Lords Sitting of 14 February 1978

Preamble
The House met at half past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Rochester.
The Earl of Eldon—Sat first in Parliament after the death of his father.
The Earl of Pembroke and Montgomery—Sat first in Parliament after the death of his father.

SMOKING: TOBACCO CONSUMPTION
Lord AIREDALE: 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, since the recent report of the Commissioners of Her Majesty's Customs and Excise (Cmnd. 7050) refers to an "increased overall consumption of tobacco", they remain satisfied with their campaign to discourage smoking.
Lord WELLS-PESTELL: My Lords, Her Majesty's Government, whose campaign to discourage smoking is directed mainly at the smoking of cigarettes because of their close association with certain serious diseases, have noted with satisfaction that in recent years there has been a steady decline in the number of cigarette smokers and in the total sales of cigarettes. The overall consumption of tobacco, which is referred to in the report of the Commissioners of Her Majesty's Customs and Excise, includes tobacco used in cigars and pipes as well as in cigarettes. In any case, it refers to consumption by manufacturers and thus makes no allowance for quantities taken into stock.
Lord AIREDALE: My Lords, I am very much obliged for that comprehensive reply, from which I take some comfort; but seeing that, out of the 55p paid for the average packet of 20 cigarettes, about 38p goes in duty and VAT, and since the
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manufacturers' profit can be only a few pence, could I ask this question: How about matching the manufacturers' advertising budgets with at least an equivalent sum to be spent on advertising the antismoking campaign?
Lord WELLS-PESTELL: My Lords, I think we have to look at the purpose of the advertising on the part of the manufacturers. I think it would be true to say—there is a very real distinction here—that it is not so much directed at encouraging people to smoke but at changing their smoking habits towards smoking brands of cigarettes which have a lower tar yield. If the noble Lord looks at the advertisements, I think he will find that I am right on this point. This is a good thing. If manufacturers are prepared to advertise that people who feel they must smoke should smoke the lower tar yield brands, so much the better. I can tell the noble Lord that there is an agreement between the manufacturers and the Government that they should spend a proportionately higher sum of money in the future on advertising the brands of cigarettes which offer the two lowest tar groups.
Lord LUCAS of CHILWORTH: My Lords, would it not be more helpful if Her Majesty's Government gave practical and tangible help in this campaign by reducing the amount of duty and tax on cigarettes made of NSM? Is the noble Lord aware that it is reported that this type of cigarette is likely to be withdrawn from the market because of the poor sales response?
Lord WELLS-PESTELL: My Lords, on the basis of the assessment of evidence so far presented by the independent Scientific Committee on Smoking and Health, the Government cannot yet confirm that cigarettes containing substitute material positively represent a reduction in the dangers of smoking. Until we have more information, I do not think I can take it any further than that.
Lord BLYTON: My Lords, could the Minister assure me that the Government will not fall into the trap of taking away the only solace of those of us who like to smoke? After smoking for 65 years. I

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should like to say that, in these dismal days, it is really a solace to have a smoke.
Lord WELLS-PESTELL: My Lords, I cannot think that any Party represented in your Lordships' House would want to impose conditions of that kind on anybody. We prefer to deal with this matter by education, and, we hope, good sense.
Lord SEGAL: My Lords, in view of the total failure of the campaign by the tobacco manufacturers for promoting a tobacco substitute, can my noble friend say whether further research is being conducted by the manufacturers into alternative tobacco substitutes?
Lord WELLS-PESTELL: My Lords, I can only say that there have obviously been discussions between the Government and the manufacturers on this matter. We very much hope that the industry will proceed with the development of substitute materials, so that these may take their place with other measures in a positive contribution to deal with what many of us regard as dangerous tendencies on the part of the smoking public.
Lord PLATT: My Lords, in looking at this interesting survey which now shows a substantial drop in cigarette smoking—and I refer only to cigarette smoking—did Her Majesty's Government note that the substantial drop was almost entirely in social classes 1 and 2, whereas social classes 4 and 5 smoke just about as much as previously?
Lord WELLS-PESTELL: My Lords, we recognise that, and I accept what the noble Lord, Lord Platt, has said. However, we are making money available, and we have made money available for some time, to the Health Education Council. It may not be as much as the noble Lord, Lord Airedale, would wish and I think that many might share his point of view. The ASH Campaign against smoking has had a very real measure of success. We are aware that this must continue, but, as I say, the Government prefer to deal with the matter by way of education.

RHODESIA: SETTLEMENT NEGOTIATIONS
2.44 p.m.
Lord GRIDLEY: 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, on the present negotiations within Rhodesia for a satisfactory settlement, they will make it clear to the leaders of the Patriotic Front that they do not possess any inalienable right to veto any internal settlement achieved which may prove satisfactory to Her Majesty's Government.
The MINISTER of STATE, FOREIGN and COMMONWEALTH OFFICE (Lord Goronwy-Roberts): My Lords, as we have made clear in the past, we shall judge any settlement by the yardstick of the Anglo/US proposals. Nobody has any right of veto in this respect.
Lord GRIDLEY: My Lords, I thank the noble Lord for his Answer, but might I ask him whether it would not be advantageous to make doubly clear that everybody understands what he has just said in reply to my Question and that no veto will be acceptable? The Patriotic Front takes no part in the present settlement being discussed in Rhodesia and, so far as I know, has made no request to do so, but the guerrilla war continues and there is no cease-fire. May we not assume from that situation that the Patriotic Front has no real interest, at present, in the settlement talks or in future peace in Rhodesia in that connection? Finally, if the present talks have been stalled—I do not know whether they have—have the Government any information from Rhodesia of any intimidation to cause any persons who are taking part in these talks to change their mind?
Lord GORONWY-ROBERTS: My Lords, I hope that the noble Lord, Lord Gridley, will not take it amiss from me if I suggest that we should not now anticipate the debate for which my noble friend Lord George-Brown has presciently provided an opportunity. However, I take on board what the noble Lord, Lord

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Gridley, has said and I assure him that, when I reply to the debate this evening, I shall pay attention to the points that he has raised this afternoon.

