Lords Sitting of 14 March 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 Ely.

COHO SALMON OVA
Lord KILMANY: 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 in view of widespread and repeated protests against the granting of a licence to import 20,000 Coho salmon ova from the Pacific coast of North America to the West of Scotland with possible danger to stocks of Salmo Salar in British rivers, this licence will be reviewed forthwith not only with regard to the danger of disease but also on ecological grounds.
The MINISTER of STATE, SCOTTISH OFFICE (Lord Kirkhill): My Lords, my right honourable friend the Secretary of State for Scotland will be reviewing the granting of this licence on disease grounds when he has fully considered the views of those who have been consulted. As I explained in my Answer to the noble Lord, Lord Chelwood, on 22nd February, the licence was granted in terms of the Diseases of Fish Act 1937. That Act relates only to the prevention of the spreading of disease among salmon and freshwater fish. While I appreciate the noble Lord's anxieties from an ecological standpoint, there is no statutory basis for reviewing the licence on those grounds. My right honourable friend is, however, looking further at the statutory provisions.
Lord KILMANY: My Lords, I should like to thank the noble Lord for that reply, which I take to be encouraging. Will he bear in mind that, arising out of it, there is a tremendous weight of responsible opinion who regard this experiment as a very real risk? Surely our own
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Salmo Salar is such a precious asset that we are not entitled to take a risk at all.
Lord KIRKHILL: My Lords, I should stress to your Lordships' House that only a provisional licence has been granted. The fish are disease-free and under very strict conditions of quarantine.
The Earl of ONSLOW: My Lords, is the noble Lord aware of, and will he bear in mind, the dangers which have arisen from introducing foreign species into other countries; for instance, the introduction of the rabbit into Australia, the rat into New Zealand and the terrible depridations which the mink has made in this country? Another example is the grey squirrel. Will the noble Lord impress on his colleagues the dangers that could arise from the introduction of a voracious feeder such as the Coho salmon into the Scottish waters?
Lord KIRKHILL: My Lords, no firm conclusion has been reached in this regard, but my right honourable friend's scientific advisers are giving active consideration to the Coho salmon in its natural habitat at this moment.
Lord CAMPBELL of CROY: My Lords, will the noble Lord make sure that no risks are run in this matter, for the following reasons: first, because of the great amount of legislation that exists to protect salmon in Scotland which would be undermined if there were real risk; and, secondly, because of the enormous amount that the salmon contribute to local government finance through ratings?
Lord KIRKHILL: My Lords, I appreciate the noble Lord's concern. I can assure him that the quarantine premises are, as I have indicated, part of a research establishment, and all effluent is being chemically sterilised. In addition, my right honourable friend's scientific advisers are free to move in for examination at any time.

COMMISSION FOR RACIAL EQUALITY
2.40 p.m.
Lord AVEBURY: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what consultations have been or are to be held with what organisations or persons, with a view to making appointments of members to the Commission for Racial Equality.
The MINISTER of STATE, HOME OFFICE (Lord Harris of Greenwich): My Lords, my right honourable friend the Home Secretary has invited names for consideration for appointment to the Commission for Racial Equality from a wide range of organisations representing the ethnic minorities. He has in addition invited the CBI, the TUC, and the National Association of Community Relations Councils to make suggestions.
Lord AVEBURY: My Lords, would not the Minister agree that simply to ask these organisations to submit names to him is not the same as having consultation, which implies face-to-face meetings with organisations concerned and asking for their opinions on the names which have already been submitted to him? Further-more, would the Minister agree that many of the most important decisions regarding the administration and structure of the Commission for Racial Equality are being taken before the appointment of the commissioners? In these circumstances it may well be apprehended that it is more difficult to find persons of proper calibre who will agree to serve on the new organisations.
Lord HARRIS of GREENWICH: My Lords, I do not know that I would accept the first part of the noble Lord's question. It is perfectly reasonable to consult a significant number of organisations to ask them for their views on membership of this organisation. It is the normal way in which Governments proceed and, as I indicated during the Committee stage of the Bill, we are anxious to obtain the help and assistance of these organisations. On the second point, obviously a number of preliminary decisions are being arrived at by the chairman and deputy chairman-designate of the Commission. But the Commission will not be fully constituted until its members are announced. Therefore, all the questions of major policy for the Commission will be made by the full Commission when it is eventually appointed.
Lord BROCKWAY: My Lords, in view of the scepticism which has existed in the past, does the Minister agree that it is important to secure the co-operation of the ethnic organisations? After the invitations by letter have been sent to these various organisations, would it be possible to consult with the major ethnic organisations about the appointments which are made as a result of the replies received?
Lord HARRIS of GREENWICH: My Lords, I am not sure that I would be right today in giving any support to the proposition that we should clear with a number of listed organisations the names of the people whom the Home Secretary eventually decides to appoint. I will certainly draw that matter to my right honourable friend's attention. During the Committee stage of the Bill we made it clear that we were anxious to obtain the advice of the representatives of the ethnic minorities, and that has been done.
Lord PAGET of NORTHAMPTON: My Lords, may I ask whether it is the intention of Her Majesty's Government that "the natives" should be represented on this Commission?
Lord HARRIS of GREENWICH: My Lords, when we discussed the Bill at Committee stage I think it was announced that a fairly well-known "native"—the then well-known Member for Cambridge—had been appointed chairman.
Lord AVEBURY: My Lords, would not the Minister agree that the long delay in making final appointments to the Commission is causing a great anxiety to the present staffs of the Community Relations Commission, the Race Relations Board and those in the field working for the CRE, whose work is at present in limbo? What assurance can the noble Lord give the House that all urgency is being attached by the Government to arriving at conclusions and setting up the organisation?
Lord HARRIS of GREENWICH: My Lords, as the noble Lord has suggested, I am well aware that there exists some perfectly natural apprehension on the part of the staffs of the organisations. My right honourable friend is anxious to deal as speedily as possible with this complex matter; he is determined to press on with it with as much despatch as possible consistent with getting the judgment right.

CRUELTY TO ANIMALS: TELEVISION PROGRAMME
2.44 p.m.
Lord HOUGHTON of SOWERBY: 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 the Cinematograph Films (Animals) Act 1937 applies to or governs the policy of the BBC regarding programmes which feature cruel infliction of pain or terror on any animal; and if so whether the "Taste for Adventure" programme featured in Radio Times for showing on 3rd March is in breach of the terms of the 1937 Act.
Lord HARRIS of GREENWICH: My Lords, it would be for the courts to decide whether the Cinematograph Films (Animals) Act 1937 in any circumstances applied to television programmes of the kind described in the Question the noble Lord has asked, and it would be improper for the Government to express a view. The House will know that the broadcasting authorities have sole responsibility for the programmes included in their services: it is for them to ensure that, so far as practicable, programmes do not offend against good taste, are not offensive to public feeling and have regard to the laws of the land. With regard to the programme to which the noble Lord referred, the BBC tell me that announcements were made immediately before and after the programme was broadcast.
Lord HOUGHTON of SOWERBY: My Lords, is my noble friend aware that in my opinion it only adds to the gravity of the offence when the BBC, before and after a programme, have to say that the scenes portrayed on the film would be unlawful if performed in this country? Are we next to have a film of a bullfight in this series of "Taste for Adventure"? It seems to me that this series is entirely misleading if the intention is to show treatment of animals which is unlawful in this country and then to describe it as a "taste for adventure". Will my noble friend at least convey to the BBC the displeasure of one noble Lord over their irresponsibility in showing this programme?
Lord HARRIS of GREENWICH: My Lords, I am sure that Hansard will do the job far better than I when it appears tomorrow morning. I will certainly ensure that the attention of the Chairman is drawn to what my noble friend has said. As he will appreciate and as the House will realise, this is a matter for the BBC and not for the Government.

AIRCREW OFFICERS: GRATUITIES
2.46 p.m.
Lord BALFOUR of INCHRYE: 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 will confirm that many short-service aircrews joined the RAF under conditions that promised them the right to leave after eight or 10 years' service with a tax-free gratuity of £2,750 or £5,000 respectively; and if so whether they will give an assurance that in any new pension scheme there will be no attempt to alter retrospectively the conditions under which these aircrews joined.
Lord WINTERBOTTOM: My Lords, there are some 450 aircrew officers in the Royal Navy and Royal Air Force on special pensionable commissions with an option, falling after April 1978, to leave after eight or 12 years' service with tax-free gratuities, currently £4,155 and £5,000 respectively. As has been stated in another place, the payment of these gratuities after April 1978 is under urgent review in the light of pensions legislation. I must make it clear, however, that no decision on the lines of some recent newspaper reports has been taken, and that Her Majesty's Government are taking fully into account the views which have been expressed on this matter in both Houses.
Lord BALFOUR of INCHRYE: My Lords, arising from that reply, for which I thank the Minister but which I found disturbing, may I ask this question? Why should the Government have to take time to consider a clear issue such as I have tried to put in my Question, as to

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whether or not they will honour obligations entered into when these young men joined the Services? I choose my words carefully, but may I say this? It seems to me that the Government have not yet made up their mind whether or not to double-cross these young men as regards the conditions on which they originally entered. Why should the Government not be able to say today that they have come to a decision and they will not "rat" on their previous promises?
Lord WINTERBOTTOM: My Lords, the Government are aware of the concern felt in both Houses of Parliament on this subject. The Prime Minister has asked for an urgent report from the Secretary of State for Defence, agreed with the Department of Health and Social Security and the Civil Service Department. This is a most delicate issue, but it is not being ignored.
Lord GEORGE-BROWN: My Lords, will the noble Lord accept it from some of us that, without adopting the extravagant language of the noble Lord who has just spoken, it would seem to be utterly intolerable and impossible to go back at all on this obligation? I may be knocking at an open door, but may I re-emphasise, so that there shall be no doubt in the minds of the Government, that any attempt on any grounds whatever to go back on this would receive the utmost opposition, I would hope, of all of us in the House?
Lord CAMPBELL of CROY: My Lords, since the advertisements offering these gratuities to aircrew officers have been appearing in the Press up till 1975, why should the Government wait a moment longer before publicly dismissing what appears to be a thoroughly disreputable expedient?
Lord WINTERBOTTOM: My Lords, as I say, the whole thing is under urgent review, and I would——
A noble Lord: Why should there have to be a review?
Lord WINTERBOTTOM: Because there has been a piece of legislation which may be in conflict with the contracts entered into with these young officers.
Viscount SLIM: My Lords, would the Minister be prepared to say what attitude the Government are taking to continue the recruitment of this very fine type of officer in both Services and what recruiting officers are now saying to such people about their future and possible terms of service?—because it is my view that this is no way to go about recruiting aircrews or good officers of any kind.
Lord WINTERBOTTOM: My Lords, I think we must be clear that this is a comparatively small group of officers who have an option. I am not saying that this makes their interest any less important; I am simply saying that it is a somewhat exceptional group of officers who have three choices open to them: to take a pension, to leave after eight years, or to leave after 12 years. It is a very flexible arrangement. But there are 4,000 non-pensionable short service officers who fall outside this area of discussion, and who are not affected. I agree with the noble Lord that the type of young man attracted is of a very high quality, but this really does not affect the issue. It is not the quality of recruitment; it is fairness of treatment which is concerning your Lord-ships' House.
Lord CAMPBELL of CROY: My Lords, will the noble Lord tell his colleagues, the Ministers concerned, that if the Government decide not to honour this undertaking to pay the gratuities they will be undermining the whole system of fixed public service employment?
Lord WINTERBOTTOM: My Lords, the Government are not trying to shuffle out of their obligations. As a result of legislation, there has been a conflict between a contract entered into with a limited number of officers and future pension policies. We have a conflict of interests and, as I said, the Government are concerned and the Prime Minister is himself studying the problem.
Lord BYERS: My Lords, if the Government did, in fact, go ahead with this proposal, would they now be in breach of contract?
Lord WINTERBOTTOM: My Lords, in so far as I—not being a lawyer—understand breach of contract, I would agree with the noble Lord.
Viscount ST. DAVIDS: My Lords, will the noble Lord agree that the Government have already got out of a large part of their obligations merely because of the results of inflation? If they are also to get out of the rags and tatters of what is left, it is quite breathtaking.
Lord STRATHCONA and MOUNT ROYAL: My Lords, can the noble Lord tell the House why the Government are unable to give a categorical assurance that, whatever legislation indicates, these people will be no worse off than they would be as a result of the undertakings they were given when they joined?
Lord WINTERBOTTOM: My Lords, we are a reasonable group of people discussing the future of some very valuable officers, and obviously their interests will be considered very carefully.

JOB RELEASE BILL
Brought from the Commons, endorsed with the Certificate from the Speaker that the Bill is a Money Bill within the meaning of the Parliament Act 1911; read la, and to be printed.
COVENT GARDEN MARKET (FINANCIAL PROVISIONS) BILL
Read 3a, and passed.

SOCIAL SECURITY (MISCELLANEOUS PROVISIONS) BILL
2.53 p.m.
Lord WELLS-PESTELL: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Wells-Pestell.)
On Question, Motion agreed to.
House in Committee accordingly.
[The Lord ABERDARE in the Chair.]
Clauses 1 and 2 agreed to.
Clause 3 [Other amendments relating to retirement pensions]:
Baroness YOUNG Baroness YOUNG moved Amendment No. 1:
Page 6, line 4, at end insert—
("( ) Regulation 7 of the Social Security (Widow's Benefit and Retirement Pensions) Regulations 1974 shall be amended by adding in paragraph (a) after the word "80" the following words" or was so resident for at least 10 years in the previous 20 years not-withstanding the age, being beyond 80, attained by him when that period expires".")
The noble Baroness said: Pensions for the over-80s, to which my Amendment refers, were introduced by the last Conservative Government to help a quite specific group of people who were, by their age, excluded from joining the national pensions and insurance scheme in 1948. There were, therefore, a small number of people who were not eligible for any kind of retirement pension, and it is a group of people which is diminishing in number each year, simply because of old age and death.
In another place, my honourable friend Mr. Newton moved an Amendment in terms somewhat similar to this, to cover certain people over the age of 80 who have been unable to fulfil the residence qualification of living in this country for 10 years until they were 80 years of age. The Amendment has now been redrafted in order to meet the criticisms made by a Minister in another place, and I hope very much that the Government will consider this matter favourably. When the Amendment was originally debated in Committee, it received a tied vote. The chairman's casting vote meant that it fell, and it was raised again on Report. But, as I say, my Amendment is designed to meet the criticisms which the Government Minister made at the time.
When I talk about pensions for the over-80s, I am of course using what is known as the conventional shorthand on this matter for those who are eligible for these pensions. As I have already indicated, they are people who were not eligible to join the scheme when it was originally introduced, because they were too old, and there is a diminishing number of them. But the fact is that you cannot qualify for a pension unless you have been continuously in this country for 10 years, and if you reach the age of 80 before you have had 10 years' continuous residence qualification you are not eligible for the over-80s' pension.
I understand that when this Amendment was introduced in another place the Government Minister replying to the debate on Report raised two objections to it. The first was that the Amendment as drafted would have conflicted with our obligations under the Treaty of Rome, because it referred to various residence qualifications. Therefore, in order to get over this difficulty, I have taken out what I gather were words which would have offended against the Treaty obligations. I hope very much that, having taken them out, the Government will not now say that the whole matter is so wide that it will apply to almost anybody in the world. But I thought I must explain why I have taken them out, and have deliberately not drawn the Amendment narrowly. It is in order to get over this point.
The second reason given for not accepting this Amendment was on the grounds of cost. Of course, in this case—and I appreciate the Government's difficulty very much—it is very difficult to know precisely how many will be eligible. What we do know, however, is that if those people who are here have no other source of income at all, they will of course be eligible for supplementary benefit, because they would clearly not be allowed simply to languish completely poverty-striken somewhere or other. So if they received the pension for the over-80s, a certain amount less would need to be spent on supplementary benefit, and there would be a saving.
The difficulty is in getting the exact figures. On re-reading the report of the debate in another place, I see that the number of people concerned is estimated to be about 3,000, and we calculate that the cost would be about £500,000. I hesitate to rest too much of the case on the figures, because in a later Amendment which I shall be moving I shall be asking the Government to come forward at a given date with much more precise figures about the total number of pensions and the cost of removing the earnings qualification. One of the difficulties we have found is that so many of the figures that we have been given have proved to be completely inaccurate. I am not trying in any way to blame somebody for this, but it means that to rest a case entirely on the figures given is very unfortunate.
I feel certain that, were we not in the present economic circumstances in which we find ourselves, this is the kind of Amendment which the noble Lord, Lord Wells-Pestell, would wish to see incorporated in a Social Security (Miscellaneous Provisions) Bill. Such a Bill should cover groups of people whose needs are not met in any other way, and this I believe to be a particularly unfortunate group of people. They are very elderly; they are not eligible for qualification in the first place; they are excluded from the pensions for the over-80s; and they are almost certainly dependent upon supplementary benefit.
This Amendment would represent a diminishing cost for the Government because the number of people in this category is bound to grow less each year. The Government would not be committing themselves to a cost which would increase extensively in the future. I hope very much, therefore, that the Government will favourably consider the Amendment. I beg to move.
3.2 p.m.
Lord WELLS-PESTELL: I do not propose to indicate to your Lordships what the Amendment does, because the noble Baroness has set it out very clearly. As the noble Baroness quite rightly pointed out, a similar Amendment was introduced by the Opposition in the Commons. The noble Baroness claimed that a problem arises only in the case of people who were too old to enter the National Insurance scheme in 1948 and whose numbers diminish each year. The cost of the Amendment would also diminish year by year.
I should make it clear, however, that the Amendment of the noble Baroness relates to Category D pensions. These, as she rightly points out, are payable from the age of 80, even when the person concerned has been able to contribute to the scheme, provided that his personal contributory pension does not exceed the level of the standard rate of the D pension scheme. It is the Category C pensions which are payable to persons who were over pensionable age in 1948 and, therefore, ineligible to contribute. However, that particular group of people must be, in the case of men, in the region of 93 years of age and, in the case of women, in the

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region of 88 years of age. Therefore few claims now arise. However, Category D pensions will continue to be awarded for the foreseeable future as the people concerned reach the age of 80.
To award these pensions, as the Amendment requires, to people who do not satisfy the residential conditions on their eightieth birthday, but who do so there-after, would cost the Exchequer an estimated £500,000 a year. Although this will not be accepted by a large number of your Lordships, I am bound to say that one of the main purposes of the Bill is to save money. I shall probably also be saying that to the noble Lord, Lord Banks. We have to keep this point in the fore-front of our minds.
As a matter of principle, the Government have no objection to the main purpose behind the Amendment. We know that the matter has been ventilated to a considerable extent in another place. In 1975 the noble Baroness's right honourable friend there, Sir Geoffrey Howe, was in correspondence with the then Secretary of State at the Department of Health and Social Security and, as she pointed out at the time, she thought it right that we should consider the whole matter at a later opportunity. During the discussion in another place the estimated cost of £500,000 a year was challenged as being too high, but this is the most accurate estimate that can be made on the admittedly limited evidence available.
The noble Baroness has said that we are frequently suggesting costs to your Lordships' House which, if I understood her correctly, are not borne out; but I have yet to be given one example of the estimated cost of something turning out not to be correct. These estimates are made not by members of the Government but by independent people. Of the additional people who would qualify if they were paid on the more relaxed basis proposed in the Amendment moved by the noble Baroness, it is thought that there are approximately 1,000 who are not in receipt of supplementary benefit and who would qualify for the Category D pension. We have to take that situation into account.
Rather than effect a transfer between one State benefit and another, which is one matter, here are a thousand people
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whom we have reason to believe are not drawing supplementary benefit and who would be eligible. The extra cost cannot be accommodated within the Government's programme. As I said a moment or two ago, one of the main purposes of the Bill—it is unfortunate, and we acknowledge that it is unfortunate—is to enable us to save as much public expenditure as we can and ensure that the money which we save can be used, and is used, for other matters which, rightly or wrongly, the Government may well feel should have greater priority.
The noble Baroness will be interested to hear, because she will be very interested in Amendment No. 13, that the Government propose to accept that Amendment, which again will cost a considerable amount of money. If we have to make choices and pay some kind of regard to priorities, we would sooner the money went in that direction, which would provide a non-contributory attendance allowance for handicapped children who are with foster parents. We shall come to that Amendment in due course.
As I have said, the Government have no objection in principle to the proposed Amendment, but it is a matter to be implemented when resources are available. I am sorry that I cannot be more helpful. I trust, however, that noble Lords will not assume that the Government are being intransigent this afternoon with regard to all the demands made upon them. As I say, we intend to accept Amendment No. 13, which I think shows some evidence of the Government's good faith in matters where we consider that there is perhaps greater priority.
Lord JACQUES: I appeal to the Opposition to act a little more consistently regarding public expenditure. We have a debate on economic affairs every two months or so. The Opposition Front Bench and its Back-Bench condemn the Government for excessive public expenditure. One speaker after another condemns the Government. However, in the interval of two months before the next debate hardly a day passes without the Opposition proposing increases in this or that form of public expenditure. Seldom does the Opposition make any suggestion about where a reduction should be made. I believe that the Opposition

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should be more consistent than they are at present regarding the general principle which they lay down in economic debates. If not, the public should be told where the inconsistency lies.
Baroness YOUNG: The noble Lord, Lord Jacques, has tempted me to intervene in the debate once again and to speak on a matter which I had not really intended to raise this afternoon; but since he has raised it, I feel obliged to reply to him. I have not normally taken part in economic debates but, as he has asked me to list some of the things which the Government have done which I think are going to cost the country a lot of money for very little public good, I will tell him something in regard to the Department of Health and Social Services. Not so long ago, in the autumn, we debated here the Health Services Bill which, by the phasing out of pay-beds, on the lowest possible estimates will lose the National Health Service £20 million a year.
The noble Lord, Lord Wells-Pestell, has just said that this Amendment will not cost more than £500,000 a year. But suppose it costs £750,000 a year; one of the places that money could have come from would have been encouraging people to pay for a bed in hospital and then the money would have been obtained in another way; that is, from those who could afford to pay for a bed and those who wanted to. However, the Government have chosen not to do that and the result is that this particular group of elderly people, over 80 years of age, cannot help themselves and are not going to get the help. I hope the noble Lord, Lord Jacques, is not going to intervene in this debate again in regard to this matter, because I can assure him that there is plenty to be said on our side.
Lord JACQUES: In the case to which the noble Baroness has referred, this Government, being truly democratic, acted in accordance with what appeared to be public opinion.
Baroness YOUNG: On that point, I do not think there was a single public opinion poll which substantiated the Government.
Lord PLATT: I should like to ask one question. If, as I understood from the
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noble Lord, Lord Wells-Pestell, 1,000 of these people are not drawing supplementary benefit, they are presumably supporting themselves in some way. I suppose some of them are paid for by their families, others have private means; if they become eligible for a pension, like others of us who become eligible for a pension it will be added to their income and income tax will be charged upon it, so that the total expense to the Government will be considerably less than they estimate.
Lord SANDYS: In support of my noble friend Lady Young I think it should be said that the terms of eligibility as set out in the Amendment are extremely narrow. We believe, and we have every reason to think that it is accurate, that the numbers eligible will be between 2,000 and 3,000 people. We are quite ready to accept the figure which the noble Lord, Lord Wells-Pestell, gave us this afternoon; that is, that approximately 1,000 people over the age of 80, who are not receiving supplementary benefit at present, fail to satisfy the existing residents' conditions.
We believe that figure to be reasonably accurate, but we should like to say from this side of the Committee, very clearly indeed, that when we come to it Clause 4 is the main money clause in the Bill and under that clause the Government, in reducing the terms of the earnings rule of 1975, are seeking to save a great deal of money. If one turns to the debates in Standing Committee in the House of Commons, one notices at once the wide variation between the figures offered by the Government and those offered by the Opposition. Straightaway we query a substantial number of figures which were brought forward by the Government at that stage. It is quite clear that this concession, which seeks a very minimal sum of money in terms of the total public expenditure on pensions—namely, £500,000—is one which we shall consider very carefully in present economic circumstances. I am particularly glad to hear from the noble Lord, Lord Wells-Pestell, that our Amendment No. 13 is going to be acceptable at a later stage, but I believe that the Government should give greater thought to this category of eligibility.
Lord WELLS-PESTELL: I cannot help noble Lords on their Amendment which

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is before the Committee at present and there is nothing more I can usefully say which will in any way help the situation. In my enthusiasm to let the noble Baroness, Lady Young, know that the Government were minded to accept her Amendment No. 13 I ought to have said, and I did not do so, that we could not accept it with its present wording. What she is seeking to do the Government propose to accept, but I am advised that the present wording is not suitable drafting and we should be happy to table the appropriate Amendment with a view to doing what the noble Baroness has in mind. We can deal with that when we reach Amendment No. 13.
Baroness FAITHFULL: I should like to ask the noble Lord, Lord Wells-Pestell, a question on this Amendment. One wants to see old people independent and able to lead their own lives. With this help a number of them would be able to do this who at the moment have to be given help in other ways, such as subsidised meals-on-wheels, subsidised home help services and so on. Is it not as long as it is short? If they do not get this help they will have to have it in another way. Would it not be better for them to have help in this way as of right rather than having to apply for extra things such as meals-on-wheels paid for by the Social Services?
Lord WELLS-PESTELL: I am sure the noble Baroness is not suggesting that that piece of community service, albeit done by the local Social Services department, is not often reliant upon the tremendous support it receives from voluntary organisations; I doubt whether we should be able to have meals-on-wheels in this country to the extent that we do if there was not such wide support coming from the voluntary organisations. What I am trying to say, quite simply, is that there is nothing in principle between the Government and the noble Baroness who has moved this Amendment. I am saying that it cannot be done in the present financial atmosphere, knowing, as we do, that it will cost another £500,000. This is something for the future—one would hope the very near future, but it depends upon the financial atmosphere.
Baroness YOUNG: I am grateful for the support of my noble friends Lady
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Faithfull and Lord Platt on this Amendment and I am very grateful, of course, for the attitude that the Government are taking by saying that there is no disagreement in principle between us about this matter. My noble friend Lord Sandys explained that when I referred to the inaccuracy of the figures, I was speaking largely about the numbers that the Government have estimated for those who would be affected by the earnings rule; but I shall be returning to that matter in a later Amendment. The fact is—as I am sure the noble Lord will confirm—the figure of £500,000 is an estimate: it might of course be more; on the other hand, it might be less. We simply do not know about that. One of the difficulties of basing the entire argument on money is that it is just an estimate so that we do not know how much it will cost. I find it deplorable that we have reached the stage at which we cannot afford this relatively small sum of money—in the context of Government expenditure it is so very little—to help this group of elderly people.
However, in order that I may put myself right at least with the noble Lord, Lord Jacques, if not with other Members of the Committee, may I say that we on this side of the Committee have acted with great responsibility. I think the Government have reason to be grateful to us for the attitude we have taken in regard to this Bill, when we could so easily have made a great deal of Party political capital out of the taking away of rights which under this Bill Parliament has already given to people.
We have indicated in another place, and I indicated at Second Reading, that we are not opposing the principle of this Bill and that under the economic circumstances we have to accept what is to happen. For that reason I shall not press this Amendment today, but I hope very much that the Government will look at this matter again so that, when circumstances allow, precisely these groups of people, who are frequently in very pathetic circumstances, can be helped. As the noble Lord, Lord Platt, said, if their income was sufficiently great they would in any event be taxed on it. As the noble Baroness, Lady Faithfull, has indicated, they will in any event be eligible for other services of every kind which they might be able to pay for if they had this particular pension.

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However, as I do not intend to press this matter to a Division today, I only hope that the Government will consider it as soon as economic circumstances allow. I might conclude by saying that I am very grateful indeed to hear that the Government are prepared to accept Amendment No. 13. I quite understand that it is not drafted correctly; Amendments never are, in my experience, drafted correctly. I shall be quite happy for the Government to bring forward an Amendment which meets the point, and return to it when we get to that stage of the Bill. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 3 agreed to.
Clause 4 [Alteration of earnings rule]:
3.20 p.m.
Lord BANKS Lord BANKS moved Amendment No. 2:
Page 6, line 6, leave out subsection (1).
The noble Lord said: We are dealing here with the subsection which amends the Social Security Act 1975 so that the level of weekly earnings at which the earnings rule will start is not raised in April of this year from £35 to £50, as originally planned. This Amendment would permit that rise. As has already been said this afternoon, this is the main expenditure-reducing clause in the Bill, and we are told that it saves £45 million net or £60 million gross. It is clear that all Parties, including the Government, are committed to the phasing out of the earnings rule, so there is little argument in principle so far as this Amendment is concerned. We are told that we must have this clause as it stands in order to save that amount of money—in order to save £45 million. We must do so, but not because there is no money in the National Insurance Fund. There is an estimated surplus this year of £932 million, and the estimated surplus next year will be £888 million, after allowing for this particular rise to £50 per week in the earnings rule limit. So we are thinking in terms of the saving of £45 million net, £60 million gross, and there is a surplus of £888 million, to which the £60 million gross will be added if the clause remains as it is now.
Of course, the reason for doing this is that building up this reserve is a convenient means of reducing the public sector borrowing requirement I said on Second Reading that I thought it was a misuse of the National Insurance system to employ it for this purpose, but since then I think we have had grounds for believing that the saving may not be necessary at all. Since the Bill had a Second Reading in this House I have read in the Guardian of 8th March, in a report by the paper's economics correspondent, these words:
"Treasury officials yesterday admitted publicly for the first time that they have over-estimated the likely size of the public sector's borrowing needs this year in the Letter of Intent to the International Monetary Fund last December."
The report goes on:
"As a result of the miscalculation the borrowing requirement is now likely to be smaller in this financial year than was officially expected when Mr. Healey made his public spending cuts in December."
Then two days later, on 10th March, the same paper's business editor wrote:
"Fresh evidence that the central Government borrowing requirement"
—and the central Government borrowing requirement covers 90 per cent, of the public sector borrowing requirement—
"will fall dramatically below Budget forecasts is contained in figures published yesterday by the Treasury."
The business editor went on to say:
"On present showing the public sector borrowing requirement could undershoot the Budget forecast by anything up to £2,000 million."
We are here considering £45 million. The stage would certainly appear to be set for important reductions in direct taxation in the forthcoming Budget. I thought it right in view of the changed situation to put down this Amendment, which would allow the limit to rise to £50 as originally intended, so that the noble Lord could let us know whether he thinks this cut in expenditure of £45 million net is still required, and, if so, why? I beg to move.
Lord WELLS-PESTELL: As the noble Lord, Lord Banks, has said, the Amendment would delete subsection (1) of Clause 4 of the Bill, which has the effect of amending the provisions of the Social Security Act 1975, under which the earnings limit is due to rise to £50 a week on 4th April this year, and, instead,

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maintaining the limit at its present limit of £35. Clause 5, however, provides for the figure of £35 to be increased annually in line with the general movement of earnings, and it is intended that the first such increase will be in November of this year, when the £35 earnings limit will be increased; I cannot say by how much, but undoubtedly it will be increased by a few pounds. The financial effect of Clause 4(1), as modified by Clause 5, is to secure a public expenditure saving of £45 million in 1977–78, after allowing for a lower income tax yield, and in view of the urgent need to secure such savings we consider that it is absolutely essential to keep to this provision.
The noble Lord has referred to the necessity for his Amendment because, he says, in recent days or recent weeks the Government have discovered that there will be far greater savings than were envisaged at the time we were having discussions with the International Monetary Fund. But, in spite of that, the amount of money which we shall have to borrow is still very considerable, and there must be a moral obligation on any Government, so far as they possibly can without imposing and inflicting a hardship upon people to any marked degree, to save as much money as possible. I was tempted to say—although I hesitate to use the word when talking about the noble Lord, Lord Banks, but I cannot think of a different one—that there must be on his part some misconception of how the National Insurance Fund works in practice and how it relates to public expenditure and Government revenue as a whole. I apologise for the use of the word "misconception" but I just cannot think of a better word. One knows that Lord Banks's knowledge and expertise in this field is probably unrivalled in your Lordships' House.
The annual reviews ensure, broadly, that income from National Insurance contributions and Treasury supplement is sufficient to meet the anticipated benefits and administration costs of the Fund and to provide a small margin to allow for short-term fluctuations in income or expenditure. But variations in the principal factors affecting the Fund, such as earnings, prices, unemployment and benefit loads, will alter the balance of costs either in the direction of extra surplus, as in recent years, or towards
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a deficit, which I think the noble Lord will recognise we had in the 1960s. It would be folly to suggest that a surplus in one year could be used to finance a permanent improvement in National Insurance provision. Were surpluses used in this way it would inevitably increase the future burdens of the working population.
Although National Insurance is, as the noble Lord, Lord Banks, has stressed, a self-contained system, it cannot be considered in complete isolation from the requirements of the economy as a whole and, in particular, the impact of National Insurance Fund receipts on the public sector borrowing requirement. The reserves and surpluses on current account of the National Insurance Fund are invested by the National Debt Office in Government securities. This means, in effect, that the surplus money is lent to the Government and it gains interest for the Fund. But what is much more important is that it reduces the amount which the Government need to borrow from other sources to finance their overall borrowing requirement. Because the National Insurance Fund is part of the public sector, transactions between it and the Government cancel out in calculating the public sector borrowing requirement.
With public sector borrowing at its present very high level—and I do not think that anyone will dispute this—the existence of a large surplus on the National Insurance Fund is of great economic assistance, though it is not intended to be a permanent feature of economic management. But when one is in the situation that we are in at present one must look at every source in order to save money.
I have said before to your Lordships that despite the financial situation in which we find ourselves, we are paying out about £10,000 million a year in benefits of one kind or another. It is an enormous sum. Any Government would be behaving irresponsibly if at every turn they did not save whatever money they could. It may well be that that is not acceptable to a number of people. One must bear in mind that when the Government came to power the earnings limit—and I speak entirely from memory—was about £13 a week. From 1974 to the present time it has increased to £35 a week. What does it mean? Whereas

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we had an enormous number of people retiring at the age of 60 in the case of women and 65 in the case of men because the earnings limit was fixed at £13, today, with the earnings limit fixed at £35, more and more people are deferring retirement because they can continue to earn a considerable sum of money. We do not quarrel with that.
We say that at present we believe £35 to be a realistic figure. Further, we say that in principle we are wedded to getting rid of this at the first available opportunity. However, the noble Lord, Lord Banks, and the Government disagree on when the first available opportunity should be. The noble Lord naturally believes that it should be done next month. We say that it should not be so soon, but we have undertaken what to me seems to be a very acceptable compromise—that the £35 should be increased in line with the general movement of earnings, and that the first such increase will take place in November. As I say, I cannot tell what the general movement in earnings will be by next November, but obviously the figure will be such that it will mean an increase in the £35. I ask your Lordships to accept that as being necessary at this stage. After all, it is a very good compromise between the £35 and the £50. In principle there is nothing between the noble Lord, Lord Banks, and the Government. Because of that, and because the Government are going some way towards meeting this situation, I hope that the noble Lord, Lord Banks, will feel able to accept the position as it is at present and will not press his Amendment.
3.38 p.m.
Baroness YOUNG: The Committee should be very grateful to the noble Lord, Lord Banks, for raising this issue, because it goes to the heart of the Bill. Clause 4(1), which removed what Parliament put into the 1975 Act—namely, the right to earn £50 a week before the pension was reduced—is now to be removed on the ground of public expenditure. The noble Lord, of course, is an authority on the whole question of the National Insurance Fund, so I shall not follow him in that argument.
However I hope that the noble Lord, Lord Wells-Pestell, will answer this question before we complete the Committee stage of the Bill. If the reason
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for removing the £50 is exclusively the need to save money, what will he do if—and, as I understand it, under Clause 5 the Government have agreed to dynamise the earnings rule—the Government are unable to control inflation next year? Does that mean that once again those in retirement will be the worst hit, or does it mean, on reading the 1975 Act, that the Government will simply be able to look at the earnings rule and, to quote Section 125(2):
"The Secretary of State shall estimate the general level of earnings and prices in such a manner as he thinks fit and shall have regard…"?
Under Clause 4 shall we be giving up what Parliament had agreed and really buying a bit of a pig in a poke?
Lord BRUCE of DONINGTON: I am grateful to my noble friend for emphasising so clearly the requirements for economy in the public sector and in particular in the realm of public expenditure. It does not lie in the mouth of anyone who has pursued, as a matter of public policy, the necessity for making urgent and even more stringent cuts in public expenditure, to make any plea on behalf of an exception. The pressure generated upon the Labour Government, in particular by the Conservative Party, for even more drastic cuts has been so considerable that it would be a little incongruous if we now had pleas for exceptions to be made in individual cases.
I must say that I thought my noble friend glossed over, as being a matter of not overmuch importance, the colossal error that was made by the Treasury in computing the public sector borrowing requirement during the present year. If I am not mistaken, the error is rather nearer £2,600 million than the £2,000 million that has so far been admitted and to which eloquent attestation was made by the Treasury official attending a Select Committee the other day. My noble friend should not imply—and I do not say that he has implied this—that errors of this magnitude are of no account, and that they are of no material significance to the position. After all, if the Press is to be believed on this—and the Press has given this subject copious coverage—there has been a terrific argument as to whether the public expenditure cuts should be £1,000 million or £1,500

