of taking the Third Reading in what we term the "spillover period." They have chosen not to do so for reasons best known to themselves. It might well have been possible to have had certain Amendments which could have been reached by consensus. However, I should like to point out to the noble Baroness, Lady Birk, that I believe her substantial explanation on Clause 16 was helpful both to the House and to the general understanding of the whole Bill, to which she devoted considerable care.
The Bill is a step in the right direction. All those who took part in discussions in another place—discussions which have, of course, assisted us substantially—are to be taken as sharing in our appreciation of the work done as a united attempt to do something about those in this particular distressing predicament.
5.26 p.m.
The Earl of LONGFORD: My Lords, most of what I wish to say has been said eloquently by my noble friend Lord Gifford, who has played a notable part throughout the proceedings, and by my noble friend Lord Janner. I am one of those who is very disappointed with the Bill in its present form. I am not one of those who think that it will do more harm than good and that we should be better without it—not at all; it is an advantage. However, it is disappointing compared with what it might have been. The anxieties of those most concerned with the single homeless, battered wives and other
1028
groups have already been expressed. It would be wrong for any noble Lord to gain the impression that in some way we believe that the Bill is better than when it started: it is worse than when it started and one must accept that. I pay a tribute to the noble Baroness and to all those who have played active parts.
5.28 p.m.
Baroness VICKERS: My Lords, I should like to thank the noble Lord, Lord Wade, for the inclusion of Clauses 14 and 17. As far as I know, this is the first time that preference has been given to the people in Her Majesty's Services, including the Queen Alexandra's Royal Naval Nursing Service and the Women's Royal Naval Service. Those people are often in a very difficult position because, when they occupy quarters provided by the Services and have to leave for some reason or another, they are not included on the register of the local housing authority. Sometimes they have no means of knowing when they will have to leave—there may be special reasons why they have to leave the Service—and are in great difficulty. With the low pay that they now receive, together with the fact that they have to pay high rents and they have to rent their furniture, they have very little opportunity, particularly in the lower echelons, of saving any money in order to provide their own homes. Therefore, I should like to express my gratitude to the noble Lord, Lord Wade, for finding an opportunity of including this matter in the Bill after I raised it on Second Reading.
Lord WADE: My Lords, I had intended to say a few words on the Motion, That the Bill do now pass, in accordance with our more ancient custom; but as these valuable contributions have been made on Third Reading I shall say a few words and then be silent when it comes to the Motion, That the Bill do now pass. I should like to express my very grateful thanks to the noble Baronesses, Lady Birk and Lady Young, and her colleagues, and all noble Lords who have taken part in the debate. We have had a great deal of very valuable and constructive criticism and helpful advice. As we very well know, everyone is not satisfied, but I am absolutely sure that it has all been well worth while.

1029
Turning to the time factor, I very much dislike Bills coming to us late in the Session. I have expressed my views on that before. It is only fair to say that Mr. Ross—and this is a Private Member's Bill—introduced the Bill in another place very early on in the Session. Even with Government support, it is pretty hazardous to get a Private Member's Bill on to the Statute Book and there are not so many who succeed. I congratulate him. It has taken a long time for the Bill to reach us. I am sure that noble Lords have done their utmost to improve the Bill within the limited time available. It is an important step forward and I hope that the Bill will very soon reach the Statute Book.
Baroness BIRK: My Lords first, may I pay tribute to the noble Lord, Lord Wade, for the way in which he has carried the Bill through the House in the most difficult circumstances. It is a complicated Bill and the noble Lord introduced it more or less single-handed.
At this stage I do not agree with the noble Lord, Lord Sandys, that if we had taken the Third Reading in the spillover session there may have been time for longer discussion. However, in the circumstances in which the Bill was, so to speak, conceived and from the way it has now grown, I believe that there would not have been any substantial difference. A few "i's" may have been dotted and "t's" crossed, but I think that we have reached the end of the road so far as any substantial agreement was concerned. The fact that the Bill will be—as I hope—on the Statute Book this week and implemented fairly soon afterwards towards the end of the year is really the most important point.
My noble friend Lord Longford referred to the Bill in its original form. Many of us regret the fact that some parts of it are not now in the form in which they were orginally drafted. Nevertheless, when the Bill came to your Lordships' House it contained a number of substantial unresolved points and a great many more points on which there was grave unease. In the short time in which we have considered the Bill, I think that to the best of our ability we have managed to resolve many of them. The Bill is improved. Of course it is not perfect
1030
and I do not believe that we could have a Bill of this kind which would suit us all.
My noble friend Lord Gifford referred to the discretion involved. However one worded the Bill, and even if the different points that he wanted could have been added, there would always have to be elements of discretion within it, unless a far greater resource allocation was possible. There would always need to be flexiblity because I believe that we must have flexibility. I can assure my noble friend that we shall do our very best to be as helpful and as clear as we can in the code of guidance. The remarks that he and other noble Lords have made during the Bill's passage through this House have been of tremendous help both to me and my Department in relation to the code of guidance. It is now emerging and we are very much clearer about what should be added and included in it—not only as regards the factual material but also as to the way in which people are handled, how they are treated and how the information is imparted to them.
We shall certainly monitor the operation of the Bill and keep a very watchful eye on the way in which it is interpreted. In fact, there are few Bills that will have so many voluntary, involuntary and other watchdog bodies keeping eagle eyes on them as they proceed.
Finally, even with its imperfections and with the dissatisfactions expressed by many people, the result of our work is a social measure which will be of real benefit to homeless people. On behalf of the Government who have supported the Bill from its introduction in another place, I should like to thank noble Lords for the care with which they have considered the Bill and for the way in which they have all been prepared to hurry it through, which has involved a great deal of work—I am very conscious of that—and giving it a great deal of attention in the short time available. That was possible because of the one point on which there was general agreement; namely, that if we were to have a Bill on homelessness, the sooner it was put on the Statute Book the better. Everyone in this House has helped to do that, and I look forward, together with everyone else, to seeing some real improvement in practice in the lot of the homeless.

1031
I hope that this will be just a beginning and that we shall be able to add the other priority groups, about which so many noble Lords feel so passionately, in as short a time as possible.
On Question, Bill read 3a with the Amendments, and passed, and returned to the Commons.

HOUSING (HOMELESS PERSONS) BILL

  PRICE INVESTIGATION AND EXAMINATION (EXCEPTIONS) ORDER 1977
  5.38 p.m.
  Lord WALLACE of COSLANY Lord WALLACE of COSLANY rose to move, That the draft Price Investigation and Examination (Exceptions) Order 1977, laid before the House on 22nd July, be approved. The noble Lord said: My Lords, although it is not my intention to move the three orders en bloc, for the convenience of the House and particularly the Opposition I propose to make one speech outlining the principles and purpose of each order in the sequence in which they are printed on the Order Paper. Eventually, of course, the Questions will have to be put to the House separately for each order.
  First dealing with the draft exclusion orders, Section 22(2) of the Price Commission Act 1977 provides that the Secretary of State may, by order, make such exclusions from the provisions of the Act as he specified. We have before us the draft order giving effect to those exclusions. Parts I, II and III of the draft specify prices and charges which are to be exempt from investigations by the Price Commission into price levels under Section 5(1)(b) of the Price Commission Act.
  We propose to make these exemptions for a number of reasons. First, because there are prices and charges which are either the subject of some international obligation on the part of the United Kingdom (for example, coal and steel by virtue of our membership of the European Coal and Steel Community); or are simply outside the United Kingdom's effective control (for example, import prices). Secondly, there are areas where prices and charges are determined in such a way that they do not lend themselves to price control. For example, we do not seek to
  1032
  control prices determined on a commodity market or at auction. Thirdly, there are areas where prices are under the supervision of a body other than the Price Commission. There are a number of prices and charges which fall into this category—for example, the price of ethical medicines where control is exercised by the Department of Health and Social Security.
  In these three general areas, exemption from investigation is achieved by Article 2(1) of the draft order. This Article excludes from investigation into price levels under Section 5 of the Act those prices and charges in Parts I, II and III. These same prices and charges are also to be excluded from undertakings which a firm may give following investigations. They are also automatically excluded from investigations into prices increases under Section 4 of the Act because none of them are to be subject to the requirement to notify the Commission in advance of a proposed price increase. The effect of the draft order is therefore to take all the specified prices and charges completely outside the scope of investigations. Although these prices and charges are not to be individually investigated, it does not necessarily follow that they should also not be examined on a sectoral basis under Section 10 of the Act. We believe that there are some sectors which—although exempt from investigations—should be liable to examinations and to potential action under Section 10. These are set out in Part III of the Schedule.
  There are also some sectors which, for a number of reasons, merit complete exclusion from examination. These are dealt with in Article 2(2) and covered in Part I of the Schedule. In addition, there is a third category set out in Part II of the Schedule. This is an area which it is perhaps a little more difficult to understand at first sight. It is a category which is neither outside the system of examinations, nor fully within it. Instead, Article 2(3) of the draft order proposes a category which will be liable to examination under Section 10, but exempt from any action in consequence of such an examination. This will be achieved by excluding the prices and charges in question from those provisions of Section 11 of the Act which provide for the Commission to give advice in reports on

  1033
  examinations and to indicate matters which they think should be remedied. Prices and charges in Part II of the Schedule are also to be excluded from undertakings given to the Secretary of State under Section 12 in consequence of an examination.
  The effect of Article 2(3) is to make specified prices and charges subject only to fact-finding examinations and to ensure that no action whatsoever can result from an examination. The reason for proposing what may seem to be a rather strange half-way house is two-fold. There will be times when there is a real need for a fact-finding examination, but for nothing more than that. This is the sort of examination which the Commission have already carried out from time to time under the powers contained in the Counter-Inflation Act 1973. To exclude completely the prices and charges in Part II of the Schedule from examinations would deny the Secretary of State the power in those cases to direct the Commission to carry out a fact-finding examination. We believe it right to preserve the ability to have this sort of examination.
  The second reason for wanting to keep certain prices and charges within the scope of examinations concerns the nature of the examinations which the Commission will be asked to undertake. Many examinations are likely to be wide-ranging and could therefore suffer from over-restrictive terms of reference. If we exclude too many areas from examination, we run the risk of inadvertently prejudicing a Commission examination into a non-excluded price where they need also to look at other prices and charges which are excluded from examination but have a bearing on their examination into the related price or charge.
  In drawing up the list of exceptions proposed in the draft order, the Government have tried to steer a middle course. On the one hand, there is clearly a danger that too many exclusions will detract from the effectiveness of the new system of investigations and examinations. Ultimately, this would detract also from the credibility of the new system. But there is also a danger in claiming to control prices and charges which, for one reason or another, cannot or should not fall
  1034
  within the remit of the Price Commission. That too could only undermine credibility.
  We believe that the draft order steers the right course. It excludes only those prices and charges which should be excluded, in whole or in part, from investigation and examination. I have explained to the House why this should be so. But I also believe that, measured against the scale of industry and commerce in this country, the proposed exclusions represent only a fraction of the prices and charges which the consumer is called upon to pay. The draft order will not therefore detract in any way from the effectiveness of the new policy when it comes into operation in August. I therefore commend the draft order to the House.
  I now come to the limits on Remuneration Order.
  In the White Paper The Attack on Inflation After 31st July 1977 (Cmnd 6882), the Government outlined the further measures which are proposed in the fight against inflation and unemployment. As the White Paper explained, these measures have been drawn up in the light of discussions with representatives of the TUC and of the revised prospects for the economy. In the past two years, the nation has derived immense advantages from the guidelines on pay which the TUC has formulated in agreement with the Government. The Government and the TUC have recognised that the period after 31st July must bring an orderly return to free collective bargaining. The keystone for bringing about such a return is the TUC's guidance on the strict maintenance of settlements made under the current policy. The guidance, which is set out in the While Paper, will go far to prevent a wage explosion from developing after July 1977. It will mean that the Phase 2 policy will continue to affect the level of the nation's earnings until the last settlement made under it expires at the end of July 1978.
  The Government have therefore proposed in the White Paper to continue the provisions in relation to employers in the Remuneration, Charges and Grants Act 1975 to the extent needed to support and enforce the TUC guidance on the 12-months' rule. The limits on Remuneration Order enables that objective to be achieved. The procedure under the new

  1035
  order will be exactly the same as in the last two years. If the Secretary of State, certifies that the pay limit has been breached then the pay sanction will be applied. As my noble friend Lord Oram made clear in the debate on the report stage of the Price Commission Bill (Official Report, 18/7/77, col. 16), the sanction will be the disallowance of the full cost of the relevant settlement in calculations made of profit margin controls under the Price Code. The further order needed to achieve the continuance of margin control for a further year will be laid later this week. The order also gives employers protection, similar to that in the last two years, in situations where they can keep within the pay limit only by breaching contractual obligations.
  I should conclude by explaining the legal basis for this order. The original pay limits for the purposes of Section 1 of the Remuneration, Charges and Grants Act 1975 were set out in the White Paper referred to in subsection (1) of that section, namely The Attack on Inflation (Cmnd. 6151). This provided the limits generally known as the £6 policy. Under the powers in Section 1(2) of the Act, the Limits on Remuneration Order 1976 added to those limits a reference to the limits set out in the White Paper The Attack on Inflation: The Second Year (Cmnd. 6507). This order adds a reference to the limits set out in the new White Paper. It is specifically stated in Annex A of the White Paper that the TUC Statement of 22nd June alone constituted the pay limits in that White Paper.
  I come to the third order, which affects dividends. The main purpose of the draft order is to prolong powers to control dividends under Section 10 of the Counter-Inflation Act 1973. It arises out of the Government's White Paper The Attack On Inflation After 31st July 1977 approved by the other place in the "confidence" debate last week. The reference to dividends is in paragraph 15. The draft order prolongs the controls until 31st July 1978, after which all legislative authority ceases. There are no changes in the form of the controls as compared with Phase II. The statutory limit remains at 10 per cent., within a range of provisions, for dividend increases above the limit in certain circumstances,
  1036
  notably the raising of new capital for investment.
  Besides Section 10, the order also prolongs Section 8. This gives power to the Government to modify Statutes relating to prices. It was used to ensure that the price control could override any previous Statutory provision relating to prices, but has not been needed for some years and it is unlikely to be needed in the forthcoming year. The provision however is necessary to maintain the validity of the orders made under it. I hope I have not detained the House for too long and complicated the situation by running three speeches into one, but I thought it would be for the convenience of the House to speak to the three orders together. I beg to move the first Motion.
  Moved, That the draft Price Investigation and Examination (Exceptions) Order 1977, laid before the House on 22nd July, be approved.—(Lord Wallace of Coslany.)
  5.53 p.m.
  Lord TREFGARNE: My Lords, the House will be grateful to the noble Lord, Lord Wallace of Coslany, for moving the Motion and for telescoping his three speeches into one, no doubt thereby detaining your Lordships for a shorter period. To deal first with the first order, as the noble Lord explained this provides for a series of exceptions, either in whole or in part, to the provisions of the Price Commission Act which passed through this House the week before last.
  Throughout the passage of that measure we on this side were concerned to ensure that firms were adequately protected against cost rises beyond their control, and we were therefore anxious to see that the exclusions were sufficient to achieve that purpose. That indeed was one of the planks of the Government's argument; that we should wait for this order to see how generous and fair they would be. The order is in fact largely as expected. There are some areas which are of some puzzlement, but as I understand that some of my noble friends will ask the noble Lord some questions, I will not detain the House with any specific questions. Whether the list is in fact sufficiently comprehensive only time will tell.
  With regard to the second order, the limits on remunerations, of course we

  1037
  regret that in the light of the draconian price control powers which are contained in the new Act, the Government have not been able to produce a more effective wage control policy. I do not want to be drawn into the argument whether I am for or against a wage control policy at this juncture, but I would say that we certainly need a wage control policy where there is strong and powerful control of prices, because it is necessary and indeed only just that firms should not be subjected to over-stringent price control when there are great areas of costs which are beyond their control and which are not adequately covered by the code or by exceptions granted to the general rules. The Chancellor's plea that a figure of 10 per cent. should be the norm is of course welcomed so far as it goes. What a pity it is that that figure, or something like it, could not have been written into this order along with the 12 months' rule; it seems that only the 12 months' rule was acceptable to the TUC.
  The third order, as Lord Wallace explained, refers to dividends. I think we labour under a delusion if we imagine that the consumers whom we seek to protect by controlling prices are equally protected by the control of dividends. Consumers are very often shareholders in a small way, through unit trusts or pension funds, in companies and, in that capacity, they suffer when dividends are unreasonably or unnecessarily controlled. Furthermore, when companies are not able to distribute their profits or, worse still, are not able to make them in the first place because of the control on their prices, the growth of those companies must inevitably suffer, and when growth suffers employment suffers.
  The Government have just announced the latest unemployment figures and they are an all-time record, anyway since the war—1·6 million no less are now unemployed. I wonder whether these new provisions will do anything for those unfortunate people. We reluctantly agree that these orders should pass and we shall listen with interest to the specific points which my noble friends will raise.
  5.58 p.m.
  Baroness SEEAR: My Lords, we accept these three orders arising in connection
  1038
  with price regulation and the incomes policy, or the absence of it in the formal sense that we have been accustomed to in the last two years. Of course, in a perfect world these are not regulations which we would wish to see, but this is very far from being a perfect world and, in our view, there is one issue of overriding importance to which all lesser issues at this stage have to be sacrificed.
  However, before developing that point I wish to take up two points made by the noble Lord, Lord Trefgarne, when he said that there were draconian powers being used against employers under the new Price Commission Act. There are strong powers implicit in the Act, but there is no reason to suppose that they will be used in a draconian or unreasonable way. I would draw attention to Section 2 of that Act, which lays down very clear, though general, guidance as to the way in which investigations will be carried out and the grounds of investigation, and I submit that that section gives reasonable safeguards to people who have no wish or intention of abusing their position as manufacturers.
  I also disagree with the noble Lord, Lord Trefgarne, when he regrets that there is no specific norm—of a kind to which we have become accustomed over the past two years—written into the policy. A norm has always become a minimum, and to write it in at present is to invite inflationary increases. The idea of an overall earnings figure, as distinct from a norm, has the advantage that it is not a minimum in this sense, and it has the other very great advantage that it gives an opportunity for flexibility. I am sure that noble Lords on the Conservative Benches will agree that industry is extremely anxious to have flexibility, and that a rigid norm would deprive it of that flexibility.
  For my part, I am also glad that we do not now have the Government coming with a cut and dried plan that has been fixed with the TUC outside both Houses of Parliament, which Parliament then has to accept. Surely it is better that after consultation with the TUC and with the CBI, the Government should make up their mind, and have discussions in both Houses of Parliament, rather than come here and say, "This is what has been decided. This is what has to be done."