UN INTERNATIONAL ANTI-APARTHEID YEAR
2.47 p.m.
Lord BROCKWAY: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what has been their response to the request of the United Nations to proclaim the year 1978–79 the "International Year Against Apartheid".
Lord GORONWY-ROBERTS: My Lords, we supported the United Nations General Assembly Resolution proclaiming International Anti-Apartheid Year from 21st March. During this important year, we will maintain our total opposition to apartheid and continue our efforts to promote the cause of rapid and peaceful change in South Africa. We are at present considering how best to mark the year.
Lord BROCKWAY: My Lords, though I welcome that Answer, are we not, nevertheless, being a little hypocritical in out attitude on this issue? Is it not a fact that permission is given for large British investment in South Africa, which profits from the very system of apartheid to which we are so opposed, and that many of those businesses are not even carrying out the code of working conditions demanded by our Government and the EEC? In reconsidering the matter, will Her Majesty's Government bear that in mind during International Anti-Apartheid Year?
Lord GORONWY-ROBERTS: My Lords, on the question of our relations in economic affairs with Southern Africa as a whole, may I remind my noble friend Lord Brockway and the House that we keep very closely in touch with our Western partners and others who, like us, have an economic stake in the Republic. Our links can be used as a means of influencing the cause of peaceful change in the Republic. We had that objective in mind in drawing up in the Nine a code
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of conduct for firms operating in South Africa. I think that there is no doubt about the Government's intentions and, indeed, those of this country, in expressing their anti-apartheid feelings very strongly indeed. There must also be no doubt that we must consult with like-minded countries as to the best way to advance that cause.
Lord RITCHIE-CALDER: My Lords, will my noble friend tell us what positive contribution we shall make to International Anti-Apartheid Year?—because the British Government usually help to organise, arrange or stimulate bodies to active participation. Shall we have any active participation, or shall we just be on the sidelines?
Lord GORONWY-ROBERTS: My Lords, we shall most certainly, as always, have active participation in these observances which have the sanction of the international authority. I understand that the United Nations Organisation has already had talks with the British Broadcasting Corporation. No doubt various bodies, including Her Majesty's Government and the major parties of State, will be examining ways and means of marking International Anti-Apartheid Year. Preparations are in hand, but the Year in fact does not officially begin until 21st March.
Lord GLADWYN: My Lords, if we are to have an International Year Against Apartheid, would it not be equally desirable to have an International Year Against Genocide?
Lord GORONWY-ROBERTS: My Lords, no doubt—and I take the point very seriously indeed—there are a number of international enormities against which mankind as a whole should not only protest but do so effectively, following up the protest with appropriate action.
Lord BROCKWAY: My Lords, is there not this difference: Is not the Republic of South Africa the only Government in the world which accepts the philosophy of apartheid and even boasts of it?
Lord GORONWY-ROBERTS: My Lords, it certainly practices apartheid. I should need to study a little more

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carefully whether it is the only Government and country in the world which practices some form of apartheid.
The Earl of GLASGOW: My Lords, can the noble Lord instance one single advantage to anyone as a result of introducing International Year Against Apartheid?
Lord GORONWY-ROBERTS: My Lords, yes. I do not wish to detain the House on the matter, but I think it is an excellent thing that the consensus of conscience in this country and throughout most of the world should be marked appropriately in this way by a declaration extending throughout a year.
Lord LEATHERLAND: My Lords, would not one of the best contributions that this country could make to International Anti-Apartheid year be to ask our politicians to abstain from making racist speeches?
Lord GORONWY-ROBERTS: My Lords, I am tempted to suggest that a good many causes would be positively encouraged by asking politicians not to make speeches at all.

THE NEUTRON BOMB: SOVIET LETTER
2.53 p.m.
Lord SHINWELL: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they have been informed about Mr. Brezhnev's request to NATO not to proceed with the manufacture of a neutron bomb, and what is their attitude.
Lord GORONWY-ROBERTS: My Lords, my right honourable friend the Prime Minister recently received a letter from President Brezhnev about the so-called neutron bomb. I understand that a number of Western leaders have had similar messages. My right honourable friend will be replying to President Brezhnev at the appropriate time.
Lord SHINWELL: My Lords, as President Brezhnev dislikes any interference in Russian affairs, is not it about time that he ceases from intervening in other people's affairs? Why not tell him to mind his own business for a change?
Lord GORONWY-ROBERTS: My Lords, it is not for me to answer for President Brezhnev, but I could imagine that he might reply saying that any bomb is everybody's business.
The Earl of HALSBURY: My Lords, could the noble Lord tell us whether the request by President Brezhnev was accompanied by any offer of inspection facilities to ascertain whether or not the Russians are going ahead with a neutron bomb?
Lord GORONWY-ROBERTS: My Lords, the noble Earl knows full well that I am not at liberty to go into detail as to the content of such a message. However, what he has perhaps presciently raised concerns us all. We should discuss these matters: not only the abolition but also the verification of any abolition that is agreed.
Lord SHINWELL: My Lords, as my noble friend has stated that the subject of the neutron bomb is everybody's business, is not the intervention of Russia in parts of Africa also everybody's business? Are we not going to be a little less complacent and not be afraid of Russia? Why do we have to be afraid of anybody? Cannot we promote our own security alongside our allies, and then tell Russia that we shall do whatever we think is necessary in the interests of our security, whether Russia likes it or not?
Lord GORONWY-ROBERTS: My Lords, our policy is certainly to pursue our security in collaboration with our friends and allies. In so doing, of course, we are mindful of the fact that a very important element of security in modern conditions is agreement with potential attackers as to arms control and disarmament.
Lord AVEBURY: My Lords, could it be suggested to President Brezhnev in the course of the reply that it would

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assist in reducing tension and promoting world disarmament if the Soviet Union were not to proceed with the trial of Dr. Yuri Orlov and others concerned with the Helsinki Group on absurd charges, such as slander of the Soviet State?
Lord GORONWY-ROBERTS: My Lords, yes; I wholly agree. All these matters are related. We must pursue the disarmament of both the mind and the body. The purpose of our constant discussions with countries with which our system is not completely in accord is to seek the broadest possible grounds of agreement both in regard to policies such as those advocated by the noble Lord and also in the arms control and disarmament field.
Lord WYNNE-JONES: My Lords, will my noble friend agree that any step which is agreed between the countries for restricting the development of nuclear weapons is highly desirable and in the interests of us all?
Lord GORONWY-ROBERTS: My Lords, indeed. I am sure that I speak for the entire House—indeed, for practically everybody in this country and, I would say, throughout the world—in saying that that must be the objective. The longer we talk and discuss—especially at expert level—even with people with whom we do not have much in common as to political philosophy or even practice, the closer we shall come to the objective outlined by my noble friend.