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million, all based on the incorrect assumption that the public sector borrowing requirement was about £2,600 million more than it in fact was.
I do not expect my noble friend to give me an answer this afternoon, because this must obviously lie close to the heart of the Chancellor of the Exchequer, who must be complaining bitterly that he is being misled by the Treasury on this whole question. When this matter comes to be reconsidered either by the Chancellor of the Exchequer, or indeed by the Cabinet as a whole, as it must be when the Budget formulation is taking place, some account ought to be taken of the position of people affected by this clause of the Bill. If a person has been an insured contributor all his life and reaches a retirement pay pension age when he is entitled to the normal pension for which he has been subscribing, it is of material significance to be told one day that you can earn up to £50 a week extra without reducing your pension, and then thereafter to say suddenly: "I am afraid you can no longer do that in the light of the current economic circumstances. Your position is now going to be worse."
Therefore, while appreciating the significance of what my noble friend said—and he has put the Government case adequately and fairly based on a public sector borrowing requirement that is now in fact much less—I sincerely hope that he will convey to his right honourable friend the widespread feeling that if there is to be a reassessment of priorities following the discovery of these colossal errors, this is one of the items that should be reconsidered, and that is all I ask. It bites particularly so far as self-employed people are concerned. Self-employed people, although they pay significantly less premiums per week than the remainder of the population, also have a very restricted benefit under the national social security scheme.
When they get to the age of 65, or whatever age the self-employed may select, the prospect of being able to continue in some other gainful employment is a very tempting one indeed. This House, and the other place, ought to encourage them to continue in gainful occupations that are of service to society and bring some benefit to themselves.
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Therefore, I hope that my noble friend will convey to his colleagues the concept that although perhaps it would be unwise to amend the Bill at this stage, at least some consideration ought to be given by his colleagues when the inevitable, or at least we hope inevitable, reassessment of priorities takes place in the light of changed circumstances.
Lord WELLS-PESTELL: I obviously did not make myself clear, but I thought it was implied in what I said that the Government would do precisely what my noble friend has just said. When there is a reappraisal of the situation the Government are committed to getting rid of the earnings rule limit. I thought I made this clear. I do not want to go over the ground again. It may well be true that the public sector borrowing requirement in the immediate future will not be nearly as large as perhaps the Treasury and other Members of the Government thought it was going to be, but do not let us take too much comfort in that fact. The fact is that it is still going to be rather considerable, as noble Lords opposite know. They are frequently reminding us of the size of it. I come back to what I said, therefore; that is, that we have to save money wherever we can.
The noble Baroness raised the question of what the Government would do under Clause 5. Clause 5 is quite unambiguous. It requires a compulsory review of the earnings rule each year in accordance with the movement of earnings, and taking into account the movement of earnings so the amount of the earnings rule will be increased year by year. I do not think I can go beyond that. The noble Baroness raised the whole question of inflation. Whatever the inflation rate may be, the fact is that earnings have increased fairly substantially year by year and have tended to increase faster than prices. The limit is going to be increased in line with earnings. In the circumstances, I think this is a reasonable compromise between the present £35 and the intention of everybody eventually to get rid of the earnings limit.
Lord BANKS: The noble Lord in his reply said that he thought I was under a misconception with regard to the nature of the National Insurance Fund and the way in which it works. If tomorrow he

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carefully reads what I said earlier this afternoon I think he will not find any misconception about the way the National Insurance Fund works. I did not, for example, suggest that we should use the whole surplus, the whole £888 million that is estimated for next year, or the whole £3,000 million to £4,000 million which has accumulated in the National Insurance Fund at the present time. I suggested that we should use £45 million out of the £888 million, and I do not think that that is being imprudent or is a sum which, in the absence of any other considerations, people would think it was rash to spend out of a surplus of that amount. The noble Lord says that the Government must save whatever money they can save, but of course you can carry that principle on and on. In this subsection of the Bill they are withdrawing a benefit they have already given. They could of course withdraw other benefits, and save money in that way. That argument is not a satisfactory one, and they must present a case for this particular cut on its merits.
The noble Lord said that there was an urgent need to save, but I pointed out—and it was forcefully emphasised by the noble Lord, Lord Bruce of Donington—that the Treasury have over-estimated the public sector borrowing requirement. I mentioned a figure of £2,000 million; the noble Lord, Lord Bruce of Donington, mentioned a figure of £2,600 million, and that makes a considerable difference. It is true that the borrowing requirement still remains large, but are we to have no tax reliefs? Is the rumour that we read continually in the papers that there are likely to be taxation reductions of anything from £1,000 million to £1,500 million entirely wrong? If there are to be cuts of that kind in taxation, ought not something which is already on the Statute Book and agreed by Parliament to have priority over those cuts? That is the point I am making this afternoon.
This short debate which we have had on this Amendment has served a useful purpose in so far as it has made it quite clear that the economy argument has to be used with a certain care, and cannot just be plugged without any real consideration of what is actually involved and of the changes which have taken place in the situation. I hope that there will be a reappraisal, as the noble Lord, Lord Bruce of Donington, suggested, and perhaps not
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so far in the future as the noble Lord, Lord Wells-Pestell, seemed to say when he responded to what Lord Bruce of Donington said. I realise that involved here are wider considerations of economic policy which will inevitably affect this matter, and that it might be too much to expect that the noble Lord should be able to answer this afternoon. I hope we may return to it; and because it has these wider considerations and because it needs on the part of the Government a rethink which they may not yet have carried out, I would in the meantime beg, leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 4 agreed to.
3.50 p.m.
Baroness YOUNG Baroness YOUNG moved Amendment No. 3:
After Clause 4, insert the following new clause:
Review of earnings rule operation
. The Secretary of State shall review the operation of the earnings rule for retirement pensioners and the wives of retirement and invalidity pensioners and the cost of its abolition, including the extent to which it acts as a disincentive to work, and shall lay a report of his review before Parliament by 31st October 1978.
The noble Baroness said: An Amendment in these terms was moved in another place by my right honourable friend Mr. Jenkin. I have slightly rewarded it, but I make no apology for tabling it again because, having listened to what the noble Lord, Lord Banks, said about discrepancies in the Government's estimates of the public sector borrowing requirement, it is clearly valuable to turn our attention to some of the estimates on which the whole of the Bill is based. There is no doubt that there is great public interest in the whole question of the earnings rule. Indeed, the debate which I initiated a few weeks ago on the subject of retirement has brought me an enormous number of letters, a great many of which are directly concerned with the earnings rule. My Party has pressed very hard for an alteration of the earnings rule and we can claim considerable credit for the fact that it now stands at £35 a week. But the country cannot afford to have people, who could be working, not working because of the earnings rule, particularly as the proportion of the elderly in the population will increase.
As I indicated on Second Reading, we on this side of the Committee will not oppose the principle of Clause 4; indeed, we have accepted the alternative that has been put in Clause 5. However, we cannot just let the whole of the argument rest on the different figures of cost that have been given at different times. The whole reason for having Clause 4 at all is, as the noble Lord, Lord Wells-Pestell, said, to save money, and the money that Parliament voted in 1975 by allowing retirement pensioners to earn up to £50 a week before the pension is affected is to be taken away and something else put in its place which must, if it is to be a saving of public expenditure, be less advantageous to the pensioner than what would have been provided in 1975.
We on this side believe that we are taking a very responsible attitude in this matter because we recognise the seriousness of the present economic situation. Thus, what we are now asking in this Amendment is that the Government shall review the operation of the earnings rule and bring forward a report of the review by 31st October 1978 so that by that time we shall have had at least a year of the operation of the Bill to see how it is working, how it affects the numbers of pensioners who are working and what is its cost.
I do not want to take the Committee through all the detailed arguments which were well set out in another place, but in support of my argument I wish to comment on two groups of figures of Government estimates which have been shown in the past to be completely inaccurate. Largely as a result of Opposition pressure, the Government produced in January of this year a document specifically relating to the earnings rule and in it the document makes clear:
"That deferred retirement statistics for 1973 and 1974 were wrongly interpreted previously to suggest a fall in number which we now think unlikely to have occurred".
And:
"Assumptions have been altered in a number of important respects from that used to provide the estimates."
For example, the Government now say that 180,000 people deferred retirement in March 1976 as against the previous figure given to Parliament of 120,000, which is an error equivalent to £70 million
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or £75 million a year, rather more than the present Bill is alleged to save by preventing the earnings limit from going up in April. I do not wish to comment further on that; it is always difficult to get accurate estimates, but when the whole of the basis of the argument is a question of financial estimates it is vital that the estimates should be accurate.
The other reason for amending the earnings rule has been the major cost which is attributable to wives of invalidity and retirement pensioners. Since a Parliamentary Question was put down on this subject on 23rd February 1977, the Government have referred specifically to a survey carried out by the Office of Population Census Surveys into prolonged sickness. This survey covered illness for periods of one month, three months, six months and 12 months, and concluded that in all four samples between 65 per cent, and 71 per cent, of the informants were married men. However, in the paper submitted by the Department of Health and Social Security for this Bill it was stated:
"If the proportion of invalidity pensioners at each age were married, as in the population as a whole, then about 85 per cent, of the 373,000 male invalidity pensioners in May 1975 would have been married. However, as the invalidity pensioners include some who have been sick for many years, it is thought likely that a rather lower proportion would be married men than in the population generally. It has been assumed that the proportion married is 10 per cent, less than the population as a whole."
There is clearly a disparity between the two statements. If the OPCS survey is correct, then the number of validity pensioners not claiming allowances for their wives is 22,000 as against 52,000 given in the DHSS paper. I quote these two examples only to show that there is some discrepancy in the figures that have been given; and, after all, those figures are the basis for the Bill.
When my right honourable friend put down a similar Amendment in another place the Government were not prepared to accept it, and they gave three reasons for not doing so. The first was that everybody was agreed, the Government and the Opposition, that the earnings rule must go, and so there was no need to review its operation. I do not believe this is an argument at all because, although we are all agreed that the earnings rule must go, if the basis for not keeping to

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the £50 is the economic situation, we could wait for a very long time before the economic circumstances are such as to justify the total abolition of the earnings rule. I suggest that to say that simply because we all want the earnings rule abolished there is no need to call for a report on the figures is rather like asking everyone to wait for Godot, and I think we shall wait a very long time before we get a result.
The second reason given was that it would create extra work for the Department. I recognise that this may be so, but if the Government will have to review the working and will have to review it each year in the light of the movement of prices so as to keep the earnings rule dynamised, they will already have to do quite a lot of work; they will have to review the numbers of pensioners. They already have a great deal of the information before them and I believe that this is such an important matter that it is an issue to which the Department should give priority. It is very relevant to the third reason for not accepting that the Minister gave in another place which was that members of the Opposition could put down Parliamentary Questions. Of course, that is perfectly true. Anybody can put down a Parliamentary Question and, indeed, can put down a great many Parliamentary Questions, but I should have thought it much more sensible for the Government to produce a report which was fully thought through than for the Opposition to be required to put down a whole series of Parliamentary Questions, all of which will require a great deal of time for their reply. I do not see how one can argue, on one side, that something is going to take up more time and, on the other, encourage the Opposition to put down Questions which will automatically require a great deal of time for their reply.
This is not an Amendment that requires the expenditure of more money, but it is a serious Amendment and is designed to make quite sure that the Government are monitoring the operation of the earnings rule and are bringing a report to Parliament by a given date. I believe that this is in the interest, above all, of the retirement pensioners themselves and of the wives of retirement pensioners who are affected by this, but I also genuinely believe that it is in the best interests of this or any Government to have accurate
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information before we consider this matter again, as we must inevitably do, at some date in the not too distant future. I beg to move.
Lord WELLS-PESTELL: I cannot think that any useful purpose would be served by dealing with a whole mass of figures to which the noble Baroness referred. There is obviously a difference between the noble Baroness and the Government on the question of figures and all I can say is that we have provided a great deal of explanation as to how the figures have been arrived at. My recollection is that a copy was sent to the noble Baroness and to other noble Lords. I must repeat that the estimates are the best that the Department of Health and Social Security and the Government Actuary's Department have been able to arrive at, based on known facts and the most up-to-date information available as regards the many factors involved. The Government actuaries have no vested interest in this: they are an independent group of people whose arm is not twisted by the Government or by any Department of Government. Their responsibility is to examine the situation in the light of the facts known to them and the facts that emerge from their own inquiries, and to inform the Government accordingly. That is precisely what the actuaries do and it does not matter which Party is in power: one must accept the facts that are given.
Lord PLATT: May I ask for clarification? Why must we accept the facts just because the actuaries are independent of Party? If they have made a mistake, they have made a mistake. We do not have to accept the facts just because the actuaries are free of Party influence.
Lord WELLS-PESTELL: I do not quite follow what the noble Lord is saying. If he is saying that I might consult a top ranking medical consultant and not accept the advice he gives me, there must be something wrong with me. I go to an expert in order to get best possible opinion and the Government Actuary stands in that relation to the Government.
Lord PLATT: I cannot accept that kind of thing. Were they wrong or were they right? Top consultants can be wrong. We all know that.
Lord WELLS-PESTELL: It is nice to hear that from one so expert in the field and so close to it. However, it is all very well people getting up and throwing out things like that, but I wonder what evidence the noble Lord has that the Government actuaries have been wrong in this matter. Or is this just conjecture on the part of the noble Lord? We are saying that we have no reason to believe that the Government actuaries are wrong. What I want to do is to deal with the matter which is before your Lordships. As I understand the situation, the noble Baroness, Lady Young, and the noble Lord, Lord Sandys, are asking for the Secretary of State to review the operation of the earnings rule and lay a report before Parliament. I imagine that the expectation in putting down the new clause is to assess the cost of bringing the earnings rule to an end. If the Secretary of State undertook this kind of investigation, the hope would be that he would find that less public expenditure was required than he had so far supposed and, consequently, would be more willing to announce a timetable for the ending of the rule.
Let us look at the matter on the information that we have and on the information that the noble Baroness herself has. There is no reason whatever to suppose—and the noble Baroness knows it—that a review carried out by October next year would come to any different conclusions from those which Ministers laid before the Standing Committee on the Bill in another place. These showed that to end the earnings rule would involve a gross cost to the national fund of something like £200 million, with an offset by an income tax yield of £60 million. The Government do not, if I may say so with the greatest respect, need to carry out a formal review of the rule in 1978 in order to emphasise that abolition is, and remains, their long-term intention. The proposed review would therefore serve very little purpose but would add considerably to the work of the Department and of the Secretary of State. That is something that we should find very difficult to undertake, always assuming that it would serve some useful purpose, and we are by no means convinced that it would.
I also believe that a review would not make funds available for the abolition of
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the earnings rule. Nor do we think that it would bring forward the date at which the abolition could be afforded. The wording of the new clause does, however, mention the alleged disincentive to work presented by the earnings rule and supporters of the clause doubtless feel that too little weight has been given to this factor in the Government's thinking so far. In this connection, it is relevant that the first results of the full-scale survey which is being carried out by the Office of Population Censuses and Surveys will be available at the end of the year and more detailed analyses will follow in the first half of 1978. This should provide much of the information which noble Lords opposite are seeking about the considerations which most influence the work patterns of people over pension age, without, I submit, the need for the special review called for in the noble Baroness's new clause.
If we felt, quite sincerely, that a useful purpose would be served by undertaking a review of this kind, the fact that the Government want to see the end of the earnings rule would make them only too pleased to undertake it notwithstanding the amount of work involved. But we feel that we must know a great deal more in the future than we do at present, and that is why we feel that the review into the reasons for retirement which is being carried out by the Office of Population Censuses and Surveys will give us far more and more detailed information covering a much wider field than any review which my right honourable friend could undertake himself.
4.10 p.m.
Lord HARMAR-NICHOLLS: The noble Lord came to the point only in the last few sentences of his reply to my noble friend. My noble friend was saying that there seems to be evidence to show that the damage thru the disincentive will do in money terms could well be greater than the saving that would be brought about by this. She then went on to say that she would tolerate the risk of the damage being greater from the disincentive if she could see that there was a reasonable chance of the earnings rule being abolished in the reasonably near future. She recognised at once the extra work which would be put on the Department and on other

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people to get the review. She then went on to say that from her reading of the situation she cannot see any speedy ending of the earnings rule if the conditions which have brought about the change which we are now putting forward are the reasons for wanting to amend the actual terms.
If the noble Lord can say that within a reasonable period—and I should say two to three years—he could see that the earnings rule is likely to go, and that conditions would be such for that to happen, then I would have accepted the answer that he has just given to my noble friend. But what if this is likely to go on for three, four or five years? After all, the problem here is deep-seated and there does not seem to be any speedy way of getting out of it. If it is going on, then we ought to be told more authoritatively than the noble Lord has done so far whether the disincentive of maintaining the rule will be more damaging than the money saved. If the disincentive is more damaging than the money saved, and it is continued a minute longer than needed, then the chance of getting out of our economic doldrums will be made even more difficult because one is removing, because of the disincentive, one of the contributions that could get us into a position where we could afford to do away with the whole lot.
I should have thought that my noble friend's Amendment is a very reasonable one, if this general basis which we have been considering has any strength at all. There is no question at all of suggesting that the actuaries are not doing their job. There is no suggestion that the Government themselves are deliberately turning a blind eye to facts that are known. But we know that in this field it is very intricate and that general atmosphere as well as cash considerations comes into the whole situation. The noble Lord knows that if someone is given a date by which he has to put in a report, he is more likely to get on with it and keep up to date than if it is merely left to him to do his best in his own way. I have found in business—and the noble Lord must have had this experience, too—that with the best will in the world one is doing what one thinks is one's best in getting on in order to get certain information to hand. But if that information has to be produced by a specific date
1294
that has the effect of making certain that it is produced.
I should have thought that the noble Lord would not be showing any kind of weakness if he were to have second thoughts, and he said that he would be prepared to look at this question again. If the disincentive carries with it he damage that it may well do—and my noble friend has suggested that the damage from the disincentive will be quite considerable—then one is really removing from oneself one of the arms for fighting out of the general economic doldrums which we are in today. I should have thought that this proposal was reasonable and that it was not necessary to prove the case specifically in order to ask the noble Lord to accept it. If there is even a suggestion of a risk of the disincentive being as damaging as it might be, then the Government have a duty, without showing any kind of weakness, to make the situation absolutely certain and crystal clear; and the nearest that one can get to that is through having a review in order to see that we are doing the right thing.
4.15 p.m.
Lord SANDYS: I should like to support the Amendment and all that has been said by my noble friends Lady Young, who introduced the Amendment, and Lord Harmar-Nicholls, who has just supported it. Both stressed the need for accurate information. This is what we are so short of at present. The noble Lord, Lord Wells-Pestell, said, "There is no reason to believe that the Government Actuary is wrong". We accept that in so far as the information supplied to the Government Actuary is the information on which he has based his calculations. But there is a quite basic problem here, and I should like to go into a little more detail about it because I believe that the Actuary has reached a conclusion which is not in line with what we believe to be the case.
I do not in any way impugn his motives or the integrity of the office, but I believe that the information has come through inaccurately. I say this because up to 1974 the task was not so difficult because it was reasonably easy to maintain a check on the number of those who were to defer their retirement. This was based on the weekly flat rate insurance contributions. However, after 1975 it was no

1295
longer possible to make this assessment with any accuracy whatsoever because all the contributions were earnings-related, and therefore it was not possible to select out of statistics anything which would bear any accurate relationship to a change in trend.
So what has been supplied to the Government Actuary? We believe, though we have no reason on which to be able to prove it, that they are projections; they are the best estimate that the Government can provide. The tool which the Government used to provide these estimates—that is to say, the fiat rate weekly contributions—and the statistics which come from that are no longer available to the Government. So they are compounding their problems by having no current source of information.
I believe that the problem is a deeply serious one because the Government have failed to detect an underlying trend; namely, the great desire of large numbers of those of pensionable age who wish to continue work. I believe that the inaccurate assumptions are very serious here. There is an assumption here that 85,000 wives of invalidity and retirement pensioners are in work. The Government from their own statistics would not at the moment be able to tell us about that, but we believe once again that the information which they have supplied to the Government Actuary has been based upon assumptions on which very serious doubt may be cast.
I should like to refer to what the late Mr. Brian O'Malley said in the House of Commons on 29th January 1975, as reported at column 469 of the Official Report. He said this:
"…if the earnings rule were abolished numbers of people who in present circumstances might well retire would not then retire."
January 1975 is over two years ago, and the late Mr. O'Malley then recognised something which the Government at present are unwilling to recognise to such an extent; namely, this very substantial desire among people to continue in their work. I think that the inaccuracies of the situation demand a review of the position, as proposed in the Amendment, and I do not believe that the Office of Populations Statistics and other means of providing the material will be an adequate or sufficiently speedy a solution to the problem.
Lord BANKS: I feel that the Government should accept this Amendment. After all, the noble Baroness, Lady Young, and the noble Lord, Lord Sandys, have gone a great deal further towards the Government position with regard to the earnings rule than I was prepared to go, and they have accepted, at any rate for the time being, the economy argument, which I was not prepared to accept. I think it is quite understandable, in these circumstances, that they should want some kind of guarantee that the whole subject will be a matter for discussion in Parliament within the foreseeable future. I also think it is quite possible that the circumstances will be entirely different 18 months from now. We have suggested this afternoon good grounds for believing that the situation is very different from what it was thought to be when we had the Second Reading of this Bill in your Lordships' House only a fortnight ago, I think it was; and if mistakes can be made and situations can appear different in so short a time, it is not unreasonable to suppose that matters might be very different in 18 months' time and that it would therefore be worth while tying the Secretary of State down to a review of this kind at that time.
Lord WELLS-PESTELL: I do not think I can add a great deal to what I have already said. I will certainly, for my own information, take up the point that the noble Lord, Lord Sandys, has made about the Actuary's information being inaccurate, and I will read in Hansard tomorrow what he has had to say. But at Second Reading I said that the number of people over pension age who were deferring retirement had actually fallen considerably, from about 218,000 in November 1974—a level which had remained fairly static since 1971—to around 135,000 today; and I acknowledged that my figure of 135,000 was provisional. What it means is that people over pension age will be left as free as they are now to undertake either full-time or part-time employment if they wish to do so. It also means that persons at 60 or 65, depending on their sex, will, by and large, take their pensions when they can if they are not prevented from doing so by their earnings; and that a higher earnings rule limit in fact leads to more people drawing their pension and thus to greater public expenditure.

1297
On the question of disincentives, the point is that we have no evidence whatever that the earnings rule at the level at which it now is—namely, £35 a week, dynamised from this November—acts as any disincentive. I would have thought that all the evidence was to the contrary. To those pensioners who have already retired but work part time, the people to whom the rule applies for five years after minimum pension age, one has to bear in mind that £35 a week is a great deal of money even now; and I do not see how the question of it being a disincentive can be made out.
I think the only other thing I want to do is to call your Lordships' attention to what I said a moment or two ago concerning the review which is being undertaken by the Office of Population Censuses and Surveys. The Amendment, as I understand it, wants a review undertaken by October 1978. I said to your Lordships that the Office of Population Censuses and Surveys will in fact be publishing an interim report to my right honourable friend at the end of this year, and the survey will probably be completed by the middle of next year. We shall therefore get, presumably much sooner than the date mentioned in the Amendment, a good deal of information which will help us to come to a conclusion on this particular matter.
Lord BYERS: I do not want to prolong this debate more than a couple of minutes, but I am just asking myself whether the Government attitude on this is a sensible one. It seems to me that if we are all committed to getting rid of the earnings rule at some time, then we ought to be having fairly regular reviews so that we know exactly what is the up-to-date position. What the noble Baroness, Lady Young, has asked for is something in about 18 months' time. In 18 months' time many factors will have changed: certainly the pay policy will be different, the inflation rate will be different, and we are led to believe that the taxation structure and rates will be different. All these are important factors which affect a decision on phasing out the earnings rule. The picture may be worse or it may be better, but at least the Government ought to know this; and, at the very best, this census that the noble Lord has referred to can be only half the picture.
1298
What we really want is a working document on which we can say, "Taking into account all the things which affect this decision, are we now in a position to say, 'Yes, we can abolish it' or do we have to wait for another two years?"
Baroness YOUNG: I am most grateful to all those noble Lords who have taken part in this debate, In putting this Amendment down I felt I was merely asking for something which would be of benefit to the Government and to everybody else who takes a serious interest in this very important subject—and I am very grateful for the most helpful remarks of the noble Lords, Lord Byers and Lord Banks. The fact is that, in the past, the estimates have not been very satisfactory. I am not in any way intending to pin the blame or suggest the blame should be pinned on any particular person at all, but the fact is that this is a very serious matter indeed; and if one looks no further than the provisional estimates that the Government gave in relation to those deferring retirement, in March 1976 they were said to number 180,000 and in the autumn of 1976 this figure had dropped to 135,000, which suggests that there is some difficulty in getting very accurate figures.
As my noble friend Lord Sandys has already drawn to your Lordships' attention, the fact is that the figure in relation to working wives has altered very considerably, and as the number of working wives very much affects the total amount which will be saved by not having the £50 limit, it is very important to get an accurate figure on that. But most of all, I think, we need to know in the future what the cost is going to be in relation to the economic circumstances of the country; and although I think the information coming from the Office of Population Censuses and Surveys will of course be valuable—it has been very useful in the past—it is by no means the whole of the story. After all, if it proved not to be as expensive as the Government now think, then, who knows, they might be able to consider the pensions for the over-80s; and if it is more expensive, then we shall know what the cost to the county is and we shall all be able to form much better judgments.
My Amendment does not commit the Government to any extra expense. It obliges the Government to have a look at

1299
this whole question and to look very carefully at what the costs are going to be; and, although the noble Lord has said that the Government Actuary does the work and is non-political—something which of course I accept entirely—the noble Lord, Lord Banks, will know that the estimated surplus for the National Insurance Fund in 1976/77 was first of all estimated to be £389 million and was then estimated to be £932 million, so it does
Clauses 5 to 10 agreed to.
show that a lot of estimates vary considerably. I think this is such an important matter of public interest that I will press my Amendment and test the feeling of the Committee on it.
4.26 p.m.
On Question, Whether the said Amendment (No. 3) shall be agreed to?
Their Lordships divided: Contents, 87; Not-Contents, 56.

CONTENTS

Adeane, L.

Ebbisham, L.

Onslow, E.

Alport, L.

Effingham, E.

Platt, L.

Amory, V.

Emmet of Amberley, B.

Porritt, L.

Ampthill, L.

Faithfull, B.

Rankeillour, L.

Amulree, L.

Fraser of Kilmorack, L.

Reigate, L.

Arran, E.

Gainford, L.

Robbins, L.

Auckland, L.

Glasgow, E.

Ruthven of Freeland, Ly.

Avebury, L.

Gowrie, E.

Sackville, L.

Balfour of Inchrye, L.

Greenway, L.

St. Davids, V.

Banks, L.

Grey, E.

St. Just, L.

Barrington, V.

Gridley, L.

Saint Oswald, L.

Beaumont of Whitley, L.

Halsbury, E.

Sandford, L.

Berkeley, B.

Hanworth, V.

Sandys, L. [Teller.]

Birdwood, L.

Harmar-Nicholls, L.

Selkirk, E.

Brookeborough, V.

Hatherton, L.

Sempill, Ly.

Byers, L.

Hawke, L.

Sligo, M.

Campbell of Croy, L.

Hylton-Foster, B.

Somers, L.

Carrington, L.

Kilmany, L.

Stamp, L.

Cathcart, E.

Kinnaird, L.

Strathcarron, L.

Clancarty, E.

Lloyd of Kilgerran, L.

Strachclyde, L.

Clwyd, L.

Long, V.

Strathcona and Mount Royal, L.

Craigavon, V.

Lyell, L.

Strathspey, L.

Cullen of Ashbourne, L.

Macleod of Borve, B.

Tenby, V.

Daventry, V.

Mills, V.

Trefgarne, L.

de Clifford, L.

Monck, V.

Vickers, B.

De Freyne, L.

Monson, L.

Ward of North Tyneside, B.

Denham, L. [Teller.]

Newall, L.

Westbury, L.

Derwent, L.

Northchurch, B.

Wigoder, L.

Drumalbyn, L.

Nugent of Guildford, L.

Young, B.

NOT-CONTENTS

Aylestone, L.

Goronwy-Roberts, L.

Pannell, L.

Bacon, B.

Greene of Harrow Weald, L.

Peart, L. (L. Privy Seal)

Blyton, L.

Hale, L.

Phillips, B.

Brockway, L.

Harris of Greenwich, L.

Sainsbury, L.

Castle, L.

Henderson, L.

Segal, L.

Champion, L.

Houghton of Sowerby, L.

Slater, L.

Chorley, L.

Jacques, L.

Snow, L.

Collison, L.

Janner, L.

Soper, L.

Cooper of Stockton Heath, L.

Kilbracken, L.

Stewart of Alvechurch, B.

Davies of Penrhys, L.

Kirkhill, L.

Stone, L.

Donaldson of Kingsbridge, L.

Leatherland, L.

Strabolgi, L. [Teller.]

Douglas of Barloch, L.

Lee of Newton, L.

Taylor of Mansfield, L.

Douglass of Cleveland, L.

Lloyd of Hampstead, L.

Wallace of Coslany, L.

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

Lovell-Davis, L.

Wells-Pestell, L.

Fletcher, L.

Lyons of Brighton, L.

Wigg, L.

Gaitskell, B.

McCluskey, L.

Winterbottom, L. [Teller.]

Gardiner, L.

Northfield, L.

Wootton of Abinger, B.

Gifford, L.

Oram, L.

Wynne-Jones, L.

Gordon-Walker, L.

Paget of Northampton, L.

Resolved in the affirmative, and Amendment agreed to accordingly.