  1039
  Reverting to the overriding argument, although there is much about these matters which ideally we would not like to see, nothing is more important than to restrain inflationary wage increases. If these are the terms that are required to restrain inflationary wage increases, then the price is cheap. Of course it all depends on whether the Government, having said what their policy is, intend to stick by it. That is what matters. That is what matters to my Party, and it is upon that matter that the support of my Party for the Government's policy depends.
  6.2 p.m.
  Lord MOTTISTONE: My Lords, I hope that the noble Baroness, Lady Seear, will forgive me if I do not follow her line of thought, which seemed to relate more to the Act than to the orders. In rising to endorse the remarks of my noble friend Lord Trefgarne, I want to ask the Government some specific questions about two of the orders, and I shall take them in the same sequence as they appear on the Order Paper. I wish to refer, first, to the exceptions order, and in particular to paragraph 13, which appears on page 4, and which is in Part H of the Schedule. On first reading this I saw, under the exclusion list, a reference to the sale of manufactured goods
  "… which have not been substantially changed after completion of their manufacture".
  That is splendid—practically all manufactured goods are not changed after completion.
  There are some exceptions which I could mention, but generally speaking there are no changes after completion. But on reading that part of the order more closely, I see that the part which starts with the words, "which have not been substantially …" perhaps relates, or is intended to relate, to the prices for the sale of manufactured goods, and I should have thought that in terms of the English language that was not quite good enough, and that paragraph 13(b) could well be taken to relate to manufactured goods. This is a matter in which the Government may like to help themselves by improving the position. As I understand it, we are not in a position to amend orders, and I suppose that they can only be withdrawn and reissued. If the Government feel reasonably strongly about this,
  1040
  they had better get on with it. But if I have a point here, it would seem that it could be pleaded that all, or very nearly all, manufactured goods escape under the terms of the paragraph to which I have referred.
  In passing I should like to mention that I believe that the Government have done themselves no good over the speed with which they have tried to force the Bill and the subsequent orders through our House. On the one hand, there is the question of the wording to which I have referred which, with a little more time, may have been considered more closely, so that the possible error which I have mentioned would not have arisen, and on the other hand, a point arises relating to the heading under Part HI of the Schedule, which states:
  "Exceptions from sections 5(1)(a), 7(5)(b) of …".
  Upon looking at the headings under Parts I and II of the Schedule, one sees that in each case the word "and" is included before the last reference in those headings. Therefore the word "and" ought to be included in the heading under Part III. Perhaps this can be treated merely as a printing error, and the order need not be reissued for that reason. But, again, if further action is needed, then the Government ought to get on with it, because there is not much time for them if these orders are to become effective from after 31st July.
  With regard to the texts, one has not had time to study them. I fully accept what the noble Lord, Lord Wallace of Coslany, said about the criteria under which they were drawn up, but I think it would be fairer on all concerned had it been possible to have had more time here. I am pleading for more time. We should have been discussing these orders on or about 30th June, so as to have had a month before they were due to come into effect. That would have given us an opportunity to consider whether, under the terms of the criteria mentioned by the noble Lord, Lord Wallace, various products could reasonably have been included in any of the Parts of the Schedule. Not only have the Government done themselves no good by rushing this matter, but, potentially, the time factor could be seen to be unfair.

  1041
  Your Lordships may ask, "What is unfairness?" I make this point because, as the noble Baroness, Lady Seear, said, hopefully the new Price Commission will be absolutely "spiffing" and will do everything in the right kind of way, and we need not worry at all. But nagging me in the back of my mind—and I cannot omit this—is this beastly business of the price freeze which, it strikes me, is quite irrelevant to the main purposes of the Act. I do not intend to make a great song and dance about the price freeze now, but it is because it is there, and because it can be so damaging to people, that it is unfair not to give them a chance to see whether these Schedules are fairly comprehensive.
  I am sure that the Government do their best, but that does not mean that they have all the knowledge and expertise of people who are out at the sharp end, in the field. I am concerned about the punitive aspects of the Act; and I should say in passing that, although I believe it is now an Act, I could not obtain a copy, because Acts are not printed for a fortnight or so. Here is another example of the consequences of this matter being rushed through. It is an Act in name, but not in fact, so far as I am concerned. I should very much like answers to my questions on paragraph 13(b) and on the heading to Part III of the Schedule, and I should also like to know what the Government propose to do if my fears and suppositions are right.
  I now turn to the Limits on Remuneration Order. I find it extraordinarily difficult to regard this as being legal. I know that the noble Lord, Lord Wallace mentioned specifically what rendered the order legal, and I regarded it as significant that he did so. The parent Act of 1975 reads in section 1(1)
  "…necessary to keep the remuneration within the limits imposed by the policy set out in the document laid before Parliament … in … 1975 (Cmnd. 6151)…".
  Everybody knows that that set out specific limits, and last year, again, the 1976 document set out specific limits. This order gives the impression that Cmnd. 6882 sets out limits on remuneration. On looking at pages 1, 2, 3, and 4 of Cmnd. 6882 I find no remuneration limits. There is a rather hazy time limit, but there is not a remuneration limit—
  1042
  not anywhere. The noble Baroness, Lady Seear, may have had a jolly good point in saying that it is a good thing not to have a remuneration limit—I was rather taken with her argument—but the fact of the matter is that we are discussing an order which specifically says thare are limits.
  When the noble Lord, Lord Wallace, was talking to us, he said that the limits were in Annex A on the back page, which is all that the TUC found themselves able to contribute to this general subject this year. But there is there only a back reference to last year's limits, which so far as it goes, if the timing of your negotiations is well on into the 1977–78 period, I suppose could be said to suffice. My own timing is the 1st June, so I am going to be limited by the 1976 rules. But that is not what this says. This talks about the 1977 rules, and Cmnd. 6882. In the trade union contribution, again, the only limits that could be called limits, though they are not so described in the text—nor, incidentally, are they earlier in the document—are time limits.
  I would think that if someone found themselves in difficulty under this order which we are discussing he would stand a jolly good chance of being able to get a court of law to say that this is not a legal document. It is referring to something which does not exist. It is referring to limits on remuneration in Cmnd. 6882, and there are not any. So I would suggest to the noble Lord, Lord Wallace, that the Government had better get weaving. They have either got to withdraw this order because it has no validity or they have got to get somebody to give it some pay limits which it can refer to, and turn it into a legal document.
  Earl ALEXANDER of TUNIS: My Lords, I have a question of which I have given the noble Lord private notice, and it is this. Referring to the Price Investigation and Examination (Exceptions) Order, could the Minister say why, in paragraph 11(b) of Part II,
  "charges for the provision of landing and related facilities for aircraft"
  should be included? I should like to know for two reasons. First, it is not part of any international agreement; and, secondly, from the purely practical point

  1043
  of view, landing fees for small aircraft are often quite out of proportion to the facilities provided.
  6.13 p.m.
  Lord DRUMALBYN: My Lords, I sympathise very much with the perplexity of my noble friend Lord Mottistone about the order dealing with limits on remuneration. As I see it—and I hope the noble Lord will confirm this—what the Government are trying to do is to hold the 12 months' rule, and at the same time, as they say in paragraph 10 of the Command Paper The Attack on Inflation,
  "urge that the general level of pay settlements should be moderate enough to secure that the national earnings increase is no more than 10 per cent.".
  This obviously means that they recognise that in some individual cases an increase of more than 10 per cent. might be justified; but, equally, if you intend to hold the national average at 10 per cent. then there must be some increases which will be less than 10 per cent. Indeed, there may well be firms which could not afford to pay an increase of as much as 10 per cent., and there may be cases in particular industries or in a particular firm where an increase of as much as 10 per cent. would not be justified. It is only in this way that the national average of 10 per cent. would work. If anything else was intended, the Government would do doubt have insisted on a flat 10 per cent. increase, but this is not what is done.
  In the earlier debate we had, the noble Lord, Lord Robbins, whom I am glad to see here today, if I understood him correctly pointed to the real danger here; that is, that in the months immediately after this order comes into effect, from the 1st August onwards, there will be settlements well over the average of 10 per cent. If you are to get an average increase of 10 per cent. for the year, you will thereafter have to have increases of very much less than 10 per cent., but in actual fact, of course, exactly the opposite will happen. Here is my noble friend Lord Mottistone who has to wait till next June for his increase. Is it to be supposed that, if there are increases of well over 10 per cent. in the early part of the year—that is, in August, September and October—others will wait the whole 12 months' period before they get a comparable increase?
  1044
  This is the great difficulty that we are in over this order, and indeed over the policy as a whole.
  I do not say for an instant that the Government are wrong in trying to achieve this, but I think we must reckon that the chances of their achieving a good result from their policy do not appear to be favourable at the moment. All I can do is to wish them the greatest of luck with their efforts to urge the unions in the early stage—in August, September and October in particular—to be extremely moderate in their increases, and to hold fast to the policy (the guidelines, as the Government say) that increases should not average more than 10 per cent. a year. I do not think there is anything more we can say about this order, except that we understand what the Government are going to do. We are going to have a terrible job to achieve it, and it all depends on their success in urging those unions whose wage settlements come up for review in the next three months to accept the guidance that the Government have given.
  6.17 p.m.
  Lord WALLACE of COSLANY: My Lords, I certainly have a large number of questions to reply to, but I shall not be too long in answering because your Lordships have other business to do. At the same time, I shall endeavour to give what answers I possibly can. The noble Lord, Lord Trefgarne, and others asked, "Why control dividends at this stage?" The simple answer is that successive Governments have taken the view that, where there are constraints on pay bargaining, incomes from dividends should also be limited. That is the simple basis. We shall have to see how things go. May I say generally on the question of pay that I entirely agree that there is a teriffic responsibility on employers and trade unions in this field of pay bargaining, as to whether they keep to the TUC recommendation. The TUC have given their support, and it is now up to the workers and the employers to face up to the situation in the national interest—because that is what these orders are about. They are in the national interest, and not in anybody's personal interest or in the interest of any section of the community.

  1045
  The noble Lord, Lord Mottistone, made a number of inquiries. The first one was on paragraph 13(b), which deals with second-hand goods. It is cumulative, so the reference to prices for the sale of manufactured goods applies to both (a) and (b). This is achieved by the word "and" at the end of paragraph 13(a). This word "and" is very important, apparently, because, on the noble Lord's second point, we agree that the word "and" is missing from the heading of Part III of the Schedule to which he referred. We accept that point. This will be corrected when the order is reprinted for publication. It is merely a printing omission. The noble Lord asked when the print-out will be available. It should be available at the end of this week. That is the latest information.
  Generally, on the question of exceptions, it is a question of timing in getting the orders out. The Department and those responsible for the job of sorting it all out have put in great efforts and tribute should be paid to those anonymous people for having done the best that they can. They think that they have achieved the ideal balance. But nobody is 100 per cent. perfect and it is possible that there may be occasion for reasonable suggestions to be made for other exceptions. That can be done. The only problem is that it takes time for these suggestions to be fully considered. Nevertheless, it does not mean that because this has been published, it is the end of it. Any reasonable suggestion will be fully considered. We hope that there will not be too many of them; but, of course, they could arise.
  I will come back to the points raised by the noble Lord, Lord Mottistone, later. The noble Earl, Lord Alexander of Tunis, asked an interesting question. On the face of it, his case is reasonable, but, on the other hand, when we go into it in detail regarding the landing fees for aircraft and so on, the charges for landing and related facilities for aircraft on international journeys have been outside the control under the code for some time. This is because such charges are akin to being export prices. Experience has shown that airports could not extricate the costs of services for domestic travel from international travel. It is difficult to sort it out. It makes it difficult, if not
  1046
  impossible, to control domestic charges in any satisfactory way. In August of last year we therefore made all landing charges free of control under the code. We are now proposing to extend this exemption to investigations under the Price Commission Act and to action in consequence of examinations, but they will be liable still to fact-finding examinations.
  Lord TREFGARNE: My Lords, I am a little unhappy about something the noble Lord said about it having something to do with export prices. If he is saying that export prices are not controlled, that we accept. But aircraft landing fees levied by United Kingdom airports are surely not part of export prices.
  Lord WALLACE of COSLANY: I shall repeat what I have said. I said that charges for landing and related facilities for aircraft on international journeys have been outside the control of the code for some time. This is because such charges are akin to being export prices.
  Lord TREFGARNE: My Lords, if the House will allow me, I must come back to this point. Landing fees for aircraft, so far as the major airports are concerned, are set by the British Airports Authority, as the noble Lord will know. Most other airports followed the lead given by the BAA in deciding what charges to set; but by no means all of the smaller airports are controlled by the BAA. I wonder whether the noble Lord or the Government are right in excluding those charges from the effect of this order. The answer that the noble Lord has given is puzzling and confusing. Perhaps he will be able to look at the matter again and write to my noble friend.
  Lord WALLACE of COSLANY: My Lords, I am grateful for that suggestion. It is a very complicated matter and I shall certainly see what I can do to get a clearer explanation for the noble Lord and his noble friend and others who are interested.
  Viscount MASSEREENE and FERRARD: My Lords, might I point out, although it is not my job to do so, that when the noble Lord talks of exports to a certain extent he is right, in that

  1047
  foreign aircraft landing on British airfields pay their landing fees and those fees can be treated as invisible exports. I think that the noble Lord was about 50 per cent. right.
  Lord WALLACE of COSLANY: My Lords, I am grateful for that intrusion into the debate. Whether the noble Lord, Lord Trefgarne, is grateful we shall sort out later. The noble Lord, Lord Mottistone, raised the question of limits of pay. It is absolutely correct that the pay limits referred to in the limits on the Remuneration Order are those which are set out in Annexe A relating to the timing of increases in remuneration after the Phase 2 settlements. We should not underestimate the value of the strict maintenance of settlements made under the current policy. In both of the last two years, the 12 months' rule has been one of the pay limits. That is the pay limit existing now.
  Lord MOTTISTONE: My Lords, if the noble Lord will allow me to intervene, he is now talking about a pay limit while the text is talking about a remuneration limit. However you try to grapple with the English language, you cannot turn a time limit into a remuneration limit. One is one and the other is the other.
  Lord WALLACE of COSLANY: My Lords, I may be a little innocent in these matters but I should have thought that remuneration and pay go together; that, colloquially, "remuneration" was a posh way of saying "pay". One talks of salaries and wages.
  Lord MOTTISTONE: My Lords, my argument is not of equating remuneration with pay but of equating remuneration with time. The document talks about a time limit. That is the only limit. There is mention of remuneration or of pay but not in a limiting sense. The order talks about remuneration limits and the document referred to does not do so at all.
  Lord WALLACE of COSLANY: My Lords, the limit is entirely based on Phase 2 and the 12 months' rule. That is the basis of the whole thing. We hope that this will work and that it will be accepted, for it is a vital fact that must
  1048
  be observed by the British people. I can say no more than that. It is quite simple really, although it is terribly hard to put into effect.
  On Question, Motion agreed to.

  LIMITS ON REMUNERATION ORDER 1977
  Lord WALLACE of COSLANY: My Lords, I beg to move that the draft Limits on Remuneration Order 1977, laid before the House on 22nd July, be approved.
  Moved, That the draft Limits on Remuneration Order 1977, laid before the House on 22nd July, be approved.—(Lord Wallace of Coslany.)
  On Question, Motion agreed to.

  COUNTER-INFLATION (CONTINUATION OF ENACT-MENTS) ORDER 1977
  Lord WALLACE of COSLANY: My Lords, I beg to move that the draft Counter-Inflation (Continuation of Enactments) Order 1977, laid before the House on 22nd July, be approved.
  Moved, That the draft Counter-Inflation (Continuation of Enactments) Order 1977, laid before the House on 22nd July, be approved.—(Lord Wallace of Coslany.)
  On Question, Motion agreed to.