SOUND BROADCASTING: SELECT COMMITTEE
The LORD PRIVY SEAL (Lord Peart): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That there shall be a Select Committee to give directions and perform other duties in accordance with the provisions of the Resolution of the House of 28th July 1977 in relation to Sound Broadcasting and to make recommendations thereon to the House.—(Lord Peart.)

PARTICIPATION AGREEMENTS BILL
Lord STRABOLGI: My Lords, I understand that no Amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript Amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the Order of Commitment be discharged.
Moved, That the Order of Commitment be discharged.—(Lord Strabolgi.)
On Question, Motion agreed to.

DOMESTIC PROCEEDINGS AND MAGISTRATES' COURTS BILL [H.L.]
2.57 p.m.
The MINISTER of STATE, HOME OFFICE (Lord Harris of Greenwich): 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 Harris of Greenwich.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD ABERDARE in the Chair.]
Clause 1 [Grounds of application for financial provision]:
Viscount HANWORTH Viscount HANWORTH moved Amendment No. 1A:
Page 2, line 5, at end insert ("and there appears to be no likelihood of reconciliation in the near future".)
The noble Viscount said: First, may apologise for tabling the two Amendments which appear on the first page at the very last moment. This was due to circumstances not entirely within my control. Both these Amendments concern the grounds on which a magistrates' court can make orders with regard to financial provision for the parties to a marriage and children of the family. There are, in fact, four grounds. The first two can simply be stated as a failure to maintain of either the spouse or the

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children. The third one, with which my first Amendment is concerned, says:
"…has behaved in such a way that the applicant cannot reasonably be expected to live with the respondent;"
The fourth one is:
"…has deserted the applicant".
The third one, with which I am dealing in this Amendment, is a matrimonial offence. Finer and others have considered that, now we have got away from this in the High Court for divorce proceedings, there is no reason why we should have it in the magistrates' court. It is undesirable for a number of reasons. A behaviour claim, which is what this involves, inevitably leads to the airing of domestic quarrels in court. This, in turn, leads to bitterness, impedes conciliation or reconciliation, and can harm the children by jeopardising the achievement of satisfactory arrangements about access through the bitterness and hostility resulting from the recital of past incidents.
I propose, instead of the existing wording, to say simply:
"…and there appears to be no likelihood of reconciliation in the near future".
One cannot, of course, say that the marriage has irrevocably broken down because the magistrates would be taking on a judgment which is reserved to the High Court in divorce proceedings. But my Amendment will to a great extent avoid dragging these domestic quarrels into court.
We have to consider, with this and the other Amendment which I shall move, that magistrates' courts and the High Court are not strictly alternatives. Many poorer people do not see their way even today to taking proceedings in the High Court. That being so, I do not think that we ought to have one set of rules for the rich and another for the poor. I see no reason why, in the magistrates' court, one should drag in a great deal more on behaviour than one would in claiming, or asking for, a divorce in the High Court. That really is the purpose of this Amendment. As I have only just put down these Amendments, whatever support I might get in the Committee today I would not press either of them. However, if the Committee feel there is
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something in what I say, I would reserve the right to put them down again in more or less the same form at Report stage. I beg to move.
Lord HARRIS of GREENWICH: This Amendment requires an applicant to a magistrates' court, whose application is based on the respondent's unreasonable behaviour, to establish also that there is no likelihood of reconciliation between the two parties in the near future. This, in effect, would require the court in this type of case, and this type of case alone, to establish that there is no likelihood of reconciliation before the court can grant an order. The Bill already provides, in Clause 22, that the court must consider whether there is any possibility of reconciliation before making, an order.
I think that this is the right way in which to deal with reconciliation and not to place the onus on an applicant to establish it as part of the ground for the order. There is no corresponding requirement in divorce law, and I think it would be wrong to deal with it in this way in magistrates' court proceedings. The present ground in paragraph (c) of Clause 1 in fact corresponds precisely with one of the grounds for a petition for divorce, and it would be somewhat anomalous if the applicant to the magistrates' court had to go further in this respect than the applicant for divorce.
Moreover, the Amendment applies only where the application is based on unreasonable conduct. A person applying for an order on grounds (a) or (b) in Clause 1, that is failure to provide reasonable maintenance, would not have to establish that there was no prospect of reconciliation, whilst an applicant seeking an order on the basis of unreasonable conduct would. This seems to us again to be an anomalous result. There is a further point which I should make on this Amendment, and I shall have to come back to it at a later stage because there is another Amendment which raises a similar issue.
The Amendment which has been proposed by the noble Viscount would require the court, in every case based on unreasonable conduct, to satisfy itself fully on the matter of reconciliation. This, in practice, would mean calling for