Clause 11 [Mobility allowances for certain persons eligible for invalid carriages]:
4.35 p.m.
Lord WELLS-PESTELL Lord WELLS-PESTELL moved Amendment No. 4:
Page 11, line 42, at end insert ("; or
(d) would have been, by virtue of any of the preceding paragraphs, a person to whom this section applies but for some error or delay for which in the opinion of the Secretary of State the person is not responsible and which is brought to the attention of the Secretary of State within the period of one year beginning with the date of the passing of this Act.").
The noble Lord said: I am hoping that this is a matter in which we shall all be in agreement. This Amendment has been put down to meet a commitment given in another place. Paragraphs (a), (b) and (c) of Clause 11(3) define those beneficiaries who have reserved rights under the health service vehicle scheme and who may be allowed under the clause to switch, if they choose, to the new mobility allowance. Noble Lords will know that the vehicle scheme is provided under Section 33 of the Health Services and Public Health Act 1968.
The Government believe that Clause 11 as at present drafted covers all those beneficiaries who have reserved rights and who consequently are entitled to exercise the option to change over to the mobility allowance. Nevertheless, concern was expressed during the earlier passage of the Bill and by the Joint Committee on Mobility for the Disabled that there may well be deserving cases who would have met the terms of paragraphs (a), (b) or (c) of subsection (3) but for some error or delay for which they were not responsible. It was thought those cases might well come to light once the legislation came to be implemented. The Government therefore agreed to put down an Amendment giving the Secretary of State a safety net to catch cases of this kind which are brought to his attention within a reasonable time limit. The Amendment as put down is wide enough to achieve this effect. It is purely beneficial and I ask your Lordships to accept it.
Lord SANDYS: The noble Lord, Lord Wells-Pestell, rightly foreshadowed agreement from this side of the Committee. Category 3 beneficiaries, with a tricycle or a private car allowance, in particular, might conceivably have fallen through the
1302
net. It so happens that this was being discussed in another place on Report on 14th February this year only two days before the debate in this House on the Snowdon Working Party Report on the Integration of the Disabled. I then mentioned to your Lordships there had that day in The Times appeared an article in regard to discussions which had taken place between Ministers in regard to new arrangements and the loan plan whereby the mobility allowance could be commuted. It is quite clear that this new arrangement which the Government have reached will have some benefit and we believe it goes some way towards meeting the point raised in Standing Committee.
On Question, Amendment agreed to.
Clause 11, as amended, agreed to.
Clause 12 [Amendments of Supplementary Benefits Act 1976]:
Lord BANKS Lord BANKS moved Amendment No. 5:
Page 12, line 8, leave out ("notwithstanding that the contribution is not actually made").
The noble Lord said: Under subsection (1)(a) of this clause the parental contribution received by a student must be taken into account in assessing him for supplementary benefit. I do not object to that. However, subsection (1)(a) also states that such a contribution, if prescribed, must be taken into account whether or not it is actually made. The Amendment seeks to remove the qualifying clause, notwithstanding that the contribution is not actually made. The supplementary benefit is intended to deal with actual situations, not notional situations. It is a form of emergency first-aid and that cannot be refused to someone because notionally they should have received it from someone else. A Department of Education and Science survey indicated that 73 per cent. of students do not receive the full parental contribution.
I would ask the noble Lord, Lord Wells-Pestell, whether he agrees that this Amendment is right in principle. On Second Reading the noble Lord advanced administrative arguments in sup sort of the provision in the clause. But is it only on administrative grounds that he would object to the Amendment? Are the administrative difficulties insuperable? For example, would it not be possible to say that parents should pay their contributions to the local authority, as they do

1303
their rates, and that the local authority should pass on the contribution to the students? The parents who did not pay could be proceeded against by the local authority. The student who had not received his parental contribution could then apply to the local authority for a certificate which he could present to the Supplementary Benefits Commission.
I fully realise that that suggestion would be beyond the scope of this Bill. But perhaps if this Amendment were passed it would encourage the Government to introduce such an arrangement. In any event, in moving this Amendment, I draw attention to the absurdity of including what is not paid as if it were, and make the suggestion that the administrative problems are not as great as has been suggested. I beg to move.
Lord GIFFORD: I wish to give some support to the Amendment and the sentiments behind it. I speak as having taken some cases on the Supplementary Benefits Act on appeal as a practising lawyer. The law on this aspect of supplementary benefits for those students who are engaged in full-time education has been considered recently by the courts in the case of Atkinson. I am sure that we are going to have further references to that case. Mr. Atkinson was a student who succeeded in the Court of Appeal in obtaining benefit to the full amount of his requirements and, in doing so, caused some confusion to the Department. There are some Amendments to be taken later which deal precisely with the implications of this case. One of the arguments used by him on appeal was that his parents had the means to support him but he was saying that they were not supporting him.
The court in its judgment made quite a sensible answer to that. It said: the Department is entitled to take the view, prima facie, that if a student's father or mother has the means to support him, then the likelihood is that they will support him in the vacation. This case turned on the vacation grant. But, of course, the student can bring evidence before the Commission or Tribunal to show that he is not receiving that support. If he bring such evidence, he may be entitled to a full grant. It is much better, surely, for benefit to be received on the basis of
1304
someone's actual needs rather than on the basis of rules of thumb or notional contributions which can cause hardship in the particular case.
The whole scheme of the Act—and I will be returning to this in later Amendments—is to give to the Commission and, on appeal, to the Tribunal, the utmost discretion and flexibility in the way it is applied. Discretion and flexibility are not possible when there are regulations which lay down arbitrary provisions forbidding the Commission to grant benefit even when the claimant is not getting the notional contribution. It is unfair and I hope that my noble friend on the Front Bench can answer the points and criticism raised.
4.48 p.m.
Lord WELLS-PESTELL: My noble friend Lord Gifford is quite correct. We will return to this matter in much more detail later. I do not want to have a rehearsal for that at this stage. I can indicate what is in the mind of the Government to the noble Lord, Lord Banks, and to my noble friend Lord Gifford. As we see it, the effect of this Amendment would be to frustrate the proposal to give statutory backing to the Supplementary Benefits Commission's existing practice of taking into account the assessed parental contribution whether or not paid. I repeat the word "assessed".
In giving the background to the Government's Amendments to Clause 12, I believe I can make it clear that for the Supplementary Benefits Commission to make good any part of a contribution that a parent has been assessed as able to make—and I repeat, that a parent has been assessed as able to make—would, in the Government's view, be to undermine the whole concept embodied in the Education Acts and Regulations, that the cost of higher education, where appropriate, should be shared between the parent and the State. The Commission should not be asked to shoulder a burden which Parliament has deliberately placed elsewhere.
There is little doubt that replacement by supplementary benefit in the vacations of any alleged shortfall in the parental contribution would be an attractive proposition and would lead to a rapid

1305
growth in the numbers of claims from students. I believe the Amendment would frustrate the existing practices of the Supplementary Benefits Commission. Perhaps I am being unduly suspicious, but it is really an open invitation to students and parents to go into collusion and say that the parent does not pay.
As I have said, we believe it would lead to a considerable growth in the number of claims from students. It is estimated that additional expenditure in benefits could be as much as £6 million annually. There would also be additional administrative costs, and a burden would be imposed on the Commission's officers which would be intolerable and would mean that their ability to provide a proper service to the old, the sick and the unemployed would be seriously impaired. The Government's argument on this matter is not based entirely on administrative difficulties, but these would nevertheless be very real, because if a student came along and said: "My parent has not paid although he is supposed to pay", and if the Supplementary Benefits Commission had to carry out some kind of investigation to see whether the parent had or had not paid, that would be an intolerable burden upon them. It would be necessary for the Commission to check the position and to assess how much, either in cash or in kind, was being contributed by the parent. I shudder to think of the amount of work involved. The task of evaluating a contribution given in kind—for example, clothing or maintenance in some form other than money—would be virtually impossible.
If this Amendment is put down, as I am sure it is, out of concern for those students who, although their parents are assessed as being able to contribute, suddenly find themselves in difficulties because for some quite unforeseen reason the parents are not able to pay, then the Amendment is unnecessary because the Commission can help, pending a reassessment of the grant by the local education authority. That happens already. We realise that there are exceptional circumstances, and the Commission tries to meet them. Therefore, in cases of genuine hardship, provision already exists for the Commission to give help through the exercise of its discretionary powers in an exceptional situation. However, I would ask the noble Lord to look
1306
very closely—and I am sure he will do so—at what might happen if this Amendment were accepted by the Government or, if pressed, accepted by your Lordships. It would impose an almost impossible task on the Supplementary Benefits Commission when there are several thousands of such applications. Many students could no doubt say, with some degree of truth, that they are not getting the allocation that has been made for vacational purposes.
It is a problem. I rather like the method which has been suggested by the noble Lord and I wish somebody would look at it, because obviously something has to be done to clarify the situation in a way that would be both workable and acceptable. But as things are at the moment, I do not think any reasonable person would say otherwise than that the Supplementary Benefits Commission could not function in any way other than the way it functions at the moment. For those reasons, in a sense with some reluctance, I must say that we cannot accept the Amendment of the noble Lord and I would ask him whether he feels that he could withdraw it.
Baroness YOUNG: Before the noble Lord, Lord Banks, replies, in view of the fact that we shall be going over this ground on several occasions during our debate on Clause 12, as the noble Lord, Lord Wells-Pestell, has based his arguments for not accepting the Amendment on the fact that there could well be collusion between the student and his parents, and the parents do not pay their part of the grant in order that the student can claim supplementary benefit, could he tell us what evidence he has for that assumption? Secondly, and rather more importantly, may I ask what discussions there have been between his Department and the Department of Education and Science on this matter?
I understand the point about the administrative difficulties that will fall on the officers of the Supplementary Benefits Commission if they have to investigate fully each case. But the difficulty for the student, on the other hand, is that if he does not get money from his parents he is without money altogether. There is evidence to show that the level of grants has not in fact kept pace with the rate of

1307
inflation. Further, the students may not be able to get vacation work, so he is then in a very difficult position indeed—and of course it is the poorest students who are worst off. I suspect, in fact, that in many cases it will be the girls who will be even worse off than the men.
This is a serious matter, and I think the Government need to look at it very carefully. I have great sympathy with the noble Lord, who is left to argue a very difficult brief indeed, but I would ask him, before we conclude all our discussions on this part of the Bill, whether he could tell us how much consultation is going on between the two Departments and how he expects some students who will find themselves in an extremely difficult position are going to manage.
Lord WELLS-PESTELL: I cannot say off the cuff what discussions are going on at the present time or what is planned for the future, but I will certainly find out and at some stage during these proceedings will give the information to the noble Baroness and your Lordships. I hope I did not say that we had evidence of collusion. The noble Baroness asked what evidence of collusion there was. What I hope I said was that it could give rise to that kind of situation; and of course it could. But I hope I did not say that we had any evidence that such a thing happens.
We must face the fact that at the moment the parents, under the various Acts, have a responsibility—not only a moral responsibility, with great respect, but a financial responsibility, as the noble Baroness knows better than most people among us. There is a financial responsibility, and I think any Government Department has to think twice before having an arrangement, or accepting some kind of arrangement, whereby a person could be assisted twice for the same purpose. That is possible; and apart from other difficulties there is also the difficulty of establishing whether or not a student is receiving the allocation that should be received from the parent. It is because of those difficulties, and because there is a responsibility on the parents at the present moment, that I suggest we ought to think very carefully before taking some step that could release them from that responsibility.
5 p.m.
Lord ROBBINS: I must confess I feel very great sympathy with the noble Lord, Lord Wells-Pestell, over his reluctance to accept this Amendment. I think that prima facie it constitutes some incentive to collusion, and for that reason I believe that we have to think twice before urging it on the Government. On the other hand, I feel equally strongly that the ambiguity which exists in present practice can bear very hardly on students who, for some reason or other, not collusively, have repudiated dependence on their parents and find themselves in need. It seems to me that, whether or not the Amendment is considered, that side of the question deserves very serious consideration at some stage.
Lord SLATER: I have listened most attentively to the discussion on this issue. My noble friend Lord Gifford described himself as a lawyer, and talked about those who are responsible for giving further consideration to applications for increases in benefit, against the decision of the local authority. No one has said anything in support of those who are responsible for making a decision in the first place.
My experience in local government taught me that there must be confidence in those who are first responsible for giving consideration to an application for student grant, in order that someone may go on to college or university. But it seems to me that more or less everything that has been said has decried the usefulness and intelligence of those people in local government who are responsible for the administration of this sector. They have been decried for not having the ability, and it has been said that if a student wants to get assistance, without depending on his parents, he must apply to the Supplementary Benefits Commission. I want to support my noble friend Lord Wells-Pestell who has endeavoured, to the best of his ability, to put forward the case on behalf of the Government, and I take my stand in support of the local authorities who are responsible in the first place for dealing with student applications.
I am not speaking without knowledge of this subject, because my daughter had to apply for a student grant before she

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went to college. I was working at the coalface at the time, and I had to pay my contribution towards my daughter's grant. But from what has been said one would think that the students of this country are being treated so badly that there is no outlet whatever for them, and that some parents are not facing up to their responsibilities in the way they should. They say that they would like the best form of education, but they are not prepared to make any kind of contribution when they are called upon to do so.
Lord BANKS: I am grateful to the noble Lord, Lord Gifford, for drawing attention to the legal case, which is the basic reason why this part of the clause appears as it does in the Bill; and I am glad to have his support for the assertion that it is the actual situation which supplementary benefit should help, and not the notional situation. It seemed to me that the principal objection, if not the only objection, of the noble Lord, Lord Wells-Pestell, was one of administration, and I see that within the scope of the present arrangements there would be administrative difficulties for the Supplementary Benefits Commission. But I suggested a special arrangement, with the local authority collecting the parental contribution and passing it on to the student; the student being able to claim a certificate from the local authority if he did not receive the parental contribution, and the local authority being able to proceed, against the parent if they did not get the contribution, just as they would if they did not get the rates. That suggestion seemed to appeal to the noble Lord, and I hope that he will draw it to the attention of his right honourable friend the Secretary of State for Education. That is one solution.
Another solution is to abolish parental contributions altogether for adults; and that second one is the one which I prefer. Either of those two solutions would be acceptable to me, but I appreciate that both would involve legislation quite beyond the scope of this Bill. The Department of Education would clearly be involved and would have to take the initiative. For that reason—though I think it has been reasonable to stress this matter, and to point out what a paradoxical and absurd situation it is—I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
5.6 p.m.
Lord WELLS-PESTELL Lord WELLS-PESTELL moved Amendment No. 6:
Page 12, line 21, at end insert—
("(2A) Subject to subsection (7A) below, regulations under the preceding provisions of this section may be so made as to take effect from the commencement of the Supplementary Benefits Act 1976.").
The noble Lord said: We have reached a stage in the proceedings which brings us to a very important clause, and I wonder whether I may ask your Lordships—in particular, the noble Baroness, Lady Young, and the noble Lord, Lord Banks—whether they feel that I can speak to Amendments Nos. 6, 9, 10 and 11 together. This is not because I want to save time, but because to some extent they intertwine and overlap. In introducing these Amendments, I think it would be helpful—it will take a little time, but I will not be unnecessarily long—if I gave the background to those subsections of Clause 12 which deal with students.
The Government agree in principle with the views expressed by the Supplementary Benefits Commission on their Annual Report for 1975, that supplementary benefit is not an appropriate form of income support for students. But to change the student support system so as to make recourse to supplementary benefit unnecessary in every case would not be possible without unacceptable implications for public expenditure. In these circumstances—and the Commission fully agrees with this—the principle cannot be realised. What the Government have done, under the new arrangements announced by the Secretary of State in February 1976, is to concentrate the vacation maintenance element in the student's grant into the two shore vacations at Easter and Christmas. During these vacations, students now have an income equivalent to the supplementary benefit entitlement for a single non-householder, and only a minority with special commitments should still need supplementary benefit. In the long summer vacation, when no provision will be made in the grant for maintenance, any student unable to support himself by working will be able to claim supplementary benefit.
Where this Bill comes in is in regard to the Commission's long-standing practice of taking full account of the contribution which parents are responsible for making under the education legislation towards the cost of their children's maintenance, and allowing no disregard on the student award. The Commission does this because to ignore any shortfall in the parental contribution would be to act contrary to the student grant scheme and assume a liability which Parliament, we feel, has properly placed elsewhere. To disregard any part of the student award would be to provide twice over for the same purpose and, in our view, would be an improper use of money—one might almost say a waste of money.
The Commission's use in this way of its discretionary powers to deal with exceptional circumstances has now been successfully challenged in the Court of Appeal. May I make it quite clear that the whole purpose of Clause 12(1) is to give statutory backing to the Commission's long-standing practice. As I said a moment or two ago, unless this is done the additional burden on public funds could amount to as much as £11 million per annum, apart from the serious staffing implications of having to deal with a greatly increased number of claims, and having to determine whether or not a parental contribution has been made either in cash or in kind and then for the Supplementary Benefits Commission to try to place a value on that cash or kind.
I should make it clear that the rules to be laid down under the Act and regulations will be the same as before. No change of policy will be involved. The object is solely to put the policy on a proper statutory basis. In particular, students who are disabled or lone parents will continue to get supplementary benefit on the same terms as before: that is, if the parental contribution is not being made it will not be taken into account, and students who are disabled or lone parents will get a disregard of £2 on the maintenance element of their grant.
Your Lordships will see that Amendments introducing a new subsection (2A) to Clause 12 contain a power to ensure that regulations made under Clause 12(1) and (2) may be made so as to cover past cases, I want to emphasise that point
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so that we know exactly what we are doing. This is essential if the Commission is to be protected against the impossible task of looking again at cases which have been settled since the supplementary benefits scheme came into being over 10 years ago, in 1966, which would bring its current work on meeting urgent need almost to a halt, if not to a halt.
I should make it clear that the purpose of the new subsection (7A) is to ensure that the legislation does not have the effect of nullifying the judgment of the Court of Appeal in relation to the particular case which was laid before it. The Bill also seeks to deal with a general issue which arose in the judgment of the Court of Appeal to which I have referred. The court ruled that the wording of the Supplementary Benefits Act was not such as to enable the Commission to use its discretionary powers in relation to classes of cases as distinct from individual cases. I think one could argue that the whole judgment revolves around this. This has left the Commission in the position of having an extremely shaky statutory basis for a wide range of its policies and for the payments that it makes in connection with them.
Paragraph 4(1) of Schedule 1 to the Supplementary Benefits Act 1976, which consolidates a similar paragraph in the 1966 Act, gives the Supplementary Benefits Commission power to increase or, in the case only of a supplementary allowance, reduce the benefit entitlement which would otherwise be arrived at in order to take into account any exceptional circumstances. The Commission uses this power not only in relation to the exceptional circumstances of an individual but—may I say this very carefully—also in relation to categories of cases. As I understand it, the decision of the Court of Appeal was concerned with categories. Therefore, when we are thinking of what the judgment of the Court of Appeal really is, it is in relation to the Supplementary Benefits Commission using its discretion in relation to categories.
All that we have heard about in the judgment of the Court of Appeal—and it is natural that it should be only in relation to the person who sought their judgment—is the question of the student category. Indeed, it is inevitable that discretion should be exercised in this way in a

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scheme such as supplementary benefits which deals with millions of claims a year. You must have categories; you cannot deal with millions and millions of claims on the basis of individuality. That is what this Government and every Government since 1966 have beein doing, thinking that it was right for them to do it and that they had the power to do it.
May I give two examples. The Commission awards substantial heating additions at standard rates and special diet additions of set amounts to fairly wide categories of claimants meeting specified criteria, such as illness or infirmity, or for accommodation that is difficult to heat. At present, over 1 million heating additions are in payment and there are about 300,000 additions for special diets. On the other hand, this power has also been used on a much smaller scale to reduce or to deny benefit to some categories of claimants whom it would be anomalous to support from public funds.
If noble Lords would like an example, I hope they will feel that a good one is overseas visitors who have been allowed into the country on condition that they will not be a charge on public funds. It seems perfectly reasonable that in such circumstances the Supplementary Benefits Commission should say, No; these overseas visitors have been allowed into the country on condition that they will not be a charge on public funds. However, I ask your Lordships to keep in mind the whole question of categories; if you cannot help one category you cannot help the others. It really is, as I see it—although I may be wrong, and if I am wrong my advisers will be very quick to tell me—all or nothing.
As I have indicated, the judgment of the Court of Appeal would lead to additional expenditure in some areas, possible hardship in others and a breakdown of confidence in the supplementary benefits scheme. This must be so. Urgent action has to be taken to retore the position—let me put it as simply as I can—to what the Commission had hitherto thought it was, and the purpose of our proposed subsection (6A) is to restore the position to what the Commission had hitherto thought it was. It has been found necessary, as with the previous Amendment relating to students, to ensure that this Amendment has effect in relation to past
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cases, otherwise there is a real possibility of old cases being reopened, so disrupting the work of local offices in trying to help people who are currently in need. This simply restores the situation to that which successive Governments have for so many years thought existed, and in my view right from 1966 every Government thought that the Supplementary Benefits Commission had that power.
I should make it clear that no claimant will suffer any detriment because what has happened in the past was concerned with a situation which existed then. It is not a continuing situation; it is a situation which was over and done with at that period. Consequential Amendments to Clause 21 of the Bill ensure that the provisions embodied in the Amendments now being made to the Bill shall come into force on the passing of the Act.
I have tried to set this out briefly. Probably I have been too brief because this is really a very important clause. All that the Government are asking—and I am sure that it must command the support of everybody in your Lordships' House—is to set out in this Bill in no uncertain manner what the Government have always thought the position to be since 1966 and to give clearance—for want of a better word—of the actions taken, regardless of the Government in power, since 1966. In the circumstance it seems to be reasonable.
I merely ask your Lordships also to keep in the forefront of your minds the consequences if the Amendments were rejected and if the Supplementary Benefits Commission in the future have to act in accordance with the decision of the Appeal Court—and we are not quarrelling with their judgment. What we are saying is that we want this Bill to set out clearly what we thought was the law since 1966; and that if we cannot deal with the student group, we cannot deal with a good many other groups in the community, who are probably the groups in the greatest possible need, in the way that we are dealing with them at present. I beg to move.
Baroness YOUNG: I am sure we have all listened with great attention to what the noble Lord, Lord Wells-Pestell, has said in connection with this series of Amendments to Clause 12. I was grateful to

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him for telling me in advance of his intended Amendments and of their general effect. I have now had the opportunity to study them much more closely than I had done when we had our original conversation, and I am bound to say that, although I appreciate that the intention behind the Amendments is to put the position vis-à-vis students and the Supplementary Benefits Commission into the relationship which the Government thought they had before the Atkinson case, the way it is being achieved seems to me, to say the least of it, to be doubtful legal practice.
I recognise that the immediate important matter is for students to know where they stand in relation to the Supplementary Benefits Commission because the effect of Clause 12 and the debates in another place has been to take away from students their right to supplementary benefit during the Christmas and Easter vacations, and now this is designed further to prevent anybody who might have raised their right to it, following upon the court case, from doing so. It has the merit at least of stating what the Government's position is, so that the student knows.
However, from the point of view of a student it is bound to be regarded as a very unsatisfactory position. The fact is that innumerable categories of people have been quoted to support the students' case. But the student is unlikely to read Hansard, I should think, and he is unlikely to go to the Supplementary Benefits Commission to find out what the relationship of his grant, the parental contribution and his rights to any assistance from the State may be. The most unsatisfactory situation of all is that when I asked the noble Lord, in connection with an earlier Amendment, what discussion there had been on this matter between the Department of Health and Social Security and the Department of Education and Science, at least to the noble Lord's knowledge there appeared to have been very little. He is going to write to me on this point and it really is necessary for students to know whether what has been assumed to be a practice up to now is going to be taken away from them in the middle of their course; and they should know how they are to be affected.
The Amendments smack very much to me of the same kind of retrospective
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legislation that we have had over the matter of students' fees, where the student embarks on a course and finds that the fees have gone up and if he is in the unfortunate position of supporting himself he is in very great trouble indeed. There is a great deal of evidence coming from the universities to indicate how great the trouble is in this regard.
If I understand these Amendments correctly, what the Government are saying is that this is retrospective legislation going back as far as 1966 as the regulations apply to the Supplementary Benefits Act 1966. I was not quite sure what that Act of Parliament is, because when I went to the Printed Paper Office to get a copy of the Act in order that I might try to under- stand what was going on, there was no Act so called. But there is one called the Ministry of Social Security Act 1966. I take that to be the one to which the Amendment in fact refers. I hope I am right about that. Of course there is a great deal in Schedule 2 on benefits for other people which no doubt are also affected by the Government's regulating powers.
It seems to me to be a doubtful practice to have retrospective legislation, and I should like to ask the noble Lord what precedents there are for introducing this type of legislation, and exactly how he sees it working for these different subsections. I hope he will consider favourably Amendment No. 12 standing in my name and that of my noble friend, Lord Sandys, that any regulations made under this section will be by way of Affirmative Resolution, so that at least both Houses of Parliament will have an opportunity to look at them and to comment upon them before they become law.
What I think is most unfortunate of all about these Amendments is that by having this kind of retrospective legislation we bring Government and, if I may say so, Government Departments, into disrepute. The constant shilly-shallying about the Department between students and the Supplementary Benefits Commission, the uncertainty of the position, the changes that the Government have undergone in these last weeks, make it very difficult for a lot of individuals. As the noble Lord knows, many of them are not supported by their parents when they should be, their grant has not kept

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up with the rate of inflation and they are unable to get vacation jobs, and they will find themselves in extremely difficult circumstances. I take it that if they are in a destitute state and their situation can be proved, the Supplementary Benefits Commission will help them out. I hope the noble Lord will tell us whether such is the case, because if it is not then I think we are in great difficulty.
From this side of the Committee we have already indicated that we do not wish in any way to go against the principle of the Bill, but I am bound to say to the noble Lord that this is an Amendment which, although we shall not divide the Committee against it, is not one about which we feel very happy and we believe it sets a very dangerous legal precedent.
5.30 p.m.
Lord GIFFORD: I accept whole-heartedly the arguments put forward by my noble friend Lord Wells-Pestell on the matter of categories. I did not understand or agree with the judgment of the court when they said that it was in some way improper to treat a category of people as being an exceptional case. I think my noble friend can also carry me with him on the rest of the Amendments if he can tell the Committee a little more about the regulations which are to be introduced. What I hope he can tell us is that the regulations will not preclude the Commission from acting in a case of exceptional need.
In other words, taking the case of students, they are regarded as a category of exceptional people, but within that exceptional category there will be exceptions. There will be people, as the noble Baroness pointed out, who will be in very severe and sometimes destitute circumstances. What we do not know from Clause 12 as it now stands is whether these regulations will provide for an absolute embargo on the payment of benefit to persons within the category or whether the regulations will themselves be subject to the existing paragraph in the first Schedule to the Bill, paragraph 4, where in exceptional circumstances what would be the normal calculation of resources and requirements can be overridden and amounts of extra benefit can be awarded. If the flexibility of the Commission and the discretionary power to deal with exceptional cases is to be
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preserved in the new regulations which are to be made, then it seems right that the Amendments should go through in the form that they are.
Lord COLLISON: May I say a brief word about this. I was chairman of the Commission, as your Lordships know. I simply want to assure the Committee that the Commission and its officers acted in absolutely good faith in taking the attitude that they took in the past to this matter. It has always been assumed that it was their right and indeed their duty to act in this way. Although I am not there now, I can clearly imagine the dismay which overtook them when the court found as it did. Indeed if this Amendment were not accepted, it could lead to innumerable other cases being brought forward. I can understand one's dislike of an Amendment which perhaps smacks of restrospective action, but in this case, in my view, it is absolutely necessary; we would be doing wrong if we were not to accept the Amendment.
I could talk about the Commission's power to take action in exceptional circumstances, but I will leave that to my noble friend Lord Wells-Pestell. I wanted to make it very clear, and to make the point, which I am sure your Lordships all accept, that the Commission believed that what they were doing was right and are dismayed now to find that the court took a different view. I would underline the necessity of putting this right, even if it does smack a little of retrospective action.
Lord WELLS-PESTELL: I am very surprised at the attitude which the noble Baroness, Lady Young, has taken in this matter; I really cannot see why she cannot give wholehearted support to what we are trying to do. I know that retrospective legislation is something which the vast majority of your Lordships dislike.
Several noble Lords: Hear, hear!
Lord WELLS-PESTELL: It is all very well to say, "Hear, hear", but there is retrospective legislation which is abhorrent and there is retrospective legislation which is not going to harm anybody or be detrimental to anybody. The whole point is that all that is involved here is restoring the law to what successive

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Governments have thought it was ever since 1966. I have said this several times this afternoon. The Supplementary Benefit Act 1966 was formerly the Ministry of Social Security Act 1966, as the noble Baroness pointed out. No one's rights are being threatened. The noble Baroness said she did not know what authority there was for it, whether this kind of thing had happened over a period of time.
The only example I can give is that it has been done in another place on a number of occasions where persons have been elected Members of Parliament—I think I am right about this—and it has been found that for some reason or other they were not qualified to sit. I am most grateful to the noble Lord, Lord Byers, who indicates that I am right. It has been found in some cases that persons were holding offices of profit under the Crown or something like that, and legislation has been passed to make it possible for them to continue to sit. There was nothing objectionable in that. There is nothing objectionable in this.
The regulations will not preclude the the Commission from dealing with truly exceptional cases. It retains powers—as I thought I had pointed out very clearly—to deal with urgent need. Clause 12 does not take away students' entitlement to supplementary benefit. The student now gets more of his maintenance grant in the short vacations, and, therefore, needs less supplementary benefit. In the long vacation there will be no maintenance element whatsoever in the grant, and if the student cannot find work he will be entitled to more supplementary benefit. So he is not going to be harmed by this at all. But we are concerned that we should be able to restore the law to what successive Governments thought it was. It seems to me to be a perfectly normal way of doing it. It is not reprehensible. In this case it really is not objectionable.
Lord BANKS: I wonder whether I could ask the noble Lord one question. I am not quite clear whether claims are going to be prevented from being made as a result of this Amendment which is proposed by the Government. I understood, from what the noble Lord, Lord Collison, said, that claims might ensue if this were not done. If that is so, it
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would seem to me that this legislation will in fact affect some people's rights, if it prevents them from making claims that they otherwise would have made.
Lord WELLS-PESTELL: I do not think there is any point in my hiding—I am not very good at that anyway—the possibility that if this legislation does not go through claims in relation to past applications may be made. If noble Lords are really worried about that, perhaps I may explain what the situation is. A number of people over the years have applied for supplementary benefit and on those occasions at that time did not get all the money that it could be held they might have been entitled to. But that is to deal with a situation long since past. Is it right to do anything about it now, when perhaps many of them would probably no longer be students? I think we have to face this fact.
We have to consider the position during the Easter vacation. Clause 12(1) will restore the position to what it was thought to be before the Court of Appeal judgment. However, until regulations can be made—and they cannot be made immediately—the Supplementary Benefits Commission will have to treat students' claims in accordance with the law as it has been declared by the judgment in the Court of Appeal. This means that for at least the first part of the Easter vacation students will be allowed a £4 disregard on income from the grant or from parental contributions. The Commission will also ignore any assessed parental contribution which is shown not to be paid.
The Court of Appeal held:
"It should, in our judgment, be open to a student claimant to satisfy the Commission or the Tribunal, if he can, that his parents, for some reason, either cannot or will not make up his local authority grant to the level of the full grant."
There is a responsibility on him to do so. The judgment continues:
"We recognise that the onus of establishing such a claim would be a heavy one, and that the Commission or Tribunal would be fully justified in examining any such claim with suspicion."
The Commission will therefore require positive proof that a parent has not made his contributions. Assuming the regulations under Clause 12(1) are made, student claims for the latter part of the Easter vacation will be assessed in the same way as that which applied before

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the judgment was given in the Court of Appeal. I can give your Lordships no more notice than that. However, I am a little concerned that there should be a doubt in your Lordships' minds that we should not proceed by clearly stating the law as we have always understood it to be since 1966. It seems to me that there is no valid reason why we should not do it as from that date.
Baroness WARD of NORTH TYNE-SIDE: Perhaps I may ask the noble Lord a question. If the decision which finally complicated all this came from the Court of Appeal, what advice was tendered to successive Governments on the 1966 Act? Shall we be allowed to see the advice? This is extremely important, if the matter arose only as a result of the judgment of the Court of Appeal. It is a rather extraordinary matter.
Lord WELLS-PESTELL: It is not a question of advice. In 1966 Parliament, in its wisdom or stupidity, passed the 1966 Act which sets out the powers given to the Supplementary Benefits Commission. Among those powers the Supplementary Benefits Commission had power to disregard certain matters, to ignore other matters and in exceptional circumstances to provide exceptional benefits—I listed a few this afternoon (I do not know whether the noble Baroness was present)—to the aged, the sick and so on.
Like every other Bill, that Bill went before both Houses. Parliament accepted that the Supplementary Benefits Commission should be able to act in this particular way in a whole variety of circumstances. Parliament was quite satisfied that the Supplementary Benefits Commission could act for a class, a group or a category—those are my words. There was no doubt in Parliament's mind that the Supplementary Benefits Commission could do that. Parliament accepted that there was no other way of dealing with millions of people other than by dealing with them on a class, a group or a category basis. That was never questioned by anyone. Parliamentary draftsmen and Government legal advisers quite clearly saw what was intended, and they believed that this was right. It was only when this ex-student appealed to the Tribunal—and incidentally the Tribunal upheld the decision of the Supplementary Benefits
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Commission—and his appeal was refused that he went to the Court of Appeal. The judges there said that in their view the Act did not entitle the Supplementary Benefits Commission to act for or deal with a specific group of people and that such people must be dealt with as individuals.
There was no question of advice being given. In 1966 Parliament saw quite clearly what it wanted to do and all successive Governments since have accepted that that was the law. The judgment of the Court of Appeal merely says that the Supplementary Benefits Commission cannot deal with a group as a whole but must deal with individuals. I imagine that a copy of the judgment of the Court of Appeal can be found in the libraries of both Houses of Parliament.
Lord SLATER: From listening to my noble friend it seems that one of the strongest arguments that he has presented to noble Lords has been on retrospective payments. I began to wonder low often I had heard that and how often I, along with others, had made application for retrospective payments and been turned down. On this occasion we find that the Government, through the Minister, are prepared to allow retrospective payments. It is something that should have been done before. Therefore, they seek to amend the mistake that they made on that particular occasion and they have instructed their Minister to press for this Amendment to the Bill. This House would be amiss if it does not accept the recommendation that has been made by my noble friend.
Baroness YOUNG: I do not want there to be any misunderstanding on this point of principle about retrospective legislation. I have already indicated to the noble Lord, Lord Wells-Pestell, that we on this side of the House will not oppose these Amendments and that, for the reason that he has given, we shall accept them. Apart from anything else, I understand that if they are now carried and the situation is not as the Government intend it to be under their present legislation the public expenditure cost would be about £11 million. That is the underlying reason for the Amendments.
One can appreciate the need to move these Amendments, because without them

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the Bill could not become law in the way in which the Government wish following the Atkinson case. We are concerned about the legislation because, from the point of view of the student, the Government are using the Bill to put right various complexities surrounding the whole question of student grants and maintenance. This in itself is a subject for a major debate and I do not intend to launch into it today.
However, I think I am right in saying that one of the items in the equation is that now students fees have all increased and it is the Government's intention that tuition fees will be covered by grant, even when the Government grant is only at the lowest possible scale, that in itself will cost about £3½ million of public expenditure. All sorts of sums of money are involved. Some of the things which the student had expected to receive have been removed by the Bill—some part of the way through his course. He was upheld in the judgment in the Atkinson case and this puts the situation back not to what the student thought it was but to what the Government believed to be the law of the land.
This is a serious matter. Although we shall accept these Amendments, it casts doubt in the minds of the public—in this case the students—as to what the circumstances are when they embark on various courses, the increase in fees and now the taking away of supplementary benefits at Christmas and Easter. Whatever may be the merits or otherwise of this legislation certain students will be adversely affected by it. It is retrospective legislation. I take the point that someone who was a student in 1966 should not claim. Nevertheless, it is not a desirable form of legislation. The Government, and in particular the two Departments concerned, should conduct a thorough-going examination of student grants to discover what proportion is supposed to cover the vacation, otherwise a sense of injustice will hang over this whole matter. As I have already indicated, we shall not vote against these Amendments, but they raise a doubtful principle. Although we accept it, we do so not because we like it but because we have to in the circumstances.
Lord ROBBINS: Might I just say to the noble Baroness that I am in complete
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agreement with her that students at the present time, whatever their disgraceful antics in various quarters, have a real grievance in the way in which prospective fees have been changed. But I think that there is a shade of difference between drastic action of that sort and this rectification of administrative difficulties which seems to be involved by the judgment of the Court of Appeal. I doubt whether many students making their plans in the past have taken into account the state of the law in this respect, its ambiguities and so on, whereas I have absolutely no doubt at all that some students contemplating their future in regard to fees—not all; I do not wish to identify myself with many of the absolutely unjustifiable complaints that have been made—have a genuine grievance over the way in which this momentous subject has been handled. However, I do not think that the analogy is completely correct as regards the matter immediately under consideration.
Lord WELLS-PESTELL: We are in danger of using this as a kind of umbrella to discuss all sorts of matters that, if the Committee will allow me to say so, are quite irrelevant. Many of us would express many views which the noble Baroness and perhaps the noble Lord have expressed about certain conditions generally affecting students, but we are here concerned only with the authority and the power of the Supplementary Benefits Commission. So far as I know, since 1966 there has never been any attempt by anyone to say that the Commission acted improperly or illegally in using their discretion in either one direction or the other. If I am wrong I shall come back and say so, but to my knowledge there has not been any official complaint from any student organisation about the misuse, if you like, of the powers of the Supplementary Benefits Commission. It only came to light as the result of one student bringing an action—which was undoubtedly to his credit. What we are trying to do is to state the law in the future as we understood it was in the past.
On Question, Amendment agreed to.
5.53 p.m.
Baroness YOUNG Baroness YOUNG moved Amendment No. 7:
Page 12, line 21, at end insert—
("( ) Nothing in the above subsections or in any regulations made in pursuance of those

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subsections shall prejudice the position of handicapped students and, notwithstanding the above subsections, regulations shall authorise the payment of benefit in circumstances in which physical sensory or mental disability would be likely to preclude the obtaining of temporary employment during any vacation.").
The noble Baroness said: I beg to move Amendment No. 7. The purpose behind this ought to be perfectly clear. It is concerned with disabled students. I have had the opportunity, as I am sure other Members taking part in the Committee stage of this Bill have had, of re-reading the proceedings in another place. This matter of disabled students was raised on Report, and under the procedure there was no reply from the Minister. I think that the noble Lord, Lord Wells-Pestell, has made it absolutely clear that disabled and handicapped students will be eligible for supplementary benefits, but it would be helpful to have a full statement of this on the Record and I hope that the noble Lord will be able to give us one.
Lord WELLS-PESTELL: As I explained in moving the Government Amendments, the position of handicapped students will, even without this Amendment, be fully protected. Like other students they will still be able to claim supplementary benefit if they are unable to find temporary work in vacations, provided that their income falls short of their supplementary benefit requirements. The Supplementary Benefits Commission's normal practice up until now has been to treat disabled students in some respects particularly favourably, and the regulations made under Clause 12 of the Bill will continue that practice. In particular they will ensure that in the case of a disabled student no account is taken of an unpaid parental contribution, and the £2 disregard will continue to be given on the disabled student's pay. In view of what I have said—and I am sure that the Committee will accept what I have said—the Amendment is unnecessary. If the noble Baroness agrees with me, I hope that she will see fit to withdraw it.
Baroness YOUNG: I am grateful for what the noble Lord has said. When I spoke earlier I meant to ask him whether he would also confirm that, in the case of some local education authorities who pay an extra grant to cover students' particular disabilities, this will not be
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included in the calculation for supplementary benefit. This is a matter which is of great importance to the students. If the noble Lord cannot give me an answer right away perhaps he could write to me on this point. I must apologise. The Committee moved on slightly faster when I moved the Amendment, and the note I had on this point was not to hand.
Lord WELLS-PESTELL: I can give the noble Baroness that assurance.
Lord SANDYS: I should like to support my noble friend's Amendment. I believe that in drafting our legislation it is often necessary to emphasise the obvious. The noble Lord may well say that this is an unnecessary Amendment because it is taken care of in the Amendments he has just proposed. However, we would to well to recognise the wise words in the Finer Report on one-parent families; we should recognise—certainly your Lordships' House recognsised—the wisdom of the Snowdon Report on integration of the disabled; we should also recognise the problems of educational handicap which have been raised in a series of debates in your Lordships' House. I shall re-read with pleasure the speeches of my noble friends Lord Elton and Lord Alexander of Potterhill on this, subject because I believe there is a need for a declaratory clause of this nature. My noble friend Lady Young has put forward something which could very well assist those who are attempting to interpret the legislation, and to point out the value of the particular clauses and Amendments which the noble Lord has just moved.
Lord ROBBINS: I should like to urge the noble Lord, Lord Wells-Pestell, to accept this Amendment. I am convinced by the statement that he has made, as always in sincerity and in truth, but I think that it would be a reassurance to many people if such an Amendment were in the Bill. I cannot think that anything that he has said indicates a disadvantage in writing it into the Bill. I suggest that it would give the Bill more credit if it was there in black and white.
Lord WELLS-PESTELL: I said—at least I thought I said—that we had the powers to do this earlier on, and that we