  PATENTS BILL [H.L.]
  6.28 p.m.
  Lord ORAM: My Lords, I beg to move that the Commons Amendments be now considered.
  Moved, That the Commons Amendments be now considered—(Lord Oram.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  [References are to Bill [122] as first printed for the Commons]
  1 Clause 1, page 2, line 18, leave out "or immoral" and insert ",immoral or antisocial"
  2 Clause 1, page 2, line 24, leave out "or immoral" and insert ",immoral or antisocial"
  3 Clause 2, page 3, line 8, after second "of" insert "matter constituting"
  4 Clause 2, page 3, line 17, after "available" insert "in confidence"
  5 Clause 2, page 3, line 22, leave out "by, or who obtained it from" and insert "in confidence by"
  6 Clause 2, page 3, line 24, at end insert "or who obtained it from any person so mentioned because he or the person from whom he obtained it believed that he was entitled to obtain it"
  7 Clause 2, page 3, line 27, leave out "or other proprietor of the invention"
  8 Clause 2, page 3, line 29, leave out "in confidence"
  9 Clause 2, page 3, line 29, leave out "either of them" and insert "the inventor"
  10 Clause 2, page 3, line 39, leave out "successor in title of his" and insert "proprietor of the invention for the time being."
  11 Clause 5, page 5, line 18, at end insert—
  "(3A) The foregoing provisions of this section shall apply for determining the priority date of an invention for which a patent has been granted as they apply for determining the priority date of an invention to which an application for that patent relates".
  12 Clause 5, page 5, line 22, after "country" insert "(specified under section 87 below)"
  13 Clause 5, page 5, line 25, after second "or" insert "international".
  14 After Clause 5, insert the following new clause:
  Disclosure of matter, etc., between earlier and later applications.
  " .—(1) It is hereby declared for the avoidance of doubt that where an application (the application in suit) is made for a patent and a declaration is made in accordance with section 5(2) above or in connection with that application specifying an earlier relevant application, the application in suit and any patent granted in pursuance of it shall not be invalidated by reason only of relevant intervening acts.
  (2) In this section—
  "relevant application" has the same meaning as in section 5 above; and
  "relevant intervening acts" means acts done in relation to matter disclosed in an earlier relevant application between the dates of the earlier relevant application and the application in suit, as for example, filing another application for the invention for which the earlier relevant application was made, making information available to the public about that invention or that matter or working that invention, but disregarding any application, or the disclosure to the public of matter contained in any application, which is itself to be disregarded for the purposes of section 5(3) above".
  15 Clause 6, page 5, line 35, after second "or" insert "international".
  Lord ORAM: My Lords, with the leave of the House, I beg to move that this House doth agree with the Commons in their Amendments Nos. 1 to 15 en bloc. I would also ask that the following Amendments be considered with Amendments Nos. 1 to 15: Amendments Nos. 34, 107, 112, 134, 135, 136, 137, 138, 149, 150, 182 and 186. Amendments Nos. 1 and 2 improve the correspondence between Clause 1(3)(a) and Clause 15(2)(b) of the Bill on the one hand, and Article 53(a) of the European Patent Convention on the other hand. The following Amendments are basically drafting Amendments; that is to say, Amendments Nos. 3 to 9 inclusive and Amendments Nos. 13, 15, 29, 134 and 150. Perhaps I should say a brief word about Amendments Nos. 10 and 11. I see that the noble Lord, Lord Belstead, is not anxious for explanations. I do not know whether he wishes to intervene?
  Lord LLOYD of KILGERRAN: My Lords, for my part, I am perfectly willing to say that, so far as I am concerned, very few explanations are necessary in this matter.
  Lord ORAM: My Lords, I know that we are anxious to make progress with this vast number of Amendments, and I will keep extremely brief any explanations that I have to make. Regarding Amendment No. 10, reference to the "inventor" throughout subsection (4) should include references to whoever is the proprietor of the invention instead of to the inventor himself. This is because the inventor may never be the proprietor in cases where he is an employee and the invention belongs to his employer. To meet this point, and rather than insert several references to the inventor or other proprietor throughout, these Amendments delete the single such reference and insert a reference of general application to the clause.
  Amendment No. 11 probably explains itself. In relation to Amendment No. 12, all I need say in that connection is that this Amendment and associated Amendments derive from an appreciation that Clause 87, which was taken with minor changes directly from Section 68 of the 1949 Act, now serves only one purpose; namely, to enable Convention countries to be defined for Clause 5(4)(b). Amendment No. 14 is important, having regard

  1051
  to the many times we discussed in your Lordships' House the problem of self-collision. I remember the noble Lord, Lord Belstead, in particular had much to say in this point. Now we have a new clause which replaces Clause 70, and that will be omitted when we come to Amendment No. 107. The new clause is more in accordance with the wording of Article 4(b) of the Paris Convention. I believe it was the noble Lord's anxiety that the Bill as he saw it did not sufficiently accord with Article 4(b) of the Paris Convention, and I hope that he agrees that that has now been achieved. I beg to move.
  Moved, That this House doth agree with the Commons in the said Amendments.—(Lord Oram.)
  Lord BELSTEAD: My Lords, I should like to thank the Government for Amendment No. 14 to which the noble Lord, Lord Oram, referred. Amendment No. 107 will delete what was new Clause 70, which was inserted by my noble friends and myself in the Bill, and instead Amendment No. 14 writes into the Bill another new clause having the effect which the noble Lord explained. I am very relieved to see that written into the Bill. I welcome it and thank the Government for it.
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  16 Clause 6, page 6, line 11, leave out second "so".
  17 Clause 10, page 9, line 4, leave out from "Where" to "that" and insert "an order is made or directions are given under section 7 above"
  18 Clause 10, page 9, line 10, leave out "section 7 or 9 above" and insert "that section"
  19 Clause 10, page 9, line 12, leave out "as the applicant" and insert "or those persons as the applicant or applicants"
  20 Clause 10, page 9, line 36, at end insert "and may, if he considers it appropriate, order the grant of such a licence."
  21 Clause 11, page 9, line 37, leave out from "patent" to end of line 40 and insert "is granted for an invention in pursuance of an application made under the law of any country other than the United Kingdom or under any treaty or international convention (whether or not that application has been made)"
  22 Page 10, line 27, leave out from "by" to "a" in line 29 and insert "the relevant convention court with respect to"
  23 Page 10, line 41, leave out "been"
  24 Page 10, line 41, leave out from "before" to end of line 43 and insert "the relevant convention court"
  25 Page 11, line 4, leave out from "or" to "determines" in line 6 and insert "the relevant convention court"
  26 Page 11, line 14, leave out "subsection (c)" and insert "subsection (1)"
  27 Page 11, line 18, after "may" insert ",within the prescribed period"
  28 Page 11, line 22, leave out "on which the earlier application was filed" and insert "of filing the earlier application"
  29 Page 11, line 29, after second "or" insert "international"
  30 Clause 12, line 36, leave out "specification of a'
  31 Page 12, line 12, leave out "specification" and insert "patent".
  Lord ORAM: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 16 to 31 en bloc. Many of these are of a minor drafting character, particularly Amendments Nos. 16 to 19 inclusive and 22 to 31 inclusive. In regard to Amendment No. 20, subsection (5) is defective in that it does not specifically give the comptroller power, after he has decided that a person is entitled to a licence, to order its grant. Amendment No. 20 cures this defect.
  Amendments Nos. 21 and 312 are consequential upon action that we took in your Lordships' House to divide the original Clause 3 into two clauses and I hope will be acceptable. In moving Amendments Nos. 16 to 31, may I suggest we also take note of Amendments Nos. 40, 63 and 132?
  Moved, That this House doth agree with the Commons in the said Amendments.—(Lord Oram.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  32 Clause 15, page 14, line 37, at beginning insert "Subject to section (Information prejudicial to defence of realm or safety of public) below"
  33 Page 15, line 5, leave out "a specification contained in a" and insert "the specification of a".
  6.36 p.m.
  Lord ORAM: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 32 and 33. May we also take into consideration Amendments Nos. 36, 38, 114, 172,

  1053
  205 and 230? Amendment No. 33 is purely drafting. Amendments Nos. 32 and 36 are paving Amendments for the new clause introduced by Amendment No. 38. I see that the noble Earl, Lord Halsbury, is in his place. In view of his interest in this matter, perhaps I should say a few words of explanation. Noble Lords will recall that the clause dealing with the publication of information prejudicial to the defence of the Realm or to the safety of the public was deleted from the Bill in this House. The new clause reinstates unchanged the provision in the Bill relating to patent applications containing information prejudicial to the safety of the Realm or safety of the public.
  In this connection, perhaps I may be allowed to say that most other countries have analogous provisions for the review of newly filed patent applications from the security point of view. The United Kingdom have arrangements with NATO countries and some others in this respect. I make this point because I recall that the noble Earl suggested at one point in his argument on the earlier occasion that other countries do not have legislation comparable to ours. I assure the noble Earl that we have given the deepest thought to the consequences of the Amendments that he moved, and we believe that the restoration of this clause is essential from the point of view of national security.
  Moved, That this House doth agree with the Commons in the said Amendments—(Lord Oram.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  34 Clause 15, page 15, line 11, leave out "or immoral" and insert ", immoral or anti-social ".
  Lord ORAM: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 34.
  Moved, That this House doth agree with the Commons in the said Amendment.—(Lord Oram.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  35 Clause 16, page 15, line 14, leave out "within" and insert "before the end of".
  Lord ORAM: My Lords, I beg to move that this House doth agree with the
  1054
  Commons in their Amendment No. 35. Under Clause 16(1), as drafted, the request and fee have to be filed within the prescribed period which will begin on the date of filing. Should the request have been made or the fee paid on the day when application was actually filed but a later date is treated as the date of filing the application under Clause 14, the applicant could not comply with Clause 16(1) unless he filed a second request or fee. The change in wording made by the Amendment prevents this effect, which was never intended.
  Moved, That this House doth agree with the Commons in the said Amendment.
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  36 Clause 17, page 17, line 17, leave out "section 18" and insert "sections 18 and (Information pre udicial to defence of realm or safety of public)".
  6.40 p.m.
  Lord ORAM: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 36. This was included in Amendments to which I referred earlier. My Lords, I beg to move.
  Moved, That this House doth agree with the Commons in the said Amendment.—(Lord Oram.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  37 Page 17, line 22, leave out "this" and insert "that".
  Lord ORAM: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 37. This is purely drafting. My Lords, I beg to move.
  Moved, That this House doth agree with the Commons in the said Amendment.—(Lord Oram.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  38 After Clause 20 insert the following new clause:
  Information prejudicial to defence of realm or safety of public.
  Security and Safety
  .—(1) Where an application for a patent is filed in the Patent Office (whether under this Act or any treaty or international convention to which the United Kingdom is a party and whether before or after the appointed day) and it appears to the comptroller that the application contains information of a description notified to him by the Secretary of State as being information the publication of which might be prejudicial to the defence of the realm, the comptroller may give directions prohibiting or restricting the publication of that information or its communication to any specified person or description of persons.
  (2) If it appears to the comptroller that any application so tiled contains information the publication of which might be prejudicial to the safety of the public, he may give directions prohibiting or restricting the publication of that information or its communication to any specified person or description of persons until the end of a period not exceeding three months from the end of the period prescribed for the purposes of section 15 above.
  (3) While directions are in force under this section with respect to an application—

  (a) if the application is made under this Act, it may proceed to the stage where it is in order for the grant of a patent, but it shall not be published and that information shall not be so communicated and no patent shall be granted in pursuance of the application;

  (b) if it is an application for a European patent, it shall not be sent to the European Patent Office; and

  (c) if it is an international application for a patent, a copy of it shall not be sent to the International Bureau or any international searching authority appointed under the Patent Cooperation Treaty.

  (4) Subsection (3)(b) above shall not prevent the comptroller from sending the European Patent Office any information which it is his duty to send that office under the European Patent Convention.
  (5) Where the comptroller gives directions under this section with respect to any application, he shall give notice of the application and of the directions to the Secretary of State, and the following provisions shall then have effect—

  (a) the Secretary of State shall, on receipt of the notice, consider whether the publication of the application or publication or communication of the information in question would be prejudicial to the defence of the realm or the safety of the public;

  (b) if the Secretary of State determines under paragraph (a) above that the publication of the application or the publication or communication of that information would be prejudicial to the safety of the public, he shall notify the comptroller who shall
  1056
  continue his directions under subsection (2) above until they are revoked under paragraph (e) below;

  (c) if the Secretary of State determines under paragraph (a) above that the publication of the application or the publication or communication of that information would be prejudicial to the defence of the realm or the safety of the public he shall (unless a notice under paragraph (d) below has previously been given by the Secretary of State to the comptroller) reconsider that question during the period of nine months from the date of filing the application and at least once in every subsequent period of twelve months;

  (d) if on consideration of an application at any time it appears to the Secretary of State that the publication of the application or the publication or communication of the information contained in it would not, or would no longer, be prejudicial to the defence of the realm or the safety of the public he shall give notice to the comptroller to that effect; and

  (e) on receipt of such a notice the comptroller shall revoke the directions and may, subject to such conditions (if any) as he thinks fit, extend the time for doing anything required or authorised to be done by or under this Act in connection with the application, whether or not that time has previously expired.

  (6) The Secretary of State may do the following for the purpose of enabling him to decide the question referred to in subsection (5)(c) above—

  (a) where the application contains information relating to the production or use of atomic energy or research into matters connected with such production or use, he may at any time do one or both of the following, that is to say, inspect and authorise the United Kingdom Atomic Energy Authority to inspect the application and any documents sent to the comptroller in connection with it; and

  (b) in any other case, he may at any time after (or, with the applicant's consent, before) the end of the period prescribed for the purposes of section 15 above inspect the application and any such documents;

  and where that Authority are authorised under paragraph (a) above they shall as soon as practicable report on their inspection to the Secretary of State.
  (7) Where directions have been given under this section in respect of an application for a patent for an invention and, before the directions are revoked, that prescribed period expires and the application is brought in order for the grant of a patent, then—

  (a) if while the directions are in force the invention is worked by (or with

  1057
  the written authorisation of or to the order of) a Government department, the provisions of sections 52 to 56 below shall apply as if—

  (i) the working were use made by virtue of section 52;

  (ii) the application had been published at the end of that period; and

  (iii) a patent had been granted for the invention at the time the application is brought in order for the grant of a patent (taking the terms of the patent to be those of the application as it stood at the time it was so brought in order); and

  (b) if it appears to the Secretary of State that the applicant for the patent has suffered hardship by reason of the continuance in force of the directions, the Secretary of State may, with the consent of the Treasury, make such payment (if any) by way of compensation to the applicant as appears to the Secretary of State and the Treasury to be reasonable having regard to the inventive merit and utility of the invention, the purpose for which it is designed and any other relevant circumstances.

  (8) Where a patent is granted in pursuance of an application in respect of which directions have been given under this section, no renewal fees shall be payable in respect of any period during which those directions were in force.
  (9) A person who fails to comply with any direction under this section shall be liable—

  (a) on summary conviction, to a fine not exceeding £1,000; or

  (b) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine, or both."

  Lord ORAM: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 38. This was referred to earlier. My Lords, I beg to move.
  Moved, That this House doth agree with the Commons in the said Amendment.—(Lord Oram.)
  The Earl of HALSBURY: My Lords, I divided the House on this issue on the last occasion, but, with only 24 hours to go in the other place, this is not the time for a Cross-Bencher to initiate a game of ping-pong. I shall not press the matter to a Division, though I am not content with the inclusion of this clause in the Bill. Our allies may have similar clauses. I conceded in the previous debate that the French make it penal to publish the subject matter of a patent,
  1058
  whether it is in defence or any other field, for a certain specified period. But our law does not provide for this. The drafting of our law is completely ineffective, because you can steer a horse and cart through its provisions without the slightest difficulty.
  First, you can publish anything you like. You deny yourself a patent by doing so, but you can publish anything you like in the Daily Express, Nature or a journal of a learned society and you have committed no wrong, whether it is the most precious defence secret or not. Secondly, if you choose to put it into the conversazione at the Royal Society and have a leading article about it in Nature, you are all right so far as the law is concerned, if you patented it 24 hours beforehand, so that the Patent Office has not had time to react. So that it is basically a silly clause but, in so far as, to my certain knowledge, we have lived with its prececessor since 1949, I do not think it is the kind of point of which we ought to make too much. We can go on living with it for the time being.
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  39 After Clause 20, insert the following new clause:
  Restrictions on applications abroad by United Kingdom residents.
  " .—(1) Subject to the following provisions of this section, no person resident in the United Kingdom shall, without written authority granted by the comptroller, file or cause to be filed outside the United Kingdom an application for a patent for an invention unless—

  (a) an application for a patent for the same invention has been filed in the Patent Office (whether before, on or after the appointed day) not less than six weeks before the application outside the United Kingdom; and

  (b) either no directions have been given under section (Information prejudicial to defence of realm or safety of public) above in relation to the application in the United Kingdom or all such directions have been revoked.

  (2) Subsection (1) above does not apply to an application for a patent for an invention for which an application for a patent has first been filed (whether before or after the appointed day) in a country outside the United Kingdom by a person resident outside the United Kingdom.
  (3) A person who files or causes to be filed an application for the grant of a patent in contravention of this section shall be liable—

  1059

  (a) on summary conviction, to a fine not exceeding £1,000; or

  (b) on conviction on indictment to imprisonment for a term not exceeding two years or a fine, or both.

  (4) In this section—

  (a) any reference to an application for a patent includes a reference to an application for other protection for an invention;

  (b) any reference to either kind of application is a reference to an application under this Act, under the law of any country other than the United Kingdom or under any treaty or international convention to which the United Kingdom is a party."