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a report from a probation officer in virtually every such case. As I indicated, I shall be referring to this again later when the issue is raised on another Amendment on Clause 22. All I must say at this stage is that the Probation Service in this country is already fully stretched, and it would be undesirable to call on these scarce resources in cases where the likelihood of reconciliation is remote. Therefore, on grounds of substance so far as the Amendment is concerned, and also in relation to the point about the resources of the Probation Service, I very much hope that the noble Viscount will not press this particular Amendment because, in our view, it would be undesirable to add this to the Bill.
Lord SOMERS: While realising the difficulties which the noble Lord has mentioned, may I ask whether he is going a little far in saying that a probation officer would have to be called in in each case? Is the magistrate incapable of judging for himself?
Lord HARRIS of GREENWICH: I think that the position is that the Amendment would require the court in every case based on unreasonable conduct to satisfy itself fully on this matter of reconciliation; in my view that would in virtually all such cases mean involving the Probation Service. I do not think there would be any way of avoiding that particular problem.
Viscount HANWORTH: I shall study what the Minister has said. In the meantime, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
The CHAIRMAN of COMMITTEES: I should point out that, if Amendment No. 1 is agreed to, I cannot call Amendment No. 1B.
3.8 p.m.
Lord PONSONBY of SHULBREDE Lord PONSONBY of SHULBREDE moved Amendment No. 1:
Leave out lines 6 and 7.
The noble Lord said: I beg to move the Amendment standing in my name. The purpose of this Amendment is to remove desertion as a ground of application. My reason for asking that desertion be removed as a ground of application is that
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it comes within the ambit of unreasonble behaviour. The Law Commission report, at paragraph 2.9, says:
"On whether desertion should be retained as a separate ground opinion was more evenly divided. Those commentators who were opposed to the retention of desertion as a ground advanced a variety of reasons for their views. Some argued that desertion was simply a specific form of unreasonable behaviour which, like adultery, would already be covered by the general ground. Others contended that desertion was a highly technical offence, difficult to prove, and thus not appropriate to the magistrates' matrimonial jurisdiction".
The report goes on to say:
"We do not think that a deserted wife for whom her husband is providing reasonable maintenance should be required to wait until that maintenance has ceased before making an application".
As the Law Commission said, desertion is a highly complicated legal concept on which there is a mass of case law. I am no lawyer, but it seems clear that where separation is consensual there is no desertion. The main reason why the Law Commission were moved to include this particular ground was enumerated in paragraph 2.7:
"Inclusion of desertion as a ground was proposed principally to deal with the situation where the parties are living apart but the husband is financially supporting the wife".
The fact is that if the husband is financially supporting the wife at that particular time, then that is not desertion because it is consensual; the wife or husband being in receipt of maintenance means that there has been an agreement to live apart, and for that and the other reasons I have advanced I urge that this ground of application be deleted.
Baroness WOOTTON of ABINGER: I support my noble friend Lord Ponsonby primarily on a matter of principle which seems to run through the Bill on a number of issues; namely, that this word seems to maintain the principle of the matrimonial offence, something which has been removed from divorce law and which, in my view, should be removed from proceedings in magistrates' courts.
Viscount HANWORTH: I oppose the Amendment. I agree entirely, however, that desertion is a most unsatisfactory ground because of its legal complications, and the next Amendment which I shall move will propose to substitute "separation"

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for "desertion". If "desertion" were deleted and my Amendment were not accepted we could be faced with the situation where a couple separate and maintenance is still being paid, but the wife wants security and would therefore like to go to the court for a maintenance order, surely a reasonable thing to wish to do. In the circumstances, with only the other grounds left, she would find it hard to do that. She might be tempted to dredge up many of the difficulties that they have had together. Much the cleaner way would be, if they separate—and this is often done without much rancour—for the spouse to be able to obtain the relief and the maintenance simply on these grounds.
Lord LEATHERLAND: I oppose the Amendment. We have heard something about separation in cases where money is being paid and where it is not being paid, but the word "desertion" implies something specific; in many cases it means that the husband has told his wife, "I'm leaving you. I'm going to live with Elsie". That is surely specific enough to justify the wife asking the court for an order of separation and maintenance. As I say, the word "desertion" is specific, far more so than the provision which my noble friend suggested covered the point, namely, that the party behaved in such a way that the applicant cannot reasonably be expected to continue living with him. Desertion is specific; the husband or the wife walks out, and in my view the spouse concerned should have a right of remedy.
Lord HALE: Desertion is not by any means as specific as one may think. A course of conduct may drive a spouse from the home and constitute desertion on the part of the person who commits the course of conduct, but I would still like the Minister to explain the point in a little more detail. We are discussing law reform again, but let us remember that all the Amendments now before the Committee were printed this morning, at a time when getting to your Lordships' House presented some problems. Because of the courtesy of those in the Public Bill Office, people who are always helpful, my attention was drawn to Amendments which had not been printed but which had been tabled that day and which were being
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increasingly tabled last Thursday, which in Parliamentary terms for most of us was yesterday.
Now we are trying to find out what this mass of Amendments means, and it seems to me that it may mean this. A husband employed by, say, an American company which makes careful inquiries about wives, attitudes towards the FBI and matters of that sort may, if threatened by a spouse leaving him, say, "Let us live apart for a time. I do not want to litigate and I do not want to go to court. I will pay you a generous allowance for the time being and we will live apart and perhaps after a time get together again". For the lady then to say, "I would like to have this registered in court under an order"—I may be wrong about this but this is my understanding of what is proposed—seems to me to be encouraging somewhat outrageous conduct. On the other hand, if it were said that an agreement had been wantonly broken, that would be a different matter. But, so long as an agreement is going on, I do not see the point of having this sort of elaborate Amendment which, in any event, would add considerable complexity to an already complex problem.
Lord HARRIS of GREENWICH: As my noble friend Lord Ponsonby pointed out, this Amendment would remove desertion as a ground for seeking a matrimonial order in the magistrates' court, leaving failure to provide reasonable maintenance and unreasonable conduct as the only grounds for obtaining an order. The Law Commission in their review of this matter said frankly that opinion was about equally divided among those who commented on their Working Paper between those who favoured retaining desertion as a separate ground and those who did not. I must make it clear at the outset that I share the Law Commission's view on this matter, which is that on the whole the balance of advantage lies with retaining desertion as a separate ground.
The case which I think they had particularly in mind when they looked at this question was of a spouse who had been deserted and who was for the time being receiving adequate support from the other parry, but with no guarantee of support continuing. I think it is right to allow a spouse who is in this position to obtain