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are going to do it. Many people, including many of your Lordships, complain of too much legislation, too many pages of legislation, too much going in, and too much going on the Statute Book. Is it really necessary, when a Government come along and say, "We already have the powers to do it. We are going to do it", that one should write such a provision in? It would mean that legislation would become almost impossible. Bills would increase in length when, in point of fact, in every Bill there is provision for regulations. Governments give assurances, and I think it would be difficult for any Member of your Lordships' House to say, where a Government had given such an assurance, they had not carried it out. I would think that this is sufficient.
Lord HARMAR-NICHOLLS: The noble Lord will recognise that new legislation in the sense he is describing it brings new powers with it; sometimes we think there is too much of that sort of legislation. In this instance we are talking about the need to explain legislation which exists so as to avoid the need for it having to be sorted out and explained later, perhaps even to having to go to court to get a Lords of Appeal decision. In other words, we are not talking about new legislation in the sense that the noble Lord was describing it.
In this case the powers already exist, and my noble friend has explained the need to make an Amendment of this kind to ensure that the Bill is more easily understood. The Minister has admitted that this is not new, that no new powers would be introduced and that the powers already exist. For that reason, why not break new ground here—I should like to see more new ground of this sort broken in the future—and make quite clear what we are doing?
Lord WELLS-PESTELL: It will be made perfectly clear in regulations. The noble Lord, Lord Harmar-Nicholls, has had a great deal of experience of Government and knows that what appears in a regulation is just a valid as it is in an Act of Parliament. We cannot put everything in legislation without substantially increasing the volume of legislation. Here the Government are giving an undertaking that they already have the power and therefore
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do not need new powers to take this step; in other words, the Amendment is not necessary. Why, then, pursue what is unnecessary?
Baroness YOUNG: I am pleased to have all this firmly on the record. I am grateful for the support I have had on the Amendment, which is not one I intended to press today, and I shall not do so now. It is important for us to see the regulations, and I shall return to the subject when we discuss my Amendment No. 12. In the meantime, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
6.2 p.m.
Lord GIFFORD Lord GIFFORD moved Amendment No. 8:
Page 12, line 30, at end insert—
("( ) In section 3(2) of that Act (which relates to supplementary benefit to meet exceptional needs) there shall be inserted at the end the words ("and may take into account any requirements which would otherwise fall to be excluded under section 1(3) of this Act.")")
The noble Lord said: We move away from the question of students and come to another source of confusion in the Supplementary Benefits Act 1976. It arises out of Section 1(3) of that Act which says:
"The requirements of any person to be taken into account for the purposes of this Act do not include any medical, surgical, optical, aural or dental requirements."
Section 3(1) of the Act says:
"Where it appears to the Commission reasonable in all the circumstances, they may determine that supplementary benefit shall be paid by way of a single payment to meet exceptional need."
There are two ways in which one might interpret those two sections taken together. On the one hand, one might say they mean that normally the Commission cannot take into account medical requirements, but that exceptionally a single payment could be made to cover such a requirement; or, on the other, one might say there is general discretion to meet exceptional needs, but medical requirements are ruled out. A recent court decision, this time in the Divisional Court, held that the second interpretation, the more rigid one, was correct.
The purpose of my Amendment is to make it clear that the Commission's discretionary powers to meet exceptional

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need could be used in cases where medical requirements—medical and the other surgical, optical or dental requirements—are in issue. Normally, medical requirements are taken care of by the National Health Service without charge and there is no need to claim supplementary benefit for them. Sometimes that is not the case. The court case in question concerned osteopathic treatment recommended by his consultant doctor to a man suffering from severe pains in his back. Osteopathic treatment is not available under the Health Service and it was being paid for privately.
A tribunal held that it was a genuine case of need and that a payment should be made to cover the cost. It was perhaps a rare case, but it was a genuine one. Other cases, perhaps not so rare, of medical requirements which the Commission might wish to meet, include a special dietary need which cannot be met through chemists and which requires extra expense. That might well be a medical requirement, because there is no explanation in the Act of what a medical requirement is. There might be other cases, cases of extreme urgency; cases where forms of treatment not available on the NHS might be exceptionally justifiable.
The hallmark of the Supplementary Benefits Act is its flexibility. Even people in full-time work, at school or on strike may receive benefit in a case of urgent need. It is not right, I suggest, to rule out one arbitrary form of requirement—people with medical requirements—and therefore I commend the Amendment as being in accordance with the general flexible approach of this legislation.
Lord WELLS-PESTELL: I wish at the outset to express my gratitude to my noble friend Lord Gifford for writing to me giving details of this particular case and the background information together with a copy of the judgment, which I had not seen. My noble friend's Amendment to the Supplementary Benefits Act 1976 would enable the Supplementary Benefits Commission to make single payments, known as "exceptional needs payments", of benefit for requirement otherwise excluded by Section 1(3); namely, medical, surgical, optical, aural or dental requirements.
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It arises, as my noble friend said, out of a recent hearing by the Divisional Court of a successful application by the Commission for an order of certiorari quashing a decision by a supplementary benefits appeal tribunal in Peterborough to award £200 to a claimant, Mr. Ernest Albert Dobson, for private osteopathic treatment in London and associated travelling expenses. I think my noble friend represented Mr. Dobson at the hearing.
The Government cannot accept the Amendment. The Divisional Court's judgment clearly confirms that the effect of the legislation is what was intended to be, and as it has always been interpreted by the Commission; namely, that any requirements which a claimant has for medical requirements are not to be met from the Supplementary Benefits Scheme. The reason for this exclusion is that the NHS provides a comprehensive system of diagnosis, treatment and care to meet people's health needs and has its own system for relieving those on low incomes from those charges that are made; for instance for prescriptions, dentistry and optical requirements.
My noble friend said that the treatment required was not available under the National Health Service. I confess that that surprises me because, again trusting to memory, my right honourable friend the Secretary of State for Health and Social Services recently set up a committee comprising a large number of medical experts to look into the cause and treatment of back pain, and I thought there were two doctors on that committee—my understanding is that there is at least one—who are osteopaths. But I may be wrong. I shall have to look into it. It car not be accepted as part of the function of the supplementary benefit scheme to make private treatment of whatever sort available to those on supplementary benefit. To do so would be, in effect—and I ask your Lordships to consider this very carefully—to create a special group who could get private treatment at the expense of the State. That would be the effect of the Amendment.
My noble friend's concern arises out of a case involving osteopathic treatment, but his Amendment would also enable payments to be made for all manner of treatment such as expensive private dental

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treatment, elective surgery or some of the services of less standing in fringe medicine. The staff of the Supplementary Benefits Commission would, if they were to keep any sort of control over these payments, be involved in all manner of questions about the desirability, utility and cost of particular forms of treatment—questions which they are simply not qualified to deal with. There would also be an overlap between the provision of the National Health Service for relieving people of charges and the meeting of those charges by the Commission.
I come back, however, to the point that I made first. I believe that it would be highly undesirable to create a special group which could get private treatment at the expense of the State whereas others who were not in receipt of supplementary benefit could not get treatment. In view of the little that I have said, I hope that my noble friend will feel disposed to withdraw his Amendment.
Baroness PHILLIPS: Before my noble friend speaks, I noted—I hope, correctly—that the Minister said that the special dental, optical and other treatment was not given through the Supplementary Benefits Commission but through the National Health Service. That may be true but there is an area of confusion here because, certainly among elderly people, it is commonly assumed that one gets dental assistance only if one is receiving supplementary benefit. So, though it may all come from one source, it is assumed to come through the Supplementary Benefits Commission. I have come across quite a number of these cases. I wonder whether my noble friend can clear this point up, because it seemed unfair that an elderly woman who is living on a pension should pay full price for spectacles whereas one who receives supplementary benefit got them very much cheaper, if not entirely free. The two things seem to be allied; certainly they are in the minds of the recipients.
Lord WELLS-PESTELL: I should need to look at this matter and perhaps get some further information from my noble friend.
Lord HARMAR-NICHOLLS: I believe that the argument of the noble Lord,
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Lord Wells-Pestell, against the Amendment is absolutely correct and ought to be accepted, but, while he is looking into the question raised by the noble Baroness, Lady Phillips, it might well be that he could use his influence to ensure that osteopathic treatment on the advice of a doctor is included in the National Health Service. I agree that this is not the vehicle to bring this about but it may well be that, since the matters are allied, the noble Lord's influence can be brought to bear to have this point considered.
Lord WELLS-PESTELL: What I was saying was that I should like to look into this question because my impression is that there are in the medical profession a large number of doctors who are qualified osteopaths. I should have thought that, if such treatment was necessary, it could be made available. But I should have to go into this.
Lord GIFFORD: On that last point, as I understand it, there are a few registered medical practitioners who are also osteopaths, but of course the majority of registered osteopaths—who are now quite a dignified profession of long standing—are not registered medical practitioners, so they do not qualify for the National Health Service. Having said that, whenever I hear a judgment in a court of law my instinct is to appeal it, but when I hear the answer of my noble friend on the Front Bench my instinct, at least this time, is to accept it and not to appeal any further.
Viscount COLVILLE of CULROSS: Before the noble Lord withdraws his Amendment, I wonder whether I may very gently mention a passage from Standing Orders. If I am right in thinking, as did his noble friend, that he actually took part professionally in this matter, it is normally considered undesirable that the matter should then be pursued by him—as, indeed, by accountants or by any other professional persons—in this House. I have often been gravely tempted to do this myself, but it is actually dealt with in Standing Orders and it is said to be undesirable. I do not wish to rebuke the noble Lord; it is only that I so often find myself in this position and have to restrain myself. Perhaps the noble Lord would have it in mind.
Lord GIFFORD: I was not aware of the Standing Order and I apologise to the Committee. I shall not do it again.
Lord WELLS-PESTELL: I think that I ought to assume some responsibility. I knew that my noble friend was going to raise this point. As I said, he wrote to me and I knew of his connection, but I took this—I cannot speak for him and would not dream of doing so—as illustrating a matter which he felt ought to be put right. It was on that basis that I made no comment.
Lord GIFFORD: I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Lord WELLS-PESTELL Lord WELLS-PESTELL moved Amendment No. 9:
Page 13, line 10, at end insert—
("(6A) Paragraph 4(1) of Schedule 1 to that Act (adjustment for exceptional circumstances) shall have effect and, subject to subsection (7A) below, be deemed always to have had effect, as if at the end there were added the words " and for this purpose the circumstances of a case may be treated as exceptional if it falls within a class of case the circumstances of which are exceptional.").
The noble Lord said: I have spoken to this Amendment and, if your Lordships will permit me to do so, I should like to move it formally.
On Question, Amendment agreed to.
Lord WELLS-PESTELL Lord WELLS-PESTELL moved Amendment No. 10:
Page 13, line 18, at end insert—
("(7A) Neither subsection (2A) nor subsection (6A) above shall affect any decision substituted or to be substituted for a decision quashed by an order of a court made before 4th March 1977.").
The noble Lord said: For the same reason, will your Lordships allow me to move this Amendment formally?
On Question, Amendment agreed to.
Clause 12, as amended, agreed to.
6.19 p.m.
Lord WELLS-PESTELL Lord WELLS-PESTELL moved Amendment No. 11:
After Clause 12, insert the following new clause:
Retrospective amendment of Supplementary Benefit Act 1966 c. 20.
. So far as subsections (1) to (2A), (6A) and (7A) of section 12 of this Act apply with
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respect to periods before the passing of this Act they apply also with respect to periods before the commencement of the Supplementary Benefits Act 1976, but as if for this references to that Act and Schedule 1 to that Act there were substituted references to the Supplementary Benefit Act 1966 and Schedule 2 to that Act.
The noble Lord said: I have already spoken to Amendment No. 11, and, with your Lordships' leave, I beg to move formally.
Baroness YOUNG Baroness YOUNG moved, as an Amendment to the Amendment, Amendment No. 12:
At end insert—
("Provided that any regulations made pursuant to section 12(1) which relate to a period before the passing of this Act shall be made by statutory instrument which shall not come into force until approved by a resolution of each House of Parliament.").
The noble Baroness said: I should like to move Amendment No. 12, which amends Amendment No. 11. The intention of my Amendment is to provide that the regulations will be by Affirmative Resolution of both Houses of Parliament and not by Negative Resolution. We have had a very full discussion about Clause 12 which, as I believe the whole Committee will recognise, is a very complicated matter. As a result of our discussions, there seem to me to be two important matters that will arise on the regulations, One is the matter of disabled students. I did not press my Amendment to a Division for a number of reasons, not least of which was the Government's wish not to enlarge the Statute and the undertaking that the needs of disabled students would be covered by regulation. However, if the regulations are simply by Negative Resolution, there will be no opportunity to discuss this matter because it is only possible to vote against Negative Resolutions in their entirety. It is not possible to have a debate upon them as it would be under the Affirmative procedure.
That is one group of people who would be covered by these regulations and it indicates how important it is that these regulations should be dealt with by Affirmative Resolution. However, Clause 12(1)(a) refers to those students "attending a course of full-time education". Nowhere is this defined in the Bill and, as the noble Lord will know, this is not a very satisfactory definition. For

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example, it might be thought that a full-time course of education was one for which there was a mandatory award, but in fact there are at least 29 courses of full-time education for which there are no mandatory awards but only discretionary awards. Under the present circumstances, discretionary awards are, not surprisingly, being cut and it may be necessary for the students to have additional help through supplementary benefit. Even if they have a right to claim supplementary benefit, it is very important that they should know the circumstances, how it will affect them, and how these provisions will affect those who are in full-time education on discretionary grants.
The noble Lord has already indicated that while considering this Bill he does not wish us to stray into the whole area of education, yet in this particular clause the two are intimately connected and it is very difficult to separate them. I do not wish to take us right off the course of supplementary benefits and on to education, but I use this case merely to illustrate why I think the regulations are important and why I think that both Houses of Parliament ought to have an opportunity to debate them. It is for that reason that I have tabled the Amendment. I beg to move.
Lord HARMAR-NICHOLLS: I should like to say a few words in case the noble Lord may be committing himself a little against accepting the Amendment. He rebuked me—it was a charming rebuke, as is usual with the noble Lord—for suggesting in what I had to say that a regulation was not as good as part of an Act. He said that one is as good as the other, but this is not so unless the Resolution involved is affirmative. If it has been accepted after debate, then I would accept what the noble Lord said when he rebuked me a minute or two ago—that the regulation should stand as firm as, and be accepted almost in the same light as, part of the Act itself, but not in the case of a Negative Resolution. So I hope that the noble Lord will carry through in action what his words seemed to imply when he replied to me only a few minutes ago.
Lord WELLS-PESTELL: I note the noble Lord's comments and observations. We are in some difficulty here. The
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Amendment, if accepted, would in effect delay the implementation of regulations made under Clause 12(1), and in our view, rightly or wrongly, we must have some account as to the speed of the process and this could not be done if the Amendment is carried. I gave your Lordships some indication why we want to be able to deal with this matter very quickly. As I have explained, the purpose of the new clause is to restore the position relating to students and others to what it was thought to be before the judgment of the Court of Appeal in the Atkinson v. the Barnsley Supplementary Benefit Appeal Tribunal (I have not mentioned this before), to give it statutory backing. If regulations relating to students were delayed because of the Affirmative Resolution procedure, it would be necessary to continue to apply the law as laid down by the Court of Appeal, and one would have to apply it in that way probably throughout the whole of the Easter vacation, and again we are a little worried about the cost of it, which we think would be in the region of £2 million.
Furthermore, in these circumstances the work of local social security offices, we feel, would be seriously disrupted by continuing claims and by students seeking to have claims for earlier vacations reviewed to the prejudice of the generality of the Supplementary Benefits Commission's claimants. I suggest that the aim of your Lordships should be—I say this kindly and not in any sense as a kind of directive—to assist the Commission in its effort to restore its practices to what they were. This Government and previous Governments have always considered those actions to be the right ones; and it is for that reason that I say to the noble Baroness that the Government must resist her Amendment. I hope that that will convince her, and that she will feel that in this matter the Government are being reasonable. The only thing I can do is what I have done; namely, to put before your Lordships briefly and in clear and precise terms our reasons for saying why we cannot accept the Amendment.
Baroness YOUNG: Will the noble Lord tell us whether the reason for not accepting the Amendment is the delay that it would cause? In parentheses, I should like to remind him that the

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Easter vacation has begun at some universities this week, and so if we are waiting for the legislation to be passed before the start of the Easter vacation it is in fact too late for some universities. But will the noble Lord tell us what is the delay in having this procedure rather than the procedure that he has suggested?
Lord HARMAR-NICHOLLS: While the noble Lord is thinking about that, at the risk of advertising one's ignorance I would say that I should have thought that the Affirmative Resolution could be quicker than the Negative. The Negative Resolution has to lie on the Table for a certain number of days to make certain that on the last day it is generally acceptable, whereas if the affirmation was obtained on the first day the regulation is framed. By accepting this procedural way, it could be quicker.
Lord WELLS-PESTELL: At present I am not convinced that the noble Lord is correct, but if it is of any help I should be prepared, subject to the consent of the noble Baroness, to look at this matter and let her know within the next day or two our comments and observations. I know that there is a time factor here. I do not want to write too many letters. The noble Baroness said that I had earlier promised to write to her on a matter but in fact I did not do so. I said that at some time during the proceedings I hoped to be able to give her the answer. But if what I am now suggesting is acceptable to the noble Baroness I would certainly take into account what has been said. I will look at Hansard tomorrow to see whether what the noble Lord has also said is likely to help the Government rather than hinder them.
Baroness YOUNG: I am grateful for the offer to look at the matter. I think that the cause of the delay is very relevant, as are the facts of the situation, and I hope that on looking at this matter the noble Lord will be able to accept the Amendment. But, if he does not, it is a matter to which we can return at a later stage of the Bill. In the meantime, I beg leave to withdraw the Amendment.
Amendment to the Amendment, by leave, withdrawn.
On Question, Amendment agreed to.
Baroness YOUNG Baroness YOUNG moved Amendment No. 13:
After Clause 12, insert the following new clause:
Amendment of Social Security Act 1975
.—(1) In section 35(6) of the Social Security Act 1975 after the words "for whom accommodation is provided" there shall be inserted the words "other than with a foster parent or with foster parents".
(2) Any regulations made pursuant to the said subsection of the said Act insofar as they prohibit payment of attendance allowance in respect of foster children are hereby annulled.
(3) For the purposes of this section "foster child" means a child in the care of a local authority under any enactment mentioned in section 11 of the Children Act 1548 who is boarded out with a person or persons to live in their dwelling as a member of their family under the powers conferred by section 13(1)(a) of that Act; and the terms "foster children", "foster parent" and "foster parents" shall be interpreted accordingly.
(4) In the application of this section to Scotland for the words "any enactment mentioned in section 11 of the Children Act 1948" and "section 13(1)(a)" there shall be substituted respectively "the Social Work (Scotland) Act 1968" and "section 21(1)(a)".
The noble Baroness said: During consideration of an earlier Amendment I was very glad to hear that the Government are willing to accept this Amendment. It has the support of the all-Party disablement group, and it is not in any way a Party political matter. As the noble Lord will know, it can be achieved at relatively little cost. It has now been estimated that it would cost about £200,000 per annum. But much more important than the cost of the Amendment is that it is right that severely handicapped children who cannot be brought up by their own parents should not languish in institutions if there are foster parents who are willing and able to lock after them. If we are talking about comparative costs it should be borne in mind that it is estimated that in a local authority community home it costs approximately £70 a week for a child to be looked after, whereas if the child is in the care of foster parents the cost can be as little as £9 to £12 a week. So in fact the public expenditure gain is very great indeed.
What I believe is an injustice at the moment is that whereas parents with a severely handicapped child are able to claim the attendance allowance—and because they are able to claim the attendance allowance it is tax free—foster

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parents who foster a child cannot claim the attendance allowance even if the child is severely disabled and they are dependent upon the local authority grant. As I understand the position, the amounts of money involved may be somewhat similar, but in certain areas tax officials have taxed the local authority grant whereas the attendance allowance is tax free.
My Amendment seeks to rectify this anomaly. I am very pleased indeed that the noble Lord has said that he will accept the Amendment. Perhaps I should say before he says it that I accept that the Amendment is not correctly drafted; Amendments drafted by anyone other than Government draftsmen never are correctly drafted. But I am very pleased to hear that he accepts the principle here and that he is prepared to bring back Amendments correctly drafted to meet the principle that I have outlined. I beg to move.
Lord WELLS-PESTELL: If I may be permitted to do so, I merely want to ask the noble Baroness what her reaction is to what I am about to say. We had a discussion on Amendment No. 7, which she moved, on the question as to whether this should go in the Bill or whether the Government should use existing regulation-making powers to achieve this result. The Government can do this—I am now talking about Amendment No. 13—by using existing regulation-making powers to achieve the result that the noble Baroness wants. I should like to have her comments and observations on this matter before we pass on to the next Amendment.
Baroness YOUNG: I am bound to say that this is a matter which I had not considered before, and it is one that I shall need to think about. Perhaps, just as the noble Lord will speak to me in the next day or so, I might speak to him. Clearly, if it can be done, and done quickly, by regulation, this is in general, for the reason that he has given, a sensible way to proceed. I think that one wants to know that the point is going to be covered and, once again, that we shall have an opportunity, if necessary, to debate the regulations. It is very difficult, just being asked a question like this, to consider all the features of the case. That is
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my first reaction to the noble Lord, but I shall give him a definitive view tomorrow or the next day. For the convenience of the Committee, on that understanding from the noble Lord, Lord Wells-Pestell, I beg to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clauses 13 to 17 agreed to.
6.33 p.m.
Lord WELLS-PESTELL Lord WELLS-PESTELL moved Amendment No. 14:
After Clause 17, insert the following new clause:
Calculation of guaranteed minimum pensions preserved under approved arrangements
.—(1) Where an occupational pension scheme ceases to be contracted-out and guaranteed minimum pension rights or accrued rights to guaranteed minimum pensions under the scheme are subject to approved arrangements (as defined in section 44 of the Pensions Act for the purposes of subsection (2) of that section) for their preservation, then, except in such circumstances as may be prescribed, section 35(5) of that Act shall have effect, unless the prescribed person otherwise elects in the prescribed manner, as if the following words were added at the end thereof: " except such an order made in any of the tax years comprised in the period of five years ending with the tax year in which the scheme ceases to be contracted-out; and as increased by 12 per cent. for each of those five tax years except any in which an order under section 21 of this Act was made which did not relate to the factor and any in which such an order was not made and would not have related to the factor if it had been made ".
(2) Regulations may provide that subsection (1) above shall have effect with prescribed modifications in relation to a scheme which, immediately before it ceased to be contracted-out, contained provisions authorised by section 35(7) of the Pensions Act.
(3) In this section expressions used in Part III of the Pensions Act have the same meanings as in that Part.
The noble Lord said: This is where we begin to enter a field full of mines and trip-wires, so far as I personally am concerned, but I look in the direction of the noble Lord, Lord Byers, because I hope he will feel that in this Amendment the Government are acceding to a request made by the pensions interests. I have a very long note on this Amendment, and I do not know whether the noble Lord, Lord Byers, feels that I should use it except to say that the subject-matter is extremely complicated and it is difficult to explain it without setting out the

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background in some considerable detail. If your Lordships feel that I can move the Amendment shortly, bearing in mind that we are acceding to a request made on behalf of the pensions interests, I would be very happy to do so; but if your Lordships feel I ought to go into it deeply, again I will. I beg to move.
Lord BYERS: There is no doubt about the fact that this clause will be warmly welcomed by those who have to deal with pensions. I think the real point is that when the 12 per cent, limitation was first announced—and it is referred to in this new clause—there was a good deal of concern that it applied only for the purpose of calculating certain State scheme premiums, and there was a considerable body of feeling among the pensions experts that it should also apply for the purpose of calculating the guaranteed minimum pension. These proposals were put to the Government some time ago, and I am delighted and very grateful to them for having accepted the view that was put to them and for bringing forward this new clause.
On Question, Amendment agreed to.
Clause 18 [Other miscellaneous amendments]:
Lord WELLS-PESTELL Lord WELLS-PESTELL moved Amendment No. 15:
Page 18, line 30, after ("Act") insert ("(which relate to a person whose service in contracted-out employment ceases before he attains the relevant scheme's normal pension age) ").
The noble Lord said: Subject to your Lordships' consent, I should like to speak to Amendments Nos. 15, 18 and 19 together. These are purely consequential drafting Amendments necessitated by subsection (7) of Clause 18, which was incorporated in the Bill at the Commons Report stage. I think that is all I need say so far as these Amendments are concerned, and I beg to move Amendment No. 15.
On Question, Amendment agreed to.
Lord WELLS-PESTELL Lord WELLS-PESTELL moved Amendment No. 16:
Page 18, line 32, at end insert—
("( ) In section 40(3) of the Pensions Act, after the words " the rule has taken effect" there shall be inserted the words " except that the rule may also accord priority, on a winding
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up occurring after an earner has attained normal pension age, to liabilities of the scheme in respect of pensions and other benefits to which he will be entitled on ceasing to be in employment or to which the earner's widow or widower or any dependant of the earner's will be entitled on the earner's death.").
The noble Lord said: Once again, as I understand the situation, the Government are acceding to a request made by the pensions organisations, and I am sure this Amendment will find favour on the other side of the Committee. I think it merely indicates that we have a Government who are open to reason and argument. It is the end result that really matters; and, that being the case, I beg to move.
Baroness PHILLIPS: Before the Question is put, may I raise one point? It is not on this Amendment at all, but I cannot see any other way of raising it, and I thought that if I mentioned the point now my noble friend might get the answer before the end of the proceedings. On page 17 we have some fascinating words. We are told that, in future,
"for the words 'she is cohabitating with a man as his wife' there shall be substituted the words 'she and a man to whom she is not married are living together as husband and wife'".
I am very curious to know what the difference is, if any.
Lord WELLS-PESTELL: It may be one of semantics, but I will find out and let my noble friend know before the end of the proceedings.
On Question, Amendment agreed to.
6.39 p.m.
Lord LYELL Lord LYELL moved Amendment No. 17:
Page 19, line 26, at end insert—
("( ) In section 28(1) of the Pensions Act there shall be inserted at the end the words ' so as to embody the best practicable estimate of the average of the cost referred to in paragraph (a) above'.").
The noble Lord said: The noble Lord, Lord Wells-Pestell, said we were entering a complicated area of minefields and trip-wires. Certainly I will attempt to pick my way fairly delicately through this area and through these obstacles, but the purpose of this brief Amendment is this. Section 28 of the Social Security Pensions Act 1975, I understand, is what we might call the master Act, and, as I understand it, Clause 18 of this Bill, for the main part,

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is amending various sections and subsections of the Pensions Act 1975. The object of this brief Amendment is to write into Section 28 of that Act, which I understand deals with the alterations in Class 1 contracting-out contributions, the same provisions as are contained in Section 46 of the Pensions Act. Perhaps Members of the Committee may not be aware, as I was not, that this particular section deals with actuarial tables. However, I believe that a connection between Section 28 and Section 46 exists thus: that Section 46(2) contains fairly close provisions detailing a standard actuarial table which embodies whatever appears to the Secretary of State to be the best practical estimate of the average cost of providing any one of three rather complicated premiums. First, there is something called the "accrued rights premium" or, the alternative, as a variation on this, the "pensioner's rights premium". Then there is the different form of the "limited revaluation premium". All of these, I understand, are a form of premium where a contracted-out earner requires to re-enter the Government scheme. The different nomenclatures for the premiums are apposite to differing circumstances.
I understand that all of these three premiums require very careful calculation and close scrutiny both by the Government Actuary and by the Secretary of State. I think we should also remember that these three premiums concern the return of the contracted-out pensioner to the Government scheme. We believe that it is right that great care should be taken; but I wonder whether the noble Lord could give us some indication why the Secretary of State should not exercise what we regard as equal care and precaution when altering the rates of contracted-out Class 1 contributions as set out in Section 27(2) of the Pensions Act 1975 when using the provisions of Section 28(1)(b). This is the subsection to which my particular Amendment applies. I apologise for the seeming complication of this particular Amendment. I understand that it is fairly simple and I hope that the Committee have found it so. I beg to move.
Lord WELLS-PESTELL: I hope the noble Lord, Lord Lyell, will not misunderstand me when I say that I have
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found it difficult to understand what he wishes to achieve by this particular Amendment. As the noble Lord will realise, I have taken advice on this but that has not helped me a great deal—and in saying this I am not being critical of the advice; for I am always in the happy position of being given the best possible advice, which is a good thing for me and, I hope, for your Lordships. It is a question of what the noble Lord had in mind when he put down this Amendment and what he thought it would achieve. This is my difficulty. I think I ought to be frank about it. That is not being critical of what he has put down.
Section 28 of the Pensions Act lays down the procedure for regular reviews of the contribution reduction for the contracted-out which will initially total 7 per cent. of earnings in the upper band. Subsection (1)(a) requires the Government Actuary to report on the contracted-out contribution percentages applying at the time and on any changes in the factors affecting the cost of occupational pension schemes of providing guaranteed minimum pensions, and the Secretary of State is then required, as I understand it, in subsection 1 (b), to report on whether he considers that, in view of the Government Actuary's report, there should be any change in these rates of contribution. This rather formal procedure, and particularly the specific reference to changes in the factors affecting the cost or occupational schemes of providing guaranteed minimum pensions, was provided for especially to allay the fears of the pensions interests that the terms for contracting-out might be worsened at some future date for reasons other than the need to revise the underlying acturial assumptions.
It may well be that the Amendment is intended to ensure that where the Government Actuary demonstrates in his report that the costs of providing guaranteed minimum pensions have gone up, a draft order in respect of a compensating adjustment in the contracting-out terms (that is, the size of the contribution abatement) will follow as in subsection (4). But the discretion given to the Secretary of State in subsection 1(b) as to whether there should be a contribution change and, if so, what change, I am advised, would be untouched by the Amendment. On the other hand, the reference to the "best

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practical estimate" in the noble Lord's Amendment might be an expression of doubt as to the efficacy of the Government Actuary's reporting. I am sure that noble Lords will go away thinking that I have "a thing" about Government actuaries and the treatment thereof.
Neither thought, could, of course, be entertained by the Government. There could be no question of the Secretary of State not exercising his discretion reasonably, while the accuracy of the Government Actuary's impartial uprating should not be doubted. Parliament laid down the Secretary of State's responsibility under the section and the intention was plainly that changes in the terms for contracting-out would be as a result of the specific advice of the Government Actuary within the terms of the section, and not otherwise.
I was going to quote the whole of Section 28(1)(a) and (b) but I shall not do so. But when one looks at Section 28(1)(b) and adds the words that the noble Lord has put down in his Amendment then I say, with respect, that I do not think it does anything that is of any value or of any help. I hope that the noble Lord will feel on reflection, or perhaps after looking at Hansard tomorrow, that that might be so.
Lord LYELL: I should like to thank the noble Lord for what he has said. I shall be happy to reflect on it. The noble Lord would agree with me that I would be very happy with the actuarial calculation. It was just this aspect of discretion on the part of the Secretary of State to which the noble Lord alluded. It seemed that there was a slight inconsistency in my mind and in the mind of one or two other people as to the difference of the words I had put in my Amendment including "best practical estimate of the average of the cost" which is expressed. We understand that this is some kind of criterion and guideline again allowing the Secretary of State to use his discretion but, we understood, within these parameters. We thought that these parameters might be and are apposite to Section 28. However, I think that the noble Lord has given us enough on which to reflect. I would not wish to pursue this at much greater length tonight and beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Lord WELLS-PESTELL Lord WELLS-PESTELL moved Amendment No. 18:
Page 20, line 12, after ("which") insert (", as amended by subsection (7) of this section,").
The noble Lord said: I have already spoken to this Amendment and mentioned that it was consequential. I beg to move.
On Question, Amendment agreed to.
6.50 p.m.
Lord WELLS-PESTELL Lord WELLS-PESTELL moved Amendment No. 19:
Page 20, line 13, leave out ("the scheme's normal pension") and insert ("pensionable").
On Question, Amendment agreed to.
Lord WELLS-PESTELL Lord WELLS-PESTELL moved Amendment No. 20:
Page 20, line 14, at end insert—
("( ) In section 47 of the Pensions Act, in subsections (1)(b) and (8)(b), for the words " state scheme premium" there shall be substituted the words " contributions equivalent premium.").
The noble Lord said: The Government have introduced this Amendment to express more clearly the intended scope of Section 47 of the Pensions Act. I think I can take it briefly. This section enables an employer to recover part of the cost of paying a contributions equivalent premium from any refund of occupational scheme contributions the employee may receive. Broadly, a contributions equivalent premium may be paid by an employer to the National insurance Fund when an employee leaves contracted-out employment before the scheme's normal retirement age and has completed less than five years' contracted-out service.
The effect of payment of the premium is to remove the scheme's liability for a guaranteed minimum pension for the employee concerned and to buy him back into the State scheme as though he had never been contracted out. A contributions equivalent premium is in fact a straight adjustment of National Insurance contributions. As is set out in Section 47(2) of the Pensions Act, its amount is arrived at by calculating the difference between the contributions that would have been payable for the employee if he had not been contracted out and those that were actually paid in the contracted-out employment. This difference covers

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both the employer's and the employee's share of the contributions. Section 47(2) therefore allows the employer to make a corresponding deduction from any refund due to the employee in respect of the employee's share of that difference.
It has been suggested that the employer could have a similar right of recovery under the terms of the section when he pays other types of premiums such as a limited revaluation premium or an accrued rights premium. This was never intended, and in fact would result in some very anomalous situations. A limited revaluation premium results in the State taking over responsibility for part of the revaluation of a guaranteed minimum pension which the scheme would otherwise have to provide. Accrued rights premiums transfer the responsibility for the guaranteed minimum pension to the State scheme. In these circumstances, there is no reason why scheme rates should provide for refunds of contributions in respect of alterations in the arrangements for guaranteed minimum pensions, and it would be inappropriate to provide for deduction from any refund relating to pension rights in excess of that minimum.
The intention of this Amendment is thus to make it clear—and I accept that it is very difficult for those of us who are children in this matter—that the employer's right of recovery under Section 47 of the Act relates solely to contribution equivalent premiums. I beg to move.
On Question, Amendment agreed to.
6.54 p.m.
Lord BYERS Lord BYERS moved Amendment No. 21:
Page 20, line 14, at end insert—
("(12A) In clause 33 of the Pension Act (which provides for requisite benefit for an earner who wishes to contract out of an occupational pension scheme), after subsection (1)(b), there shall be inserted the following—
"Provided that the Board may at their discretion issue a contracting-out certificate notwithstanding that the scheme does not, at that time, contain rules or amendments to the rules complying with the detailed requirements of the Act, so long as the Board are satisfied that a formal commitment has been entered into, that rules or amendments to the rules which comply with the requirements of the Act will be adopted within such period as may be laid down by the Occupational Pensions Board.".")
The noble Lord said: I tabled this
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Amendment to deal with a problem which I raised on Second Reading, the problem which occurs from a strict interpretation of the 1975 Act in connection with the various detailed stipulations concerning the benefits necessary for contracting out. As I pointed out, in practice very few schemes will be able to produce full and final rules by the operating date, which is April 1978. Even if they could, I do not think that it is reasonable for the Occupational Pensions Board to be expected to deal with them in detail before then. What I think is needed, as I said on Second Reading, is an interim method of documentation.
The purpose of this Amendment is to give the Occupational Pensions Board the discretion which it needs. There is a precedent for this, I am told, in that the Superannuation Funds Office of the Inland Revenue have allowed interim procedures to be adopted for many years now. At present the only place where the kind of details that are required can be recorded would be the explanatory booklet, announcement or notice issued to employees. But these documents, quite rightly, have been written in a "chatty" style, and it would not be appropriate for them to contain the formal detail more appropriate to the rules booklet. Even if the detailed material were included, again I do not think that the Occupational Pensions Board would have time to examine it in detail.
The Government may take the view that those that have to deal with these matters in pensions are getting unduly nervous; but I can assure them that those people have a great deal of experience and they are worried. In their view, unless some interim method is adopted, there is going to be a much more serious log-jam towards the date of April 1978 than has hitherto been predicted. This Amendment would allow the requirements of the Act to be met by a short, generalised commitment in interim formal documentation followed by the final document within a time to be set by the Occupational Pensions Board.
I mentioned one other alternative, which may commend itself to the Government. If the Government would consider giving an assurance that Clause 63(2)(g) of the main Pensions Act 1975 would be used to include a regulation-making power