  Lord ORAM: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 39, and I should also like to mention Amendment No. 205 in this connection. The purpose of this Amendment is to reinstate the second of the two clauses concerned with patent secrecy, which were deleted by this House, and I hope that the noble Earl will take a similar attitude with regard to this. My Lords, I beg to move.
  Moved, That this House doth agree with the Commons in the said Amendment.—(Lord Oram.)
  The Earl of HALSBURY: My Lords, I will not disappoint the hopes of the noble Lord, Lord Oram, but I feel that I must take my stance on why I think that this, too, is a silly clause. First, it leads to the embarrassment of a British subject resident in Britain but either holidaying or working in America, because it puts him between the opposing fires of the British and American legal systems. If, while resident in America, he makes an application, that is all right in America, but he has broken the law in Britain. If, on the other hand, he comes home and patents something here, he has broken the law in America. It is entirely contrary to public policy, because we are putting the subject in a conflict of loyalties between breaking the law here and breaking the law in America.
  Where does his interest lie? His interest lies in securing the earliest priority for his invention, so that we are writing into the Statute an incentive to break the law, which seems to be completely contrary to common sense and public policy. The other feature of the clause is that the penalty is set far too high. It is equated
  1060
  with the penalty involving a breach of security yet all that the man has done is try to acquire the earliest priority, which could be of the greatest value to this country. I do not believe that this clause has ever produced a result of any benefit to the common weal, and I know of two cases where it has very nearly led to gross injustice to two most distinguished inventors—one, Sir Christopher Cockerell the inventor of the Hovercraft, and the other a distinguished Nobel prizewinner. Again, I must express myself as not content, but I do not intend to press the matter to a Division.
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  40 Clause 21, page 18, line 28, at end insert ",the names of the proprietor and (it different) the inventor and any other matters constituting or relating to the patent which in the comptroller's opinion it is desirable to publish".
  Lord ORAM: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 40.
  Moved, That this House doth agree with the Commons in the said Amendment.—(Lord Oram.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  41 Clause 22, page 18, line 42, leave out from beginning to "paid" in line 2 on page 19 and insert "if during the period of six months immediately following the end of the prescribed period the renewal fee and any prescribed additional fee are."
  42 Page 19, line 12, at end insert—
  "(5) Rules shall include provision requiring the comptroller to notify the registered proprietor of a patent that a renewal fee has not been received from him in the Patent Office before the end of the prescribed period and before the framing of the notification ".
  43 Clause 25, page 20, line 11, leave out from first "period" to "not" in line 13 and insert" or that that fee and any prescribed additional fee were paid within the six months immediately following the end of that period, and
  (b) those fees were "
  44 Clause 25, line 24, at end insert "the end of the period of six months beginning with"
  45 Clause 25, line 26, after "section ", insert—
  "(a) a person continued to do or did again an act which would have constituted an infringement of the patent if it had not expired and which he first did before the end of that period,

  1061
  that act shall constitute such an infringement; or
  (b) "
  46 Clause 25, line 30, leave out "but subject to section 22(4)(b) above".
  Lord ORAM: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 41 to 46 en bloc. The purpose of Amendment No. 41 is to do away with the reference to a "request" to the comptroller for an extension of time in which to pay a renewal fee. Amendment No. 42 is intended to allay fears felt by patent agents, in particular, that without some specific provision in the Bill requiring the comptroller to issue reminders when renewal fees on patents were due, the Patent Office's practice of issuing such reminders could be discontinued unilaterally, so to speak. In fact, the intention is to continue to issue reminders, but I appreciate the desire for a safeguard on this point and the Amendment places on the comptroller a statutory obligation to issue reminders.
  Amendment No. 43 amends Clause 28(3)(a), which at present refers to the period allowed under section 25(4) above ". This is erroneous, and the Amendment puts that right. Amendments Nos. 44, 45 and 46, which are linked, concern Clause 25 which has to do with the restoration of patents that have lapsed through non-payment of renewal fees, and subsection (5) provides that a person who in good faith begins to "infringe" a patent after it has lapsed but before an application for its restoration was made, may continue the act in question. My Lords, I beg to move.
  Moved, That this House doth agree with the Commons in the said Amendments.—(Lord Oram.)
  Lord LYELL: My Lords, if I may say a word in reference to Amendment No. 42, I think that the noble Lord was looking in the direction of my noble friend Lord Belstead and myself in relation to the safeguard as to the issue of reminders to pay renewal fees. It is very gratifying that he and the Government have taken notice of the legitimate fears expressed by all practitioners in regard to the maintenance of patents. We are very grateful to the Government.
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  47 Clause 27, page 22, line 25, leave out "any such patent or application or a share" and insert "a patent or any such application or a share in"
  48 Clause 28, page 22, line 37, at end insert—
  "(2A) Any patent or any such application, or any right in it, may be assigned and security may be granted over a patent or any such application or right."
  49 Clause 28, page 22, line 43, at end insert and any such licence or sub-licence may be assigned and security may be granted over it."
  50 Clause 28, page 22, Page 23, line 1, leave out subsection (5).
  51 Clause 28, page 22, Page 24, line 5, leave out subsection (4).
  52 Clause 30, page 24, line 10, leave out from beginning to end of line 10 on page 25 and insert—
  " .—(1) Any person who claims to have acquired the property in a patent or application for a patent by virtue of any transaction, instrument or event to which this section applies shall be entitled as against any other person who claims to have acquired that property by virtue of an earlier transaction, instrument or event to which this secton applies if, at the time of the later transaction, instrument or event—

  (a) the earlier transaction, instrument or event was not registered, or

  (b) in the case of any application which has not been published, notice of the earlier transaction, instrument or event had not been given to the comptroller, and

  (c) in any case, the person claiming under the later transaction, instrument or event, did not know of the earlier transaction, instrument or event.

  (2) Subsection (1) above shall apply equally to the case where any person claims to have acquired any right in or under a patent or application for a patent, by virtue of a transaction, instrument or event to which this section applies and that right is incompatible with any such right acquired by virtue of an earlier transaction, instrument or event to which this section applies."
  53 Page 25, leave out lines 34 and 35.
  54 Page 25, line 36, leave out subsection (5) and insert—
  " (5) Where an application for the registration of a transaction, instrument or event has been made, but the transaction, instrument or event has not been registered then, for the purposes of subsection (1)(a) above, registration of the application shall be treated as registration of the transaction, instrument or event."
  55 Clause 32 page 26, line 21, at beginning insert" Each of the following, that is to say—(a)"
  56 Clause 32 page 26, line 23, leave out "or an extract from the register or any such document" and insert—

  1063

  " (b) a document reproducing in legible form an entry made in the register otherwise than in legible form; or

  (c) an extract from the register or of any document mentioned in paragraph (a) or (b) above; "

  57 Clause 32 page 26, line 39, after "subsection" insert "and section 52 below"
  58 Clause 34, page 29, line 4, after "or" insert ",as the case may be"
  59 Clause 34, page 29, line 12, after "under" insert "subsection"
  60 Clause 35, page 29, line 37, leave out from "by" to "to" in line 39 and insert "the old proprietor or proprietors shall, subject to section 30 above and"
  61 Page 30, line 11, leave out from "proprietors" to "or" in line 13.
  62 Page 30, line 21, leave out "the patent or".
  6.48 p.m.
  Lord ORAM: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 47 to 62 en bloc, and I suggest that we should also take into account Amendments Nos. 139 and 184. A good number of these Amendments are of a minor drafting character, particularly Nos. 47 to 50 inclusive, 53, 58, 59, 61 and 62. Amendments Nos. 51, 55 and 56 make provision for documents which reproduce in legible form entries made in the register, otherwise than in legible form, to be admitted in evidence in any court if certified by the comptroller and sealed with the seal of the Patent Office. Amendments Nos. 52 and 54 are concerned with Clause 30, which deals with the effect of registering transactions, instruments or events of the kind specified in subsection (4) of the clause. The aim is to encourage registration as soon as possible after the transaction has been entered into, the instrument has been executed or the event has occurred. I hope that is a sufficient explanation of this group of Amendments. I beg to move.
  Moved, That this House doth agree with the Commons in the said Amendments.—(Lord Oram.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  63 Clause 35, page 30, line 29, at end insert "and may, if he considers it appropriate, order the grant of such a licence."
  Lord ORAM: My Lords, I beg to move that this House doth agree with the
  1064
  Commons in their Amendment No. 63. The Amendment was referred to earlier.
  Moved, That this House doth agree with the Commons in the said Amendment.—(Lord Oram.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  64 Clause 37, page 31, line 20, leave out paragraph (b) and insert—
  " (b) his rights in the invention, or in any patent or application for a patent for the invention, have since the appointed day been assigned to the employer or an exclusive licence under the patent or application has since the appointed day been granted to the employer; "
  65 Clause 37, page 31, line 27, leave out "was" and insert "is".
  66 Clause 38, page 32, line 15, after "above" insert "in relation to a patent for an invention",
  67 Clause 38, page 32, line 18, at end insert "or from the assignment, assignation or grant to a person connected with the employer of the property or any right in the invention or the property in, or any right in or under, an application for that patent."
  68 Clause 38, page 32, line 21, after "of" insert—
  (a)"
  69 Clause 38, page 32, line 22, after "patent insert" for the invention or an application for such a patent; or
  (b) the property or any right in the invention; "
  70 Clause 38, page 32, line 26, after "Crown" insert "or a Research Council",
  71 Clause 38, page 32, line 34, at end insert "or, as the case may be, a Research Council.
  In this subsection "Research Council means a body which is a Research Council for the purposes of the Science and Technology Act 1965."
  72 Clause 38, page 32, page 36, line 8, after "assistance" insert ",by the provision of opportunities",
  73 Clause 38, page 32, line 20, after third "the" insert "making",
  74 Clause 38, page 32, line 39, leave out "and Northern Ireland".
  75 line 43, leave out "or decree".
  76 Clause 40, page 35, line 21, after "representatives" insert or their successors in title ",
  77 Clause 40, page 35, line 23, leave out "but they may not assign that right",
  78 Clause 40, page 35, line 30, leave out "Taxes" and insert "Tax".
  The LORD CHANCELLOR: My Lords, with the leave of the House, I beg to move that this House doth agree with

  1065
  the Commons in their Amendments Nos. 64 to 78 en bloc, and, with the leave of the House, I shall also speak to Amendments Nos. 142, 143, 163 and 164. These Amendments all relate to Clauses 37 to 40, dealing with employees' inventions. They are all tidying-up Amendments not affecting the substance of the clauses in any way, and, unless any noble Lord wishes to raise a question upon an Amendment, I do not think that I need to trouble the House with discussing them in detail. I should, however, mention Amendments Nos. 76 and 77. Clause 40(6) previously provided that, where an employee died, his personal representatives might exercise his right to make an application for compensation, but the right was not assignable. The reason for this was that the Government felt that it was a right which should be personal to the deceased. However, in another place this provision was amended and the Government are content to accept that Amendment.
  Moved, That this House doth agree with the Commons in the said Amendments.—(The Lord Chancellor.)
  Lord LLOYD of KILGERRAN: My Lords, I hope that it will not be unconstitutional if I briefly thank the other place for having put back substantially an Amendment which I raised at the Report stage. I indicated then that it was a technical, Chancery point. Therefore, it appears that I have must put the matter very badly. I can see that the Bar adviser on Chancery matters is looking at me. The matter was put far more clearly in the other place, which appears to appreciate Chancery points far better than this House.
  The Earl of HALSBURY: My Lords, I should like to thank the Government for including Amendment No. 70, which is designed to give the employers of Research Councils the benefit of civil servant status. I raised this matter on a Government Amendment at Third Reading, and I am extremely grateful to the Government for
  having reacted to what I said then.
  The LORD CHANCELLOR: My Lords, I am grateful to the noble Earl for that kind acknowledgment. I can only congratulate the noble Lord, Lord Lloyd of Kilgerran, on the fact that once again
  1066
  he has been proved to be right and that the failure of noble Lords, including myself, to understand the full intricacies of his Chancery dialectic was put right in another place. It only goes to show how both Houses can achieve alterations and improvements in the law as a Bill goes through Parliament.
  Lord LLOYD of KILGERRAN: My Lords, may I thank the noble and learned Lord for his remarks.
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  79 Clause 41, page 36, line 39, leave out "him" and insert "that other party".
  80 Clause 42, page 37,1ine 31, at end insert—
  " (2A) If on an application under this subsection made by either party to a contract or licence falling within subsection (1) above, the court is satisfied that, in consequence of the patent or patents concerned ceasing to be in force, it would be unjust to require the applicant to continue to comply with all the terms and conditions of the contract or licence, it may make such order varying those terms or conditions as, having regard to all the circumstances of the case, it thinks just as between the parties.
  (2B) Without prejudice to any other right of recovery, nothing in subsection (1) above shall be taken to entitle any person to recover property bailed under a hire-purchase agreement (within the meaning of the Consumer Credit Act 1974) ".
  81 Clause 45, page 41, line 15, after "being" insert "so".
  82 Clause 50, page 45, line 39, leave out subsection (2).
  83 Page 46, line 19, leave out from "treaty" to end of line 20 and insert "or international convention to which the United Kingdom is a party".
  84 Clause 51, page 46, line 33, after "to" insert "that in".
  Lord ORAM: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 79 to 84 en bloc, and, with the leave of the House, I shall speak to Amendment No. 166 at the same time. There are a number of drafting Amendments in this group: they are Amendments Nos. 79, 81, 83 and 84. Amendment No. 80 is of more substance. The City of London Solicitors' Company has pointed out that Clause 42(1) provides only for the determination of such terms of the contract between the patentee and customer, or the licence agreement between the patentee and licensee, as relate to the patented

  1067
  product or patented invention. Such contracts and licences, they say, often deal with other matters like know-how, trade mark rights, design rights or copyright, and the obligations undertaken in respect of these would still continue in force; but those obligations, when considered in isolation, might no longer be fair. Accordingly, the new subsection empowers the court to vary those other terms in such a way as, having regard to all the circumstances, is just.
  In relation to Amendment No. 82, all I need to say is that this Amendment paves the way for Amendment No. 166, which defines the effect of a licence granted by the comptroller under any of the provisions of the Bill under which he has that power. The effect of the new clause would be to make the provision of Clause 50(2) superfluous.
  Moved, That this House doth agree with the Commons in the said Amendments.—(Lord Oram.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  85 Clause 54, page 52, line 6, leave out "knows" and insert "has been informed".
  86 Clause 55, page 53, line 12, at end insert—
  " (3A) In determining whether or not to grant any relief under this section and the nature and extent of the relief granted the court shall, subject to the following provisions of this section, apply the principles applied by the court immediately before the appointed day to the granting of relief under section 48 of the 1949 Act.
  (3B) On a reference under this section the court may refuse to grant relief by way of compensation in respect of the use of an invention for the services of the Crown during any further period specified under section 22(4) above, but before the payment of the renewal fee and any additional fee prescribed for the purposes of that section.
  (3C) Where an amendment of the specification of a patent has been allowed under any of the provisions of this Act, the court shall not grant relief by way of compensation under this section in respect of any such use before the decision to allow the amendment unless the court is satisfied that the specification of the patent as published was framed in good faith and with reasonable skill and knowledge."
  87 Clause 55, page 53, line 33, at end insert—
  " (6A) In considering the amount of any compensation for the use of an invention for the services of the Crown after publication of an application for a patent for the invention and before such a patent is granted, the court shall consider whether
  1068
  or not it would have been reasonable to expect, from a consideration of the application as published under section 15 above, that a patent would be granted conferring on the proprietor of the patent protection from an act of the same description as that found to constitute that use, and if the court finds that it would not have been reasonable, it shall reduce the compensation to such amount as it thinks just."
  88 Clause 55, page 53, line 37, after "patent" insert "(the new proprietor or licensee)",
  89 Clause 55, page 53, line 39, leave out "that person" and insert "the new proprietor or licensee".
  Lord ORAM: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 85 to 89 en bloc. Amendments Nos. 88 and 89 are drafting Amendments. Amendment No. 85, which relates to Clause 57(8). specifies that, where there is an exclusive licensee, any determination by the court of an amount of payment in respect of Crown user of the invention shall be of no effect unless the licensee knows of the reference to the court and is given an opportunity to be heard. Proof of knowledge may, however, be difficult to establish. Proof of notification, on the other hand, should always be possible, if it has in fact taken place. The Amendment therefore requires that the licensee should have been informed as opposed to knowing of the reference.
  In relation to Amendments Nos. 86 and 87, these two Amendments make provision in relation to the Crown use of patented inventions analogous to certain provisions governing infringement of patent. In other words, although use of a patented invention for the services of the Crown does not constitute infringement, there is parallelism between Crown use and infringement that makes it appropriate to make both subject to the same provisions, mutatis mutondis.
  Moved, That this House doth agree with the Commons in the said Amendments.—(Lord Oram.)
  On Question, Motion agreed to.
  6.59 p.m.

  COMMONS AMENDMENTS
  90 Clause 57, page 55, line 23, leave out "(other than the proprietor of the patent"),
  91 Clause 57, page 55, line 42, after "force" insert "and without the consent of the proprietor",
  92 Clause 57, page 55, line 43, leave out second "to",
  93 Clause 57, page 55, page 57, line 20, leave out "on" and insert "in",
  94 Clause 57, page 55, line 23, leave out (as revised by subsequent conventions) ".
  95 Clause 58, page 58, line 31, leave out sub-section (7).
  96 Clause 62, page 60, line 36, leave out "any such" and insert "the subsequent",
  97 Clause 62, page 60, line 38, at beginning insert—
  " (1) In the application of section 57 above to a patent of which there are two or more joint proprietors the reference to the proprietor shall be construed—

  (a) in relation to any act, as a reference to that proprietor or those proprietors who, by virtue of section 33 above or any agreement referred to in that section, is or are entitled to do that act without its amounting to an infringement; and

  (b) in relation to any consent, as a reference to that proprietor or those proprietors who, by virtue of section 33 above or any such agreement, is or are the proper person or persons to give the requisite consent."

  98 Clause 66, page 61, line 35, leave out sub-section (2) and section 72(5) "and insert subsections (2) and (3)",
  99 Clause 66, page 61, line 41, leave out "sub-section (2)" and insert "subsections (2) and (3)",
  100 Clause 66, Page 62, line 11, at end insert—
  " (3) Section 59(2) and (3) above shall not apply to an infringement of the rights conferred by this section, but in considering the amount of any damages for such an infringement, the court or the comptroller shall consider whether or not it would have beeen reasonable to expect, from a consideration of the application as published under section 15 above, that a patent would be granted conferring on the proprietor of the patent protection from an act of the same description as that found to infringe those rights, and if the court or the comptroller finds that it would not have been reasonable, it or he shall reduce the damages to such amount as it or he thinks just."
  101 Clause 68, page 63, line 2, after first "declaration" insert "or declarator",
  102 Clause 68, page 63, line 9, leave out "the plaintiff or pursuer" and insert "that person",
  103 Clause 68, page 63, line 15, at end insert—
  " (2) Subject to section 69(5) below, a declaration made by the comptroller under this section shall have the same effect as a declaration or declarator by the court."
  Lord ORAM: My Lords, I beg to move that this House cloth agree with the Commons in their Amendments Nos. 90 to 103 en bloc, and, with the leave of the House, I shall speak to Amendment No. 188 at the same time. Again, there is a list of drafting Amendments which
  1070
  I shall indicate: they are Amendments Nos. 90, 92, 93, 94, 95, 96, 101, 102 and 103. Amendment No. 91 is more substantial. Subsection (2) is defective in failing to refer to lack of the proprietor's consent for an act falling within the subsection to constitute infringement. The Amendment cures this defect and brings the subsection into line with Article 30(1) of the Community Patent Convention.
  Moved, That this House doth agree with the Commons in the said Amendments.—(Lord Oram.)
  Lord LYELL: My Lords, I do not believe that I heard the noble Lord, Lord Oram, say anything about Amendment No. 100. Therefore, I hope he will forgive me if I say a few words about it. After examination of the Amendment, it seems to me that the Government have allowed me this point. It was one which I pleaded at both the Committee and Report stages of the Bill. Indeed, the basis of my special pleading was that we should not allow our own national patents to give broader protection than the Community Patents Convention. Furthermore, the noble Lord, Lord Oram, explained with infinite patience, both at Committee stage and at Report stage, that he could not envisage these damages being anything other than reasonable. It is interesting and encouraging to find that the tail end of this Amendment provides the same amount of protection, no more and no less, as I sought at Report stage. If I am correct in my reasoning, I should like to thank and, indeed, to congratulate the Government and, of course, the noble Lord, Lord Oram.
  Lord ORAM: I acknowledge that the noble Lord is right in what he said, including his congratulations.
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  104 Clause 69, page 63, line 18, at end insert "by order".
  105 Clause 69, page 63, line 22, leave out from "person" to end of line 24 and insert who was not the only person entitled under section 6(2) above to be granted that patent or to two or more persons who were not the only persons so entitled; "
  106 Clause 69, page 63, line 31, leave out "14(4) or 34(4) above" and insert "or 34(4) above or as mentioned in section 14(4) above".
  107 Clause 70, leave out Clause 70.
  108 Clause 71, page 65, line 12, after "initiative" insert by order ".
  109 Clause 72, page 66, line 14, leave out subsection (4) and insert—
  " (4) No determination shall be made in any proceedings mentioned in subsection (1) above on the validity of a patent which any person puts in issue on the ground mentioned in section 69(1)(b) above unless—

  (a) it has been determined in entitlement proceedings commenced by that person or in the proceedings in which the validity of the patent is in issue that the patent should have been granted to him and not some other person; and

  (b) except where it has been so determined in entitlement proceedings, the proceedings in which the validity of the patent is in issue are commenced before the end of the period of two years beginning with the date of the grant of the patent or it is shown that any person registered as a proprietor of the patent knew at the time of the grant or of the transfer of the patent to hint that he was not entitled to the patent.