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the security of a court order without having to wait until that financial support has stopped. I expect that in practice desertion will not be relied on in a great many cases, but I think it is right that it should continue to be available.
I take my noble friend's point that desertion can be a highly technical offence; I accept that there are complexities which arise in establishing desertion which do not arise when one is attempting to establish the other grounds provided in Clause 1. However, I do not think that this in itself justifies not leaving it as a ground for an order. Desertion is at present available as a ground for an order, and while courts certainly find that technical difficulties can arise, I do not think it has given rise to any substantial problems in practice. I repeat, therefore, that this is a difficult question of balance. The view of the Government is the same as that of the Law Commission; namely, that it is right to retain desertion as a separate ground, and it is our view that if it were not retained as a ground the deserted wife's interest could be damaged.
Lord PONSONBY of SHULBREDE: I thank my noble friend Lord Harris for his reply. I shall withdraw the Amendment at the present time, consider what he has said, and possibly return to it at a later stage.
Amendment, by leave, withdrawn.
3.20 p.m.
Viscount HANWORTH Viscount HANWORTH moved Amendment No. 1B:
Page 2, line 7, leave out ("deserted") and insert ("has separated from".)
The noble Viscount said: I have already partially spoken to this Amendment, and I think that the noble Lord on the Front Bench has also made some arguments dealing with it. To state the case briefly, in my opinion there is nothing wrong with desertion as a ground if you take it as having its common-sense meaning, but it has a lot of legal pitfalls and it is in fact very difficult to prove desertion or to refrain from some act, such as going back to the home for a night or so, which invalidates it. I believe that separation is a much better ground from a commonsense point of view; and I do not see why, if a couple have decided to separate, they
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should not formalise the financial arrangements by going to the magistrates' court.
Today, divorce is relatively easy. This is asking far less: it is simply ensuring maintenance. I do not see why we should force the applicant back on paragraph (c) of this clause, which is a behavioral provision. That is dredging up all sorts of imagined or forgotten matrimonial offences and dragging them through the courts when they have perfectly sensibly agreed to part for the moment. I myself feel extremely strongly on this Amendment. So far, I have not been satisfied by what has been said from the Front Bench. So, whereas I shall probably not return to my previous Amendment, this one, I think, needs considerably more careful thought by the Government. I beg to move.
Lord HARRIS of GREENWICH: If the noble Viscount wishes to return to this matter at a later stage, that is of course a matter for him, but I hope I shall be able to persuade him that this Amendment does not have a great deal of merit. The noble Viscount, in proposing his Amendment, has made the point that, if this particular form of words were used, some of the technicalities which are involved in establishing desertion would in fact be removed. But, unhappily, the situation is that the replacement of "desertion" by the word "separation" really does not help.
Separation is a matter of fact and it may arise in quite a substantial number of ways. Let me take just one fairly obvious example. One of the partners may be in the Services or working abroad on business for quite a substantial number of months. The separation of the parties does not of itself imply that the marriage is in difficulties, and I do not think that the mere fact of separation should be a sufficient basis for obtaining a magistrates' court order in maintenance proceedings. For the court to grant an order there must be some indication that the marriage is in difficulties. This, of course, is present in the concept of desertion, which requires the applicant to establish that the separation has been imposed by the respondent against the applicant's wishes. Certainly I shall consider anything else the noble Viscount wishes to put to us on this particular Amendment, but for the reasons have given we do not believe that the

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use of the word "separation", as proposed by this particular Amendment, would in any way improve the situation.
Viscount HANWORTH: I think it possible that the further objections which the Minister has raised might be met by a small Amendment qualifying what is meant by "separation". I shall consider this point. In the meantime, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 1 agreed to.
Clause 2 [Powers of court to make orders for financial provision]:
Lord PONSONBY of SHULBREDE Lord PONSONBY of SHULBREDE moved Amendment No. 2:
Page 2, line 33, leave out ("£500") and insert ("£100").
The noble Lord said: This Amendment, which I beg to move, is a probing Amendment. It is to reduce the amount of the lump sum payment from £500 to £100, but what I am trying to elicit from my noble friend is how in fact he sees this particular clause working in practice. The Law Commission, in looking at the question of the single lump sum payment, first of all said that they were in general agreement that
"it would be unsuitable for magistrates' courts to make orders for the transfer or settlement of property".
They then went on to say:
"The majority of those who commented agreed that such a provision should be made, but differing views were expressed as to how it should be framed. Some thought that there should be no upper limit to the amount of the lump sum: others took the view that the upper limit for the lump sum should be as little as £25".
They then said:
"We think that what the working party had in mind when making the proposal was that the magistrates, in addition to any periodical payments they order, should be able to award an applicant some comparatively modest sum to cover expenses such as outstanding hire-purchase debts, gas or electricity bills or removal expenses. The power to award a lump sum will also in many cases be a useful means of dealing with maintenance expenses incurred before the date of the order".
They continued:
"We have reached the conclusion that the Act should empower the court to order payment of a lump sum not exceeding £500".
One gets the feeling, on reading the Law Commission's Report on this matter, that the figure of £500 was plucked out of the air and that there was no very real justification for that or any other figure. However, I think that this afternoon we should ask ourselves the basis on which the magistrates' court will come to a decision on how much, and on whether or not they should make an order for a lump sum payment. In coming to this decision, Clause 3 of the Bill enumerates various matters to which the court should have regard, and, of course, these matters refer both to maintenance and to the payment of the single lump sum. In general terms, these seem to be very commendable grounds on which the magistrates should make their decision; but the question is what will in fact be the evidence which is put before the court to enable that court to come to a particular decision on this matter.
Here I think it is instructive, perhaps, to refer to the Finer Report, which, in paragraph 4.108, first of all quoted from the report of the committee presided over by Judge Jean Graham Hall, which says this:
"'It is of the utmost importance that the decisions reached by magistrates about maintenance should be based on adequate and reliable information about the needs of the parties and their resources and liabilities'".
Finer went on to say:
"Yet there is no obligation placed on magistrates, and hardly any means available to them, to obtain information about the needs and means of persons affected by their orders other than what they manage to elicit from the witnesses who appear before them. The magistrates do have power to require a probation officer to investigate and report, but the High Court has ruled that they are not bound to resort to this procedure, and that they should be slow to do so. The power is rarely exercised, and its more frequent employment would embarrass an already over-stretched probation service. Understandably also, magistrates are often loth to adjourn for further investigation, particularly as there may be difficulties in reconstituting the same bench for the next hearing".
I think that is an important point: that if in fact any matter under this heading has to be adjourned, a Bench comprised of the same people should hear the adjourned application. Finer continues:
"…commonly the magistrates base their decision on little more than the production of a pay slip, which may easily be untypical of the husband's earnings. It may, for example, give a false impression of his normal overtime. The evidence may be supplemented by information as to the husband's means supplied by the complainant