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to allow the addition of more streamlined systems of documentation, this would avoid the need for my Amendment. If the Government could give an assurance that Clause 63(2)(g) can be used, and that they will use it in order to get something done in the way of more streamlined procedures and interim documentation, I should be only too happy to withdraw my Amendment. I beg to move.
Lord WELLS-PESTELL: I have a very long note on this Amendment and I do not know to what extent I should use it. The noble Lord, Lord Byers, has, I believe, received a letter from the noble Lord, Lord Allen of Abbeydale, who is chairman of the Occupational Pensions Board. I do not know to what extent that letter has helped. Perhaps it has not helped as much as the noble Lord hoped. But I can say—and I hope that the noble Lord will say whether or not it is helpful; if it is not, one must approach it in some other way—that the Department, in conjunction with the Board, will keep a close watch on the situation as it develops during the coming months. If it appears that regulations under Section 63(2)(g) will be needed, these will be made. Any such easement, if it proved necessary, might well need to be subjected to restrictions, and the requirements of the Board here would be ascertained. For this reason, easement through regulations would be more appropriate than a general discretion, without any limitations, based on a "formal commitment" as in the Amendment. If that is helpful, I will stop there. The noble Lord, Lord Byers, knows he has access, as everyone has, to the chairman of the Occupational Pensions Board and I will certainly draw the chairman's attention to what the noble Lord has said tonight. Subject to anything the noble Lord says, I will leave it there.
Lord BYERS: I should like to say, first, that the letter from the noble Lord, Lord Allen of Abbeydale, was extremely helpful. I think the best thing I can do is to say that I will study in Hansard what the noble Lord has said and, if necessary, I will write to him. In fact, I think he goes as far as I can expect him to go at this stage. If he does not, I will come back to him personally, but in the meantime,
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in view of what the noble Lord has said, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 18, as amended, shall stand part of the Bill?
Lord HAILSHAM of SAINT MARY-LEBONE: It is seven o'clock!
Lord LYELL: Before we consider this Question, I wonder whether the noble Lord, Lord Wells-Pestell, whom I warned before the debate of two minor points that I wanted to raise with him, could give me some form of explanation. If so, I should be very grateful. I should like to refer the noble Lord and indeed the Committee to subsection (7) of Clause 18, where there is a change in two sections of the Pensions Act 1975. In both sections it seems that the words, "the Scheme's normal pension age" are to be replaced by the words, "pensionable age". Those two sections deal with an earner's guaranteed minimum pension and also the limited revaluation premium that we had explained to us in connection with an earlier Amendment by the noble Lord, Lord Wells-Pestell. Those two minor changes, as set out in subsection (7), may not be of the greatest importance, but I have my doubts and therefore I should be very grateful if the noble Lord, Lord Wells-Pestell, either now or at some later stage, could give some indication of the meaning of the changes and how those words affect the two sections in the Pensions Act.
The second point I wanted to raise concerns subsection (11) of the same clause, on page 19 of the Bill as we have it. There seem to be two fairly substantial amendments to Sections 44 and 45 of the Pensions Act. It seems that the Bill's amendment to those sections differs in one major respect from the regulations as they are set out in the Act. It is that Section 21 of the original Act shall be considered as a factor with the earnings factor whether a Section 21 order was in force before or after the scheme terminated. I am worried about what Section 21 purports to say. It appears that the first three subsections are the most important ones. They lay down what the Secretary of State shall consider and what action he shall take in relation to earnings and earnings factors, when comparing

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those items with long-term benefits. In the fifth and sixth lines of subsection (3) we find that the Secretary of State:
"…shall…lay before each House of Parliament…an order directing that those earnings factors shall,…be increased…".
I could not find any provision in Section 21 where the Secretary of State would make an order which is not concerned with earnings factors. Would the noble Lord be able to let me know the meaning of paragraphs (a) and (b) as amended in the Bill, as they affect Sections 44 and 45 of the original Act?
Lord WELLS-PESTELL: I am rather embarrassed, because I have given an undertaking that these proceedings will finish at seven o'clock. I do not want to prolong them. If the noble Lord would not think me discourteous, I can answer him and indeed I have the answers to all the matters he raised but I wonder whether he would allow me to write to him. If so, that would save an appreciable amount of time. There are only three more Amendments remaining to be dealt with. I imagine that Amendments Nos. 23 and 24 will not be moved and if the noble and learned Lord will give me two minutes, I can move Amendment No. 22 very briefly and we can complete our proceedings on this Bill.
Clause 18, as amended, agreed to.
Clauses 19 and 20 agreed to.
Clause 21 [Citation, commencement and extent]:
Lord WELLS-PESTELL Lord WELLS-PESTELL moved Amendment No. 22:
Page 22, line 25, after ("7") insert ("12(1) to (2A), (6A) and (7A), 12A, 13").
The noble Lord said: The effect of this Amendment is to add subsections (1), (2), (2A), (6A) and (7A) to Clause 12 and also Clauses 12A and 13 to those provisions which come into force on the passing of the Act. The whole purpose of them is to bring Clause 13 into force on Royal Assent. The clause provides part of the powers under which regulations for the recoupment of benefit from Industrial Tribunal awards are to be made by the Secretary of State for Employment. Since it is intended that those regulations should operate from May 1977, it is desirable that Clause 13 should be
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brought into force on the passing of the Act, so that there would be adequate time for their making, laying and being brought into operation. I beg to move.
On Question, Amendment agreed to.
Baroness YOUNG Baroness YOUNG had given Notice of her intention to move Amendment No. 24.
Page 22, line 31, at end insert ("and section (Amendment of Social Security Act 1975") shall come into force on 1st September 1977.").
The noble Baroness said: Can the noble Lord give an assurance that if he considers the Amendment to meet my Amendment No. 13 it will come into force with the rest of the provisions of this Bill?
Lord WELLS-PESTELL: Will the noble Baroness let me communicate with her on this?
Baroness YOUNG: Yes. With that assurance, I shall not move the Amendment.
Clause 21, as amended, agreed to.
Schedules 1 and 2 agreed to.
House resumed: Bill reported with the Amendments.

CRIMINAL LAW BILL [H.L.]
7.10 p.m.
Lord HARRIS of GREENWICH: My Lords, I beg to move that this Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Lord Harris of Greenwich.)
Lord HAILSHAM of SAINT MARY-LEBONE: My Lords, I rise only to protest against the way in which this Bill is being treated. There is a very thin House. It is now ten minutes past seven. I daresay that there are about to be discussed some of the most important Amendments. From what I can see of them, it is quite likely that some noble Lords will wish to divide the House. It is obvious that no kind of serious or proper view of the House can be obtained in the present circumstances, and I must protest against this procedure with all the vehemence in my power.
Lord HARRIS of GREENWICH: My Lords, I regret, as much as the noble and learned Lord does, the fact that we are beginning at this stage of the evening. But we have devoted, and rightly so, a substantial amount of time to this measure. I do not think seven o'clock is an unreasonable time at which to begin consideration of this Bill, and I think we must get on with it. We have taken, very properly, a lot of time with it and we must try to conclude the discussion of the Report stage. We are now indeed on the third day—again, no complaint at all is being made about that—and I feel it is not unreasonable for the Government to ask for consideration of this matter at this time.
On Question, Motion agreed to.
Schedule 1 [Offences made triable only summararily, and related amendments]:
Lord BEAUMONT of WHITLEY Lord BEAUMONT of WHITLEY moved Amendment No. 68A:
Page 39, leave out lines 32 to 38.
The noble Lord said: My Lords, this Bill has the effect of lowering the penalties for male soliciting and making the offence triable only summarily. My Amendment is to restore the status quo, and I can only hope that it is so drafted that, if carried, it would do that. Of course I would welcome the first part of the proposal in the Bill to lower the penalties, if it did not carry with it, as it obviously must do, making the offence triable only summarily. I feel, and so do the greater majority of those representing homosexual public opinion in this country, that this produces a great many dangers and troubles. But they are content—if that is the right word—or prepared voluntarily, to put up with the higher penalties, if only they can have the right to go for trial before a jury, because they feel that only in that way can the danger of wrongful decisions, and indeed of more prosecutions, be avoided.
I think everyone in this House would agree that, looked at in one way, this is a minor offence and should come into that category. Indeed, it probably ought to end up merely as part of a new offence of public nuisance. Although regrettable and deplorable, this offence does not do any very great harm, nor, on the whole, do the courts and informed
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opinion put very much weight on it. But it is not minor from the point of view of the person concerned, and this is so in a way totally different from any of the other offences which are named in this Schedule. It really can be calamitous from the point of view of the person concerned. It can involve loss of job, although it has absolutely nothing to do with a person's ability to do the job. I know that there is a right of appeal against that, but, nevertheless, it is a very real threat. Only recently, there was a case of someone being fired from a job merely for coming out and admitting to being a homosexual. It can, of course, cause the break-up of a marriage. It can cause the greatest distress to other people in a person's immediate entourage and family. As I say, I believe that it is incomparable with anything else in the Schedule.
The James Committee, on which this part of the Bill is based, said that the criterion should be seriousness in the eyes of society. There are two arguments which could be made against that, and which I propose to make. The first is that a very different situation is raised when, although in the eyes of society the offence may not be great, it still remains a very serious offence in the eyes of a considerable proportion of society; and that is so with this offence today. Secondly, I am glad to know that the Government have not entirely followed James. Small thefts have already been taken out of the Schedule. The principle has been breached, and I suggest that, as part of this welcome flexibility, so it should be in this case.
Prejudice exists very much and very heavily in this matter, and it is no wonder that accused people in cases of this kind often wish to be judged by magistrates, rather than by juries. We all know that magistrates do their very best to be unprejudiced, but they cannot always overcome prejudice. It is one man as against 12. Very often, particularly in certain parts of the country, magistrates are coming up against a large n umber of these cases. They tend to get rather tired of them and say, "There is too much of this going on ". There is also the situation that a very great many of these cases depend entirely upon police evidence, and it is often almost impossible to deploy a defence unless one knows what the prosecution case is to be. As I am

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sure the noble Lord, Lord Harris, will know, there have been a number of cases where the accused was acquitted because the defence was able to make the rather detailed measurements, to investigate timing and to prove that the accused could not have committed the offence. So for those reasons I suggest that we should think again about this offence being in the Schedule.
I can see various objections which the Government may make to this Amendment, such as expense and time. I do not want to be overly cynical, but I think that if we did not carry this Amendment there would be many more prosecutions and I should have thought that the consequences would just about balance out. There is the principle of the James Committee's Report, and the principle established; but, as we have seen, that has already been breached, and I do not think this point about whether a certain section of society regards an offence as extremely important has been sufficiently considered.
There is also the other point that this merely brings about equality for the sexes, in that it reduces the level of the offence to that of prostitution. The answer to that is that, as a matter of practice, prostitutes are cautioned, but, also as a matter of practice, men soliciting do not appear to be. It is a difficult area, but it seems to me that the arguments of humanity are overwhelming in this case and, to give the Government their full due, all the other arguments are only finely balanced. I ask the noble Lord, Lord Harris, on this occasion to see whether the Government can exercise the necessary humanity to guard against injustice in a case where the danger of it seems to be rather more than is usual. My Lords, I beg to move.
7.19 p.m.
Lord GARDINER: My Lords, I support this Amendment. When I was a young barrister, a highly respected Queen's Counsel whose practice was almost entirely in the criminal courts, in which he had spent his life—sometimes prosecuting, sometimes defending—said to me: "Nothing would ever persuade me to go into a public convenience in Central London. The risk of finding two plain clothes men there, who had recently been asked by a superior officer what they had
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been doing lately as they had not produced any results, is not a risk which any sensible man would take. If my bladder was bursting", he said, "I would sooner pee in the streets ". He may have been wrong and times may have changed, but the position of an innocent man who is not a homosexual, faced with two plain clothes men and their notebooks—note-books which, as my noble friend Lord Gifford reminded us at the Committee stage, the Court of Appeal has said it is quite in order for them to compile together jointly—is full of difficulty. When asked: "Are you really suggesting that these two officers of unblemished character have invented something which never took place at all?", if you are wise you say, "No, I am only suggesting that they are mistaken". Sometimes the circumstances are such that you cannot do that, but if you can, you do so, because otherwise you know how embarrassing the case would be to the justices. I do not think that my noble friend Lady Phillips will accuse me of bias against justices because everybody in the country knows that I am an enthusiast about justices.
The point was put in a letter to my noble friend Lord Harris of Greenwich which the Law Society—they have no axe to grind as between prosecution and defence—sent to him on 10th January. The Law Society were dealing with assaults against the police, but in my submission the reasoning is the same. They said:
"…in offences of this kind, the complainant, that is, the constable assaulted, is likely to be well known to the local magistrates' bench, so that many, perhaps most, cases will in any case have to be brought in, or referred to, courts outside the district in which the assault occurred—though this could be a magistrates' court, we think that, taken in conjunction with the other reasons for trial on indictment, it is an argument for trial in a Crown Court ".
If it is so embarrassing to the local magistrates—one can well understand that this may involve a police officer upon whose evidence they have been accustomed to rely—and if on the evidence they feel driven to find that he has invented something, what will they do when he gives evidence before them in another case the next week, and the week after that, and the week after that? Therefore, as the Law Society say, more often than not the case will have to be referred to some other magistrates' court.
I am not so much concerned with the homosexual as with the person who is

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not a homosexual. In any system of justice occasionally innocent people must be convicted. Of course, the ordinary man has no idea what the case against him is when he is charged with soliciting in a public convenience; he has never heard such a case. It is an unpleasant subject, but legislators have to know what happens in real life, and in fact the evidence may vary a great deal. They may say, "You were masturbating while standing at the urinal, to draw attention to yourself as a homosexual". They may merely say, "You smiled at the man next to you, who appeared to be annoyed"; or, "You spoke to somebody who appeared to be annoyed"; or even, "While you were in the convenience two men came out who appeared to be ruffled"; or, "You went into a WC cubicle and they, stooping down on the floor, saw that something or other was happening in there ".
It is practically never the case that the people who are said to have been annoyed are called. It is the policeman who arrests you who is called. It is the individual policeman who decides on a prosecution, and he prosecutes. The individual policeman presents the case, gives the evidence and cross-examines you. Perhaps this is the high-water mark of the deficiencies of not having in this country an independent prosecution service.
Therefore, I respectfully support the Amendment, first because the House has already decided in Committee that the gravity of the offence ought to be taken into account. As the noble and learned Lord, Lord Hailsham of Saint Marylebone, said, for any ordinary man this is a much graver offence than stealing a book from a bookshop. Secondly, as things now stand, the innocent man gets no notice at all of what he is supposed to have done. He does not know what he is supposed to have done until the policeman goes into the witness box. He cannot give prior instructions to his solicitors as to what the cross-examination ought to be, because the next moment he is in the witness box himself. Thirdly, there are relatively few cases—certainly as compared with assaults on the police—amounting to only about 600 a year which are divided between the 97 Crown Court judges sitting in 200 to 300 different courts. Fourthly,
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unlike assaults on the police, this is depriving a man of an existing right which he has.
I have most carefully considered everything which my noble friend Lord Harris of Greenwich said at the Committee stage. He said that you are rather better off before magistrates than before a jury, because if a jury convicts you, you have "had it"; whereas if the justices convict you, you have a right of appeal, and this is a re-hearing. This seems to me to leave the facts of life out of account. I am assuming that the case of a man who is not a homosexual and who has been wrongly convicted gets into all the local papers. The boys at the school where his two sons are being educated are told by their fathers that they must on no account go to this man's house and that they had better be very careful not to become too friendly with his two boys. Three months later, in some distant Crown Court, the man is acquitted; but the fact is not even published in the papers and for years a great part of the local population will say, 'Oh yes, that is the man who was convicted as a homosexual".
The only other point which my noble friend makes is that this was a Working Party recommendation which was accepted by the James Committee, on the footing that there is no reason why this rather minor offence should merit more than three months' imprisonment, that that would put it on a par with women, soliciting—which on the grounds of sex equality is right—and that as a consequence the man would lose his right to trial by jury. It is not, with respect, the same offence. In the first place, as the noble Lord, Lord Beaumont of Whitley, has pointed out, a woman found soliciting on the streets is not prosecuted until she has been warned three times. This is a very sensible arrangement, because it enables her to speak to the welfare and probation officers who will try to persuade her to adopt another mode of life. A man soliciting another man is a wholly different offence. It would be the same offence if you were comparing it with women soliciting women. So far as anybody knows, there is about the same proportion of women with homosexual inclinations as men. Therefore, if it were a case of women soliciting women it would be the same offence, but to say that it is the same

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offence as women soliciting men is quite unrealistic.
On all these grounds, particularly because it is depriving men who may be entirely innocent of the right to trial by jury which they at present have, I support the Amendment.
7.29 p.m.
Lord HARRIS of GREENWICH: My Lords, when we discussed the matter during the Committee stage, I indicated to the House that the Government would look at the question in the light of what had been said, although I emphasied that I could give no commitment, so far as the future was concerned, that we would change our views. Indeed, we have reconsidered the question of the appropriate mode of trial for this offence, but we have come to the conclusion that the Bill as drafted is right and that this offence should become triable only summarily.
If I may deal with the points raised by my noble and learned friend, Lord Gardiner, who always speaks persuasively, I am bound to tell him that although he made a number of gracious remarks about magistrates—and indeed I recall his period of office as President of the Magistrates' Association—the criticisms he makes of magistrates in relation to this particular type of offence (and, I understand, in connection with the next Amendment as well) are central to the whole function of the magistracy. I sat for a time as a magistrate. Of course I knew the policeman who often gave evidence; of course the policeman was cross-examined; and of course those prosecuting for the police said, "Why should this policeman tell lies about this particular matter? What conceivable reason has he for so doing?" That does not arise just in cases of this sort; it arises across the whole area of the administration of justice in magistrates' courts; and on that particular point I am bound to say that I did not think my noble and learned friend was as persuasive as he is on so many other questions.
The situation at present is that this is a hybrid offence which is punishable on summary conviction by up to six months' imprisonment or a fine of £100 and on conviction on indictment by up to two
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years' imprisonment and an unlimited fine. The accused may insist on a jury trial if, but only if, the immoral purpose is the commission of a homosexual act. That is so because of an express provision in Section 25 of the Magistrates' Courts Act of 1952 as amended.
As has been made clear, the Bill as drafted makes the offence a purely summary one with no right to jury trial but with very much reduced maximum sentences of three months' imprisonment and a fine of £200. The effect of the Amendment would be to make the offence triable either way and in consequence to increase the maximum penalties to slightly more than the existing penalties. In other words, the accused would be able to claim jury trial but would run the risk of up to two years' imprisonment and an unlimited fine if he did, and would also be at risk of up to six months' imprisonment and a fine of £1,000, and this for an offence in respect of which the noble Lord, Lord Beaumont of Whitley, describing the offenders, said: "They do not do very much harm". If that is the scale of penalties for offenders who do not do very much harm, it seems to me that penalties of that description are slightly out of keeping with the gravity of the offence as described by the mover of this Amendment.
The penalties which I have set out are the penalties for all "either way" offences tried summarily under the Bill and these penalties are very much higher than those proposed in the Bill under the Amendment tabled by the noble Lord, Lord Beaumont of Whitley, for the purely summary offence and, as I have indicated, actually higher than the penalties for the existing hybrid offence. The choice therefore is between putting the offence in the "either way" category with high maximum penalties or summary trial with very much lower penalties. In the view of the Government the high penalties are not justified either when compared with the penalties for the existing offence of soliciting by female prostitutes—a point touched on by the noble and learned Lord, Lord Gardiner—or in the light of present-day attitudes of society towards homosexuality.
An additional point was raised and I am sorry that the noble Lord, Lord Wigoder, is not with us because on the

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last occasion he raised a question concerning acquittals in contested cases for this particular offence. I have written to him and in view of the fact that he is not here I think it is only right to tell the House what the results of our researches have been. I am sure that they will at least give pleasure to my noble friend Lady Phillips because the situation is this. In 1975, of the 627 people who were tried in the magistrates' court, all but 43 pleaded guilty. Of the 43 pleading not guilty, 33—or 77 per cent.—were acquitted by the magistrate. These are the people who one is always told are much more likely to accept the evidence of the police uncritically. In the Crown Court, of the 40 who were tried, 28 pleaded not guilty of whom 17–61 per cent.—were acquitted. I do not believe that an acquittal rate in the magistrates' court of 77 per cent. supports the contention that magistrates are more likely to believe police evidence than that of the defendant.
Lord GARDINER: My Lords, if my noble friend will allow me I should like to ask one question because I have asked his office but I have not had any reply. It is divided between magistrates' courts and Crown Courts: where in these figures do I find the cases in which the man is wrongly convicted in the magistrates' court and acquitted in the Crown Court?
Lord HARRIS of GREENWICH: My Lords, is my noble and learned friend indicating that he had written to me about this?
Lord GARDINER: No, my Lords; I communicated with the noble Lord's office.
Lord HARRIS of GREENWICH: My Lords, I am much obliged to the noble and learned Lord, but, as he will appreciate, I cannot answer the question.
Perhaps I may sum up in these terms. In proposing that this offence should become triable only summarily with much reduced penalties, the Government are giving effect to the recommendations of two separate bodies. The first is the Working Party to which my noble friend alluded, on vagrancy and street offences, which recommended last year that the maximum custodial penalty should be
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reduced to three months, bringing it into line with the maximum penalty for soliciting by women prostitutes, which also is a purely summary offence; and, secondly, we have the view of the James Committee that with a substantial reduction in the penalty there is no longer any reason why the offence should continue to be triable on indictment, bearing in mind of course that it will remain open to anyone convicted of the offence in the magistrates' court to appeal to the Crown Court where the proceedings take the form of a complete re-hearing of the case.
In short that is the view of the Government. I think it is right for us to maintain our position that for offences of this sort the range of penalties should be sharply reduced and they should be triable summarily only. The effect of this Amendment is certainly to give the right of jury trial but also to carry with it a scale of penalties which in our view is wholly inconsistent with the type of offence.
Lord HAILSHAM of SAINT MARY-LEBONE: My Lords, I agree with the noble Lord, Lord Harris of Greenwich, about this problem. It is a problem which has given me a lot of reason for thought and it is a problem about which I dare say I have as much experience as anyone in the House; probably that is not very much in the case of any of the noble Lords who have spoken, and certainly my experience is nor very much, although not quite as small as one might expect because over 50 years one has heard and taken part in trials of this kind. Of course I would agree (subject to the criticism I am about to make later on) with the noble and learned Lord, Lord Gardiner, that the consequences to a man of being convicted of this offence are certainly more serious than are the consequences to a woman convicted of soliciting for the purposes of ordinary prostitution. I believe that to be the case and certainly the noble Lord, Lord Wigoder, has asserted it and the noble and learned Lord, Lord Gardiner, has asserted it and I do not want to dispute it.
Then one goes on to think of one or two other factors. If the case had been made out that such a man as is charged with this offence had a better chance of acquittal in front of a jury than in front of magistrates I am not sure that if would

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not have gone along—again subject to criticisms I shall make later—with those two noble Lords who have supported the Amendment. But in fact the evidence is the other way and the figures cited by the noble Lord, Lord Harris, seem to me to be much more than significant: they are virtually conclusive: 43 pleading not guilty before magistrates; the percentage of those pleading not guilty who were acquitted, 33 out of 43, three-quarters or 77 per cent.; before juries, 28 pleading not guilty, 17 acquitted—only 61 per cent.
The fact is, and I believe it to be true, that there are cases where magistrates are more likely to convict than juries and there are cases where juries are more likely to convict than magistrates. They are not an absolutely identical tribunal in every class of offence but these figures really establish what I have always believed, that the rather sophisticated person who knows the world, who becomes a magistrate, is very much more likely to acquit and disbelieve the police than the jury, and in my experience, which is limited but not altogether negligible, the average random voter—which is what the juryman is—has a great deal more prejudice against those who are charged with this offence than a magistrate has. Therefore, not only has the support for this Amendment not got evidence in its favour, but I believe there are conclusive reasons for believing the ocntrary to be the case. That is the first thing which has to be said about the Amendment.
Next, one must look at it in principle. Before the Act of, I think, 1969, when sexual offences were abolished as between consenting males in private, there was a good case both for severe penalties for this offence and for sending it to a jury at the option of the accused, because it was intrinsic to these offences, or almost every one, that the person soliciting was soliciting the other person to commit with him what was then intrinsically a criminal offence; in other words, he was inciting the commission of a crime. When a female prostitute approaches a man she is doing nothing of the kind. She is inciting the man to do something which may be morally reprehensible but which is in no sense a crime at all; namely, to have sexual intercourse with her.
The position since 1969 has been virtually the same in relation to the male
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solicitor; he is soliciting an adult male to commit with him in private what, if committed in private, is no longer an offence, in the opinion of Parliament. I do not say that I wholly agree with the policy of Parliament in that, but in fact the position of the male solicitor since 1969, or whatever the exact date of the Act was, has been put on a par by Parliament, quite deliberately as a matter of policy, with the female prostitute soliciting in a public place. Therefore, there can be no reason for differentiating between the two. I must say, speaking from some experience of political life, that when one came to discuss with women's organisations the situation of the female prostitute charged with a solicitation offence it was always a matter of grievance to them that the male prostitute, although subject to higher offences, was in fact treated in a different, and, as they said, a superior way.
I want to deal with one or two of the other arguments which have been put forward in support of this Amendment, because I really think they are fallacious. In the first place, the noble Lord, Lord Beaumont, said that what he called—I forget the exact phrase he used—homo-sexual public opinion was prepared to take more severe penalties in order to get trial by jury. Quite frankly, I have never accepted the view—the noble Baroness, Lady Wootton, will remember that I had this battle with her in relation to motoring offences, when I was Lord Chancellor—that in order to give trial by jury it was legitimate to impose maximum penalties which the offence did not deserve intrinsically. This is intrinsically a bad principle of criminal jurisprudence and nothing that one says can really justify it.
Secondly, one of the reasons why the acquittal rate may be substantially much lower in front of a jury than in front of magistrates is the one I have dealt with; that is, because I sincerely believe that the random voter has more prejudice against the man in the dock in respect of this kind of offence than has the rather more sophisticated type who is a lay or professional magistrate. But the other reason is precisely the one which for some reason the noble and learned Lord, Lord Gardiner, gave for supporting the Amendment; that is, that the accused

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is prosecuted, and, therefore, cross-examined, by a professional prosecutor and not by an incompetent policeman. It is undoubtedly most extraordinary that people should continue going to trial by jury, facing a much lower rate of acquittal, in order to get their clients cross-examined by a professional prosecutor instead of an incompetent policeman—and policemen, believe me, are incompetent at cross-examination; they are not good cross-examiners, and a lot of people get away for precisely that reason.
There is one other remark I want to make to the noble and learned Lord, Lord Gardiner, and to the noble Lord, Lord Beaumont. They have both said, and I accept, that the consequences to a man of conviction for this offence can be extremely serious. I have never defended homosexual conduct. I think it is a corrupt and corrupting offence. But it ought never to carry social consequences, beyond the consequences of prosecution and conviction, for this particular offence, which is not a particularly corrupt or corrupting example of it. If you want to reduce the social consequences of conviction for male solicitation, the very worst thing you can do is to build it up into a jury trial where the man is given the whole panoply of the law. I quite agree with the noble and learned Lord, Lord Gardiner, on the social consequences pending trial. Of course, they attract those consequences, but that is almost necessarily true, whether the man opts for trial by jury, or whether, as he was positing in that particular case, he is convicted by the magistrates and then opts to appeal. The consequences are the same; the delay approximately identical.
Therefore, although I recognise the sincerity of both noble Lords who have put forward this Amendment, I believe that the Government are right; that is, that the balance of argument, whether you look at it from the point of view of principle or whether you look at it from the point of view of practice or of seriousness or humanity, is wholly the other way.
Lord AIREDALE: My Lords, I should have thought there was all the difference in the world between a person who has elected trial by jury, and, therefore, has not been tried at all, and a person who
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has been convicted, and having been convicted is entering an appeal and is hoping eventually to be acquitted. I should have thought those two things were about as far apart as any two things possibly could be. What I was intending to say was that I do not think very much of a percentage deduction drawn from a sample of only 43 cases. 1 should have thought that was far too small a sample from which to draw any accurate reliable percentage at all.
Lord HAILSHAM of SAINT MARY-LEBONE: My Lords, if the noble Lord will forgive me, before he sits down, the boot is on the other foot. The case was put forward without a ha'porth of evidence by the two supporters of the Amendment that magistrates were more likely to convict than juries. The burden of proof is on them to support their assertion.
Viscount BARRINGTON: My Lords, it is a very difficult question. I only want to say that, so far as I am concerned, it seems a question of whether somebody should be allowed to opt for jury trial, at the risk of getting a worse penalty and his name in all the papers, of whether he should be allowed not to. If I were a homosexual, which I am not although you may not believe me, I might have the greatest difficulty, because, unlike the gentleman referred to by the noble and learned Lord, Lord Gardiner, I have often been into public lavatories. I have not been arrested but questioned by a plain clothes detective in a mackintosh for running down a street with a typewriter which I had bought. I was catching a train, and I tried to convince him that I had the receipt in my pocket. I could not find it, of course. I then found out his number and tried to put the boot on the other foot; he admitted that he had no evidence. Of course, the moment I had left him I found the receipt in my pocket. I do not believe that if one goes into statistics of this kind it is really relevant; otherwise one would go on a I night. "Tell me not in mournful numbers"; this has the greatest chance of success.
Is it not a policy of a great many people in this House that people should not be treated as children unless they are children. Then they must be defended. But someone who is fairly or unfairly accused of

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something in certain cases should have the right to go to a jury. I am inclined to think that this is one of the cases that should not be included in the Schedule. I may be wrong, but I say that entirely on the ground of allowing people a choice to make up their minds whether they have committed an offence which may or may not be serious. I agree with the noble and learned Lord, Lord Hailsham of Saint Marylebone, that very often it is a serious offence. However, I believe that that is the fundamental principle.
Baroness PHILLIPS: My Lords, following the speech of the Minister and of the noble and learned Lord, Lord Hailsham, I shall not attempt to gild the lily. I should like to make a small contribution on a general point. Whatever the offence, it is unlikely that magistrates become any more tired, cynical or dispirited than judges. I hope that I can establish at the beginning of my remarks that that it is not a very good argument to advance. I have heard that advanced several times and it is a totally fallacious argument.
Anyone who has sat in a Crown Court is always amazed by the fact that the jury, who are, presumably, drawn from an unsophisticated or an unlearned source, are expected to sit, sometimes for long periods—on one occasion in my experience they sat on a particular case for 21 days—and are never given the opportunity—I do not know why—to make any notes. They are expected to rely totally on their memories despite the fact that the learned judge takes notes, and when I sit on the bench I take notes. Anyone who imagines that the jury brings in the verdict must be suffering from a delusion. The judge directs them and unless they have an extraordinarily good memory, they are bound to be very heavily influenced by his decision.
I appreciate the feelings of the noble and learned Lord, Lord Gardiner about magistrates' Certainly the cases of this type of which I have had experience in central London—and they are quite frequent—do not appear to be couched in quite the terms that the noble and learned Lord described. There always seems to be more than one occasion when the accused has been followed; two plain-clothes men appear to have followed the
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individual for quite some time. I deplore the waste of time and skilled manpower. However, cases do not appear to have been brought in the way in which the noble and learned Lord described—just one appearance in a public lavatory and a policeman who gave evidence using his notebook.
Magistrates are our peer group and I am deeply indebted to the Minister for the figures he gave which we shall be able to use and re-use. Perhaps we shall be able to have figures for each of these particular offences which have been described. I believe that this is a minor offence and that the case for publicity is diminished when such a case comes before a magistrates' court. I assure the noble Lord, Lord Beaumont of Whitley, that it is highly unlikely that one will see the same policeman every day on every case. There is quite a good chance that one will not know the policeman nor in any way be guided by his evidence. I heartily support the Government in asking for the rejection of the Amendment.
Lord BEAUMONT of WHITLEY: My Lords, I think that there is at least general agreement about one matter; namely, that the penalties are absurd. We have had an extremely good debate on the merits of this Amendment. I still maintain that, although I am distrustful of pressure groups in principle, because they tend to overstate their case, and although I am much more trustful of them when they are on the defensive rather than when, in certain cases, they are on the attack, this is a question where they are on the defensive. I still hold very strongly to the view that if they think these admittedly absurd penalties are worth keeping, then they are putting a very strong case, taking into account their records and experience, for my Amendment.
I entirely agree with the noble and learned Lord, Lord Hailsham, that it is wrong to have penalties which are too great for such an offence. However, we are merely discussing one imperfection of the law against another. If we left the status quo as it is, we should have one imperfection; if we pass this Amendment we should, as the noble and learned Lord pointed out, have another. There are all sorts of ways of getting round this. The way that I should choose is that in cases of this kind no case should be

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brought without the evidence of a member of the public that he or she had actually been offended. Such an amendment would cut across the whole matter and would solve many problems. However, that is not before us. The Bill is before us.
I am cheered by the figures that have been given—I am impressed by them. I agree with my noble friend that perhaps the sample is not that enormous and I am not certain that in this case the burden of truth is on this side. Nevertheless, I am impressed by the figures. The Government have made out a reasonable case, although I am not completely convinced. I should be most grateful if the Government would answer the question of the noble and learned Lord, Lord Gardiner, and possibly write to him and to me about it. The noble and learned Lord asked about the figures for acquittals in the Crown Court on appeal from magistrates' courts. With that reservation and the reservation that I may have to raise the matter again at another stage, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
7.57 p.m.
Lord GIFFORD Lord GIFFORD moved Amendment No. 68B:
Page 41, leave out lines 30 to 38.
The noble Lord said: This Amendment is designed to make the offence of assaulting a police constable in the execution of his duty triable either way instead of being, as in the Bill, triable only by summary trial. A similar Amendment was moved on Committee by the noble and learned Viscount, Lord Dilhorne. He was satisfied with the reply of the noble Lord, Lord Harris of Greenwich, and withdrew the Amendment. I was not.
We are now dealing with a wholly different kind of offence from that dealt with in the previous Amendment. First, it is an offence which the James Committee considered should be triable either way. At paragraph 156 of its report the Committee said:
"There is a case for abolishing this offence altogether, on the ground that the general assault offences would be adequate to deal with assaults on the police, the fact that the victim was a policeman being an aggravating feature which can properly be taken into account in considering the appropriate sentence."
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Having rejected that as being properly unacceptable to public opinion, the Committee went on to say:
"Where the case is contested there is often a straight conflict between the evidence of the defendant and that of the police; if there is such a conflict, it can be said that the prosecution has a special involvement in the case and that therefore it is particularly suitable for resolution by a jury."
It is, of course, the case at present that this offence does not carry with it the right of the defendant to elect for trial by jury. He can go for trial by jury only upon the election of the prosecution. Of course it will be said by my noble friend Lord Harris that to accept this Amendment would increase the burden of the Crown Courts. It would. However, in this Bill we seek to classify in some kind of correct and permanent manner the various offences and the modes of trial which are appropriate for them. We really must go back to first principles on this Amendment and consider the basis on which this classification is to be made. I adopt, and I believe the Government adopt, the principle which was the basis of the James Committee's Report, and it is set out in paragraph 41:
"For the purpose of determining whether a offence should be triable on indictment the primary consideration must be the seriousness of the offence in the eyes of society."
What of the offence of assaulting a constable in the execution of his duty? Let us first see what the Judiciary say about it. In the Court of Appeal in 1975 there was heard the case of Coleman, and this is what was said by the Court presided over by Lord Justice Lawton:
"When the police were trying to do their important job of maintaining public order, people who deliberately used violence in order to impede them must expect immediate custodial sentences. There should be no exceptions save where the mitigation was wholly acceptable."
There could not be a more trenchant view expressed of the seriousness with which at any rate the Judiciary regard this offence, and I have heard those sentiments echoed by judges and magistrates throughout the country.
One cannot say that this is in any sense a minor offence. That it is not a minor offence is reflected in the penalties actually imposed. In Criminal Statistics for 1975, at page 222, are set out the various terms of imprisonment imposed by magistrates for various offences. For assault on a constable there is a total of 579 immediate prison sentences, of which some 248

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were sentences of over three months. If one looks down the column, particularly the over three months column, and at all the other offences which are to remain summary offences after this Bill is passed, there is nothing which comes anywhere near assault on a constable in respect of the numbers of prison sentences imposed. One sees that drunkenness with aggravation has a heavy total of 523 prison sentences, but most of them are very short.
By any criteria of seriousness this is an offence which ought to be triable either way, and one fears that the only criterion which is keeping it a summary offence is the criterion of expediency. At Committee my noble friend Lord Harris gave a reply which smacked to me of woolly, and dangerously woolly, thinking. He said among other things:
"There is no reason for saying that a jury is a better tribunal for establishing the truth than is a bench of lay magistrates."
Let us remember what this Bill is about. If this sentiment expressed here were correct we need not bother about juries at all but could have every offence triable by magistrates. It is no disrespect to the magistracy to say that if they by and large are a good tribunal, a jury is a better one, and where serious offences are at stake then the better one must be one that at any rate has an election in the defendant. My noble friend backed up his argument by quoting the same table of statistics showing that a greater proportion of persons were acquitted in the magistrates' courts on this offence than at the Crown Court. So it seems they are, but those statistics are of no value in this deliberation because the offences that go to the Crown Court are offences of a very different order. They are offences which the prosecution has chosen to take to the Crown Court, and the prosecution has chosen to take them often because they are offences of seriousness, often because they are offences which the prosecution considers it can prove and on which it has a good case, and often because the offences are of a particular class which are linked with other offences.
On Committee I raised this question of what is going to happen when a person is charged, as is very common, with, one, an offence which is triable either way, and two, the offence of assault on the police, and he elects to go for trial on the offence
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triable either way. My noble friend Lord Harris wrote to me indicating that inevitably there would have to be two trials, and there was no way in which one could have both offences triable by a jury. Two trials—perhaps that is right; but it is another reason for making this offence triable either way.
I would ask the House to look carefully at this offence, to re-examine the arguments of expense and expediency that will be put forward. No doubt there are other offences which could be made triable summarily. I do not want to anticipate a later Amendment, but perhaps certain offences of the possession of very small quantities of drugs could be made triable summarily only. At Committee I put forward various arguments from my experience as to the injustice done by keeping this offence triable summarily only. I will not repeat those arguments. They are already on the record. However, they are additional arguments which I commend to your Lordships. I beg to move this Amendment.
Lord GARDINER: My Lords, I do not wish to take up the time of the House about this, but I think that the House should know what I should have told it if I had been able to be here at the Committee stags of the Bill, and which it was not told, and that is the view of the Law Society which they have previously communicated to the Home Office. The Law Society, after all, have enormous experience in these fields, and as a whole are sensible people. They said:
"On this offence we support the recommendation of the James Committee that the present law whereby the prosecution can elect trial on indictment but not the defendant is indefensible "—
the House will remember that that was the James Committee's word: indefensible—
"and that it should be changed so that the defence also has this choice. There are in our opinion several reasons for special treatment of this offence and why it should not at this moment in particular be reduced to a summary offence only.