  (4A) Where the validity of a patent is put in issue by way of defence or counterclaim the court or the comptroller shall, if it or he thinks it just to do so, give the defendant an opportunity to comply with the condition in subsection (4)(a) above.
  (4B) In subsection (4) above entitlement proceedings, in relation to a patent, means a reference under section 34(1)(a) above on the ground that the patent was granted to a person not entitled to it or proceedings for a declaration or declarator that it was so granted."
  110 Clause 74, page 67, line 19, leave out "14(4) or 34(4) above" and insert "or 34(4) above or as mentioned in section 14(4) above".
  Lord ORAM: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 104 to 110 en bloc. The drafting Amendments are Nos. 104, 105, 106, 108 and 110. We have already dealt with Amendment No. 107 when dealing with No. 14. The purpose of Amendment No. 109 is to make it clear that validity may only be put in issue under Clause 72(4) by the person who is rightfully entitled to the patent. I beg to move that this House doth agree with the Commons in their Amendments.
  Moved, That this House doth agree with the Commons in the said Amendments.—(Lord Oram.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  111 Clause 75, page 68, line 33, at end insert—
  "(4A) Where—

  (a) under the European Patent Convention a European patent (UK) is revoked for failure to observe a time limit and is subsequently restored; and

  (b) between the revocation and publication of the fact that it has been restored a person begins in good faith to do an act which would, apart from section 52 above, constitute an infringement of the patent or makes in good faith effective and serious preparations to do such an act;

  he shall have the rights conferred by section 25(6) above, and subsections (8) and (9) of that section shall apply accordingly."
  Lord ORAM: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 111. This Amendment is designed to implement Article 102(6) of the European Patent Convention. I beg to move that this House doth agree with the Commons in their Amendment.
  Moved, That this House doth agree with the Commons in the said Amendment.—(Lord Oram.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  112 Clause 76, Page 69, line 22, at end insert "section (Disclosure of matter, etc., between earlier and later applications)"
  Lord ORAM: My Lords, this Amendment was referred to earlier. I beg to move that this House doth agree with the Commons in their Amendment No. 112.
  Moved, That this House doth agree with the Commons in the said Amendment. —(Lord Oram.)
  On Question. Motion agreed to.

  COMMONS AMENDMENT
  113 Clause 76, page 69, line 40, after "be" insert "so".
  Lord ORAM: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 113, which is purely drafting.
  Moved, That this House doth agree with the Commons in the said Amendment. —(Lord Oram.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  114 Clause 76, page 69, line 41, leave out "extended" and insert "altered,".
  Lord ORAM: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 114, which has already been referred to.
  Moved, That this House doth agree with the Commons in the said Amendment.—(Lord Oram.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  115 Clause 76, page 70, line 17, leave out subsection (5)
  116 Clause 76, page 70, line 26, at end insert—
  " (6A) Where between those subsections ceasing to apply to any such application and the re-establishment of the rights of the applicant a person begins in good faith to do an act which would, apart from section 52 above, constitute an infringement of the application if those subsections then applied, or makes in good faith effective and serious preparations to do such an act, he shall have the rights conferred by section 25(6) above, and section 25(8) and (9) above shall apply to the exercise of any such right accordingly."
  117 Clause 78, page 71, line 36, leave out "or 77"
  118 Page 72, line 4, leave out "or 53"
  119 Page 72, line 8, leave out "either of those sections" and insert "that section"
  120 Page 72, line 24, after "would" insert "(apart from section 52 above)"
  121 Page 72, line 27, leave out "subsections (8) and (9) of that section" and insert "section 25(8) and (9) above"
  122 Clause 79, page 73, line 13, leave out "his" and insert "the"
  123 Clause 80, page 74, line 31, leave out one "and insert" either "
  124 Clause 82, page 76, line 32, leave out from "unless" to end of line 34 and insert "permitted to do so under the European Patent Convention."
  125 After Clause 82 insert the following new clause:—
  European patent attorneys.
  .—(1) For the avoidance of doubt, it is hereby declared that any person whose name appears on the European list shall not be guilty of an offence under section 21 of the Solicitors Act 1974 or Article 22 of the Solicitors (Northern Ireland) Order 1976 by reason only of his describing himself as a European patent attorney.
  (2) A person whose name appears on the European list shall not be guilty of an offence under any of the enactments mentioned in subsection (3) below by reason only of the preparation by him of any document (other than a deed) for use in proceedings before the comptroller under this Act, in relation to a European patent or application for such a patent.
  (3) The enactments referred to in subsection (2) above (which prohibit the preparation
  1074
  for reward of certain instruments or writs by persons not legally qualified) are—

  (a) section 22 of the Solicitors Act 1974;

  (b) section 39 of the Solicitors (Scotland) Act 1933; and

  (c) Article 23 of the Solicitors (Northern Ireland) Order 1976.

  (4) In this section "the European list" means the list of professional representatives maintained by the European Patent Office in pursuance of the European Patent Convention.
  126 Clause 83, page 77, line 32, after "Sections" insert "11,71(2)"
  127 Clause 84, page 78, line 7, leave out from "court" to end of line 10 and insert "does not include"
  128 line 11, leave out "one" and insert "any"
  129 Clause 86, page 79, line 9, leave out "while this subsection applies" and insert "until this subsection ceases to apply"
  130 line 22, at end insert—
  " (cc) where a period of time relevant to priority is extended under the Treaty, the period of twelve months specified in section 5(2) above shall be treated as altered correspondingly;"
  131 line 29, leave out "while subsection (1) above applies" and insert "until subsection (1) above ceases to apply"
  132 Page 80, line 8, at end insert—
  " (5A) Before the relevant conditions are satisfied, subsection (1) above shall not operate so as to secure that an international application for a patent (UK) is to be treated for the purposes of section 7 above as an application for a patent under this Act and shall not affect the application of section 11 above to an invention for which an international application of a patent is made or proposed to be made, but when the relevant conditions are satisfied the international application shall be so treated and accordingly section 11 above shall not apply to it."
  133 Page 81, line 11, at end insert "or which contains an indication that the applicant wishes to obtain a European Patent (UK)."
  7.5 p.m.
  Lord ORAM: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 115 to 133 en bloc, and take into consideration also Amendments Nos. 140, 154, 155, 159, 185, 233 and 234. Of this group the purely drafting Amendments are 115, 118, 119, 120, 121, 122, 123, 126, 129, 130 and 131. Another group of Amendments, beginning with No. 127, inserts a general definition of the words "relevant convention court" into Clause 124, which is the Interpretation Clause. Amendment 117 leaves out a potentially misleading reference in Clause 78(2).

  1075
  The noble Lord, Lord Belstead, will recall Amendment 124, because at Third Reading he expressed concern that the Bill, as then proposed to be amended, would permit foreign owned companies to hold themselves out as carrying on European business when the issue as to whether they should be so permitted had not yet been resolved by the European Patent Office. He suggested a form of words very close to that which this Amendment would now substitute. The Government are pleased to accept his point and this Amendment is the result. I beg to move that this House doth agree with the Commons in their Amendments.
  Moved, That this House doth agree with the Commons in the said Amendments. —(Lord Oram.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  134 Clause 87, page 81, line 21, after "treaty" insert "international".
  135 Clause 87, page 81, line 23, leave out from first "of" to end of line 28 and insert "section 5 above.".
  136 Clause 87, page 81, leave out lines 32 to 36 and insert "those purposes".
  137 Clause 87, page 81, line 38, after "protectorate" insert "and".
  138 Clause 87, page 81, line 39, after "and" insert "every".
  Lord ORAM: My Lords, these Amendments have been referred to earlier. I beg to move that this House doth agree with the Commons in their Amendments Nos. 134 to 138 en bloc.
  Moved, That this House doth agree with the Commons in the said Amendments.—(Lord Oram.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  139 Clause 88, page 82, line 20, after "institution" insert "or reproducing in legible form any information in such custody otherwise than in legible form".
  140 Page 83, line 4, leave out from "court" to "a" in line 7 and insert "does not include".
  Clause 89
  141 Leave out Clause 89 and insert the following new clause:
  Obtaining evidence for proceedings under the European Patent Convention.
  .—(1) Sections 1 to 3 of the Evidence (Proceedings in Other Jurisdictions) Act 1975 (provisions enabling United Kingdom courts to assist in obtaining evidence for foreign courts) shall apply for the purpose of proceedings before a relevant convention court under the European Patent Convention as they apply for the purpose of civil proceedings in a court exercising jurisdiction in a country outside the United Kingdom.
  (2) In the application of those sections by virtue of this section any reference to the High Court, the Court of Session or the High Court of Justice in Northern Ireland shall include a reference to the comptroller.
  (3) Rules under this Act may include provision—

  (a) as to the manner in which an application under section 1 of the said Act of 1975 is to be made to the comptroller for the purpose of proceedings before a relevant convention court under the European Patent Convention; and

  (b) subject to the provisions of that Act, as to the circumstances in which an order can be made under section 2 of that Act on any such application.

  (4) Rules of court and rules under this Act may provide for an officer of the European Patent Office to attend the hearing of an application under section 1 of that Act before the court or the comptroller, as the case may be, and examine the witnesses or request the court or comptroller to put specified questions to the witnesses.
  (5) Section 1(4) of the Perjury Act 1911 and section 1(4) of the Perjury Act (Northern Ireland) 1946 (statements made for the purposes, among others, of judicial proceedings in a tribunal of a foreign state) shall apply in relation to proceedings before a relevant convention court under the European Patent Convention as they apply to a judicial proceeding in a tribunal of a foreign state.
  Lord ORAM: My Lords, I beg to move that this House doth agree with Amendments Nos. 139 to 141. In relation to Amendment No. 141, perhaps I need only make the point that it is designed to implement Article 132(2) of the European Patent Convention. I beg to move that this House doth agree with the Commons in their Amendments.
  Moved, That this House doth agree with the Commons in the said Amendments. —(Lord Oram.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  142 Clause 90, page 83, line 26, leave out "and Northern Ireland".
  143 Clause 90, page 83, line 29, leave out "or decree".
  Lord ORAM: My Lords, these Amendments were referred to earlier by the noble and learned Lord on the Woolsack. I beg to move that this House doth agree with the Commons in their Amendments Nos. 142 and 143.
  Moved, That this House doth agree with the Commons in the said Amendments. —(Lord Oram.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  144 Clause 94, page 85, line 1, leave out paragraph (c) and insert—
  "(c) a decision to give directions under subsection (1) or (2) of section (Information prejudicial to defence of realm or safety of public) above".
  145 Clause 94, page 85, line 6, leave out from "may" to end of line 8 and insert "consist of one or more judges of that".
  146 Clause 94, page 85, line 11, leave out "that section or section 31(1)(f) of that Act" and insert section 31(1)(f) of the Supreme Court of Judicature (Consolidation) Act 1925"
  147 Clause 94, page 85, line 17, after "7" insert "11".
  148 Clause 94, page 85, line 31, after "7" insert "11".
  149 Clause 96, page 86, line 5, after second "or" insert "international".
  150 Clause 99, page 86, line 23, after second "or" insert "international".
  151 Clause 99, page 86, line 31, after "(1)" insert or "(3)".
  152 Clause 99, page 86, line 32, at beginning insert "Without prejudice to the right of counsel to appear before the High Court, a member of the Bar of England and Wales who is not in actual practice,".
  153 Page 87, line 3, leave out "the 1949 Act".
  154 Page 87, line 5, leave out "European Court or the European Patent Office" and insert "relevant convention court".
  155 Clause 101, page 87, line 39, leave out "the European Court or the European Patent Office" and insert "or the relevant convention Court".
  156 Page 88, line 7, leave out "an individual" and insert "a person".
  157 Page 88, line 8, after "(1)" insert "or (3)".
  158 Page 88, line 10, leave out "the 1949 Act".
  159 Page 88, line 11, leave out "the European Court or the European Patent Office" and insert "or the relevant convention court".
  160 Page 88, line 19, leave out subsection (5).
  161 Clause 102, page 88, line 30, leave out from "of" to end of line 34 and insert "patent proceedings within the meaning of section 101 above".
  The LORD CHANCELLOR (Lord Elwyn-Jones): My Lords, with the leave of the House I beg to move that the House doth agree with the Commons in their Amendments Nos. 144 to 161 en bloc. Amendment No. 144 was in fact dealt with by my noble friend Lord Oram at an earlier stage. These are largely drafting Amendments and there is only one point to which I think I need refer. Amendment No. 152 confers upon employed barristers the same right of audience as is given to solicitors and patent agents before the Patents Court when it is hearing appeals from the comptroller. I beg to move that this House doth agree with the Commons in their Amendments.
  Moved, That this House doth agree with the Commons in the said Amendments.—(The Lord Chancellor.)
  Lord LLOYD of KILGERRAN: My Lords, I should like to welcome Amendment No. 152 which relates to employed barristers. This is an important development, for which we are grateful to the Government.
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  162 After Clause 102, insert the following new clause:
  Costs and expenses in proceedings before the Court under s. 37

  .—(1) In proceedings before the court under section 37 above (whether on an application or on appeal to the court), the court, in determining whether to award costs or expenses to any party and what costs or expenses to award, shall have regard to all the relevant circumstances, including the financial position of the parties.

  (2) If in any such proceedings the Patents Court directs that any costs of one party shall be paid by anoher party, the court may settle the amount of the costs by fixing a lump sum or may direct that the costs shall be taxed on a scale specified by the court, being a scale of costs prescribed by the Rules of the Supreme Court or by the County Court Rules.

  7.8 p.m.
  The LORD CHANCELLOR: My Lords, I beg to move that the House doth agree with the Commons in their Amendment No. 162. Your Lordships will remember that both in Committee and on Report the noble Lord, Lord Lloyd of Kilgerran, by moving Amendments,

  1079
  made resolute attempts in order to have the effect that in applications by an employee for compensation under Clause 37 of the Bill no costs could have been awarded against the employee. On those earlier occasions I endeavoured to make it plain that, like the noble Lord, I was anxious that nothing should be done or provided for to discourage an employee with a good case from making an application, but I thought that the cross-sanction should be retained to deter employees from making applications without merit. I pointed out that since the employee was always the applicant he had the option of beginning his proceedings before the comptroller, where costs are relatively modest and where discretion is given to the comptroller. I still hold these views, but while the Bill was being debated in another place it was put to me that there was nothing to prevent an employer appealing from the comptroller to the Patents Court, where costs are not on such a modest scale, and the mere threat of such an appeal might suffice to deter an employee from making an application.
  Accordingly, I agree that the Patents Court should have a discretion to award costs, either on the High Court scale or on any of the county court scales, or to make a lump sum order for costs. This provision, which, incidentally, is similar to that followed by the Lands Tribunal, will give the Patents Court a wide discretion, and when exercising that discretion the court will be obliged to take into account the financial position of the parties. I hope, accordingly, that the noble Lord, Lord Lloyd of Kilgerran, will feel that this has gone a good deal of the way to make the point to which he attached such importance. I beg to move.
  Moved, That this House doth agree with the Commons in the said Amendment. —(The Lord Chancellor.)
  Lord LLOYD of KILGERRAN: My Lords, may I briefly express my gratitude to the Government for introducing this new clause, which goes some way to meet the points I had in mind in regard to the employee-inventor. A gross injustice would be involved if an employee-inventor were discouraged from applying for his rights under the Bill. I have already on many occasions congratulated
  1080
  the Government on introducing these clauses extending the rights of employee-inventors in this way. This clause reduces, to some extent, the financial hazards which would have faced an employee-inventor. As I have said on so many occasions in this House, patent litigation is notoriously expensive. This Amendment will go some way to assist the employee-inventor in trying to exercise his own rights.
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  163 Clause 103, page 88, line 39, leave out "and Northern Ireland"
  164 Clause 103, page 88, line 42, leave out "or decree"
  The LORD CHANCELLOR: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 163 and 164. These have already been spoken to earlier.
  Moved, that this House cloth agree with the Commons in the said Amendments. —(The Lord Chancellor.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  165 Page 89, line 15, leave out "or application" and insert "application or notice"
  The LORD CHANCELLOR: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 165. This is a purely technical Amendment.
  Moved, That this House doth agree with the Commons in the said Amendment.—(The Lord Chancellor.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  166 After Clause 103, insert the following new clause:
  Licences granted by order of comptroller
  . Any order for the grant of a licence under section 10, 35, 45 or 46 above shall, without prejudice to any other method of enforcement, have effect as if it were a deed, executed by the proprietor of the patent and all other necessary parties, granting a licence in accordance with the order.
  The LORD CHANCELLOR: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No 166. This Amendment has already been spoken to be my noble friend