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herself, but she is often ignorant of what he earns".
The Finer Report makes it clear that in fact the magistrates often have to make their decisions as to maintenance and as to the lump sum payment on inadequate information. If the result is to make an order for too high an amount it can lead to arrears and hardship. To make an order for payment of a lump sum the magistrates would need to have more knowledge that they have at the present time of the respondent's assets. The Bill as it stands makes no provision for the court to obtain this additional information.
I think it is true to say that unrealistic orders, whether they are too large or too small, can give rise to considerable distress and worry. If they are too large the effect will be that the court will subsequently order the amount to be paid by instalments. If it is an amount to be paid by instalments it will no longer meet the needs of the moment—the crisis conditions which the Bill envisages the lump sum payment has to meet. If it is too small, undoubtedly the appellant will be upset. The court needs to be assured that the respondent will be able to pay the amount soon, and in order to have the knowledge to do that they need more information than they have at present.
With regard to the lump sum payment, it is envisaged that the court has no power to remit the amount; once the amount is ordered it is fixed. They have power only to vary the amount of the instalment. The fact is that the respondent will be saddled with the order and if he does not pay he could eventually go to prison. The inclusion of the figure of £500 raises false hopes in the bosom of the applicant.
Might I refer briefly to the Domestic Violence and Matrimonial Proceedings Act 1976 which raised the hope that for violent conduct an unmarried woman would be able to put the man with whom she were living out of the home. This part of the Act has not worked out and courts have been very reluctant to put it into effect. This is now a matter of appeal to your Lordships' House. Undoubtedly, the putting in of something which held out false hopes has led to an embittered attitude to the law because of the feeling by social welfare groups and so on that they were going to achieve
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more under the new law than they had achieved in the past. Under the Bill as it is now framed, it is likely that if the courts do not have the additional information before them they will not make the order, and this also will lead to an embittered attitude. My purpose in moving this Amendment is to find out exactly how my noble friend Lord Harris sees it working in practice. I beg to move.
3.34 p.m.
Baroness WARD of NORTH TYNESIDE: Perhaps I may make one observation on this matter. I do not want to enter into it in detail, but sometimes when one is talking in general terms one forgets to point out that magistrates at one court often take quite a different view from magistrates at another court. This is a very difficult matter indeed to surmount. I was a magistrate for very many years until I retired, and when I sat on the Bench I knew about the cases that were to come up. As your Lordships know, we always try to have, as everybody thought necessary, three magistrates sitting in court. I would look at my co-magistrates, and generally I knew what view they would take. In a matter of this kind I think it is important to remember that magistrates have quite different views on desertion or separation or on what has been done by the party who has been brought to trial. I mention this matter because I think it ought to be considered in conjunction with any Amendment.
3.35 p.m.
Viscount COLVILLE of CULROSS: This raises a point to which I was going to draw attention on the Question, That the clause stand part of the Bill. I am grateful to the noble Lord, Lord Ponsonby of Shulbrede, for moving his Amendment in these terms. It occurs to me—and perhaps the parallel to the Domestic Violence and Matrimonial Proceedings Act 1976 is not altogether inept—that the magistrates, and indeed, what the noble Lord did not mention, the parties, are going to be in some difficulty in the proceedings, not only in relation to the lump sum but altogether because of the way in which magistrates' courts proceedings are presented. As a rule, the documentation is very sparse, and whereas,

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however informally, in the county court there is something in the way of pleadings, in the magistrates' courts there is nothing of the kind.
Unless something is done about the question as to the means from which a lump sum could be awarded, and how big it should be, and also, I should have thought, as to quite a number of things listed in Clause 3(1), I do not see how the magistrate is to cope, nor do I see how the other party to the marriage is to know what to do. Whether it is the husband or the wife makes no difference; neither will know what case they have to meet and what demands their spouse is asking the magistrate to impose upon them. I do not know whether necessarily we ought to write something into the Bill—I would think not. Rather like the £500, which I think is to be experimental, I strongly suspect that we need to be experimental in the provisions that enable the magistrate adequately to carry out his functions under the Bill.
With that in mind I immediately think of rules which do not have to be brought before Parliament except as a Statutory Instrument. When applications are made under Part I of this Bill I would hope that the Home Office will require rather more than a simple complaint for an order or something of that sort, perhaps some statement of the alleged reasons. If under Clause I we are going to cut down the number of grounds upon which a person is entitled to go to the magistrates' court, so that, for instance, all he has to say is, "She behaved in a way in which it was not reasonable to expect me to live with her," the wife, or alternatively, the husband, might be entitled to know what is the basis of the complaint. Under the old Act there was a list which, although it has been so much criticised, at least was specific. But that is not the position under this Bill.
I hope that the noble Lord will be able to tell us more about this, for I am sure that it has been thought out with some care. I go wider than the noble Lord, Lord Ponsonby: I support the reasons that underlie his Amendment. I should think, if the Law Commission say £500, that that is as good a starting point as any; but I agree with him that it will only be a successful starting point if
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this matter and, I think, the other things as well, are capable of being properly assessed at the time of the hearing. I hope that the noble Lord, Lord Harris, will be able to help us, for it will be of some relief to practitioners who appear in these matters.
Lord HARRIS of GREENWICH: As my noble friend Lord Ponsonby has pointed out, this Amendment would fix a maximum limit of £100 for a lump sum awarded by magistrates' courts in matrimonial proceedings instead of the limit of £500 which is at present provided in the Bill. However, both the present maximum and the new maximum proposed in the Amendment are without prejudice to the power conferred on the Secretary of State to fix a larger maximum by order made under Statutory Instrument. This is provided for in subsection (3) of this clause; and that is obviously intended to take account of the effects of inflation in future years.
I am afraid that I am not convinced—but it is only fair to say that I do not think my noble friend made too much of this—that it is necessary to limit the magistrates' powers to order a lump sum to a maximum of £100. I think that the £500 figure is reasonable. My noble friend asked whether it was plucked out of the air. Inevitably, almost any figure that one chooses to decide upon is plucked out of the air. The Law Commission certainly consulted pretty widely on this matter, and I understand that opinions varied from the view that there should be no limit at all on the amount of the lump sum to the view that it should be something in the region of £25. That being so, it seems to me that £500 is not an unreasonable figure. Certainly, as my noble friend Lord Ponsonby conceded, magistrates will have the power to order the sum to be paid in instalments. Again, he said that the Law Commission had suggested that the lump sum might be used for one of a number of purposes—for instance, outstanding hire-purchase debts, gas or electricity bills, removal expenses or maintenance expenses incurred before the making of the order.
My noble friend then mentioned the point about Finer. Certainly, it is true that magistrates do rely on evidence to find out what are the means of people appearing before them. Finer thought