"(a) The offence is currently under consideration by the Criminal Law Revision Committee and no change should be made until their conclusions are known other than to bring it into line with the general rule on intermediate offences.

"(b) In offences of this kind the complainant, that is, the constable assaulted, is likely to be well known to the local magistrates' bench so that many, perhaps most, cases would in any case have to be brought in or referred to courts outside

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the district in which the assault occurred. Though this could be a magistrates' court, we think that taken in conjunction with the other reasons for trial on indictment it is an argument for trial in a Crown Court.

"(c) The James Committee observed that in cases of this kind there is often a straight conflict between the evidence of the defendant and that of the police. If there is such a conflict it can be said that the prosecution has a special involvement in the case and that therefore it is particularly suitable for resolution by a jury. We support this view strongly.

"(d) We think that public opinion probably attaches a special significance to assaults on the police and would support these being the subject of a separate and perhaps more serious offence.

"(e) We also think that the police should be consulted before this offence is in effect demoted, and if they would like the separate offence retained in recognition of the special risks to which they are exposed, we see no reason why this should be denied."

I would ask the Government again to take these views into account. On the last point, which again was not mentioned when the position was considered in Committee, would my noble friend tell us whether I am right in saying that the police superintendents have made the strongest protest to the Home Office about this crime being demoted to a purely summary offence?
8.10 p.m.
Lord HARRIS of GREENWICH: My Lords, I am trying to find out the answer to the question which my noble and learned friend Lord Gardiner just put to me. The Association of Chief Police Officers and the Police Federation, which of course represent both the overwhelming proportion of uniformed ranks and the chief police officers, have expressed themselves in support of the Government's position in this matter. I am bound to tell Lord Gardiner that. We had a quite prolonged debate on this matter in Committee and I then expressed the view, which I repeat, that the Government do not believe it right to make an Amendment on the lines of that proposed, and there is nothing we have seen in the situation since then that has made us in any way change our views.
I will first discuss the scale of the matter and then come to the arguments which have been adduced tonight and on the previous occasion. Let us have no doubt about it that if the Amendment were carried it would, as the James Committee indicated, be likely to result in substantially more of these cases going for trial to the Crown
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Court on the defendant's election. In 1975 there were 12,000 cases of this offence, of which 1,400 were committed for trial at the Crown Court, presumably for the most part at the wish of the prosecution. This is inevitably a difficult matter, but it is estimated that if the accused is given the right to choose trial by jury, up to twice as many people—that is, an additional 2,000 cases or more —might elect to be tried at the Crown Court.
This is an important factor—I do not regard it as a conclusive one—which must be taken seriously into consideration at a time when there is very substantial pressure on the Crown Courts. But if there were a fundamental argument of principle which points in the opposite direction, then clearly the Committee should accept that argument. I do not believe that any such argument was deployed on the last occasion, nor, with respect, do I accept that one has been deployed tonight.
The question here is whether the defendant should have the right to claim a trial by jury. Underlying this—it has been put with substantial candour by my noble friend Lord Gifford and by Lord Gardiner—is the argument that magistrates, who are daily accustomed to seeing police officers giving evidence before their court, will tend to accept police evidence in assault cases rather than the evidence of the accused. I apologise for repeating it, but I think it only right to return to the point——
Lord HALE: My Lords, would my noble friend permit me to intervene at this point?
Lord HARRIS of GREENWICH: My Lords, if my noble friend will allow me to deal with this issue I will gladly give way to him. The point I made in answer to my noble friend Lord Gordon-Walker on 26th January was that the statistics showed that of the accused who pleaded not guilty in the magistrates' court, 27 per cent. were acquitted, and of those who pleaded not guilty in the Crown Court, 20 per cent. were acquitted. My noble friend has tried to answer that point today, but, with respect to him, I do not believe he has succeeded in discharging the onus of proof which was on him in this matter, as the noble and

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learned Lord, Lord Hailsham of Saint Marylebone, said it was on the last matter.
Those who claim that people are less likely to get justice from a magistrates' court must not push on one side quite as brusquely as my noble friend did this evening, evidence which appears to show precisely the contrary. At the moment one is marginally more likely to be acquitted in a magistrates' court than would be the position in a Crown Court.
Lord HALE: My Lords, my noble friend is on the very point I was about to make. I agree there is always a fear, remembering that justice must be seen to be done, that in a local court the Judiciary may know, or think they know, a great deal about the parties to the case, and there is a fear, even if it cannot be fully justified, that they may take their knowledge into account. But of course they can take it into account both ways. They may have a very deep distrust of a particular constable; a constable who possibly has been severely assaulted may be an unpopular constable. They may know quite a bit. In a case which depends so much on personal evidence—and, as my noble friend said, a case which the Judiciary insists must be regarded as having potentially very serious factors—there is a case surely for feeling that either side, the individual constable or the individual defendant, may feel that justice is better served by a completely independent court.
Lord HARRIS of GREENWICH: I hope that any court would be an independent court, my Lords. As I have indicated, it appears that the magistrates have been more likely to throw out cases of this sort. I must repeat this point because those who favour the Amendment tend repeatedly to push it on one side. It is vital to bear something else in mind, and that is the view of the James Committee in this matter. The figures of the acquittal rates in contested cases which I gave in answer to Lord Gordon-Walker were not available to the James Committee. It is of course impossible to say what view the James Committee would have taken if they had had that information. I am simply saying that it is not an unimportant factor to remember that they did not have the opportunity to consider that information.
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One of the problems which the James Committee faced was that of penalties. It is true that the James Committee recommended that the offence be triable either way. Their recommendation was, however, qualified by the rider: unless the maximum penalties are severely curtailed. They have been, as I said specifically in answer to the noble and learned Viscount, Lord Dilhorne, with the approval of the police organisations. Incidentally, I have attempted to elicit information about the attitude of the Superintendents' Association, but I have not been able to find any information to confirm what my noble and learned friend put to me. I will continue to try to find out, but I suspect that I shall not be able to discover the information before the end of tonight's proceedings.
That is the position which I put to some extent on the last occasion. During the debate we had on that occasion, Lord Gifford raised the question of linked offences. That is the situation where, if the Bill goes through in its present form, in future an assault on the police is charged at the same time as an offence which is to be tried at the Crown Court. My noble friend suggested that in these circumstances the assault charge should also be chargeable on indictment. As I indicated when I wrote to him, this is not a problem peculiar to the offence of an assault on the police; it could apply in many other cases, and I think it would be a very difficult matter to say that we should deal with assault cases on the police in one way and adopt a totally different method in cases affecting some other charge.
The James Committee specifically considered a proposal that a magistrates' court, when committing a person to the Crown Court for trial, should have power to commit him for trial at the same time in respect of any related summary offence. While recognising that such a procedure would avoid the existing difficulties of whether to try the purely summary offence before or after the Crown Court trial, the James Committee pointed to other difficulties which this would create. They said:
"It is fairly straightforward for the Crown Court, when sentencing a person for one offence, to consider at the same time the sentence for other offences which would usually be related, since this adds little to the work involved."

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They went on:
"It is another matter to make provision enabling summary offences to be tried by a judge and jury."
It would add significantly to the already heavy burden on juries if they were required to try a string of minor offences, and moreover offences which in other circumstances were not considered sufficiently serious to justify jury trial. The witness statements and documentation would have to be prepared as for an indictable offence, counsel on both sides would have to be briefed in relation to the summary offences and, in the event of an appeal against conviction of a summary offence, the defendant would presumably be entitled to go to the Court of Appeal. These seem to us powerful arguments against making special provision for linked offences—whether in relation to assaults on the police or some other summary offence—and while we would probably all agree that there may be some circumstances where it may be desirable for the two offences to be tried together, the Government's view is that the remedy would be worse than the disease.
I should just like to deal with one other point raised by my noble friend; that is, the question of the penalties imposed by magistrates' courts in dealing with assaults on the police. My noble friend very kindly indicated to me that he was going to raise this question, and he pointed out today that a very high proportion of those who were convicted in magistrates' courts were sentenced to imprisonment and that a high proportion of these received sentences of over three months.
Let me begin by saying that the statement is only true if motoring offences are left out of account because the table on page 222, which I have no doubt that my noble friend has studied, lumps all motoring offences together in a total of 1,730 and this includes a very high proportion of sentences of immediate imprisonment for the principal offence of driving while disqualified. So that is a point on the factual basis of what my noble friend said. It is perfectly understandable and I would accuse him of no error. It is simply the way in which the figures have appeared.
If we leave aside driving while disqualified, in terms of the absolute number of offences the next most numerous
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groups are assaults on the police, drunkenness with aggravation, drug offences and frequenting by a suspected person with intent to commit an arrestable offence. But, when these offences are repeated to the total number of prosecutions brought for each of the offences I have just named, the differences are far less striking. For assaults on the police the total was 4·8 per cent.—less than 5 per cent.—who received an immediate sentence of imprisonment. For frequenting by a suspected person with intent to commit an arrestable offence, the percentage was significantly higher. It was 7·4 per cent.
When we come to this question about the length of the sentences of imprisonment, it is certainly true that over half the sentences of immediate imprisonment imposed on people convicted of these assaults are for two months or more, but that is also true of social security offences and, indeed, of the offence of possessing an offensive weapon. Hence, that particular feature of the case is not quite so peculiar as my noble friend no doubt imagined. All I should like to do before I sit down is to repeat that, in our view, it is reasonable in all the circumstances to treat this matter as a summary offence and to say that I believe that that is justified given the argument which I put to the House this evening.
Baroness MACLEOD of BORVE: My Lords, before the noble Lord sit s down, I wonder whether he can answer one question. We are all devoted to law and order and to seeing that justice is seen to be done, and I am wondering whether it would not be better in the interests of the police—and, after all, they are a very special category in our society, certainly so far as the courts are concerned—for any case brought by the police or against the police to be heard other than in their own petty sessional division. I should have thought that to be able to go to the Crown Court or, indeed, to another court outside their division would be in their own interest. I wonder whether the noble Lord can say what he thinks about that.
Lord HARRIS of GREENWICH: My Lords, I never like giving answers off the cuff to questions of that sort but, in my view, I would not favour a proposal of that kind. It would seem to me that to treat this particular case in the particular

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manner which the noble Baroness has suggested would be quite inappropriate. I do not believe that the figures that I have given indicate that there is a degree of prejudice among magistrates against people charged with this offence. I repeat, the evidence that I have given in answer to my noble friend Lord Gordon-Walker indicates that one is less likely to be convicted of this offence in a magistrates' court than in a Crown Court. I do not believe that there is any basis for the fears which, perfectly understandably, have been expressed in this matter. Accordingly, I would not favour a proposal on the lines put forward by the noble Baroness.
Lord GIFFORD: My Lords, one of the problems of moving an Amendment late in the evening and to a sparse House is that it is difficult to know how far what one says is receiving support or otherwise. In answer to one or two of the points made by my noble friend Lord Harris, I believe that there is a fundamental principle here; that is, the principle that an offence which society considers to be a serious offence should carry with it the right to trial by jury. Something was said about the onus of proof. I am not sure how far it is useful to be to-ing and fro-ing the statistics of convictions and acquittals in the Crown Court and the magistrates' courts. I prefer the evidence of my experience and I believe that, of these very many people who plead not guilty and are convicted in the magistrates' courts—they number some 1,000 to 1,200—a number will have been wrongly convicted and a number, had they had the right to trial by jury, would have exercised it and would, with the more thorough investigation that can take place before a jury, have been rightly acquitted.
So far as the criminal statistics are concerned, we can all bandy figures backwards and forwards, but the fact remains that more people are sentenced to terms of imprisonment—usually long ones—for this offence than for any other offence that is to remain summary. This is not an Amendment which, because of the importance of the issue involved and the numbers of people concerned, that I am prepared to withdraw. I shall take the sound of the House and see what support I get.
On Question, Amendment negatived.
8.28 p.m.
LORD HARRIS of GREENWICH LORD HARRIS of GREENWICH moved Amendment No 69:
Page 43, line, at end insert—
("HEALTH AND SAFETY AT WORK ETC ACT 1974 (c. 37)

20. Offences under section 33(5) (continuing contravention of improvement notice, prohibition notice or court order).

Section 33(5).

For the words from "liable" to "£50" substitute "liable on summary conviction to a fine not exceeding £100".

£50 for each day on which the contravention continues.

£100 for each day on which the contravention continues.")

The noble Lord said: My Lords, the Amendment is largely self-explanatory. It increases from £50 to £100 the maximum daily fine which may be imposed for a continuing offence against regulations made under the Health and Safety at Work etc. Act 1974. I beg to move.
On Question, Amendment agreed to.
Lord MORRIS of BORTH-Y-GEST Lord MORRIS of BORTH-Y-GEST moved Amendment No. 70:
Page 44, leave out line 22.
The noble and learned Lord said: My Lords, this Amendment relates to the offence of bigamy. As your Lordships will recall, the offence of bigamy has always been one triable only on indictment. Until very recently, the offence was one which was only triable in the court which we used to call the assize court. In recent years, it has been possible for this offence to be tried in the circuit court.
The purpose of the Amendment is to eliminate change in this respect and to leave the position that bigamy should be an offence triable only on indictment. I moved an Amendment in the same terms on 10th February and, when I had given the reasons in support of the Amendment, the noble Lord, Lord Donald-son, said in his reply that it was not a case of crucial importance and suggested that if I were content not to press the Amendment his noble friend could think about the matter again. The noble and learned Lord, Lord Hailsham of Saint Marylebone, then made a speech in support of the Amendment, and a speech also in support of the Amendment was made by the noble and learned Viscount, Lord Dilhorne. I began to make a brief reply and the noble Lord, Lord Donaldson, said:
"May I interrupt the noble and learned Lord? I have promised reflection."—[Official Report, 10/2/77; col. 1329.]
I acknowledged that and asked leave to withdraw the Amendment.
The reasons why I advance the Amendment can be stated with brevity. I am sure that it will be agreed that the offence of bigamy is one that may vary very greatly in its gravity. There could be some offences of bigamy which approximate in gravity to the offence of rape. In many cases of bigamy difficult questions of law may be involved. To allow the
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present position to remain rather than to make this change would I think have virtually no effect upon the purpose which we all wish to advance; namely, the purpose of relieving the Crown Court of work to the greatest extent possible.
I should like to remind your Lordships that some of us who have taken some part in these debates have favoured the main parts of the Bill which put into effect the Report of the James Committee, though we have demurred in regard to one or two matters where we have thought that points of principle are involved. For example, there was the provision which would have withdrawn the right to trial by jury in cases of theft if the amount involved was below a certain amount. That was an example of a question of principle that was involved.
We now have figures showing the number of cases of bigamy that come before the court, and it is remarkable to see how in recent years that number has greatly diminished. The James Report told us that in 1959 there were 89 cases. I regarded that as a surprisingly small figure. The James Report further told us that by the year 1974, 27 persons had been sent for trial. Again that struck me as being a very surprisingly low figure, and we were told in the James Report that of the 27, seven persons received sentences of immediate imprisonment and eight received suspended sentences.
The noble Lord, Lord Donaldson of Kingsbridge, was able to give us further information, and he gave us the figure for the year 1975. Again we note the remarkable diminution in the number: 18 cases in the year 1975. He told us that of that number, seven only received sentences of immediate imprisonment and in six cases there were suspended sentences. I should like to submit to your Lordships what these figures show. In the first place they show that if these cases were to be dealt with by magistrates, and only by magistrates, magistrates would in the nature of things not be in a position to acquire or to possess any accumulation of experience as to the appropriate way to deal with these cases. A result of that would inevitably be that it would be an embarrassment for magistrates to have to decide as to the appropriate course to follow.
The noble and learned Lord, Lord Hailsham of Saint Marylebone, in his speech on the former occasion pointed out with great force, if I may respectfully say so, that one of the main problems in cases such as bigamy is to decide, once guilt is established or where guilt is acknowledged, what is the appropriate course to follow. The noble and learned Lord said that if these cases are to be dealt with only in magistrates' courts there might well be peril that magistrates, lacking the experience which others might possess, might on occasion pass sentences that were too severe. It may be indeed that magistrates would not wish to have the additional burden of trying these cases, very, very few in number as they will be.
It was also said on the previous occasion that the offence of bigamy is probably not today regarded by the public as being as serious as the public formerly regarded it. That is probably so. I think also that it is unfortunate that it is so. But if this offence is for the future to be capable of being summarily dealt with, though of course only within the powers that the magistrates would possess on considering a particular case, then as an offence it would be downgraded and it would be made to the public to appear that the offence lacks the gravity that it surely possesses. So I submit that to make this change will not really advance the purpose that we all applaud, and in itself this change would be contrary to the fitness of things. I beg to move.
The SOLICITOR-GENERAL for SCOTLAND (Lord McCluskey): My Lords, this Amendment was fully discussed in Committee, and on that occasion, as indeed on this, it was argued that the offence of bigamy is never suitable for trial by magistrates because the legal issues are likely to be too complex. As the noble and learned Lord, Lord Morris of Borth-y-Gest, has pointed out, the Government promised reflection on this. The Government have reflected, but remain of the view that while some cases will present complex issues many, per haps most, do not. Equally the Government recognise, as the noble and learned Lord, Lord Hailsham of Saint Marylebone, said, that magistrates may rarely have a case and that therefore it may be that they could face difficulties on sentencing.
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But that may well apply to an individual Crown Court judge.
As the noble and learned Lord, Lord Morris of Borth-y-Gest, has just reminded us, there were in 1975 only 18 cases, and there are many hundreds of judges who may sit in the Crown Court, and for every one judge who has to pass sentence in such a case there may be 40 who do not encounter such a case. Where the magistrates are in doubt they may commit for trial at any time up to the conclusion of the case. It therefore seems to us that the magistrates should not be obliged in every case to send the case to the Crown Court, and as was pointed out in Committee the plea in bigamy cases is usually one of guilty. So the Government have concluded, after due consideration of the views which were expressed at Committee, that they should prefer the recommendation of the James Committee that bigamy should be triable either way, and I would urge the noble and learned Lord not to press the Amendment.
Lord HAILSHAM of SAINT MARY LEBONE: My Lords, I am very disappointed indeed in that reply. I do not want to go into the matter of whether the questions of law are sufficiently frequent or sufficiently difficult to take the case, on a contested plea, to the Crown Court. I think the argument there is fairly evenly balanced, though on balance I would have agreed with my noble and learned friend on the Cross-Benches. But where I think the Government have not given due consideration to this is on the question of sentence. I think there is a genuine danger of aberrant and over-severe sentences by inexperienced benches of magistrates. I simply do not accept the Government's reply that some Crown Court judges—who, after all, can be appointed only after ten or more years' experience at the Bar—are so incompetent that they cannot approach the matter with a real professionalism which magistrates cannot ordinarily show. For those reasons, if the noble and learned Lord on the Cross-Benches presses this Amendment, I shall support him.
Viscount DILHORNE: My Lords, for once I entirely agree with what the noble and learned Lord, Lord Hailsham of Saint Marylebone, has said. I do not

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assume from the brevity of the Government's reply that inadequate consideration has been given to this particular proposal, but I must say that the reasons advanced for rejecting what my noble and learned friend has so persuasively urged seem to me to be wholly inadequate. It cannot be maintained that to let bigamy cases be dealt with as they are now will appreciably add to the burden on the Crown Courts. I do not want to repeat the arguments, but I shall have no hesitation in joining my noble and learned friend in the Lobby should he seek to divide the House on this point.
Lord AIREDALE: My Lords, what is the Government's real object in resisting this Amendment? Is it really in order seriously to relieve the burden upon the Crown Courts? Because we are dealing with an infinitesimal number of cases, and it is not going to have any noticeable effect upon the work in the Crown Courts at all.
Lord McCLUSKEY: My Lords, with the leave of the House perhaps I may answer that question and the other points that have been raised. First, it cannot be argued, I have not argued and I do not argue, that the Government defend their
8.52 p.m.
Lord MORRIS of BORTH-Y-GEST Lord MORRIS of BORTH-Y-GEST moved Amendment No. 71:
Page 45, line 23, leave out paragraph 19.
position on the basis of the burden on the courts. The Government rest on the recommendation of the James Committee and upon the other reasons which I gave; namely, that the great majority of cases, certainly, and it appears most of the cases, are unlikely to raise difficult questions of a kind with which the magistrates cannot properly deal. I certainly do not suggest, and I hope no one will attribute to me, the words which the noble and learned Lord, Lord Hailsham, used. I do not suggest that the judges are incompetent, or "so incompetent", at all. What I suggested, and what I think the figures establish, is that very few Crown Court judges can have any experience of sentencing in relation to bigamy.
Lord HAILSHAM of SAINT MARY-LEBONE: I find that an astonishing suggestion having regard to their previous experience at the Bar.
8.43 p.m.
On Question, Whether the said Amendment (No. 70) shall be agreed to?
Their Lordships divided: Contents, 25; Not-Contents, 33.

CONTENTS

Airedale, L.

Hornsby-Smith, B.

Rankeillour, L.

Avebury, L.

Long, V.

St. Just, L.

Barrington, V.

Lyell, L.

Sandys, L.

Beaumont of Whitley, L.

Macleod of Borve, B.

Seear, B.

de Clifford, L.

Morris, L.

Strathclyde, L.

Dilhorne, V. [Teller.]

Morris of Borth-y-Gest, L. [Teller.]

Trefgarne, L.

Faithfull, B.

Ward of North Tyneside, B.

Falkland, V.

Mottistone, L.

Young, B.

Hailsham of Saint Marylebone, L.

Northchurch, B.

NOT-CONTENTS

Blyton, L.

Goronwy-Roberts, L.

Pannell, L.

Boston of Faversham, L.

Hale, L.

Parry, L.

Brimelow, L.

Harris of Greenwich, L.

Peart, L. (L. Privy Seal.)

Brockway, L.

Henderson, L.

Phillips, B.

Champion, L.

Janner, L.

Segal, L.

Collison, L.

Kilbracken, L.

Stedman, B. [Teller.]

Davies of Penrhys, L.

Kirkhill, L.

Stone, L.

Donaldson of Kingsbridge, L.

Lee of Newton, L.

Strabolgi, L. [Teller.]

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

McCluskey, L.

Taylor of Mansfield, L.

Gifford, L.

Northfield, L.

Wallace of Coslany, L.

Gordon-Walker, L.

Oram, L.

Wells-Pestell, L.

Resolved in the negative, and Amendment disagreed to accordingly.

The noble and learned Lord said: My Lords, this relates to the offence of complicity in suicide. I moved an Amendment in Committee to the effect that the law should remain as it is. It was said that consideration would be given to this matter. I have reason to think that consideration has been given to it, with the

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result that this Amendment is going to be favourably viewed. If that is so, then your Lordships will be spared hearing me utter anything further. I beg to move.
Lord McCLUSKEY: My Lords, I can confirm that the Government have given further thought to this matter in the light of the views expressed in Committee. Although the James Committee evidently thought that this offence is not so serious as to warrant trial at the Crown Court in every case, they did not argue the point in any detail. In view of the very small number of cases involved, the Government are prepared to recommend that the House accept this Amendment. I should add that it will require a matching Amendment to remove the offence from Schedule 3.
Lord HAILSHAM of SAINT MARY-LEBONE: My Lords, I congratulate the Government on having, for once, changed their mind. I am quite sure that it is a change in the right direction but I must say, frankly, that I do not regard the carrying on of these debates at this hour of the night, with such a thin House, as at all a good way of improving our criminal law. In the light of the last Division, I am confirmed in the protest I made to begin with. It is sheer incompetence on the part of the Government that they have to do this.
On Question, Amendment agreed to.
8.54 p.m.
Viscount DILHORNE Viscount DILHORNE moved Amendment No. 72:
Page 45, line 36, leave out sub-paragraph (a).
The noble and learned Viscount said: My Lords, I am sorry to move this Amendment at this late hour. I think it is an important Amendment—perhaps more important than the last two Amendments that the House has considered. I share the views of the noble and learned Lord, Lord Hailsham of Saint Marylebone, about the undesirability of the House considering this matter on the Report stage of this important Bill in such a thin House. I am not in the least satisfied that there is such urgency about the passage of this measure through the House that this belated procedure is in the least degree necessary.
I moved a similar Amendment to this in Committee and I make no apology for
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moving it again. It is an Amendment to remove the provision making burglary in a dwelling, where entry was obtained by force or deception or by the use of any tool—and mark these words!—or where any person in the dwelling was subjected to violence or the threat of violence, triable summarily. The Criminal Law Revision Committee, which was responsible for most of the recommendations which were enacted in the Theft Act 1968, recommended against making this offence triable summarily. If your Lord ships care to look at it, you will see that in paragraph 184 of their report they said that cases which came within this category make up one of the two most serious categories of burglary, or at least:
"those in respect of which the objection to summary trial is strongest."
That was a very responsible committee. It reported in 1966. I do not know how many cases there were of burglary in 1966 which came within that category. I suspect that there are a great many more now.
In Committee, the noble Lord, Lord Donaldson, who was replying to the debate, said that there were 9,249 cases of burglary in dwellings where entry was made by force or deception. He did not state, according to Hansard—and I do not recollect that he did so—what year he was speaking about; but he went on to say he did not know how many of those cases came within the category now under consideration. We were not given any information then—and I do not suppose it is available now—as to the number of cases where burglary was effected in a dwellinghouse where violence was used or threatened towards persons in the dwellinghouse. It would be interesting to know how many cases there were of that category.
I accept that in these days the number of those cases may be considerable. I recognise, too, that the effect of the acceptance of this Amendment will mean that the Crown Courts are not relieved of the burden to the extent that this Bill proposes; but I believe that, having regard to the gravity of offences within this category and their prevalence, this is not the time when it should be made triable summarily. This is not the time to denigrate the character of the offence and make it look less serious than it is.

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I need not dilate upon the distress that this crime causes. The noble Baroness, Lady Macleod of Borve, said that in serious cases it was the practice of her court to commit straight away. If that is the usual practice throughout the country, and the practice remains unchanged, I recognise that the non-acceptance of this Amendment will have little effect. But I fear that if the Bill is passed in its present form it will mean that many of these most serious cases of burglary will be dealt with summarily; and I do not think that is right.
My Lords, in Committee I said that I understood it to be the case that the Court of Appeal (Criminal Division) had been urging Crown Courts to pass substantial custodial sentences for this offence even on a first offender, and that 18 months had been suggested as a maximum sentence. No observation was made in reply with regard to that, and I take it to be the case that that has been the view urged by the Court of Appeal (Criminal Division). Now, as a result of what happened last week, that sentence can be passed on those who commit offences in this category and who are under 21. I suspect—and it will be interesting to know if the Government can confirm—that a great number of these very serious offences, serious in the consequences on the people affected, are committed by persons under 21.
I think I have the support of the Court of Appeal (Criminal Division) as well as the view of the Criminal Law Revision Committee that offences in this particular category are extremely serious. As I say, in my view their prevalence is such that they should not be downgraded at this time. I am not going to assert that magistrates are too ready to assume jurisdiction, because I do not think that that is likely to be so when they know the full circumstances of a case. But I have known of cases where, at the instance of the police, magistrates have exercised jurisdiction in cases which clearly should have gone for trial.
I remember one case which occurred when I was Lord Chancellor. A bench of magistrates were dealing with a case summarily which shocked public opinion throughout the country. There was a considerable fuss about it which led to
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inquiry and a lot of criticism of the magistrates. What emerged upon inquiry was that it was at the instance of the police that the case was dealt with summarily by the magistrates, that the bench had not been fully informed as to the circumstances, and one of the circumstances which was relevant to the decision to deal with the case summarily was that at the time when the case would have been heard, if committed for trial, some of the police witnesses would have been on holiday and would have had to be recalled.
I do not wish to blame the police; there may be cases where, owing to the pressure on police time, there is a great argument for dealing with a case speedily and disposing of it quickly in the magistrates' court rather than incurring the trouble of attending at the Crown Court, possibly in a few months' time, and the taking up of police time on that.
I am not for one moment suggesting that magistrates would too readily assume jurisdiction; but I fear that if this Bill is carried in its present form, one may well see the police asking for cases to be dealt with summarily. If they do that, it will require a strong bench to say that that should not happen. We have had one Division tonight, my Lords. I feel strongly about this Amendment. The reason put forward by the James Committee was that the present law led to an anomaly. They pointed out that a person breaking a window to gain entry would be triable only on indictment, while a masked intruder entering through an open door would not. I do not think it is ever difficult to find instances where anomalies might arise, however unlikely, but the existence of such an anomaly does not seem to me to have produced any cogent reason whatsoever for making burglaries where violence to a person in a dwelling was used or threatened triable summarily.
If those cases were excluded and made not triable summarily, then, in a spirit of compromise I should be willing to accept the Bill with the extraction of that part from the proposal in the Bill; that is—to make it quite clear—that if cases where violence was used or threatened to persons in a dwelling remained triable only on indictment and were not triable summarily, I should be prepared, only because it is perhaps a late hour, to agree to the other

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part of the Bill remaining unamended. I say that in a spirit of compromise. If the noble and learned Lord who is going to reply is not in a position to give an answer to that tonight, then that might be a reason which would justify my putting down this Amendment, or some similar Amendment, on Third Reading. Having remained here until this late hour, I hope that it will be possible for the Government to accept that suggestion, in which case I will withdraw the Amendment and seek, with the aid of the Government, to put down an Amendment to give effect to it on Third Reading.
I put that forward as a reasonable compromise. I do not know the number of cases which would be involved, and I suspect the Government do not either, where burglary has involved the use of violence or threat of violence in the past year to persons in the dwelling. I beg to move.
9.6 p.m.
Lord McCLUSKEY: My Lords, when a similar Amendment was moved in Committee, the Government undertook to reconsider the appropriateness of making this offence triable either way in the light of the views which had been expressed. On that occasion, the noble and learned Viscount, Lord Dilhorne, said it would not be desirable to allow magistrates to try these burglary offences at a time when they were becoming more prevalent. He has repeated that view today. He also added then, as he did today, that the Court of Appeal had been urging the Crown Court to pass substantial custodial sentences for them, even on a first offender, and I am not going to challenge that way of putting it.
The Government have given very careful thought to what was said on that occasion; but, despite the noble and learned Viscount's argument, we still favour the James Committee recommendations. My noble friend Lord Donaldson of Kingsbridge referred in Committee to two very powerful arguments which weighed heavily with the James Committee and to which the Government also attach great importance. I should like briefly to remind your Lordships of these. The first is the one to which the noble and learned Viscount referred: serious
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anomalies have arisen from the subdivision by the Theft Act 1968 of the offence of burglary in a dwelling. It is indeed anomalous that a person who enters an unoccupied house by breaking a window to gain entry must be tried at the Crown Court, while a masked intruder who walks in through an unlocked front door can be tried summarily with his consent.
Secondly—and I think this must be set against what the noble and learned Viscount urged upon your Lordships—there was a wide measure of agreement among those who gave evidence to the James Committee that all burglary should be triable summarily with the consent of the accused. As well as the Magistrates' Association, the Justices' Clerks' Society and the London Magistrates' Clerks' Association, they included also the Criminal Bar Association and the Law Society. Those are not opinions lightly to be tossed aside.
Viscount DILHORNE: My Lords, were there any opinions from judges?
Lord McCLUSKEY: I cannot quote the opinions of judges, my Lords.
Viscount DILHORNE: My Lords, have they been consulted?
Lord McCLUSKEY: My Lords, the Lord Chief Justice was asked to comment upon the noble and learned Lord's remarks about what the judges urged, and he confirmed what the noble and learned Lord said.
Viscount DILHORNE: My Lords, I am sorry to interrupt the noble Lord again, but could he say whether there is any judicial opinion which supports the proposal that they should be triable summarily?
Lord McCLUSKEY: My Lords, I am not able to say that to this House. The Government are not, however, seeking to devalue the seriousness of this offence or to suggest that it should not, in appropriate cases, be dealt with severely. Let it be understood what we are saying. Like many offences which are already triable either way, the offences in this category vary very considerably in gravity and there are some cases which would be