  1081
  Lord Oram. Perhaps I should remind your Lordships that the clause has been inserted to cover a purely technical defect and is another of those points which the noble Lord, Lord Lloyd of Kilgerran, would describe as a pure Chancery point.
  Moved, That this House doth agree with the Commons in the said Amendment.—(The Lord Chancellor.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  167 Clause 106, page 90, line 24, leave out from "that" to end of line 25 and insert "a patent has been applied for in respect of it".
  The LORD CHANCELLOR: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 167. This is a purely technical Amendment.
  Moved, That this House doth agree with the Commons in the said Amendment.—(The Lord Chancellor.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  168 After Clause 106, insert the following new clause:
  Misuse of title "Patent Office"
  ". If any person uses on his place of business, or on any document issued by him, or otherwise, the words "Patent Office" or any other words suggesting that his place of business is, or is officially connected with, the Patent Office, he shall be liable on summary conviction to a fine not exceeding £500".
  The LORD CHANCELLOR: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 168. This new clause introduces a provision corresponding to Section 91(2) of the Patents Act 1949. The difference is that while in 1949 that offence would have cost the offender £20, the fine today would be £500. However, this is a provision which has very rarely been invoked—somebody pretending to be a Patent Office—and for this reason was not included in the Bill originally; but we now accept that even if it does not do very much good, it cannot do any very great harm, and is appropriately included in the Bill.
  Moved, that this House doth agree with the Commons in the said Amendment.—(The Lord Chancellor.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  169 Clause 107, page 90, line 36, at end insert—
  "(2) Where the affairs of a body corporate are managed by its members, subsection (1) above shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate."
  170 Clause 108, page 91, line 17, leave out "of the body and" and insert "or, where the body's affairs are managed by its members, every member of the body and in any event,"
  171 Page 92, line 1, leave out "or the Court of Session".
  The LORD CHANCELLOR: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 169 to 171 en bloc. With the leave of the House, I will at the same time speak to Amendment No. 183. I regret that there is an error in Amendment No. 170 as printed. It reads:
  "Page 91, line 17, leave out 'of the body and' and insert …"
  It should read:
  "Page 91, line 14, leave out 'or member of the body and' and insert 'or, where the body's affairs are managed by its members, every member of the body and in any event,'."
  Perhaps it may be useful, after having given those incomprehensible observations, to read paragraph (b) as it will be when amended. It will read:
  "in any other case, every director or, where the body's affairs are managed by its members, every member of the body and in any event, if it has a manager who is not a director or member, that manager, is so registered".
  Moved, That this House doth agree with the Commons in the said Amendments.—(The Lord Chancellor.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  172 Clause 112, page 93, line 34, at end insert "nor shall that subsection prevent the Secretary of State from inspecting or authorising the inspection of an application for a patent or any connected documents under subsection (6)(a) of section (Information prejudicial to defence of realm or safety of public) above."
  The LORD CHANCELLOR: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 172. This Amendment has already been spoken to by my noble friend Lord Oram.
  Moved, That this House doth agree with the Commons in the said Amendment.—(The Lord Chancellor.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  173 Clause 117, page 95, line 30, leave out "order" and insert "rules"
  174 Clause 117, page 95, line 31, leave out from "7" to "68" and insert "11, 34, 37(1) or (2), 38(8), 58(3),"
  175 Clause 117, page 95, line 32, at end insert— "(ff) providing for the appointment of advisers to assist the comptroller in any proceeding before him;"
  176 Clause 117, Page 96, line 12, at end insert— "(4A) The remuneration of any adviser appointed under rules to assist the comptroller in any proceeding shall be determined by the Secretary of State with the consent of the Minister for the Civil Service and shall be defrayed out of moneys provided by Parliament."
  177 Clause 118, line 29, after "order" insert "or rule".
  178 Clause 119, line 38, leave out "in" and insert "of".
  179 Clause 121, page 97, line 29, leave out "(subject to the provisions of that Schedule)"
  180 Page 98, line 12, after "provisions" insert "and savings".
  181 Clause 124, page 99, line 29, leave out "the first occasion on which it has a" and insert "its"
  182 Clause 124, page 99, leave out lines 41 to 43
  183 Page 100, leave out lines 30 to 35
  184 Page 101, line 30, at end insert—
  ""mortgage", when used as a noun, includes a charge for securing money or money's worth and, when used as a verb, shall be construed accordingly;"
  185 Page 102, line 17, at end insert— ""relevant convention court", in relation to any proceedings under the European Patent Convention, the Community Patent Convention or the Patent Cooperation Treaty, means that court or other body which under that convention or treaty has jurisdiction over those proceedings, including (where it has such jurisdiction) any department of the European Patent Office;"
  186 Page 103, line 21, after first "5" insert ",(Disclosure of matter, etc., between earlier and later applications)".
  187 Page 103, line 21, after "69(1)" insert "and (2) 72(4)".
  188 Page 103, line 26, at end insert— "(7A) The Arbitration Act 1950 shall not apply to any proceedings before the comptroller under this Act".
  189 Clause 126, page 104, line 18, leave out "and this subsection" and insert ",this subsection and the repeal of section 41 of the 1949 Act".
  190 Clause 126, page 104, line 28, leave out "subject to any savings contained in that column".
  7.16 p.m.
  The LORD CHANCELLOR: My Lords, with the leave of the House I beg to move that this House doth agree with the Commons in their Amendments Nos. 173 to 190 en bloc. These are purely technical Amendments. I do not think there is anything to which I should draw your Lordships' attention.
  Moved, That this House doth agree with the Commons in the said Amendments.—(The Lord Chancellor.)
  Lord LLOYD of KILGERRAN: My Lords, may I speak very briefly to Amendment No. 175, which provides for the appointment of advisers to assist the comptroller in any proceedings before him. This is something more than a technical Amendment. This is a very important power now given to the comptroller and a matter which was pressed by me at several stages of the Bill. The comptroller can now have rules which will enable him to have advisers sitting with him in connection with the assessing of compensation for employee-inventors. It may arise that there will be very serious difficulties in regard to the accounts of a company, and the comptroller can now get assistance in that direction. Also there may be important matters in relation to industrial relations in the company where the advice of those experts in industrial relations, the trade union organisation, would be able to help. I therefore welcome Amendment No. 175 as an important development.
  Lord LYELL: My Lords, I ask the House to give its attention to Amendment 189. I wonder whether the noble and learned Lord can settle a point on which I have a query in my mind. It is my understanding that the old Section 41 of the 1949 Act was repealed as a result of a Division at Committee stage. Why is the repeal of Section 41 to be delayed beyond the commencement of this Act. If we look at Amendment No. 189, this is inserted as an amendment to subsection (5); this fixes the date when the Act shall come into effect with the exception of three or four paragraphs. Yet the Amendment includes the repeal of Section 41.

  1085
  I believe that Section 41 still is a valid enactment. Could the noble and learned Lord confirm that it is not the Government's intention to re-enact this section? I understand that the Minister in another place gave assurances that adequate safeguards would exist parallel to Section 41, and therefore would replace it. This resulted from the continuous discussion under various voluntary price regulation schemes. I would be grateful if the noble and learned Lord could enlighten me on this particular small Amendment.
  The LORD CHANCELLOR: My Lords, I am grateful to the noble Lord, Lord Lloyd of Kilgerran, for underlining the importance—and it is significant—which he attaches to Amendment No. 175 which, as he has indicated, inserts in Clause 117(2) a power for the Secretary of State to provide by rules that the comptroller may be assisted by advisers in any proceedings before him. I know that the noble Lord has always favoured that, and the Patent Office has now taken the view that it would be useful to enable the comptroller to call in outside assistance in appropriate cases—it is not suggested that this should apply in all cases—especially on applications by employees for compensation. The advisers need not be, and probably would not be, scientific advisers: that was a point that the noble Lord made earlier and I am grateful that he has brought it forward.
  As regards the matter raised in respect of Amendment No. 189, the repeal of the special compulsory licence provision for patented medicines of Section 41, of the 1949 Act, has already been announced. The purpose of Amendment No. 189 is to make the repeal effective from the date of enactment of the Bill—in other words, from Royal Assent. If there were to be an interval between enactment and repeal, applications for licences under Section 41 might be filed while repeal was pending and that would be undesirable. That is the explanation.
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  191 Schedule 1, page 105, line 6, at end insert "(but not in relation to patents and applications for patents under this Act)."
  192 Schedule 1, page 105, line 7, leave out from "12" to "69" in line 8 and insert 13, 15 to 17, 19 to 21, 22(1) to (3), 23 to 26, 28 to 33, 46 to 53, 55, 56, 59 to 67,"
  193 Schedule 1, page 105, line 33, leave out "fourteen" and insert "eleven".
  194 page 106, line 6, leave out sub-paragraph (4).
  195 page 106, line 16, leave out "subsections (4) and (5) of that section" and insert "sections 22(3) to (5) above".
  196 page 106, line 19, leave out from "under" to "except" in line 21 and insert "section 22(3) to (5) above".
  197 page 106, line 27, after "shall" insert ",together with any contract relating to the licence,"
  198 page 106, line 28, after "force" insert "(unless determined otherwise than in accordance with this sub-paragraph)".
  199 page 106, line 29, after "shall" insert "after the end of that year".
  200 page 106, line 34, at end insert— "(c) every such patent shall after the end of that year be treated as endorsed under section 35 of the 1949 Act (licences of right).".
  201 page 106, line 35, leave out sub-paragraph (3) and insert:
  "(3) Where the term of a new existing patent is extended by this paragraph and any Government department or any person authorised by a Government department—

  (a) has before the appointed day, used the invention in question for the services of the Crown; and

  (b) continues to so use it until the end of the sixteenth year from the date of the patent,

  any such use of the invention by any Government department or person so authorised, after the end of that year, may be made free of any payment to the proprietor of the patent.".
  202 Page 107, line 15, at end insert—
  "5A. Notwithstanding anything in section 32(1)(j) of the 1949 Act (ground for revocation that patent was obtained on a false suggestion or representation), it shall not be a ground of revoking a patent under that subsection that the patent was obtained on a false suggestion or representation that a claim of the complete specification of the patent had a priority date earlier than the date of filing the application for the patent, but if it is shown—

  (a) on a petition under that section or an application under section 33 of that Act; or

  (b) by way of defence or on a counter-claim on an action for infringement;

  that such a suggestion or representation was falsely made, the priority date of the claim shall be taken to be the date of filing the application for that patent."
  203 Page 107, line 22, at end insert—
  "(2) At the end of the said section 33 there shall be added the following sub-section:—
  "(5) A decision of the comptroller or on appeal from the comptroller shall

  1087
  not stop any party to civil proceedings in which infringement of a patent is in issue from alleging that any claim of the specification is invalid on any of the grounds set out in section 32(1) of this Act, whether or not any of the issues involved were decided in that decision."."
  204 Schedule 2, page 107, line 31, leave out "The" and insert "Without prejudice to those provisions of Schedule 4 below which apply (in certain circumstances) provisions of this Act in relation to existing patents and applications, the".
  205 Schedule 2, page 107, line 35, after "sections" insert "(Information prejudicial to defence of realm or safety of public), (Restrictions on applications abroad by United Kingdom residents), 22(3) to (5)"
  206 Schedule 2, page 107, line 36, leave out "112 to 117" and insert "112(1) to (3), 113 to 118"
  207 Schedule 2, page 107, line 36, after "126" insert "(2)"
  208 Schedule 2, page 107, line 39, at end insert—
  "(aa) a reference to a specified provision of this Act other than one of those provisions shall be construed as a reference to the corresponding provision of the 1949 Act (any provision of that Act being treated as corresponding to a provision of this Act if it was enacted for purposes which are the same as or similar to that provision of this Act);"
  209 Schedule 2, page 107, Schedule 3, page 108, line 19, leave out paragraph 1
  210 Schedule 2, page 107, line 32, leave out "also"
  211 Schedule 2, page 107, line 36, leave out paragraph (b) and insert—
  "(b) section 32(3) (revocation for refusal to comply with Crown request to use invention);"
  212 Schedule 2, page 107, line 48, leave out paragraph (g)
  213 Schedule 4, page 109, line 17, leave out "either" and insert "whether to a person entitled to apply for a patent for the invention,"
  214 Schedule 4, page 109, line 18, leave out "subject to sub-paragraph (3) below"
  215 Schedule 4, page 109, line 28, after "to" insert "sub-paragraph (3) below"
  216 Schedule 4, page 109, line 30, leave out "paragraph (b) of section 52(5)" and insert "sections 52(5)(b) and 55(6A)"
  217 Schedule 4, page 109, line 41, leave out "subject to sub-paragraph (3) below"
  218 Schedule 4, page 109, line 43, leave out from first "and" to "Act" and insert ", in addition to those provisions of the 1949 Act which continue to apply by virtue of Schedule I above, section 70 of that"
  219 Schedule 4, page 110, line 5, after "to" insert "sub-paragraph (3) below"
  220 Schedule 4, page 110, line 6, leave out "paragraph (b) of section 66(2) "and insert" section 66(2) and (3)".
  221 Schedule 4, page 110, line 14, leave out from "of" to end of line 16 and insert "that patent or those privileges or rights".
  222 Page 111, line 2, leave out paragraph 6.
  223 Page 112, line 3, leave out "appointed" and insert "relevant".
  224 Page 112, line 11, leave out "appointed" and insert "relevant".
  225 Page 112, line 14, at end insert—
  226 "(3) In this paragraph "the relevant day" means, in relation to section 41, the date of the passing of this Act and, in relation to sections 35 to 40 and 43 to 45, the appointed day."
  Page 112,line 14, at end insert —
  "Convention countries
  9A.—(1) Without prejudice to paragraph 1 above, an Order in Council declaring any country to be a convention country for all purposes of the 1949 Act or for the purposes of section 1(2) of that Act and in force immediately before the appointed day shall be treated as an Order in Council under section 87 above declaring that country to be a convention country for the purposes of section 5 above.
  (2) Where an Order in Council declaring any country to be a convention country for all purposes of the 1949 Act or for the purposes of section 70 of that Act is in force immediately before the appointed day, a vessel registered in that country (whether before, on or after that day) shall be treated for the purposes of section 57 above, as it applies by virtue of paragraph 3(2) above to an existing patent or existing application, as a relevant ship and an aircraft so registered and a land vehicle owned by a person ordinarily resident in that country shall be so treated respectively as a relevant aircraft and a relevant vehicle."
  227 Page 112, line 14, at end insert—
  "Appeals from court on certain petitions for revocation
  9B. Where the court has given judgment on a petition under section 32(1)(j) of the 1949 Act before the appointed day, any appeal from the judgment (whether instituted before, on or after that day) shall be continued or instituted and be disposed of under the old law."
  228 Page 114, leave out lines 7 to 10.
  229 Page 114, line 14, at end insert—

  "16A.—(1) Nothing in the repeals made by this Act in sections 23 and 24 of the 1949 Act shall have effect as respects any such application as is mentioned in paragraph 3(3) of Schedule 1 above.

  (2) Nothing in the repeal by this Act of the Patents Act 1957 shall have effect as respects existing applications.

  (3) Section 69 of the 1949 Act (which is not repealed by this Act) and section 70 of that Act (which continues to have effect for certain purposes by virtue of paragraph 3 above) shall apply as if section 68 of that Act had not been repealed by this Act and as if paragraph 9A above had not been enacted."

  230 Schedule 5, page 114, line 16, at end insert:
  "Crown Proceedings Act 1947 (c. 44)
  1. In section 3 of the Crown Proceedings Act 1947, for subsection (2) there shall be substituted:
  "(2) Nothing in the preceding subsection or in any other provision of this Act shall affect the rights of any Government department under Schedule I to the Registered Designs Act 1949 or section 52 of the Patents Act 1977, or the rights of the Secretary of State under section (information prejudicial to defence of realm or safety of public) of the said Act of 1977.""
  231 Schedule 5, page 114, line 19, leave out "substitute" and insert "there shall be substituted".
  232 Schedule 5, page 114, line 21, leave out "insert" and insert "there shall be inserted"
  233 Schedule 5, page 114, line 42, at end insert
  "Atomic Energy Authority (Weapons Group) Act 1973 (c. 4)
  5. In section 5(2) of the Atomic Energy Authority (Weapons Group) Act 1973—

  (a) after the first "Patents Act 1949 there shall be inserted", the Patents Act 1977"; and

  (b) after the second "Patents Act 1949" there shall be inserted "section 52(4) of the Patents Act 1977".

  Fair Trading Act 1973 (c. 41)
  6.—(1) In paragraph 10 of Schedule 4 to the Fair Trading Act 1973 for "Patents Act 1949" there shall be substituted "Patents Act 1977".
  (2) After the said paragraph 10 there shall be inserted:—
  "10A. The services of persons carrying on for gain in the United Kingdom the business of acting as agents or other representatives of other persons for the purpose of applying for or obtaining European patents or for the purpose of conducting proceedings in connection with such patents before the European Patent Office or the comptroller and whose names appear on the European list (within the meaning of section 82(7) of the Patents Act 1977), in their capacity as such persons."."
  234 Schedule 5, page 114, line 42, at end insert—
  "Restrictive Trade Practices Act 1976 (c. 34)
  7.—(1) In paragraph 10 of Schedule 1 to the Restrictive Trade Practices Act 1976, for "the Patents Act 1949" there shall be substituted "the Patents Act 1977".
  (2) After the said paragraph 10 there shall be inserted—
  "10A. The services of persons carrying on for gain in the United Kingdom the business of acting as agents or other representatives of other persons for the purpose of applying for or obtaining European patents or for the purpose of conducting proceedings in connection with such patents before the European Patent Office or the comptroller and
  1090
  whose names appear on the European list (within the meaning of section 82(7) of the Patents Act 1977), in their capacity as such persons ""
  235 Schedule 6, page 115, line 3, at end insert—

  "7 Edw. 7. c. 29.

  The Patents and Designs Act 1907.

  Section 47 (2).

  9 & 10 Geo. 6. c. 80.

  The Atomic Energy Act 1946.

  In section 12, subsections (1) to (7)".

  236 Schedule 6, page 115, leave out lines 5 to 7.
  237 Schedule 6, page 115, line 8, at end insert "section 16(6)"
  238 Schedule 6, page 115, line 9, at end insert "section 22(4) and (5)"
  239 Schedule 6, page 115, leave out lines 10 and 11 and insert—

  "In section 23(1), the words from "(not exceeding" to "ten years)".

  In section 24, in subsection (1), the words "(not exceeding ten years)" and in subsection (7) the words from "but" to the end."

  240 Schedule 6, page 115, line 13, leave out from "32" to end of line 19 and insert "subsection (3)"
  241 Schedule 6, page 115, leave out lines 22 to 24.
  242 Schedule 6, page 115, leave out lines 26 to 28.
  243 Schedule 6, page 115, line 38, at end insert "Schedule 3, except paragraphs 1 and 26"
  244 Schedule 6, page 115, leave out lines 39 to 42.
  245 Schedule 6, page 115, leave out lines 45 to 49.
  246 Schedule 6, page 115, leave out lines 50 to 53.
  247 Schedule 6, page 115, leave out lines 54 and 55 and insert—

  "9 & 10 Eliz. 2. c. 25.