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that the Supplementary Benefits Commission should be required to report in every case; but, unhappily, we have not been able to accept this particular recommendation because it would not be possible for the Supplementary Benefits Commission to take on this additional burden.
Of course, it is the case that the summary procedure of magistrates' courts is intended to enable the courts to deal quickly and simply with fairly straightforward cases. The cases in which the courts will award a lump sum are unlikely to require a major inquiry into the details of each party's financial assets. It would be neither desirable, nor, I think, necessary, to introduce a complicated procedure into magistrates' courts for obtaining information on the full structure of the parties' financial resources. If the financial affairs are very complicated, the person seeking an order can proceed in the county court, where the power of discovery is available.
The Law Commission considered the question of whether there should be a means questionnaire and came to the conclusion that the aim of providing the court promptly with information as to the parties' finances would not be achieved by a compulsory scheme which would have to include penalties or warnings of penalties. Such a scheme would, it was thought—
"engender timidity and reticence rather than confidence and candour".
That is what the Law Commission said in Paragraph 4.28. The Commission instead recommended the introduction of a scheme for the voluntary completion of a means questionnaire; and the Government accepted this suggestion.
The applicant, on making the complaint, should be invited to answer a simple questionnaire which would be served on the respondent with the summons and he also would be invited to complete a questionnaire about his means. The Commission suggested that provision for such a scheme should be embodied—and this is to take account of the point made by the noble Viscount—in magistrates' courts rules; and, again, we agree with this recommendation. It would have a measure of success, in our view—probably more so than any other type of alternative which might be put forward.
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I should add that, in the Law Commissions' consultations, both the Law Society and the Justices' Clerks' Society also favoured the introduction of lump sum payments. We are moving into what is undoubtedly something of an experimental field, as the noble Viscount pointed out. I think, broadly, that this is the right approach, and it is one that I would recommend to the Committee.
Viscount COLVILLE of CULROSS: Will the noble Lord, Lord Ponsonby, give me one moment? I am glad to hear what the noble Lord, Lord Harris, has said. Of course, as to the voluntary questionnaire, the sanction is that, if you do not fill it in and you are the applicant, you probably will not get your order; and, if you do not fill it in and you are the respondent, a very unpleasant order may be made against you. And it will be your own fault in either case.
Can the noble Lord say a little more? Will it go beyond means? Will the rules also provide for a few more details? For instance, will the—I cannot use the word "charge"—allegation which is the basis of the whole application under Clause 1 be spelled out in a little more detail or will the respondent have to wait until he or she gets to court before hearing what dreadful sin he or she is supposed to have committed? I should have thought that there was room in the rules for both, and that it should not be confined only to means.
Lord HARRIS of GREENWICH: I shall gladly take note of that point.
Lord PONSONBY of SHULBREDE: I thank my noble friend Lord Harris for his reply which I shall read and study with interest. In the meantime, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 2 agreed to.
Clauses 3 to 5 agreed to.
Clause 6 [Orders for payments which have been agreed by the parties]:
On Question, Whether Clause 6 shall stand part of the Bill?
Viscount COLVILLE of CULROSS: Arising immediately out of what has just

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been debated, in Clause 6 there is, of course, no maximum on the lump sum. I suppose that it is intentional that the parties, if they do it by consent, as in this case, may exceed that. I imagine it is proposed that this should be allowed, but I have no doubt that the court will look carefully again at the lump sum, based on any means questionnaire, to see that somebody has not overstretched himself and put in an unreasonable amount which cannot be paid.
Lord HARRIS of GREENWICH: I am grateful for that point. It is an interesting one and I should like to look into it.
Clause 6 agreed to.
Clause 7 [Orders for the custody of children]:
3.48 p.m.
Viscount COLVILLE of CULROSS Viscount COLVILLE of CULROSS moved Amendment No. 3:
Page 7, line 44, at end insert—
"( ) Where the court has it in mind to make an order under subsection (3) above, it may—

(a) adjourn its decision;

(b) require that notice be given to the person who would, if the order were made, be treated as if he had made an application under Part II of the Children Act 1975;

(c) refrain from making any such order unless the provisions referred to in section 11(2) below have been fulfilled in respect of that person; and subsections (3) to (9) of section 11 shall apply in respect of that person as if he had been an original party to the proceedings."