1393
suitable for summary trial. In effect, the noble and learned Viscount is urging the House to say that there are no cases that are suitable for summary trial. We do not believe that the Government's view will result in very serious instances being tried summarily because we think the magistrates will make sure of that. Indeed, the noble Baroness, Baroness Macleod of Borve, observed during the debate in Committee (column 1333) that:
"Magistrates do not even attempt to hear a case if serious damage has been done to property or people."—[Official Report, 10/2/77.]
I am surprised, to put it no higher, to hear the noble and learned Viscount suggest that the police sometimes opt for the smaller penalty in cases where a higher penalty ought to be provided.
It is difficult to be precise about the numbers of people prosecuted for the particular kind of burglary covered by the Amendment, because separate figures are not available from the Criminal Statistics. My noble friend Lord Donaldson of Kingsbridge referred in Committee to the fact that in 1975 some 9,749 people in all were committed for trial for burglary in a dwelling and, in reply to a question from the noble Lord, Lord Wigoder (column 1333), he undertook to try to find out how many of these cases were contested. I understand that the number of people who were actually dealt with in 1975 in the Crown Court (as opposed to being committed for trial in that year) for burglary in a dwelling was 8,648 of which 812 (9 per cent.) pleaded not guilty. Of these 46 per cent. were acquitted.
Baroness MACLEOD of BORVE: My Lords, can the noble and learned Lord possibly tell us how many of that number were juveniles?
Lord McCLUSKEY: I am sorry, my Lords. I was going to come to that subject because the noble and learned Viscount asked a question about persons under 21, but I cannot give the incidence.
Baroness HORNSBY-SMITH: My Lords, before the noble and learned Lord leaves that point, can he tell us, in view of the increase in attacks on the person, how many of those burglaries were accompanied by attacks on the person of unfortunate victims inside their property?
Lord McCLUSKEY: My Lords, I have not been asked before for those details and I do not have them. I am not sure whether they are available, but certainly they are not available through me tonight, and I am sorry for that.
I will come to the matter of violence in a moment or two, but, to take the magistrates' courts, the total there was about 15,000, of which 887 (6 per cent.) pleaded not guilty and 65 per cent. were acquitted. As has been said, however, we think it likely that the people prosecuted for the offence to which the Amendment relates will be a significant proportion of those dealt with by the Crown Court for burglary in a dwelling and, therefore, to make the offence triable either way, as the Bill proposes, will have an impact on the distribution of business.
I said I would say something about cases involving violence, and the noble and learned Viscount, Lord Dilhorne, specifically mentioned cases where persons in the dwelling-house were threatened with violence or where violence was used. If that is to be the consideration which weighs with noble Lords then it could be considered, although I cannot give any commitment on that. No doubt, as the noble and learned Viscount has said, it would be possible to draft the Bill SO as to except specifically those cases but, as he would surely recognise, that would create some complication, since in would involve the creation of yet another subdivision of the burglary offence. So looking at the Amendment as it stands, and having considered all the arguments, the Government remain of the view that there are good grounds for upholding the James Committee's recommendation that the offence be made triable either way. I hope that in those circumstances the noble and learned Viscount, Lord Dilhorne, will feel able to withdraw his Amendment.
Viscount DILHORNE: My Lords, after that reply I do not feel able to withdraw my Amendment. So far as the main part of it is concerned, we have had a discussion of that and the noble and learned Lord has really repeated the speech of the noble Lord, Lord Donaldson, in Committee. But if he could be a little more forthcoming about the violence proposals, then I should feel disposed to take a different course. It is not creating

1395
a third category, or another category, of the offence of burglary. If you take the course which I have suggested the actual offences will remain the same. We are not at all amending here the offence of burglary. The noble and learned Lord seems to be under a misapprehension with regard to that. What we should be doing is saying that offences of burglary in a dwelling-house, where violence is used to a person or threatened to a person, would not be triable summarily.
If the noble and learned Lord says that he is disposed to recommend to his colleagues acceptance of that proposal, which I think will not be unduly difficult to draft, then it will be possible to leave this matter now and come back to that proposal on Third Reading, because I think that that goes to the heart of it. I do not myself think it can be right to say that where burglary involves violence, or the threat of violence, it should ever be triable summarily. Could not the noble and learned Lord go a little further than he did in his speech?
Lord McCLUSKEY: My Lords, with the leave of the House, may I answer on just two points? First, what I intended to say (and I hope I did not say it incorrectly) was that the proposal of the noble and learned Viscount, in relation to offences where violence or the threat of violence was involved, would necessarily mean the creation of a fresh sub-division of the burglary offence, and courts and others would have to distinguish between these different categories of the burglary offence. Secondly, I cannot go so far as to recommend for acceptance the proposal which the noble and learned Viscount has produced today. As I understand it, it was not produced before today and all I can do is to repeat what I have
already said, that the Government will consider the matter. But I cannot give any commitment on it.
Baroness HORNSBY-SMITH: My Lords, may I put one lay voice in here. I do not pretend to be a lawyer. In my youth, very few burglars applied violence to the person, but over the years we have seen more and more violence applied. I would beg the noble and learned Lord to appreciate how many people, living in isolated circumstances or alone, consider the circumstances quite different if somebody breaks a window and filches their belongings—although it is sad; it is heart-breaking—from where violence is applied. Where old ladies are tied up or coshed on the head, they expect the Government—even if that means an extra piece of legislation—to define the slick-handed burglar as quite different from one who is prepared to wield an iron bar in attacking an old lady, and who ties her up so that she may starve or die before somebody finds her. They regard very strongly indeed, and feel desperately anxious about treating it lightly, this new trend in burglary which brings in violence. So I hope that the noble and learned Lord and the Government will feel able to consider the demarcation line which the noble and learned Viscount, Lord Dilhorne, put forward. We should think again, even if it means an alteration to the general legislation on burglary, because burglary with violence must be regarded as a new and unhappy classification which is growing.
9.19 p.m.
On Question, Whether the said Amendment (No. 72) shall be agreed to?
Their Lordships divided: Contents, 25; Not-Contents, 27.

CONTENTS

Airedale, L.

Hailsham of Saint Marylebone, L.

Northchurch, B.

Avebury, L.

Hale, L.

Rankeillour, L.

Barrington, V.

Hornsby-Smith, B. [Teller.]

St. Just, L.

Beaumont of Whitley, L.

Long, V.

Sandys, L.

Campbell of Croy, L.

Lyell, L.

Seear, B.

de Clifford, L.

Macleod of Borve, B.

Trefgarne, L.

Dilhorne, V. [Teller.]

Morris, L.

Ward of North Tyneside, B.

Faithfull, B.

Morris of Borth-y-Gest, L.

Young, B.

Falkland, V.

NOT-CONTENTS

Boston of Faversham, L.

Harris of Greenwich, L.

Peart, L. (L. Privy Seal.]

Brimelow, L.

Janner, L.

Phillips, B.

Brockway, L.

Kagan, L.

Pitt of Hampstead, L.

Champion, L.

Kilbracken, L.

Segal, L.

Davies of Penrhys, L.

Kirkhill, L.

Stedman, B. [Teller.]

Donaldson of Kingsbridge, L.

McCluskey, L.

Strabolgi, L.

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

Northfield, L.

Wallace of Coslany, L.

Gifford, L.

Oram, L.

Wells-Pestell, L.

Goronwy-Roberts, L.

Parry, L.

Winterbottom, L. [Teller.]

On Question, Motion agreed to.

9.26 p.m.
Viscount DILHORNE Viscount DILHORNE moved Amendment No. 73:
Page 45, line 42, leave out sub-paragraph (b).
The noble and learned Viscount said: My Lords, I move this Amendment with some degree of confidence. On the last Marshalled List of Amendments I had this Amendment down and I saw to my astonishment that an Amendment to the same effect had been tabled by the noble Lord, Lord Harris of Greenwich, as a separate Amendment and it took precedence over mine. I could not understand that, except on the basis that he was unprepared to join with me in moving this particular Amendment, but now that he has added his name to mine on this Amendment I move it with the utmost confidence and without any fear that it will lead to a Division. I beg to move.
The CHAIRMAN of COMMITTEES (Lord Aberdare): Amendment proposed, page 45, line 42, leave out sub-paragraph (b)—is that the Amendment which the noble and learned Viscount is moving?
Viscount DILHORNE: My Lords, I am so sorry; I have been speaking to the wrong one.
Lord HARRIS of GREENWICH: My Lords, I am relieved that the noble and learned Viscount has been so candid in saying that. For an alarming moment my colleagues and I assumed that all our papers were in even more undistinguished disorder than is normally the case.
Viscount DILHORNE: My Lords, mine were in a state of disorder and I apologise to the House. The Amendment I am moving is No. 73:
Page 45, line 42, leave out sub-paragraph (b),
and I can move it quite shortly. This is
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the proposal to make the offence of handling stolen goods from an offence not committed in the United Kingdom triable summarily. I have myself not known of any charge of that character being brought. It is an offence which is defined in the Theft Act 1968, and, as my noble and learned friend Lord Edmund-Davies pointed out in the course of the debate in Committee, it was not very enthusiastically recommended by the James Committee that this should be triable summarily. He cited this passage from their Report—paragraph 132:
"We assume that the Committee thought that it should not be triable summarily because of the difficult questions of law that might arise. We accept that for this reason the offence should usually be tried on indictment, but several witnesses have suggested that it should be triable summarily and we do not think that it is necessary to exclude the possibility of summary trial altogether."
It can hardly be regarded as an enthusiastic recommendation for summary trial for this offence. I cannot believe that there are many offences of this character tried by the courts and that it would add appreciably to the burden of the Crown Courts if they were left triable on indictment.
Under the Theft Act in every case where this charge is proffered it must be proved that the stealing amounted to an offence "where and at the time when the goods were stolen ". If I understand it correctly, that must mean that it must be an offence against the law of the land where the offence was committed. The Act itself does not say what the offence must be, but I assume it must be an offence equivalent to our offence of theft; the section of the Theft Act does not say so. However that may be, it seems to me that in almost every case where this charge is brought proof of foreign law is necessary to establish guilt. Where you get questions of proof of foreign law, then indeed questions of considerable difficulty may arise in the magistrates' courts. I think it would be

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much better to leave it where it is for the few offences which come within this field. I do not propose to take up any more time in outlining this. There being so very few offences involved—perhaps the noble Lord will be able to give us some figures—I hope on this occasion he might be able to accept this proposal. I beg to move.
Lord McCLUSKEY: My Lords, the noble and learned Lord, Lord Morris of Borth-y-Gest, and the noble and learned Viscount, Lord Dilhorne, moved a similar Amendment in Committee, though it was not discussed in detail. I will not repeat the arguments which my noble friend, Lord Donaldson of Kingsbridge, put up for the previous Amendment and which I have mentioned again, some of which apply to this Amendment as well. In recommending that these offences should be triable either way the James Committee realised that the offences should usually be tried on indictment but they did not wish to exclude the possibility of summary trial altogether. I should have thought that one can properly have confidence in the magistrates. They have the power under the provisions of this Bill to send a case for trial to the Crown Court at any time up until the end of the prosecution case, and one would have thought that if in fact there were cases of difficulty that would be their fate. But one should not exclude the possibility of summary trial altogether because there must be at least some cases, perhaps many cases, where there would be no difficulty in law at all.
As there was no indication in Committee of widespread or vigorous opposition to their recommendations—even the noble Lord, Lord Edmund-Davies, who was the only noble Lord to speak specifically to this Amendment, said he "could not pretend to be very excited about it"—the Government do not consider in these circumstances that grounds have been made out for amending the Bill in the way proposed. Accordingly, the Government are inviting the House to support the James Committee in this matter. In these circumstances, perhaps the noble Viscount, Lord Dilhorne, would consider not pressing this Amendment.
Lord HAILSHAM of SAINT MARY- LEBONE: My Lords, I am starting to feel
1400
that the noble Lord is beginning to treat this House with less than the consideration to which it is entitled. He says that he thinks that there are a good many cases, or might be many cases, in which magistrates would be content to deal with this rather unusual offence themselves. How many? How many cases altogether have taken place in the last 12 months? The noble and learned Viscount on the Cross-Benches asked the question: he has not been told the answer.
The trouble is that what the Government have done throughout is to have the debate at a highly inconvenient time, to Whip their own supporters and not to take the real feeling of the House. I warn the Government that they are building a great deal of trouble for themselves on Third Reading by this attitude. This is the third time I have had to complain of Lord McCluskey's approach to the very reasonable Amendments moved from the Cross-Benches. I must tell him frankly that we on this Bench are profoundly dissatisfied with the way in which noble and learned Lords have been treated. If the Government go on like this, we shall see to it that they will learn better on Third Reading.
Lord McCLUSKEY: My Lords, with the leave of the House perhaps I might reply to what has been said. I regard what the noble and learned Lord has said as being absolutely and totally unfair to me. He constantly reminds noble Lords who speak from this Bench that they speak for the Government and then singles me out by name. To put the matter in that way is totally and utterly unfair. Secondly, he is quite wrong in saying—I do not know what justification he has for such an assertion—that the Government have a Whip on this matter. The Government have no Whip on this matter.
Lord HAILSHAM of SAINT MARY-LEBONE: My Lords, I said that simply because the noble and learned Lord said that the Government did not propose to accept the Amendment of the noble and learned Viscount, Lord Dilhorne. If that does not mean that there is a Government Whip on these proceedings, all I can say is that ordinary Parliamentary language has no meaning at all. I point out to the noble and learned Lord that I have seen whipping on the previous Amendment

1401
upon which he allowed the House to divide. In each case two Government Whips were acting as tellers. That means that there is a Government Whip on the proceedings, and it is idle for the noble and learned Lord to say that it is not so because we have seen that it is.
Lord HARRIS OF GREENWICH: My Lords, perhaps I may speak as I do not have to ask for the leave of the House. I assure the noble and learned Lord, Lord Hailsham, that there is no Government Whip on the proceedings which have taken place this evening. I believe that on one occasion during the Committee stage of the Bill there was. The position as regards today's proceedings and, I believe, last week's proceedings, is that there has been no Whip on Back-Bench supporters of the Government.
Lord HARLSHAM of SAINT MARY-LEBONE: My Lords, in each case the tellers have been Government tellers.
Lord HARRIS of GREENWICH: My Lords, with great respect to the noble and learned Lord, what I say happens to be the truth, as I am quite sure he will accept. Although the Government have expressed a clear position and have, of course, supplied Whips because it is a Government position, the fact is that all Back-Bench supporters of the Government have been told that there is a free vote.
Viscount DILHORNE: My Lords, with the leave of the House——
Lord McCLUSKEY: My Lords, I was in fact speaking when the noble and learned Lord, Lord Hailsham, rose. I think I had obtained the leave of the House to reply when the noble and learned Lord intervened.
Lord HAILSHAM of SAINT MARY-LEBONE: My Lords, I certainly did not intend to interrupt the noble and learned Lord. This is becoming rather disorderly because we have had a whole speech from the noble Lord, Lord Harris, intervening. Although I do not want to stop the noble Lord speaking a third time—I certainly will not refuse leave if he wants it—to pretend that what happened was an intervention by me when we bad been listening to a vigorous speech by his
1402
colleague sitting next to him, is almost as absurd as to say that when there are Government tellers there is no Government Whip.
Lord McCLUSKEY: My Lords, with respect, I was on my feet speaking when the noble and learned Lord, Lord Hail sham, stood up. I sat down as a matter of courtesy. With the leave of the House, my third and last point is simply as follows. In relation to this type of offence it must be plain to any lawyer or layman that, when it comes to a question of handling goods stolen abroad, there would be some cases in which difficult legal questions arise and there would be some where there would be no difficult legal questions at all. That is the point I seek to make and it lies behind the recommendation of the James Committee that in some such cases one should allow summary trial.
Lord HAILSHAM of SAINT MARY-LEBONE: My Lords, could the noble and learned Lord answer the question which the noble and learned Viscount from the Cross-Benches asked and which I have repeated? Can he tell us how many cases of handling goods stolen abroad have been tried in the whole of England and Wales each year?
Lord McCLUSKEY: My Lords, with out notice I cannot answer that question.
Lord AIREDALE: My Lords, that is very disappointing because we suspect that the number of cases a year is very small. If the Government's purpose here, as elsewhere, is to try to relieve the work load upon the Crown Courts, if we are dealing with a very small number of cases it will not relieve the work upon the Crown court to any noticeable extent. So it hardly seems worth not passing this Amendment.
9.40 p.m.
Viscount DILHORNE: My Lords, one thing I hope will be beyond all controversy, and that is that I hare not had any Whips on. I do not intend to enter into that controversy. I mist say that I do not regard the reply of the noble and learned Lord, Lord McCluskey; who I recognise is speaking for the Government and I assume speaking to the Government brief, as in the least degree

1403
satisfactory. I hope that we shall not hear many more of that kind of reply. It is not good enough to say that one does not know how many of these offences have been involved at all. Statistics are surely available. There are officials in the Box who ought to be able to provide the noble and learned Lord with the information if he has not got it ready at hand. There has been plenty of time to provide it. My suspicion is that there have not been 10 of these cases in the last year, but the noble and learned Lord is unable to say.
We are dealing with this matter at a very late hour of night. I put forward on the last Amendment an alternative which I thought was a reasonable com promise. It was not, with great respect, adequately dealt with at all. I have put forward a proposal now which cannot affect the main purpose of this Bill. We are dealing with it at a very late hour of night. I do not think that it is usual or the practice of the House on Third Reading to put down Amendments which have already been discussed in Committee and on Report, but I am not at all sure that in these circumstances, taking this at this very late hour of night, and in view of the total inadequacy of the reply, that one would not be justified in raising this again on Third Reading. I shall take advice upon the point. I am certainly not going to withdraw the Amendment, but I will not ask the House to vote upon it.
The LORD PRIVY SEAL (Lord Peart): My Lords, I have listened carefully to the arguments. I think there has been some misunderstanding here. Whatever arguments there may be on the merits, I do not want the House to go late on this matter and I understand why the noble and learned Lord, Lord Hailsham, feels strongly about this. I thought there was a very good attendance here at this time of night. As a matter of fact, I am certain that if honourable Members in another place were debating this Bill there would be fewer people there. No doubt in another place there may be a smaller attendance than in the Lords, because I always feel that on legal matters the Lords excel. I take note of what the noble and learned Lord, Lord Hailsham, has said, and I should like this debate to
1404
conclude reasonably. We could go to Amendment No. 74A, which I think would suit the convenience of all.
On Question, Amendment negatived.
9.43 p.m.
Viscount DILHORNE Viscount DILHORNE moved Amendment No. 73A:
Page 45, line 44, leave out paragraph 23.
The noble and learned Viscount said: My Lords, this is the Amendment I moved a few moments ago out of order. I will not take up time by saying what I said then, except to repeat that I am very glad that after the controversy the noble Lord, Lord Harris, and I can unite in supporting this Amendment. I beg to move.
Schedule 3 [Offences triable either way by virtue of Section 16(1) or (2)]:
Lord HARRIS of GREENWICH Lord HARRIS of GREENWICH moved Amendment No. 74A:
Page 49, line 15, leave out paragraph 32.
The noble Lord said: My Lords, this is a consequential Amendment. I beg to move.
Lord HAILSHAM of SAINT MARY-LEBONE: My Lords, I believe that the noble Lord, Lord Peart, indicated that he wished to propose that the Report stage be now adjourned.
Lord PEART: Yes.
Moved, That the Report stage be now adjourned.—(Lord Peart)
Lord HAILSHAM of SAINT MARY-LEBONE: My Lords, may I say to the noble Lord the Leader of the House that I think he has taken a wise decision. I ought to say that we do not in the least mind staying up late. I do not think that anyone could accuse me of any want of diligence in the service of the House, but I felt that the House was not doing justice to itself and that this late debate, after the intricate and complicated debate on the Miscellaneous Provisions Bill, was not doing the House credit. That is why I objected to going on with it.

RETURNING OFFICERS (SCOTLAND) BILL
9.45 p.m.
Lord KIRKHILL: My Lords, I beg to move that this Bill be now read a second time. The Bill transfers responsibility for the conduct of Parliamentary Elections in Scotland to the local government service. It replaces provisions in the Representation of the People Act 1949 under which the returning officer in a Parliamentary Election is the sheriff principal, who is a member of the Judiciary. The Bill provides that the returning officer's responsibility will be vested in the local government officer who acts as returning officer at elections to region and island councils and provides that the supporting administrative machinery for returning officers will come from the local authorities instead of the sheriff clerk service, which has carried out this duty on a voluntary and non-statutory basis.
It may be helpful if I trace briefly the background to the changes now proposed. Serious difficulties in operating the present electoral machinery have arisen mainly because the sheriff, in discharging his statutory duty as returning officer, has by tradition naturally looked to his own sheriff clerk and his staff to assume the practical administrative responsibility for organising and running Elections. Given that this work has never formed part of the official duties of sheriff clerks and their staff, it is a tribute to their loyalty and sense of duty that they have efficiently performed the task over many years, though latterly under increasingly severe strain. These strains have become the more evident with the steadily increasing workload of normal sheriff court business to the stage at which, during the two most recent General Elections, very real difficulties were experienced in a number of areas in providing key senior staff.
The pressure for change has come primarily from the sheriff clerk service and it has had to be recognised that the additional workload which Elections engender over a short and intense period is, in modern times, incompatible with the service's basic duties, which relate essentially to the organisation and running of court business necessarily geared to pre determined timetables. In the light of these very real practical problems, consultations were initiated with the Convention of Scottish Local Authorities, the
1406
sheriffs principal, the sheriff clerk service and the political Parties in Scotland with a view to determining the most appropriate arrangements for the future.
An obvious possibility was to transfer responsibility for the organisation of Parliamentary electoral machinery to local government staffs who have, of course, considerable practical experience of running local government elections on a continuuous basis. They were in fact made responsible for polling machinery in Scotland in the circumstances of the EEC referendum in 1974. On that occasion the machinery operated most satisfactorily, in spite of occurring at a time when the local authorities were in the throes of their own reorganisation.
The Convention of Scottish Local Authorities indicated that the local authorities would be agreeable to taking on the duties of organising Parliamentary Elections and the general balance of opinion among other interested parties also favoured this solution. The local authorities were very definite that, in the event of such change, the returning officer should be the returning officer for region and island council elections, with an entitlement to call on the support of local government staff in the districts. The possibility of the sheriff principal continuing to be the returning officer with local government staff organising elections on his behalf was also canvassed.
As was perhaps to be expected, however, neither the Convention of Scottish Local Authorities nor the sheriffs principal themselves considered that an arrangement of that kind would be at all workable in practice. They took the view that it would be most unsatisfactory from the point of view of both the local authorities and the returning officer if the latter was obliged to discharge his responsibilities through key staff who were not responsible to him in the course of their normal duties and working in an entirely different organisation. The most practical solution, therefore, was to adopt the proposal to appoint as returning officers those local authority officers or returning officers at regional and island council elections and to place a duty on all local authorities to make officers available and to assist them in discharging their responsibilities.
Put simply, that is the background to the Bill. I do not think that, at this stage,

1407
I need describe each clause on an individual basis, but I would emphasise that the Bill gives effect to the views of those most concerned with providing the electoral machinery; namely, the sheriffs, the sheriff clerk service and the local authorities as expressed through the Convention of Scottish Local Authorities.
Moved, That the Bill be now read 2a.—(Lord Kirkhill.)
9.52 p.m.
Lord CAMPBELL of CROY: My Lords, we are grateful to the noble Lord, Lord Kirkhill, for explaining concisely the aims of the Bill. As he probably knows, I was aware towards the end of 1973, when I was Secretary of State for Scotland, that the sheriff clerk service and their staffs were finding it more difficult to carry out the duties that they had been performing in relation to elections because of the many other functions and the increase in their work that took their time. They expressed their doubts towards the end of 1973 as to whether they would be able to continue to do this work. The equivalent service South of the Border has not done this in recent years.
In the event, during the 1974 Elections, help was drafted in in certain areas from the Scottish Office because of the inability to carry out all the work by the traditional methods. However, I should remind the House that many extra staff had been employed on a temporary basis in order to man polling booths and carry out the counts and that many of these were local government officials as well as bank clerks and others. The responsibility for being returning officers and supervising elections in Scotland none the less lay with the sheriffs and the sheriff clerk service. The object of the Bill is to transfer that responsibility to local government.
The sheriffs principal, the sheriffs and the sheriff clerk service have carried out the duties extremely well in the past. I am sure that all who have been connected with elections would agree with that. I know that there are a great many people in Scotland who are sorry, or who will be sorry when they hear that this change is taking place, that the sheriffs will no longer be the responsible persons. In
1408
another place a change was made at the Committee stage which would have left the responsibility with the sheriffs. They would still have been the returning officers, though the work would have been carried out under their supervision by the local government staff. I myself think that this would have been the best solution. It would have been the one preferred by most people in Scotland who were used to the sheriff being the returning officer and who understood this traditional system. In the event, that was reversed at the Report stage in another place and the Bill was restored to its original form.
I do not intend to return to that or to pursue it again for it was discussed at some length in another place, but I should like to ask the noble Lord, Lord Kirkhill, one question at this stage. Can he tell us what would happen if there were to be an Election before the Bill is enacted and before the arrangements for which it provides can be made? For example, if there were to be a General Election in May, it seems unlikely that the Bill would have completed its passage or that the new arrangements could have been made. I know that the Prime Minister has dismissed the idea of an early Election and I am sure that I am only speaking theoretically. None the less, one ought to know whether the arrangements are adequate should there be an Election in the near future. After all, two months must be a long time in politics. So I hope that the noble Lord can assure us that provision has in the meantime been made to cover the situation satisfactorily before the Bill, with the new arrangements, enters into force.
Lord KIRKHILL: My Lords, I welcome the noble Lord's brief response to my earlier comments. I wish to emphasise again that the proposal which was made in the other place and subsequently defeated did not of course carry the assent of the sheriffs principal themselves, and that was always a difficulty. With regard to the very unlikely possibility of a General Election occurring in the next two months, I can give your Lordships the assurance that an adequate electoral service at this level will be forthcoming.
On Question, Bill read 2a, and committed to a Committee of the Whole House.

PREVENTION OF TERRORISM (TEMPORARY PROVISIONS) ACT 1976 (CONTINUANCE) ORDER 1977
9.56 p.m.
Lord HARRIS of GREENWICH Lord HARRIS of GREENWICH rose to move, That the draft Prevention of Terrorism (Temporary Provisions) Act 1976 (Continuance) Order 1977, laid before the House on 24th February, be approved. The noble Lord said: My Lords, I beg to move, that the draft Prevention of Terrorism (Temporary Provisions) Act 1976 (Continuance) Order 1977, be approved. The purpose of this Order is to renew the operation of the Prevention of Terrorism (Temporary Provisions) Act 1976 for a period of 12 months beginning on 25th March.
As the House will recall, it is now nearly 12 months since the 1976 Act was passed, the Act which repealed and re-enacted with Amendments the Act of a similar name passed in 1974 in the immediate aftermath of the Birmingham public house explosions. During these 12 months terrorist activity has continued, although I am glad to say that it has been at a much lower level than in 1975 and the early part of 1976. In all the circum stances, the most appropriate course would be for me to give a brief summary of the overt terrorist activity in Great Britain since the enactment of last year's Act.
Just under a year ago, on 27th March, soon after the 1976 Act was passed, an explosion occurred at the Ideal Home Exhibition in London. Eighty-five people were injured and one person subsequently died. As the House will recall, this was the last incident in a series of terrorist attacks on London and the Home Counties in the early months of 1976. Then, in May 1976, a series of eight letter bombs were sent to some well-known people and several civil servants. Fortunately, these attacks did not result in any casualties. After these attacks there were no more terrorist incidents in Great Britain for the rest of the year. But the lull ended suddenly early this year, when on 29th January some 14 devices exploded in shops and other premises in the Oxford Street area of London. No casualties resulted, but there was, as will be recalled, extensive damage to property.
Then, on 2nd February, an explosion occurred in a Department of Employment office in Liverpool, and in a subsequent search a quantity of material was found in a house in the city. This included over 10 lb. of high explosive, 17 incendiary devices assembled ready for use, seven electric detonators, other bomb-making material and a ·38 Smith and Wesson revolver and 24 rounds of ammunition. Two men were detained after these discoveries and have since been charged in connection with them.
I turn now to the Act itself and the use which has been made of it. I think that noble Lords may find it useful if I go through the cumulative statistics of cases under the 1974 and 1976 Acts up to 1st March this year, and I shall note separately the cases dealt with under the 1976 Act. I will deal first with exclusion orders. As noble Lords know, an exclusion may be made against a person whom the Home Secretary is satisfied is or has been concerned in the commission, preparation or instigation of acts of terrorism, or who is attempting or may attempt to enter the country for this purpose.
My right honourable friend the Home Secretary and his predecessor have made 95 exclusion orders in total, of which 20 have come under the 1976 Act. In addition, six orders in total (including two under the 1976 Act) have been made by the Lieutenant Governors of Jersey, Guernsey and the Isle of Man, as they are empowered to do. Nineteen people in total (including two under the 1976 Act) against whom orders have been made have made representations against the order, and five of the orders in these cases, all under the 1974 Act, have been revoked. Four orders have been revoked for other reasons. Eighty-one people in total (including 20 under the 1976 Act) have been removed, 58 in total (including 14 under the 1976 Act) to Northern Ireland, and 23 in total (including six under the 1976 Act) to the Republic of Ireland. Eight orders in total have not been served. In five of these cases the person concerned was, and is believed still to be, outside the United Kingdom. In two other cases the persons concerned were charged with murder, and the then Home Secretary revoked the orders before they were served.

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In the remaining case the person concerned was returned to Northern Ireland on a warrant, and the order was revoked before it was served.
I turn next to the powers of detention, exercisable under Section 12 of the Act, which replaced Section 7 of the 1974 Act. This power enables the police to detain a person who is reasonably suspected, either of having committed an offence under the Act or of being concerned in terrorism. The period of detention must not exceed 48 hours, but can be extended by the Home Secretary for a further five days. The extended period enables the police to make comprehensive inquiries and to carry through forensic science tests. A total of 796 people, 253 of which were under the 1976 Act, have been detained under this power. In 250 cases, 49 of which have arisen under the 1976 Act, extensions of detention have been authorised. The Home Secretary personally sees all applications for extensions unless pressure of events makes this impossible, in which case the decisions are taken by me. Under the Act, people can also be detained at ports by examining officers, on arrival or departure. A total of 1,637 people, 765 under the 1976 Act, have been detained under this power.
The final statistics I am able to give the House are the charges which have been brought for offences under the Act. Three people were charged with offences arising out of the 1974 Act. A further 98 people in total (including 21 under the 1976 Act) have been charged with offences following detention under the Act. These 98 include eight charges of murder, three of attempted murder, 12 of conspiracy to cause explosions, seven of unlawful possession of explosives, six of conspiracy to possess or procure explosives with intent to endanger life and six offences under the Firearms Act 1968.
It has been argued by some of our critics that because only a small proportion of those detained under the Act are charged or excluded, the Act is therefore being abused by the police or, it is sometimes argued, is unnecessary. We reject this argument. The Act is intended to help the police in dealing
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with terrorists. The appropriate test is therefore not the number of charges but their nature and gravity. The list of charges I have given contain some of the most serious offences in the criminal law, including murder, attempted murder and conspiracy to cause explosions. This, in my view, is a clear indication that the Act is being properly directed and is making a significant contribution.
Charges themselves would not justify this Act. It is not designed to ensure that all those detained under it shall be charged with some offence, however trivial. The powers are to deal with and prevent terrorist activity, and should be judged in terms of their effectiveness in this respect. It would be absurd to say that every person detained under the Act and subsequently charged with a terrorist offence, could not have been detained without the Act. But the police consider that without these clear powers they might have been in difficulty as regards obtaining the necessary information in time, or indeed at all. One other point on charges. We have not so far made available information on the outcome of charges, for the reason that it is not held centrally and would have to be obtained by reference to each detailed case. My right honourable friend is well aware of the interest shown in the outcome of these charges, and is asking the police to see whether further information could be made available.
It has been recognised from the beginning that these powers entail a very real cost in terms of civil liberty. To some people this cost has always seemed too great, and I respect this view. Sometimes the suspicions of the police cannot be substantiated to the degree necessary to justify prosecution or an application for an exclusion order. However skilful the police may be in exercising their powers, there are bound to be difficult cases. The police cannot know when they begin their questioning what the results will be: if they could, the powers would not be necessary at all. But the Statute clearly lays down the kinds of cases for which these powers may be used. They relate only to terrorism, and only to reasonable suspicion of involvement in terrorism. Anything else is improper and illegal. If, but only if, the police have information which leads them to this reasonable suspicion, they would be failing in their

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duty if they did not follow it up in accordance with the powers which Parliament has provided them.
We come now to the main question that faces us in the renewal of the Act. Is the degree of threat great enough to justify this course? As I said earlier, terrorist activity in Great Britain has been at a much lower level since the passing of the 1976 Act than in the preceding period. This could give rise to the view that preventive measures which were thought necessary when the threat was self-evident should be dismantled as soon as the threat ceases to be obvious. I think this view is misplaced. Some might have said a few weeks ago, after some eight months without a terrorist attack, that the threat had gone away. But this belief would have been ended by the events in London and Liverpool at the end of January. A quiet period may merely serve the terrorists as a cover under which to prepare their next attack, and to bring in people and explosives. My experience—and I have been concerned with these matters closely for over three years—is that a few months of calm can be just as full of danger as the times when bombs are going off. The terrorist hopes that the vigilance of our people will slacken. It is then that we need to keep these powers readily available, to act on any information that may come in. The judgment we have reached is that we must maintain our precautions at a high level, and that the powers under the Act remain necessary.
My Lords, in making that judgment, my right honourable friend the Home Secretary has taken account not only of the extent of terrorist activity here but also of the continuing threat, based on his assessment of the continuing danger. He has had regard to the statements made by prominent members of the IRA who have made no secret of their intention to maintain their campaign of violence here. My right honourable friend has also taken account of the intelligence available to him. Moreover, it is necessary to stress that no Home Secretary, contemplating what powers might be necessary to deal with terrorism in Great Britain, can ignore the continuing tragedy in Northern Ireland. My right honourable friend has taken considered police advice on whether the Act should be continued. The Commissioner of Police of the Metropolis and
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the Association of Chief Police Officers believe that the Act should be continued and that it has a major contribution to assist them in their efforts in dealing with terrorists. In view of this advice and my right honourable friend's own assessment of the current position, he has come to the conclusion that it would be wrong to allow the powers to lapse.
I should like briefly before finishing to draw noble Lords' attention to the draft Prevention of Terrorism (Supplemental Temporary Provisions) (Amendment) Order 1977. This is a minor modification of the supplemental provisions which will make no difference to the controls operated at ports. It is intended merely to establish beyond doubt what was always the intention in the order. Under Article 13, an examining officer at a port has the power to make arrangements to control the embarkation and disembarkation of passengers to and from Ireland. Some doubt has been cast on whether these controls can be treated as standing arrangements, or whether they have effect only if invoked on every separate occasion that a ship or aircraft arrives from or leaves for Ireland, and the amendments merely establish that standing arrangements may be used.
The order I am moving today was approved in another place on Wednesday, 9th March. I hope noble Lords will take the same view and agree to the renewal of the powers. I beg to move.
Moved, That the draft Prevention of Terrorism (Temporary Provisions) Act 1976 (Continuance) Order 1977, laid before the House on 24th February, be approved.—(Lord Harris of Greenwich.)
10.13 p.m.
Viscount BROOKEBOROUGH: My Lords, I rise to speak in support of this order. I agree with the noble Lord, Lord Harris of Greenwich, that the conditions which operated in 1974 and 1976, when this Act was first introduced and then amended, are still the same. I agree that since the Security Forces consider that it has made a major contribution in the fight against terrorism, then it must be continued. I should like to say that so far as I am concerned the success that the Security Forces in this