  The Patents and Designs (Renewals, Extensions and Fees) Act 1961.

  In section 1(1), the words from "sub-section (5)" to "and in". Section 2."

  248 Page 116, line 2, column 3, leave out from "Schedule 1" to end of line 8 and insert "the entry relating to section 84 of the Patents Act 1949"
  249 Page 116, leave out lines 12 to 14.
  250 Page 116, line 14, at end insert—

  "1968 c. 64.

  The Civil Evidence Act 1968.

  Section 15."

  251 Page 116, line 32, at end insert—

  "1971 c. 36 (N.I.).

  The Civil Evidence Act (Northern Ireland) 1971.

  Section 11."

  252 Page 116, leave out lines 33 to 39.
  7.21 p.m.
  The LORD CHANCELLOR: My Lords, with the leave of the House I beg to move that this House doth agree with the Commons in their Amendments Nos. 191 to 252 en bloc—that is to say, even unto the final Amendment in this great, long list. I recognise that it is not a usual event to speak to 62 Amendments in I shall not say one breath but at once. It is the case that some of the Amendments add some new material to the Schedules, but really they are all consequential on other provisions of the Bill and I venture to think that, while they are necessary, none calls for special mention.
  Moved, That this House doth agree with the Commons in the said Amendments.—(The Lord Chancellor.)
  Lord LLOYD of KILGERRAN: My Lords, I agree with the noble and learned Lord the Lord Chancellor that these are all technical Amendments. However, Amendment No. 193 is a matter as regards which I should like to register my discontent and I notice that the noble Earl, Lord Halsbury, is also nodding his head in agreement with me.
  Amendment No. 193 is the important Amendment dealing with the extension of the term of patents that are in being now and therefore only get a period of 16 years of life plus some further four years if it is possible to make a case in the High Court about extension, whereas all patents applied for after this Act comes into power will get 20 years. On the basis of an Amendment that I moved, this House resolved that there should be a period of only two years, whereas Amendment No. 193 makes the period five years. Therefore the other place has reversed the Amendment which succeeded in this House.
  I want to register my discontent only briefly. This Amendment may have a very serious effect upon, in particular, pharmaceutical patents. I understand that in the other place the Minister has agreed that, in view of the representations that have been made recently about the extension of terms of pharmaceutical patents, the matter will be reconsidered by the Standing Advisory Committee and new legislation will be necessary if the Standing
  1092
  Advisory Committee consider that pharmaceutical patents are in a special situation. I shall not at this late hour deal with the matter in any detail, but I register my discontent as regards Amendment No. 193. However, I shall not move the House to divide on this matter.
  The Earl of HALSBURY: My Lords, like the noble Lord, Lord Lloyd of Kilgerran, I am sorry that I am making my swan song on the Bill on such a sorry business. However, I do not know what to do about it. Dividing the House would not be an answer. I sometimes wonder, in the context of provisions of this kind, whether we ought not to include the General Confession in our prayers before our proceedings. If ever there is a body of men who need a constant reminder that they leave undone those things that they ought to do and do those things that they ought not to do, it is the legislature when it is in a mood to discourage all the things that it ought to encourage and encourage all things that it ought to discourage. This Amendment benefits the licensee at the expense of the licensor—the inventor user. The licensee is the man without the initiative to make inventions. The licensor is the man with the initiative to make inventions. Therefore, we are putting obstacles in the way of initiative. That is something we ought not to do. Therefore, I can only express myself as discontent, but I shall not carry my discontent to its logical conclusion.
  The LORD CHANCELLOR: My Lords, I am sorry that after the happy course of the proceedings this evening when so many victories were recorded by, for instance, the noble Lord, Lord Lloyd of Kilgerran, and the noble Earl, Lord Halsbury, in a number of matters, we should end on a note where, alas! we have to disappoint them. However, it is not an easy matter.
  The effect of the Amendment is to extend the term of an existing patent to 20 years only if it has at least five years to run and, as the noble Lord, Lord Lloyd of Kilgerran, has said, it reverses the Amendment that was carried in your Lordships' House which would have extended the term if it had only two years to run. The position really is that it has always been agreed that it is a matter

  1093
  of judgment where to draw the line, but the Government at least have the comfort of having followed the recommendations of the Standing Advisory Committee on Patents, and that was the view taken in another place.
  The noble Lord, Lord Lloyd of Kilgerran, has referred to the position of pharmaceutical patents. In another place the Opposition tried, unsuccessfully, to make a special exception for them. While other old patents would have received the 20-year term only if they had had at least five years to run, pharmaceutical patents would, if that attempt had been successful, have been given the 20-year term if they had only two years to run. That was resisted by the Government but the Minister, as has been said, undertook to consider the position of the pharmaceutical industry and conceded, without giving any undertaking, that if he thought it warranted, there was the possibility of introducing further legislation. Therefore, I am sorry that we have not fully met the wishes of the noble Lords, but I am grateful to them for their intimation that they will not now press these differences to a Division.
  Lord LYELL: My Lords, before the Question is put, I should like to intercede. I did not get on my feet quickly enough after the noble Earl, Lord Halsbury, sat down. This group of Amendments includes Amendment No. 211. If the noble and learned Lord, the Lord Chancellor, chances to look at the Amendment, he will see that it seems to flow from my comments at Third Reading when I was moving an Amendment which sought to prevent secret prior use of a particular patent. Also, in my comments on Third Reading, I found that there was a problem covered by the Standing Advisory Committee where the grounds of fair basis were not permissible as a reason for revocation.
  However, Amendment 211 appears to allow the whole of Section 32 of the 1949 Act to be used in revocation proceedings of patents subject to the 1949 Act. I believe that that is admirably consistent and we are delighted that the Government see fit to allow our point. After the weighty and lengthy consideration given by the noble and learned Lord on the Woolsack, I was pleased to see that he finished the Third Reading by saying that
  1094
  the matter would be discussed in another place. Certainly my noble friends and I did not dream that your Lordships' House would find our case made for us.
  I am sure that the noble Lord, Lord Oram, would not regard any discussion of the Patents Bill as complete without what I call the ritual of estoppel and issues. This must be a tidying up, a drafting. We hope that this is the last sally—perhaps I could call it "Lyell's revenge" —and possibly I have had the last word on this particular issue. However, I should like to say how grateful we are that Amendment No. 211 seems to have incorporated something that we moved at an earlier stage.
  On Question, Motion agreed to.

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

  DEFENCE STRATEGY
  7.32 p.m.
  Lord GLADWYN Lord GLADWYN rose to ask Her Majesty's Government whether it is their opinion that the stretagy of "flexible response" is becoming increasingly inoperative and that it should be replaced by the gradual building-up of a forward defence based on conventional forces adequate to hold any conventional assault and backed up by "tactical" nuclear weapons for use only, and if necessary, as a second strike. The noble Lord said: My Lords, I feel that I owe your Lordships an explanation—or such of your Lordships as are now present, which number does not include very many—for raising this vast and immensely important matter on an Unstarred Question. The reason is simple. There was virtually no other way of raising it. If, as in the past, it comes up as it has done occasionally on the Defence Estimates, it is drowned in a discussion of the state of the TAVR; the desirability of going ahead with some particular weapon; the necessity or otherwise of cuts in defence expenditure; the protection of oil rigs; the conditions of service in the BAOR; pension matters; regimental reorganistaions, or I know not what.
  The Government spokesman may, indeed, say that remarks on strategy are interesting and deserve study, but that is as far as one gets. An actual debate on strategy can, indeed, take place only on Government initiative, on a Party day (and the Liberals have only two days), or as a result of a ballot. So the chances of getting any profitable discussion going, other than by means of a Parliamentary Unstarred Question or as a result of a Government initiative, are slender.
  No doubt in the recesses of the Ministry of Defence or in NATO there is intelligent talk about whether our whole present scheme of defence is sound or unsound; echoes of those talks are quite often heard in American technical journals and, indeed, in Survival, an excellent magazine published by the Institute of Strategic Studies. But the results are never made known in the Palace of Westminster and I doubt whether even the Cabinet has either the time or the inclination—and more especially the inclination—to consider a rather distasteful subject (and how distasteful it is may be seen by the comparative absence of Government supporters from tonight's debate) which may be considered by many to be a matter for military experts only and one on which even military experts may be divided. And yet there are now, apart from general strategy, some rather ugly features as regards which the ordinary citizen of this country has surely a right to know the Government's attitude. I refer to the Cruise Missile, the MX or Mobile Intercontinental Ballistic Missile and the so-called neutron bomb. I shall deal with those in a moment.
  First, however, let us consider the whole concept of what is called "flexible response", on which our whole defensive posture still seemingly rests. As we all know, that is based on the idea that any aggressive action on the part of the adversary—and of course, there is now only one possible adversary; namely, the Soviet Union and its satellite forces—must be countered by an appropriate reaction. Perhaps it would be more correct to call it a policy of "graduated" response and as such it is no doubt acceptable theoretically in a general way.
  Thus, if the adversary's move should prove to be not an all-out offensive but a
  1096
  simple probing operation, with limited political objectives, then it should be possible to check it with our available conventional forces, as they are called. Meanwhile, our Reserves would be mobilised and rushed to the front, their object being, if possible, to check the adversary if the push should prove to be more than a probing operation, or at least to hold him so as to facilitate negotiations.
  But if all that is not enough and the adversary still advances, then an initial nuclear shot will presumably be necessary, and even if that should not be heeded our available tactical nuclear weapons will, so I understand, probably be directed against the adversary's front-line troops, who by that time presumably are well inside the Federal Republic, but in any case, against his lines of communication. I think that I am right in saying that that is the present theory.
  This general strategy has unfortunately become less "credible" of recent years because of two developments. The first is the build-up of the Warsaw Pact forces in Europe, and notably in the German Democratic Republic, to an extent which largely vitiates any balance between these forces and those in Europe of the North Atlantic Alliance. The point has been made again and again in debates in this House and I shall not weary your Lordships with a description of the details of this imbalance as it exists in most fields, but chiefly in tanks, aircraft and armoured fighting vehicles.
  It is not I think denied—and if it is the Government will no doubt reassure us—that the Soviet superiority in these weapons, some of which are at least equal in quality to the corresponding NATO weapons, is so marked that there would be no prospect of preventing an armoured thrust from penetrating a long way into the Federal Republic unless the allocated Reserves had already arrived and had been deployed, or unless recourse had been had from the outset to the use of the nuclear bomb.
  But would it be possible for the Reserves to be deployed in time? As to that, there is increasing doubt. For the second major development has been the immense improvement in the state of readiness of the Soviet Armed Forces and in their lines of communication which would enable them,

  1097
  so we are given to believe by all the experts, even now to launch an offensive of great power on a small front with little warning, and quite possibly in a year or two's time with no warning at all.
  So, in all probability, not only would the Reserves not be available in time to affect the issue of the battle, but the bulk of our forces in Germany, situated as they now are at a considerable distance from the frontier, would hardly be out of their barracks and into their transporting vehicles before a large part of the Federal Republic was in the hands of the adversary, who had crashed through the rather thin line of conventional forces on the frontier zone, unless—and I repeat unless—from the very outset the NATO forces had had resort to the so-called tactical nuclear weapons. It is, I know, suggested by some that the necessity of getting the Soviet Fleet out into the oceans would always provide some warning, but I doubt whether we should rely on that. After all, there could always be world-wide Soviet naval "manoeuvres" which could hardly trigger off any mobilisation on the Western side.
  This brings us to the heart of the matter. It may still be said, I suppose, that if the Russians believe that the American President will not hesitate to authorise the use of nuclear weapons, if necessary within a few hours of the launching of any offensive, such an offensive will never be launched. Maybe. But the fact remains that in the future it will probably be less certain than it now is that such a decision will be taken. That is the probability. For if it were taken there is no serious doubt on the part of anybody that the Soviet forces would reply in kind, and that their reply would be unlikely to be limited to the "tactical nukes", though they have these too, of course. Some at least of the MRBMs (medium range ballistic missiles) now trained on all the major cities of Western Europe—and no doubt and more especially, I should think in the circumstances, those trained on certain Western German towns—would probably be let off.
  Nor is it at all likely, I am afraid, that such second strike action on the Soviet side would be precluded by a perhaps rather improbable announcement from Washington that, if taken, it would result
  1098
  in a full-scale nuclear assault on the Soviet Union itself, still less such a declaration issuing from Paris or London. First use by NATO of nuclear weapons might indeed result in the halting of a Soviet armoured thrust, but only in return for quite unacceptable retaliation in Europe. The operation, in other words, might well be successful, but the patient would die.
  All this does not mean, of course, that the Soviet Government are at all likely to bank on the likelihood that the United States Government will not, in the event of their attempting some coup in Europe, or even in the event of some clash in some other part of the world, authorise the first use of nuclear weapons. For if Europe died the Soviet Union would certainly not be better off. But it does mean that unless the situation changes, the Soviet political position, and hence their ability to drive hard bargains in negotiation, will get stronger and stronger. There is no doubt about that.
  How, therefore, can we best prevent the position of the West from getting weaker and weaker? Well, clearly the most logical, and indeed the most desirable, way would be so to strengthen the forward positions of the allied forces on the Eastern border of the Federal Republic, and more especially of course in the North German plain, as to have a prospect of holding any conventional armoured thrust, at least for a considerable period, by employing sufficient conventional weapons of the very latest type. It would naturally also involve a transformation of the present NATO armoured divisions into smaller and more mobile forward-based units.
  The general way in which this might be done has been often described in this House, and I need not repeat it. Most experts seem to think that such an effective defensive screen could be installed without any enormous extra expense and within a reasonable period of time. But most would also agree, I feel, that it could not even be attempted without a serious and successful effort, if not to produce all the necessary new weapons in common in Europe, at least to achieve what is called "interoperability": for this purpose to pool, in many respects, though not totally, the R and D programme of the European members of the Alliance, including France; and in any case to redeploy all the available ground forces of NATO

  1099
  so as to constitute a forward defence with a corresponding abandonment of the whole concept of a "second battle" after the presumed arrival of reserves.
  For a time it looked as if this sort of concept was making some progress. Two years ago a speech by the French Chief of Staff, General Méry, followed by a pronouncement of the Head of State himself, suggested that the old—and logically indefensible—strategic theories based on total French independence were about to be revised. After all, it is undeniable that the existing French—and indeed, I would say, British—nuclear arsenal could only act, and can only act, as a deterrent against direct Soviet nuclear action against our own countries, and can never be used on a first nuclear strike.
  Eighteen months ago, too, a body known as the European Programme Group, whose declared object was the harmonising of the production of advanced conventional weapons, was actually established with French participation. But such tendencies seem recently to have rather faded out as the French election approaches and the Gaullists' hope of overcoming the Left lies in an increasing beating of the national drum. True, there has been some successful effort, whether in the Eurogroup or, so to speak, alongside it, to produce certain modern weapons in common, notably the Tornado—or MRCA—fighter bomber, the FH medium gun, the Milan anti-tank guided weapon, the Roland ground-to-air missile, the Alpha-Jet fighter and the Anglo-French Jaguar aircraft, but so far as I know there has been no real attempt to reorganise our present defensive posture, which means that we must rely on a very early use, or threatened use, of nuclear weapons of some sort; in other words, as Soviet strength increases, in a steady lowering of the so-called "nuclear threshold".
  The first question I would therefore ask the Government is simply whether they agree generally with my argument so far and with its conclusions, and if not, why they do not. If they do, however, the situation is grave, and it is here that we come up against the tiny neutron bomb (I believe it can be fired from the "Lance" missile launcher or even from
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  a gun) which is supposed to have a lethal effect on concentrations of men, its damage to buildings and installations being more or less insignificant.
  Great efforts have been made over many years now by the prospective manufacturers and promoters of this weapon to have it adopted by NATO. On the face of it, as I remember pointing out some years ago, it seems to be chiefly designed to make the possibility of the employment of tactical nuclear weapons less unpalatable to the Germans, who would not wish large areas of their own territory under (it would be hoped) temporary Russian occupation to be devastated, and hence to make it easier for the President of the United States to authorise a nuclear "first strike", if he has to do so, directed rather against invading Russians than Germans, and of course sparing all German constructions and buildings.
  Of course its actual first use would not prevent appalling retaliation, although that would presumably follow the first use of any kind of nuclear weapon. Would it, however, if installed, have any real use as a deterrent? That is really the question before us. Personally I think this doubtful, and the violent Russian reaction against it is not particularly reassuring. The chances are indeed, as I believe, that it would make arms control more difficult. On the other hand, the more likely its use the greater the deterrent—or so it could be argued.
  It has been attacked understandably on humanitarian grounds, notably this afternoon by the noble Lord, Lord Brockway, but I am not sure that it is more frightful than a "normal" small size nuclear bomb which would kill masses of people anyhow in horrible circumstances, and in just as frightful a way. All nuclear weapons are appalling, but I think that, whatever views we have on this, whether we think it has any use as a deterrent or not, we should surely know on which side of the controversy the Government stand. So my second question is: Do the Government approve of the acquisition by NATO and the deployment in Germany of the neutron bomb? The Government must have had ample time, many years now, to consider their attitude, and it really is rather intolerable that they should