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country have had in combating this particular variety of terrorism is a most satisfactory situation because they definitely suffered from a major attack.
In this Act the power that appears to worry most people is the power to detain for seven days those who are seriously suspected of being involved with terrorism. I should like to comment tonight on that issue. In a liberal society, if we are subject to an attack, we have temporarily to suspend certain freedoms. If they are suspended, then errors may occur if those liberalities were worth having in the first place. If the police have proper information, and if that information is accurate, then the chances of errors being made are more remote than otherwise they would be. It is for that reason that I believe the power of the seven days' detention is a vital part of our fight against terrorism.
At the same time as providing the police with these powers to detain, we in Parliament have separately protected the public from the abuse of these powers. We have provided the public with an ability to complain against police brutality, assault and even incivility. This Act covers Northern Ireland. I speak from experience about Northern Ireland, and I can say that the Royal Ulster Constabulary system is among the most vigorous in the United Kingdom for investigating complaints.
Since the police have the powers to detain for seven days to investigate and the public have the protection, we have to do our best to ensure that the climate of opinion must allow both to work freely within the context Parliament has decreed. Indeed, I feel there is a great danger at the present time in Northern Ireland that the machinery for the public to complain could result in frivolous complaints clogging up the work of the police and preventing their carrying out their main duty, which must be at all times to protect the innocent citizen.
It is in that context that protests have been made by the Secretary of State for Northern Ireland and my honourable friend Mr. Airey Neave in another place about the broadcast on BBC television. The BBC interviewed two complainants
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concerning alleged cases of brutality, serious assaults. During that interview, it was highlighted that these two were Roman Catholics and it appeared to be conveyed that because they were Roman Catholics they had been specially sought out and specially interrogated.
During that half-hour interview, the BBC made it quite clear that the Royal Ulster Constabulary had been invited to comment upon the matter, but the complainants' complaints had already been referred to the Royal Ulster Constabulary organisation and were being investigated, and so the Royal Ulster Constabulary felt it was improper for them to appear. The two men who were interviewed were men from my own county and, indeed, from an area very close to me. Fermanagh is a very special county in that in all the years of violence the Royal Ulster Constabulary has remained totally in charge of security and of policing. At all times the Army in fact have been in aid of the civil power and have not taken a dominant role. In other words, the Royal Ulster Constabulary was totally in charge of internal security; and for any organisation—and especially the BBC, as part of the Establishment, if not part of the State—to show a religiously divisive programme for that length of time, knowing that what was said was not going to be rebutted, concerning two men from an area which had been shown quite clearly to be under the control of the Royal Ulster Constabulary, so that by and large the impartiality of the Royal Ulster Constabulary was challenged, was, in my view, a very serious affair for our area, let alone the rest of the country.
The reason given was that the truth must be told. At this stage I should like to remind the House that the IRA are a tiny minority. They have been put before the ballot box time and time again and have been wiped out; and so they continue to try to use the bullet. Therefore, we have to ask the question: At what stage does a part of the State Establishment provide them with a plat form from which to give their view? I should like to ask the Government—and I have given the noble Lord the Minister notice of this through the Northern Ireland Office—the following question. Accepting that the BBC is

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independent and that it has now con descended to have another look at its guidelines, ought not the Government to take powers to see that when a case has been referred to those police investigatory procedures to which I have referred, comment should not be allowed? Because these reports which are made by the police investigatory procedure go automatically to the DPP. The moment they arrive on the DPP's table, they become sub judice. So although, technically, before that time they may not be sub judice, from the police point of view they are in an area where they should not comment.
Therefore, I believe that the Government should see to it that the moment a complaint of serious brutality or assault is officially lodged, it should be declared the equivalent of sub judice. I am not suggesting that the law should not be observed. I am not suggesting censorship. I am merely suggesting that the police should be judged by the courts and not by television.
We have all seen the most appalling examples of cases being judged on television. Everyone knows the effect—and I have seen it myself, time and time again—when somebody appears on television to take a certain stand, and the interviewer says, "We have asked the other side to comment, but no comment is forthcoming from them. They have refused to appear." This has a terrible effect on the viewers. They automatically feel, quite definitely, that the person who has not appeared is guilty. It does not matter if the BBC says that the Royal Ulster Constabulary can come forward at any stage. The case is already lost. You can never catch up on what has gone before. It is sheer hypocrisy for anybody to think that that is justice, and of course trial by television is never meant to be justice.
My honourable friend Mr. Airey Neave and the Police Federation—I do not know whether the noble Lord, Lord Harris, heard the comment of the Police Federation in Northern Ireland tonight—said earlier that the television interview would provoke the IRA to murder. Tonight they issued a complete condemnation of that in very strong and forthright terms. Anyway, the warning which they both issued has sadly proved but too right and, as your Lordships all know, a policeman was murdered yesterday.
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Another policeman and a policewoman were injured. And today, as I left home—and I think that this is an accurate paraphrase of what they said—the IRA claimed that since the Royal Ulster Constabulary had been shown by the programme to be what they are, the IRA would step up their campaign against the Royal Ulster Constabulary and the Army.
The policeman who was killed was a young man who came from my local police station, and he looked after my district. The men who were interviewed came from my district. The bruises which they had on them—if they had any, and I do not necessarily accept that they did—will heal, but that young man is dead, from which there can be no recovery. The other policeman who was involved was very well-known to me, and if I speak almost with passion I am sure your Lordships will appreciate why. He was a very special friend. Both he and his father have always been friends of my family.
At this stage, I should like to pay a special tribute to the Lisnaskea team of the Royal Ulster Constabulary. They really did distinguish themselves, and when the story is fully told I am sure that everybody in this House will salute them, as I salute them and as I salute the whole Constabulary. I do not believe that any police force has ever stood such a prolonged attack with such credit. They are very great men, and I should like to say great women as well, as the story will tell.
There is no doubt in my mind that at the moment there is a cleverly orchestrated campaign to try to discredit our Security Forces. This is a campaign which in the last years has come and gone like a tide, and we are now on a tide which is coming in very strongly. Some people contribute unwittingly to that—I hope that that is what happened in this programme—and some people contribute willingly, but there is no doubt that there is a concerted effort to discredit our forces at this moment, at a time when, in my view, they are doing extremely well and may be succeeding to a great extent. If the Government do not do all in their power to prevent this, we shall nullify what we are providing tonight by these extra powers.

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It has been said that two battles are going on. One is the bombing and killing; the second is the propaganda battle. In conventional wars, armies capture territory but in guerrilla wars—and we are in the middle of a guerrilla war—they capture the minds of the people. It is that battle which we have to win. It is fair to say that the advent of television, with its immediate impact, is the one new factor which has made possible the prolongation of this particular campaign. Therefore it must be used with care but not censorship.
In ending, I should like to support my honourable friend. I am sure that we must change our approach. We must change our laws so as to enable the Security Forces to win. We must protect witnesses and give the Director of Public Prosecutions the power to schedule, in or out, all offences within Northern Ireland. Not so long ago we dealt with a transport problem in which the question of black taxis within Belfast was involved. I do not believe that during that period you could have obtained a conviction in front of a jury for any black taxi which was using red fuel. It is a terrorist-type of offence. In the battle of minds our present Secretary of State speaks with conviction and determination. If we could persuade him to do more to change the law, we should win more quickly. I support the order.
10.27 p.m.
Lord KILBRACKEN: My Lords, I do not intend to follow the noble Viscount in his remarks because, if I may say so without the smallest hostility, I cannot help feeling that some 95 per cent. of what he said had absolutely nothing to do with this order. I should also say that if any of us speak tonight against the provisions that this order would extend it does not for one moment indicate that we have any less feelings of abhorrence of the violence, in all its forms, than those who speak in favour of it.
When the 1974 Act came before your Lordships, in the very exceptional circumstances that existed at that time I was able to give it limited support, although I expressed reservations about the necessity for the use of exclusion orders. Since that time I have watched the
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operation of both the 1974 and the 1976 Acts with increasing concern and I now feel opposed to both of them and to the continuation of the 1976 Act under this order.
I am not particularly concerned about Part I which deals with proscribed organisations. Members of Loyalist paramilitary organisations have been excluded from Northern Ireland under the Act; therefore it would be possible to make a case for including certain of the Loyalist paramilitary organisations, such as the Ulster Freedom Fighters and the Red Hand Commandos, among the organisations proscribed. But I under stand the argument that although those organisations are doing great mischief in the Six Counties and have been involved in terrorist activities in this country, by which I mean Great Britain, they have not caused death or damage to property.
However, Part II of this Act involves—and I do not think anyone has attempted to deny it—a most serious curtailment of basic democratic rights and principles. I ask your Lordships to consider what it must be like to be one of the men who have been detained under it, and let us remember that in 92 per cent. of cases the man was completely innocent. He is picked up, perhaps as he is returning from work; he is taken to the police station; he is not charged with any offence; he is not told what offence he has committed; at all stages he is denied any legal assistance, and no word is sent to his family or to those who are near him to say that he has been detained. His wife and his children at home just know that he has not come home, and it has been established that in many cases the family have been ringing up hospitals and making inquiries to find out what has happened. Of course they do not know, and they may not know for a week. In 250 cases—in 10 per cent. of the cases, and that was in every case where an extension was asked for—without exception the 48 hours was extended, and the old-fashioned, now forgotten, belief that a man is innocent until proved guilty has gone by the board.
A curious matter on which I hope the Minister may be able to comment is that, although those are the circumstances that exist in England and Wales, if under this Act a man is detained in Scotland, the

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circumstances are different. If he is detained in Scotland he is permitted to have legal assistance and his family is immediately notified. Why can this possibly be so? When a man is picked up like this, why cannot he be informed as to the reason? Why cannot he have legal assistance, and, above all, why cannot his family be notified? I can see no reason for not doing so. At least two of those courses are possible in Scotland. If they are possible in Scotland, why should they not be possible in England and Wales?
My feeling is that this Act could only be justified in extremely serious circumstances, and I do not believe that they exist today; and even if the Act is justified, then it has to be judged by its results. Looking at the figures—and the Minister has already given those that were quoted in another place a week ago—I wonder whether we can think that they are in fact justified. I may have made a few minor errors of arithmetic, although I do not think I have. Out of 2,433 men who have been detained under both Acts in 28 months, only 109 have been charged with offences, some of them very minor; 58 have been excluded to Northern Ireland, where they have been released and no charges brought against them; 23 have been excluded to the Republic of Ireland, and under the 1974 Act 15 have been returned to Northern Ireland and charged there, and three have been returned to the Republic of Ireland and charged there. That means, as I have indicated, that 92 per cent. were released and were completely innocent.
If we look at the average figures during that period, the average number in each category per month, we find that the situation is getting worse, not better. We find that more or less the same number are being detained in Great Britain every month, about 85, but whereas under the 1974 Act five a month were being charged with offences, now the figure is two and a half; and whereas under the former Act just under three were being excluded to Northern Ireland, now just over one is: and whereas one a month was being excluded to the Republic now one every two months is being excluded to the Republic. So although the numbers being detained remain much the same, the numbers who are being charged or
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excluded are well under half the figure per month.
Given figures like this, it is wry difficult to avoid reaching one of two possible conclusions: either the police force must be exceedingly incompetent because in so few cases is their reasonable suspicion justified, or if that is not the case, the Act must be being used to gather information from completely innocent people who have been detained solely because they have a connection with Ireland. What other explanation can there be? How can it happen that all these people are being detained and when their cases are looked into in 92 per cent. of the cases there is absolutely no reason for having detained them?
The Secretary of State told another place last week that neither he nor the police would claim that some of the serious charges which have been brought against those detained could not have been brought without the Act, and my noble friend said something along very similar lines a few minutes ago. I reach the conclusion that those who are charged with these offences—I am not talking about the ones who are excluded, because usually no action is taken when they get to Northern Ireland or the Republic—could have been charged anyway, because how does this Act help the police? What knowledge does this Act give the police to enable them to proffer these charges which they could not have acquired just as well if the Act did not exist? The only other suggestion is that the fact that these men can be detained without charge for a week and interrogated in whatever way the police use, means that admissions are secured that otherwise would not have been obtained.
I want to refer just briefly to Part III of the Act, which is the control of entry into Great Britain. One curious statistic is that out of these 2,433 who have been detained, 566—which is over one-fifth of the total—were detained on Merseyside. Of those, 16 were excluded and 43 were prosecuted for alleged offences. However, in every case the prosecution failed. So we have a situation on Merseyside where 97 per cent. of those who were detained were detained without any reason whatsoever.
Owing to the Aer Lingus strike, I happened to arrive in Liverpool last

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Saturday morning. I do not often take the boat and Saturday morning is a very bad time to take it because it is full of football supporters. The boat was packed with teenagers—15, 16 and 18-year olds—in their Everton and Manchester United colours. Everyone who was on board that boat had to establish his or her identity before he or she was allowed ashore. I mention that because it is curious that, although these precautions are taken at Liverpool, nothing comparable exists if one chooses to arrive at London Heathrow. The last time I came by plane, which was about two weeks ago, I was careful to be the first off the plane and watched everyone going through security. The security officers sought identification from only one passenger, and that was me.
I have said that I oppose this legislation. I should like to put to the Minister a question that has been asked in another place. Will he agree to set up an inquiry by a commission or by a group of qualified persons, into the working of both these Acts over the past two years? I think that there are grounds for serious disquiet and that such an inquiry is, in the circumstances, essential.
10.44 p.m.
Lord BROCKWAY: My Lords, I do not think that any Member of this House, with its toleration, will charge those of us who oppose this order with having any sympathy with violence in Northern Ireland. I take rather an extreme view of this. Without endorsing all that has been said by the noble Viscount on the Opposition Benches, I have deplored the fact that our media, including our television, have given prominence to those who were associated with violence, either on the side of the IRA or the paramilitary loyalist organisations. I am a journalist and I am in favour of the freedom of the media, but I regard the action of the media in interviewing those who are known to be associated with this violence, as an action which goes beyond toleration. Those they have interviewed have been sometimes associated with actual violence; if they were so associated then they were criminals under our law.
Having put that view very strongly, I want to say that I am deeply concerned
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about the repudiation of civil rights under this Act. I believe that personal liberties and personal privacy are at the very heart of democracy. One of the few reasons for the maintenance of the House of Lords as it is is the fact that on these issues of personal liberty this House has often taken a stand which has been a precedent for our legislation. It is entirely on those grounds of civil liberties and personal rights that I regret this order which maintains this Act.
I have read carefully the long debate on this issue which took place in another place. I want to admit at once that I could not follow in detail all the statistics which were given by my noble friend Lord Harris in his opening speech. But from what was said in another place I do not think that there is any doubt about the facts that under this Act 2,250 persons have been detained. They could be detained at police decision for 48 hours; they could be detained for five more days with the consent of the Home Secretary.
I was moved in reading the debate in another place, concerning how, when persons have been so detained, their families have often been left in absolute ignorance. Wives and children do not know the whereabouts of their husbands and fathers. I have also been impressed by the fact that often during that period of detention legal representation by solicitors has not been allowed. I regard that fact alone as a repudiation of personal and civil liberties in this country which we ought not to tolerate. But then one goes to the further extraordinary fact; that only 90 per cent. of the 2,250 persons who have been detained have actually been charged.
Lord HAILSHAM of SAINT MARY-LEBONE: The noble Lord has it the wrong way round, my Lords.
Lord BROCKWAY: My Lords, I should have said they have been charged with offences.
Lord HAILSHAM of SAINT MARY-LEBONE: The noble Lord still has it the wrong way round, my Lords.
Lord BROCKWAY: Am I expressing the figures wrongly?
Lord HAILSHAM of SAINT MARY-LEBONE: My Lords, I think the noble Lord means that 8 per cent. have been charged while 92 per cent. have been discharged and therefore not charged.
Lord BROCKWAY: I thought I said they had not been charged, my Lords; I thank the noble and learned Lord for putting me right. In any event, in my view this state of affairs is an absolute outrage from the civil liberties point of view. Not only is this vast majority not charged but of those who are charged very few are charged with any offence relating to violence in Northern Ireland; they are charged with other offences such as wrongful possession of motor vehicles, tax evasion, drug offences and other matters including wasting the time of the police. In other words, this Act against terrorism in Northern Ireland is being used for offences which could surely be dealt with irrespective of the Act.
Another fact concerning me about this Act is the power to exclude suspects in one part of the United Kingdom from another without trial or right to appeal. Noble Lords are aware that I have often taken up in this House cases of Commonwealth immigrants who have been excluded from our country. But they have greater rights than under this Act are allowed to British citizens. When one hears of a deportation at Heathrow and one telephones the Home Office, the deportation is immediately stopped until consideration has been given to the case one is putting forward. And after that, if the case goes against the immigrant, he has a right to appeal to a tribunal. That is not allowed to British citizens in this country who are ordered to be deported from one part of the United Kingdom to another.
Then there is the strange fact that whether they are deported to Northern Ireland or the Republic, in both cases they are absolutely free from action when they get there. One must seriously consider whether the advantages of the Act in preventing violence in Northern Ireland are not outweighed by the disadvantages to civil liberties and personal freedom in our own country.
I was disappointed by the speech of my noble friend Lord Harris in which he
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made no reference to the fact that in another place the Home Secretary himself had indicated that he was disturbed by certain aspects of this Act and promised an examination of it. In another place, my honourable friend Mr. Ian Mikardo suggested four conditions for such an investigation. The first was that it should be a thorough inquiry. The second was that it should be an independent inquiry, not limited to those connected with the Home Office or the Northern Ireland Office. The third suggestion was that there should be publication of the conclusions of the inquiry, and the fourth was that those conclusions should be considered in regard to the maintenance of this Act or some of its provisions.
I draw attention to the fact that the Home Secretary made some response to this proposal for an inquiry. He said first that it would not be another Gardiner investigation. He said secondly that he would look at certain aspects but that there was no question of a political decision by an outside committee. He said thirdly that he could not consider the terms of reference for such an inquiry without further investigation. Next, he said that he wished to provide reassurance and information about the working of the Act. Lastly, he said—and I regard this as of the greatest importance—that he fully understood that anything done would have to be done in an independent fashion. He promised to make a Statement to the House.
I ask that when a reply is made to this debate tonight there shall be a reaffirmation of the Home Secretary's acceptance that, in some aspects, this Act is so doubtful that there should be an investigation. I ask the Minister in his reply to say definitely that he will give an assurance upon these points. The reply of the Home Secretary that the inquiry should be in an independent fashion is rather vague. I ask Her Majesty's spokesman to say that an inquiry into the doubtful aspects of this Act shall be by an independent committee. The reply of the Home Secretary in another place was not adequate to satisfy many of those who are my friends, and I hope that the spokesman for the Home Office will be able tonight to make a statement that will satisfy those of us who are so critical of this Act.
11 p.m.
Lord SEGAL: My Lords, I have just returned from Belfast late this afternoon, having spent a week visiting many parts of Northern Ireland, engaged in completely non-political work. I went there because I was invited to go on behalf of a charity of which I have been chairman for a good many years. In the circumstances, I feel that I ought not to let this opportunity pass without paying my own humble tribute to the work of the Royal Ulster Constabulary, which is being carried out under the most appallingly difficult conditions.
It would not be fair to detain the House at this late hour; but while all the impressions of my visit are still fresh in the mind, I would earnestly ask my noble friends on this side of the House (many of them dear friends of many years standing) how far some degree of restriction of individual liberties is necessary where there are at stake innocent and very valuable human lives, which are in no way involved in any of the horrors that are occurring today in Northern Ireland. These regulations may be instrumental not only in saving these innocent lives but also in bringing sooner an end to the horrors that have to be endured, day in, day out, by our fellow countrymen in Northern Ireland.
I do not wish to influence my noble friends. I do not ask them to change their own very strongly-held principles of individual liberty. We respect them, we admire them for it. All I ask is that they weigh very carefully, at this appalling stage which the affairs of Northern Ireland has reached, how far they ought to do anything that will hinder the saving of very valuable innocent lives. Even at this late hour, I am impelled to say that I feel very largely with my noble friends in the sentiments they have expressed; but I also feel very strongly that these have to be set in proper perspective, in view of the tragedies that are happening at this very moment in Northern Ireland.
11.3 p.m.
Lord GIFFORD: My Lords, I need take only a few minutes to express my opposition to the continuance of the order, following the speeches of my
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noble friends. I speak as one who cherishes human rights and civil liberties both abroad as well as within these shores, and experience abroad and within these shores shows us that the worse the crisis which besets society and the worse the attacks upon it, the more vigilant we need to be to uphold the rights of the individual, and not to be stampeded by the crisis of events into curtailing and abusing those rights.
Experience abroad as well as within these shores also suggests that the more draconian the emergency legislation that is passed, the more it is abused and the more bitterness is created among those who are the victims of its abuse. In answer to my noble friend Lord Segal, I should like to say that my noble friend Lord Harris of Greenwich in his speech did not give us any evidence that this Act was saving lives. The powers to arrest and detain under the Act are powers to arrest on the reasonable suspicion of involvement in terrorism, and those powers exist under the ordinary law. My Lords, what I ask, in common with my noble friends, is; do the Government care about the 2,300 people who have been detained, to no avail, under this Act; whose lives, and the lives of their families, have for short periods been shattered, and whose reputations have suffered? Do we care? Are we to institute any kind of inquiry into the uses and abuses of this Act in the past three years? Those are the questions I ask. I oppose this order.
11.5 p.m.
Lord HAILSHAM of SAINT MARY-LEBONE: My Lords, I would not have intervened at this very late hour but for the fact that I think it is right that, late as it is, the views of those on these Benches should be taken into account because we represent a very great number of people in the country. Whether or not we represent a majority I will not venture to say, but I feel that even at this late hour I have a right to speak for them and a duty to speak for them. At the same time, I must say this to the noble Lord, Lord Harris. I again protest at the mismanagement of Government business today, that these two long debates should have taken place after the Committee stage of the Social Security (Miscellaneous Provisions) Bill. This is perhaps in some

1429
ways the most important of all, although the Criminal Law Bill was of great importance, too. I must ask the Government, on a Monday, not to put business of this kind at the end of the evening, because it is not fair to the House and it is a frivolous approach to important issues which have to be discussed.
Having said that, my Lords, I must say to the Government that I think they would have been failing in their duty had they not prolonged this unpleasant Act. I say it because, although I recognise, of course, that until recently there has been a lull in IRA activity in Great Britain, I am personally persuaded that that lull is only temporary; and I accept the view which was put forward by the noble Lord, Lord Harris, that both the statements of the IRA and their political supporters and the events of January indicate that that view is the correct one. I must of course dispute with the noble Lord, Lord Kilbracken, and others who have spoken from what I might call the mountain below the Gangway, the view that this Act is primarily concerned with the prevention of terrorism in Northern Ireland. That may be important; but the Act is also concerned with the prevention of terrorism over here. Indeed, this, I think, was, in its origin, its primary purpose.
I must say to the noble Lord, Lord Kilbracken, that it is all very well, from the safety of his family seat in the Republic, for him to come over here to tell us that our legislation is unnecessary. I think he must face the fact that we are the objects of attack, and he is speaking from a safe position; and it ill-becomes him to lecture us on the measures which we think necessary for the protection of our country here, either in Northern Ireland or in Great Britain. I believe I speak for the immense majority of people in this country when I tell him that his intervention on this matter is greatly resented.
Lord BROCKWAY: My Lords, I have great appreciation of the noble and learned Lord, but I feel that on reflection he will very much regret that intervention in reference to Lord Kilbracken.
Lord HAILSHAM of SAINT MARY-LEBONE: My Lords, I certainly do not regret it, and I shall not regret it on even
1430
greater reflection. This is not the first time that the noble Lord, Lord Kilbracken, has completely misunderstood the feelings of this country, and, in my opinion, abused the position which he holds as a resident of the Republic, telling us what we ought to do and insinuating that we are doing wrong. I do not like to be lectured by him and I do not like to see even this Government lectured by him. Having said that, let us go on a little further.
Lord KILBRACKEN: May I reply to that, my Lords? First, I certainly appreciate fully that this Act has its principal application in Britain, and not in Northern Ireland. May I further say that if he thinks I am living in perfect safety eight miles from the Border, he is mistaken.
Lord HAILSHAM of SAINT MARY-LEBONE: My Lords, I hope that the noble Lord will be living in perfect safety. There is nothing I less desire than any insecurity on the part of the noble Lord; but I must say that he comes from the safe side of the Border, as anyone living on the Northern side will clearly realise.
My Lords, I must go on to say this. It is all very well to talk about vigilance and civil liberties. I think that both the noble Lord, Lord Harris, and I can claim to be as keen on civil liberties as are the three noble Lords who have spoken against this Motion. We are, but I think we must get our priorities right. I can remember, not very many years ago, the explosion at Aldershot. I think that that was a little before the legislation which we are discussing today, There was a little boy of eight whose mother worked in an Army barracks and got blown up by a bomb. I wrote to the aunt who was looking after the little boy after his mother had been blown up and killed. "He doesn't understand," said the aunt. Nor did I; because I think it is useless to talk of preserving the peripheries of civil liberty when the heart and of civil liberty, which is the right to live, is being challenged by those against whom this legislation is aimed.
I quite agree that a number of people, completely innocent, have been detained in one way or another, but I think that they are under a duty to their fellow citizens to put up with it during this present crisis so long as we are being made

1431
the victims of this wicked conspiracy and attack. I certainly do not resent the limitation on my own liberties which, curiously enough, have been quite considerable when I have chosen to travel across St. George's Channel. I do not mind being searched. This is a gross intrusion on my privacy, but I do not mind it because I like to think that these precautions are being taken for the preservation of the life and liberties of my fellow subjects.
My Lords, I think we have got our priorities right and they have got their priorities wrong. The idea that you will preserve liberties in this country by making it more difficult for the Executive Government in a situation like the present is, I think, an entirely mistaken one.
I should like to add this. I ventured to say when the last Statement on Northern Ireland was being made—and this is too late an hour to go into it in detail—that I think the situation there and here is likely to deteriorate. I think that before long the Government must make a move. It may have been true that for months they were justified in letting the situation drift along and prosecuting under the law the people who were found guilty under the law, so that they could be shown to be upholding the rule of law and getting a large number of people convicted. But I think the political situation now demands, if they do not wish the political situation to deteriorate both here and there, some fresh initiative on the part of the Government. In giving my whole-hearted consent to this disagreeable measure, which I believe to be necessary, I ask the Government to carry back some of the disquiet which some of us feel on this side of the House about the absence of movement in this field.
My Lords, I do not want to say more than a word about the speech of my noble friend behind me, because what we are discussing today is, of course, not the BBC but the continuance of the Act for another 12 months. But I should like to say this for the consideration of those who are responsible for broadcasting. It is absolutely right that they should be independent of Parliament and independent of the Government in the judgments they make about what should be put on
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the air and what should not. But they, just as much as Parliament, Government and Opposition, are public figures and must be a little less sensitive when they are criticised because they are just as much legitimate targets as we are. We are entitled to say what we think about them, no less than they are entitled to say what they think about us.
Viscount BARRINGTON: My Lords, may I interrupt the noble and learned Lord? Does that apply to the noble Lord, Lord Kilbracken, whom I think it has been suggested should have no right to lecture us as we have been lectured tonight—much too strongly? I only ask that for information.
Lord HAILSHAM of SAINT MARY-LEBONE: My Lords, I was not talking about the noble Lord, Lord Kilbracken, at that stage; I was talking about the BBC. I had left the noble Lord opposite, attractive as the subject of discussing him has always been to me. The BBC must be a little less sensitive. If it be the case—and this is what I was about to say when the noble Lord from the Liberal Benches interrupted me—that the BBC put on the air allegations against the RUC before they had been investigated, and while those complaints are being investigated, and, therefore, to which a reply cannot be made, I think they were guilty both of a great error of judgment and a considerable injustice to the RUC.
I was glad to hear from the noble Lord, Lord Brockway—and I am glad to acknowledge his wisdom in saying it—that it is a great mistake to put yourself in the position of interviewing those who are expressly associating themselves with illegal activities. There comes a time when inevitably not only is this undesirable but, in the end, illegality will take place as a result of those associations. I think that they are very unwise indeed to pursue some of the activities which they have, and I am entitled to say it without any accusation of wanting to censor them. They are legitimate targets of criticism just as much as I am and just as much as the noble Lord, Lord Harris, is. My Lords, I have taken up too much time of the House; I only intervened to say that the Conservative Party, at any rate, will support the noble Lord in what he proposes.
11.17 p.m.
Lord HARRIS of GREENWICH: My Lords, let me begin on the point on which the noble and learned Lord, Lord Hailsham of Saint Marylebone, ended; namely, the speech of the noble Viscount, Lord Brookeborough, the comments made by my noble friend Lord Brockway, and what the noble and learned Lord said about the programme on the BBC. All three noble Lords have expressed their views unambiguously. The Home Office has a responsibility for the appointment of governors to the BBC and the appointment of members of the Board of the Independent Broadcasting Authority. In so far as any Government Department is charged with any clear responsibility so far as broadcasting policy is concerned, it is the Home Office. That being so, I do not think it is appropriate to comment. Nor would I, if I were speaking for another Department, make a comment so far as Government are concerned on a matter of this sort. This is clearly a matter for the governors of the BBC.
All three noble Lords have expressed their views, and I agree with the point made by the noble and learned Lord, Lord Hailsham. The BBC and the independent programme companies are in the arena just as we are. If people feel that there has been a grave error of judgment—as clearly some feel that there has been in this particular episode—it is for them to raise the matter publicly and argue it out, and that has been done in this House. I am quite sure that the BBC will take note of what has been said. I repeat, I do not think it is appropriate in this or any other matter for members of the Government to make comments about particular programmes. I think that there is a real risk of politicians becoming involved in day-to-day matters of broadcasting policy. I think that most noble Lords will agree that it is wise for Ministers to stay away from this.
The report of the Annan Committee will be produced in the fairly near future, and although I do not know what particular recommendations it will be making, one point which I know has been a matter of debate while the Committee has been sitting has been the question of complaints. It may well be that the Annan Committee will make some recommendations in this matter which may be of some assistance
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to the noble Viscount, Lord Brooke-borough.
Turning now to the order, the noble and learned Lord described it as a disagreeable measure; and I would agree with him. Also, in my view, it is an essential measure because, with great respect to my noble friends who have spoken this evening, quite rightly emphasising their anxiety in this matter, I believe that one really has to look at the other side of the balance sheet, Over 60 of our fellow citizens have lost their lives as a result of attacks by the IRA in British cities. I do not wish to take an unfair advantage over anybody, but I can still remember going down to Kensington Church Street the evening that Captain Goad was killed while defusing a bomb which somebody had left outside a shop in the hope that it might maim some innocent passer-by. When we are faced with men and women who are capable of acts of that sort, I think it behoves the Government of the day to recommend powers to Parliament to deal with them. My noble friend Lord Gifford referred to "cherishing human rights". The most supreme human right is the maintenance of human life itself, and it is indeed the objective behind this legislation which we have before us.
I will deal in passing with a number of the points that have been made, but the central question between my noble friends and myself is the estimation of the threat which this country is facing. I have indicated the level of casualties which we have had in the past, beginning with the 21 people who were killed in the public house bombings in Birmingham, where bombs were left in the hope that they would kill the largest number of people. As a result of that, the 1974 Bill was passed through Parliament in a matter of days. The question may be asked: would it have made any difference if we had not had a Bill in 1974? I can only answer my noble friends by saying this—and I accept in advance that they will not find the answer a satisfactory one, but I must speak from my own personal knowledge of the matter. For the last three years, I have been dealing with this question in the Home Office; that is, the attacks made by the IRA on this side of the Channel. All I would say to my noble friends is that it is my view—and, what is rather more important, it is the view of every senior police officer

1435
I know and for whose professional judgment I have a high regard—that without the powers which are conferred in this Statute, there would have been substantially heavier loss of life in British cities.
Of course, my noble friends may complain that it is easy for me, speaking from this Box, and may ask how I can possibly establish that. All I can say to that is that we are faced with a clearly defined threat. In the last two and a half to three years, the police—far from being incompetent, if I may say so, as the noble Lord, Lord Kilbracken, suggested—have in my view achieved more remarkable success than any other police force in the developed world, at a time when they were facing the kind of problems they have. In many cases, for example in the cases of the Metropolitan and Merseyside police, criticised by the noble Lord, Lord Kilbracken—forces with substantial manpower shortages, which have had to deploy large numbers of men at very short notice indeed to deal with this grave terrorist threat—those forces feel that, without the legislation which Parliament has thought it right to give them, the terrorist threat would have been a great deal more difficult to contain than they have found it.
My noble friend Lord Brockway said that it was indeed a serious matter—and I entirely agree with him—to exclude a person from one part of the United Kingdom to another. He is quite right, and it is indeed a serious matter. Neither the noble and learned Lord nor I have suggested for a moment that there is not an infringement of civil liberties here. Of course there is. It would be an absurdity to pretend that there is not an invasion of human rights here. The question, however, is a different one and it is this. With fewer than 100 exclusion orders made in the period since the end of 1974—I come back to this again—it is our view that without these people being excluded there would have been substantially heavier loss of life than there has been. I can say this on the basis of my personal knowledge of these people. That is a fact which the House must take into account.
It would be a most serious matter if Parliament wished to withdraw the
1436
exclusion powers conferred by this Statute. It would, for instance, mean that if the power were withdrawn tonight, or in the next few days, all the people who had been excluded would, of course, return to this country, and I wonder very much how many of our fellow citizens in this country would regard that as a sensible and responsible position to take in the Legislature.
Lord KILBRACKEN: My Lords, could the Minister explain this? The great majority of these desperadoes have been sent to another part of the United Kingdom; namely, Northern Ireland. How do the people in Northern Ireland feel about having these murderers running loose in the country?
Lord HARRIS of GREENWICH: My Lords, they probably find it particularly disagreeable, but the position is that, as a result of a complaint made by, I think, Mr. Powell in another place on the occasion of the last Act going through Parliament, it was decided that there would be a reverse exclusion process so far as Northern Ireland itself was concerned. We conceded that point, and a number of these people have been excluded to Northern Ireland where many of them have their homes, while others have been excluded to the Republic of Ireland. The fact of the matter is that the provisional active service units which have been operating in this country have come either from the Republic of Ireland or from Northern Ireland. That is a simple fact. Whether or not that is true, is not a matter for debate. All the evidence which has appeared in public print demonstrates where provisional active service units come from, and it is right for us to return those people from whence they came, because by doing so people in Great Britain do not get killed. That is the simple fact which Parliament must recognise, so far as the existence of these powers is concerned.
My noble friends Lord Kilbracken and Lord Brockway raised a question about the Home Secretary's speech in the House of Commons, when they discussed these powers a few days ago. It is absolutely true that my right honourable friend then stated that he wants to consider ways of looking at the working of this Act, before corning to Parliament again in a year's time if a further renewal

1437
then proves necessary. This is in recognition of the fact that the powers in this Act—however necessary and well justified they may be—inevitably, as I have already indicated, involve a measure of infringement of our civil liberties, and should therefore be scrutinised with the utmost care. It does not in any way—and I must make this clear—imply any criticism of the general way in which the police have operated these powers; nor, of course, does it imply any weakening of the Government's resolve to provide for the full powers and support which may be necessary to deal with terrorism.
In conclusion, I must assure the House that the request for the renewal of the Act is not in any way an automatic action on the part of the Government, but a carefully considered decision. It is with regret that I moved this Motion, a regret which I know will be shared by all those in the House, but it is not yet time to dispense with this Act. I believe that it has helped, and will continue to help, in the fight against terrorism, and I hope that noble Lords will feel able to accord it their full support today.
11.30 p.m.
On Question, Whether the said Motion shall be agreed to?
The CHAIRMAN of COMMITTEES: My Lords, Tellers for the Not-Contents have not been appointed pursuant to Standing Order No. 50. A Division therefore cannot take place and I declare that the Contents have it.

CITY OF LONDON (VARIOUS POWERS) BILL [H.L.]
Petition against, from the Archway Improvement Association, Haringey, Friends of the Earth and Muswell Hill and Fortis Green Residents Association, withdrawn.