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  apparently, as I noticed from Lord Winterbottom's reply earlier this afternoon, seek to avoid this issue altogether by saying, as I understand it, that it is only a matter for the Americans, and that this weapon in any case has not yet been fully deployed. I therefore repeat my second question: Do the Government approve of the acquisition by NATO and the deployment in Germany of the so-called neutron bomb?
  We are excluded from the SALT talks, but I understand that they are now unfortunately stalled because, apart from the neutron bomb, the Russians accuse the Americans of contemplating going ahead, first, with the production of the so-called Cruise missile, which, by following the contours at low altitude and at subsonic speeds, and guided by satellite or otherwise, in theory, and at the moment I think largely in practice, could destroy, by nuclear or other means (it could have a conventional or a nuclear warhead) any target with perfect accuracy at thousands of miles range without at the moment much possibility of interception; and, secondly, with the possible installation in the United States of mobile ICBMs, perhaps also fired from 20-mile long tunnels, which could not be eliminated on a first nuclear strike.
  This last one, the mobile ICBM, is something which we can clearly do nothing about. I believe—at least I am told—that the Americans do not really want to develop this weapon but are using its possible existence for bargaining purposes. Giving them public advice on this matter might perhaps best be left to the President of the French Republic, but presumably we could give our private advice on how its adoption would be likely to affect the policy of détente, on which we have built such hopes in the past, and perhaps we have already done so in conversation with Mr. Carter; who knows? Perhaps I should not ask that question at the moment.
  The Cruise missile, on the other hand, is something which, like the neutron bomb, if deployed, would affect us very directly. This weapon, which already exists in an imperfect form, can be employed, as I say, either for strategic purposes or in what is called the theatre of war. At present there is little defence
  1102
  against it, though no doubt, more especially over the longer ranges, it could be installed without great difficulty, if at great expense. But in the theatre of war it could be deadly and might well take the place of aircraft and of the present so-called tactical nuclear weapons. It would also, as weapons go, be very cheap to produce. Consequently, if deployed in sufficient numbers, it could do a great deal to redress the present imbalance, and it is this that no doubt worries the Soviet Government. My third question, therefore, is whether the Government feel that the Cruise missile could with advantage be deployed in Europe and, if so, should we consider acquiring and manufacturing a number of these for our own individual use?
  I confess that I doubt whether I shall receive any very straight answers to these questions this evening. However, I hope that, by merely posing them, I may somehow provoke or instigate a full-blown debate before the end of the year, in which noble Lords who have already reflected on these grave matters may be persuaded to give their valuable advice. Though I do not think it sould necessarily be limited to members of the Services, past and present, I should in particular hope that, by that time, the noble and gallant Field Marshal, Lord Carver, who has now taken his seat, will feel able to take part in such a debate.
  In any case, the nuclear issue hangs over all of us like a cloud which, like death, most of us prefer not to think about. But the American Senate and its powerful committees do discuss this fearful subject, so why should not we? Surely this House is well equipped to consider it and might even be thought to be failing in its duty if it did not. It is really this thought that I wish to leave with your Lordships in asking the Question which is now before the House.
  Baroness GAITSKELL: My Lords, may I ask the noble Lord, Lord Gladwyn, a question about the neutron bomb, arising out of his most interesting speech? Is not the reason why we have such feelings of revulsion against the neutron bomb because it puts property much higher than the consecration of human life?
  Lord GLADWYN: I am not sure the noble Baroness is right, my Lords. It

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  would destroy human beings just as effectively as any nuclear weapon would. It is true that it would not affect buildings, but if one looks at it from the German point of view, which the noble Baroness might not wish to do, it might be thought of advantage that a great many Russians would be killed yet buildings in the Federal Republic would not be destroyed. They might consider that of advantage. I am not saying they would, but I think it likely.
  Baroness GAITSKELL: I would take a lot of convincing about that, my Lords.
  Lord GLADWYN: My Lords, the noble Baroness might care to reflect on that possibility.
  7.56 p.m.
  Lord STRATHCONA and MOUNT ROYAL: My Lords, perhaps I should interrupt the dialogue between the noble Baroness, Lady Gaitskell, and the noble Lord, Lord Gladwyn. I intend to be brief, though judging from the number of questions he has had thrown at him, the noble Lord, Lord Winterbottom, might welcome a brief interlude before he gives the answers.
  There is no doubt that the issues raised by Lord Gladwyn are at the very heart of defence thinking and we cannot exaggerate their importance. However, it is perhaps a pity that the noble Lord's expertise and eloquence are possibly being wasted on an Unstarred Question of this nature, although I sympathise with his reasons. He is possibly underrating the effectiveness of our usual channels, which I am aware want to have some kind of defence debate.
  Lord GLADWYN: When?
  Lord STRATHCONA and MOUNT ROYAL: In the autumn, my Lords, and an issue of this sort, which I completely agree can become submerged in all the other issues with which we try to deal in defence debates, is something to which we should return in due time.
  It seems to me that the nuclear umbrella has served us well since the end of Hitler's war by the sheer magnitude and awesome
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  nature of its threat. It is certainly right to say that the mini-nukes or tac-nukes, or whatever jargon one uses to talk about them, and other similar developments, such as the proposed neutron bomb, are in danger of eroding the clear-cut nuclear threshold to which we have been accustomed and which was so clearly defined. That point was ably made by the noble Lord, Lord Chalfont, in an article in The Times earlier this week in which he said that there was a danger inherent in anything nuclear which tended to blur the distinction between nuclear and nonnuclear.
  I am in no doubt whatever that the noble Lord, Lord Gladwyn, will be performing a valuable service if this debate serves once again to reiterate the danger of the disparity which is gradually appearing in conventional forces. There is no doubt that NATO is increasingly falling behind the Warsaw Pact in this respect. Consider one example which has been quoted in this House before. The Warsaw Pact countries now possess the classic three-to-one preponderance in tanks which Liddell Hart deemed to be the margin needed to launch an attack. I saw an article in Newsweek earlier this year by Arnaud de Borchgrave in which he said very neatly:
  "Conventional muscle and the will to use it in what the United States or Russia perceive to be their vital interests are the real keys to the balance of power. On that front NATO has never been more vulnerable".
  The point in this connection is that disparities of this kind tend to lower the nuclear threshold to a point at which we may find our vital interests so threatened that we would have to contemplate the awesome possibility, the unthinkable possibility, of resort to the nuclear armoury to redress the balance; and, of course, this becomes increasingly tempting if this is the area in which one has a technical lead—
  Lord WYNNE-JONES: My Lords, I thank the noble Lord for giving way. I wonder whether he has taken into consideration the enormous significance of the Tornado? From all that I can understand, the Tornado is really far superior to anything that can be posed on the other side. Surely the noble Lord will agree that the forward defence, to which the noble Lord, Lord Gladwyn, has referred, is largely

  1105
  an outdated mode of thinking, and that today we are thinking much more in terms of what happens 200 miles behind the border, rather than at the border. Surely the Tornado is extremely important in this respect.
  Lord STRATHCONA and MOUNT ROYAL: My Lords, I am delighted to hear from such an expert as the noble Lord, Lord Wynne-Jones, such an encouraging report of the Tornado, which is entirely in line with everything that one hears. I recognise the danger of posing as an armchair strategist, but I should not have thought that, however excellent one particular aeroplane, it was likely to compensate for the conventional disparity in other kinds of arms, which are increasingly appearing in the NATO forces. I simply would not set myself up as an expert; but this is a very fair point.
  I should like to revert to one of the conclusions which I think one should draw in passing. The disarmers must face the danger that they increase the risk of war and that they increase the risk of the subsequent escalation into nuclear conflict, with the terrible consequences of which we are all aware. When we talk of flexible responses, I do not see how it is possible to establish recognised steps on the stairway from conventional to all-out nuclear war, however desirable that may be. It is also worth saying that uncertainty is an element of great value, and here we ought to appreciate that, however limited it may be, the nuclear capabilities possessed by the United Kingdom and France have a considerable contribution to make here, in that they are another complicating factor to be considered by any potential adversary who engages in warlike manoeuvres.
  I was rather relieved that the noble Lord, Lord Gladwyn, did not go too far down the road in advancing what we might call the Euro defence policy as a panacea for our problems, because I believe we must understand that NATO continues to be our linchpin, and NATO includes the United States. Therefore, we should welcome President Carter's recent reassertion of his commitment to Europe, and his intention to have a 3 per cent. increase in the American defence budget. In passing, it is worth asking why a nation like the United
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  States feels it necessary to commit itself to such an increase. It does not do this kind of thing lightly. I do not believe that the noble Lord will be wholly angry with me if I say that I contrast this with the 28 per cent. cut which has been advocated by some members of his Party in another place, and—
  Lord WINTERBOTTOM: It is just a discussion document.
  Lord STRATHCONA and MOUNT ROYAL: My Lords, I am very relieved that the noble Lord treats it so lightly. However, I believe that my honourable friend in another place was right when he said the other day that our defence posture was something of a façade and something to worry about. I should like to end by saying that I hope that the debate will serve to underline the perilous course which we are following, and the need to reassert the national will to reverse the drift into disaster which I believe we are embarked upon.
  8.5 p.m.
  Lord WINTERBOTTOM: My Lords, when we debated the Statement on the Defence Estimates on 12th May, I said that the noble Lord, Lord Gladwyn, had raised a most interesting question when he suggested that NATO's basic strategy of flexible response and nuclear doctrines were outdated and needed revision. I said at the time that this was an issue that could not be ducked, since it lay at the heart of our entire defence policy. To try to do so would be to lapse into a "Maginot" mentality. I am, therefore, grateful to the noble Lord for giving us this opportunity to discuss the subject. I hope that the noble Lord is grateful to me for having suggested to him the way that we might do it. I hope that he will also realise that it is a sensitive subject, and I am certain that he will understand if I adhere closely to the carefully chosen form of words that I am to use. I hope he will also understand that this excludes a number of questions which he put to me, because my reply to his Question is based upon the question, and not upon the subsequent interesting tactical and strategic elements that have raised their heads within the past week or so.
  I have listened carefully, and with great interest, to the points made in this debate.

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  But I conclude that there is no viable alternative to the current NATO strategy of deterrence by flexible response and forward defence, and that, so far from being outdated, it continues to offer the best means of securing the safety of the West. Let us consider what alternative strategies NATO might adopt. At one extreme, the Alliance could go back to its "tripwire" strategy of the '50s and early '60s, adopting a clearly declared policy that the first Russian foot on Western soil would be met by instant and massive nuclear retaliation. I need hardly point out to your Lordships the inflexibility of such a policy in dealing with minor acts of aggression, and the risks of unleashing nuclear war by accident. No, my Lords, a return to a "tripwire" strategy is untenable, particularly with the advent of broad strategic equivalence between the nuclear arsenals of the two sides.
  Could we then go to the opposite extreme—that proposed by the noble Lord—and put virtually everything into conventional defence, keeping both our theatre and our strategic nuclear weapons for use only to deter or retaliate against use of nuclear weapons by the other side? Such a course would, in the first place, demand a massive increase in resources for defence. The Western nations would have to go a long way towards eliminating the numerical advantage which the Soviet Union has always enjoyed in conventional forces. In order to provide their massive conventional capability, in addition to nuclear forces, the Soviets have to subordinate much of their industrial and economic capacity to defence; and the cream of their scientists and engineers have to work on defence projects. May I ask the noble Lord: would he like to see the same situation here, and within the Alliance as a whole? Would he like to see spending on social programmes, the health service, pensions, and other items drastically decreased? They would have to be decreased because a massive increase of conventional defence is an expensive option—
  Lord GLADWYN: My Lords, for many years my thesis has been that it would not necessarily be very much more expensive, if more expensive at all, to constitute this new defensive screen.
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  I said this afternoon that if one contemplates perhaps the employment of Cruise missiles, instead of aeroplanes and technical nuclear weapons, one might save a vast amount of money. One would also save a vast amount of money if one managed to some extent to pool one's R and D with one's neighbour.
  Lord WINTERBOTTOM: My Lords, I have had the pleasure of listening to the views of the noble Lord in a number of defence debates, and perhaps come autumn, when we really get down to discussing the White Paper, we might anatomise this point with care. By implication, I think, the noble Lord suggests that NATO should pledge itself not to be the first to use nuclear weapons. He forgets that NATO is already a defensive alliance, designed to deter aggression and defend NATO territory should aggression occur. I must ask the noble Lord, question for question: Does he really believe that we should renounce in advance one of the means of defending ourselves?
  Lord GLADWYN: No, my Lords; I never said that. I said that whether we used tactical nuclear weapons on a first strike depended, in practice, not on us but on the decision of the President of the United States. I also said that at the moment it is quite possible to believe that the Russians think he would authorise such action, and it is on that that our whole strategy now rests. I would not dispute that for a moment. All I said was that in the future it might become increasingly doubtful whether the American President would authorise such action. That is all I said.
  Lord WINTERBOTTOM: My Lords, I do not think the noble Lord said it tonight, but at any rate he has said it in the past, and I agree with him. This is a complex subject, and I cannot give him the whole truth on a plate. Nor can I speak for President Carter, who is probably feeling his way through a minefield at the moment. May I go back to the point. Does the noble Lord really believe that we, the British, should renounce in advance one of the means of defending ourselves?
  Lord GLADWYN: No, my Lords.
  Lord WINTERBOTTOM: I thank the noble Lord. Even if we were to bankrupt

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  our societies and build a massive conventional defence, we would still be weakening our security if we denied ourselves the option to be first to use nuclear weapons in the face of an overwhelming attack. NATO's strategy depends on providing a range of options to meet aggression with a defence tailored to the situation but which cannot be predicted in advance by the enemy. Remove one of those options, and the risks involved in aggression become more precisely quantifiable, military adventures become more attractive and deterrence is weakened. The noble Lord has not said it, but does he believe that NATO can do without its strategic nuclear forces?
  Lord GLADWYN: No, my Lords.
  Lord WINTERBOTTOM: I thank the noble Lord. While strategic nuclear parity means that we can no longer rely on strategic nuclear forces to deter against all forms of aggression, it certainly does not mean that we can discard these weapons completely. Vitally important as is the maintenance of an adequate conventional and theatre nuclear posture, this is insufficient in itself when we are dealing with a strategic nuclear Power. Unless the West maintains a strategic nuclear capacity of its own, it would have no credible answer to Soviet use of their own strategic nuclear forces as an instrument of blackmail.
  Other students of the subject have argued that NATO strategy and the role of nuclear weapons within it should be altered in a very different way. They foresee a bigger role for theatre nuclear weapons as a result of the possibilities afforded by new technology. Adherents of the so-called "Mini-nuke" school claim that intense battlefield use of these low-yield, short range, precisely targetable weapons would enable NATO to terminate a major conflict in Europe, possibly without needing to maintain strong conventional forces, and without needing to threaten to escalate to the strategic level.
  Lord GLADWYN: It is nonsense, my Lords.
  Lord WINTERBOTTOM: I was just about to say that. Noble Lords will appreciate, I hope, the potentially disastrous implications of NATO ever
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  regarding her nuclear weapons in such a way. I agree with the noble Lord: it is nonsense. First, it could have the effect of lowering or blurring the nuclear threshold. The otherwise laudable aims of reducing and confining the collateral damage caused by nuclear weapons could lead to a situation where nuclear warfare became more acceptable, and thus more likely. Consider also the Warsaw Pact's reaction—possibly with "dirtier" and less discriminate weapons—and the results of an intensified nuclear battle in Europe. Clearly this is no acceptable or desirable alternative to our present arrangements. Quite apart from the question of which side would actually win the military conflict (if either side would win it in the strict sense of the word), such a policy would be tantamount to inviting our European allies to countenance wholesale the nuclear destruction of their territory.
  Such is the situation we get into if we start to regard tactical nuclear weapons purely as a mainstay of NATO's battlefield defences, detaching them from other elements in the NATO Triad and altering their role. This is not their key function. They are there, essentially as part of a deterrent, supporting conventional forces, on the one hand, and linked to strategic forces, on the other. This deterrent function is vital, but is often misunderstood, especially by those who criticise the present theatre nuclear doctrines. Let me try to explain it more precisely. Should deterrence fail to prevent an attack, the conventional resistance that the West can put up should be sufficient of itself to convince an aggressor that no easy victory was open to him, and that we were determined to resist at whatever level was necessary. If the aggressor persisted, some limited use of nuclear weapons might he necessary to supplement our conventional forces in achieving this end. While also being militarily effective, the basic purpose of a theatre nuclear strike would be to convince an aggressor of the continuing reality of the deterrent threat, of the risk of escalation to the strategic level if he persisted, and the certainty that he could never gain his objectives. Thus, the coupling of the tactical use of nuclear weapons to the strategic deterrent remains vital to NATO's nuclear doctrine.
  In emphasising this deterrent function, I am not suggesting that the potential developments in theatre nuclear forces, to

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  which noble Lords have alluded, should be rejected outright: only that they should be exploited in a way which will enable the alliance to implement its present strategy better, rather than to move to a new strategy. We must continue to rely on all three elements—the strategic nuclear deterrent, theatre nuclear weapons and conventional forces—for our security. These elements support one another, and all are necessary if the West is to present a credible deterrent posture. Of course, to say that the basic strategy is right is not to say that we can sit back and relax in the face of the build-up of Warsaw Pact forces, particularly conventional forces. While maintaining the search for genuine and enforceable measures for arms control and for nuclear disarmament through multilateral negotiations and agreements, we must also, within our economic capabilities, maintain our collective defence efforts.
  I would agree with the Question we are debating to the extent that, in meeting the present challenge, particular emphasis must be placed on conventional improvements—and I think the noble Lord would agree with that. In addition to redressing any potentially dangerous trends in the balance of these forces, it would also have the effect of keeping the nuclear threshold high—something which I know noble Lords will agree is of the greatest importance. I do not need to go into details about the re-equipment and modernisation programmes which NATO currently has in hand, but I would stress that our own record on this is rather good. We spend a higher proportion of our defence budget on equipment than virtually any other alliance member, notwithstanding the recent necessary reduction in planned defence expenditure. NATO Defence Ministers have recently decided to develop a programme of measures to meet the changing defence needs of the 1980s. Thus, there is no tendency towards complacency: the alliance's forces are being modernised and improved to enable NATO to carry out the strategy of deterrence and flexible response.
  One of the areas in which improvements are planned is readiness, and I know that there have been many expressions of anxiety, both in this House and elsewhere, about the possibility of a surprise
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  attack by the Warsaw Pact. The first point that must be made is that there is no evidence that the Soviet Union contemplates an attack on Western Europe; and, so long as NATO maintains vigilant and effective deterrent forces, there is no likelihood of an attack developing. None the less, credibility of NATO's deterrent posture requires that the alliance be able to meet any eventuality, and I can assure the House that forward defence is an integral part of alliance strategy. NATO will continue to plan and provide forces adequate to display the alliance's determination to resist in all parts of the NATO area, including the most forward areas, whether the period of warning is long or short. I do not know whether I have satisfied the noble Lord, but at least the material is there to indicate to him what is the Government's thinking on the subject.

  KENSINGTON AND CHELSEA CORPORATION BILL [H.L.]
  Returned from the Commons agreed to with Amendments; the said Amendments considered and agreed to.
  BRITISH RAILWAYS BILL
  Returned from the Commons with the Amendments agreed to.