The noble Viscount said: It is at this point of the Bill that we start to get into difficulties because of the plethora of legislation on children. I do not know whether I have here a good point or not because it is beyond the wit of man to understand what Parliament has been doing over the last period of years. In the Children Act 1975—and your Lordships' guess is as good as mine as to whether it is all in force yet or whether Section 33 is in force; although I think it is and there is no doubt that it will be before this Bill comes into force—there is a provision whereby a custodianship order can be applied for by people neither of whom are the parent of children but who fall into certain specified categories. The provision in Section 33 requires that the relative, step-parent or parent must
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apply with the consent of a person having legal custody.
This provision is adopted—or perhaps "adapted" is the right word—by subsection (3) of Clause 7. We now have a provision whereby the magistrates can give legal custody to somebody who is not a party to the marriage—that is, a parent or step-parent—or the other parent. If they think that such a person is the right one, they can treat that person as if he or she had applied under Section 33 and was qualified to do so. What occurred to me is, how do you get that person before the court? There is no prerequisite under Clause 7(3) that that third party should have made an application. They have to under Section 33 of the Children Act, but not under this provision.
It may be very sensible that the magistrates should decide that the grandmother or some other close relative—indeed, there are reported cases where they or the equivalent division of the High Court have done so—should have the custody of the child. But it would be necessary for the magistrates to look at the person concerned and, if necessary, question them in the witness box or at any rate know something about them. But how do they do it? I do not think that there is anything in the Children Act 1975 because there is no necessity. The person has to have applied with the consent of the person who already has the legal custody of the child, but not under this Bill. There are, therefore, procedural difficulties which I envisage, to which I have not been able to find the answer.
A parent in front of magistrates may have some very good reason why he or she should not be able to have legal custody of the child but have the most virulent views about the unsuitability of the other party. Perhaps there is a perfectly reasonable compromise in a grandparent or some other relative whom the magistrates would like to call into use. What we want under this legislation is the maximum flexibility. We want to be able to give the magistrates the power to do whatever they think best not only for the parties but particularly the child. I shall come back a little later to what are the proper criteria. They are going to be hindered and hampered by the narrowness of this drafting and, if I may respectfully say so to whoever drafted the Bill, to a slight

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incompleteness in the adaptation of the other legislation. It is a technical point, but it has some substance in it. If the noble Lord, Lord Harris of Greenwich, did not understand what it was when he saw my drafting, he may be easily forgiven for that.
Another point appears in paragraph (c) of my proposed new subsection. I am attempting again to be constructive, and one looks forward to Clause 11 where the court, thinking it has not sufficient information, can go ahead and get some reports from the probation officer. I hear what the noble Lord says about probation officers and I am not suggesting that this should be an automatic requirement. But I think that they would like to have this. I cannot find out whether or not they have it under the Children Act because I cannot follow the implications of the Act. But they should have this power if they are looking at a third party who is not before the court. Whether or not I have the right solution, I have a problem which requires attention. I beg to move.
3.55 p.m.
Lord HARRIS of GREENWICH: Though the noble Viscount did not refer to his Amendment No. 10, perhaps I may deal with this at the same time, as it raises not dissimilar issues. I am much obliged to the noble Viscount as apparently he is content that we should proceed on that basis. It is common ground between us that this is a technical matter.
As the noble Viscount has pointed out, these Amendments refer to an order made under Clause 7(3) of the Bill. Perhaps I may say a few words about the situation as it stands in the Bill. Where the court thinks legal custody should be given to a person who is not a party to the marriage or a parent, Clause 7(3) empowers the court to direct that that person shall be treated as if he had applied for a custodianship order under Section 33 of the Children Act 1975. It also provides that in such a case the person in question shall be treated as if he were qualified to apply under Section 33. The court does not in fact make a custody order under Clause 7(3).
This provision is the same as a corresponding provision already in the Children Act in respect of guardianship
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proceedings. Section 37 of the 1975 Act provides that if on an application in guardianship proceedings the court thinks it should make an order giving custody to a person other than the mother or father it may direct that the application be treated as if it had been made under Section 33 of that Act.
The effect of these provisions is that the case is treated as an application under the Children Act 1975. The persons who are to be made defendants to such an application are provided by rules under the 1975 Act and the usual requirements to serve notice of the proceedings will apply. It is not necessary therefore to make any provision of the kind made in the Amendment to Clause 7. A magistrates' court has power to adjourn the case without a specific provision to that effect.
Dealing with Amendment No. 10, the order made by the court in these cases will be a custodianship order made under the 1975 Act and the proceedings will be custodianship proceedings under that Act. All the provisions in the Children Act 1975 relating to the variation and revocation of custodianship orders will apply and it is therefore not necessary to make any provision of the kind envisaged in the Amendment to Clause 16. That is the situation. It is admittedly a fairly technical field, as the noble Viscount has pointed out. If, having considered what I have said, there is any other point that he would like to raise, I will gladly consider the matter. The situation as I have described it is the situation as it will be in the Bill.
Viscount COLVILLE of CULROSS: I am obliged to the noble Lord. There is already at least one point. Is there a power under the Children Act or the rules which is the equivalent of the provisions of Clause 11(2) to (9) of this Bill? If there is, then that is admirable. If there is not, there ought to be. I know that it would not be in this Bill; we would have to write it into the Children Act as a result of what the noble Lord has said. I was not able to find it. It may be that I have not looked hard enough.
If there are rules under the 1975 Act which require notice to be served, and so on, when does that happen? It is just that I do not have the rules. The noble

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Lord may not be able to tell me now; perhaps he will write in due course. Is this something susceptible of being dealt with at the court itself? The whole procedure under the Children Act envisages—it may not be so under Section 37, but it certainly is under Section 33—that this would have been something which was proposed beforehand. I envisage that it would come up in the course of the hearing. I hope that, if the rules are not wide enough already, they will be made wide enough to deal with this matter, because I consider it to be a proper flexibility to give the magistrates. I do not expect the noble Lord to answer now; but those are my immediate thoughts and perhaps I shall have some more later.
Lord HARRIS of GREENWICH: I am much obliged to the noble Viscount. One additional point in answer to something he said in moving his Amendment is that Clause 33 is not yet in force. It is held up with, I fear, all the other custodianship order provisions for the day when there will be enough social workers.
Viscount COLVILLE of CULROSS: I hope, therefore, this discussion has not been wholly academic and that one day it may have some effect. In view of that, would the noble Lord consider and perhaps write and let me know whether there ought to be some interim arrangement? I do not know whether this Bill will have to be held up until there are enough social workers; I would hope not. If that is so, and if we shall not be able to use Clause 7(3) until there are enough social workers, because it is assimilated into the 1975 Act, since there are other transitional provisions in this Bill to deal with other legislation might it not be wise to have one for this as well? I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
4.0 p.m.
Viscount COLVILLE of CULROSS Viscount COLVILLE of CULROSS moved Amendment No. 4:
Page 8, line 32, leave out subsection (8) and insert—
("(8) Notwithstanding anything in the proviso to section 60(1) of the Magistrates' Courts Act 1952, the court may, in any proceedings in which the powers conferred by subsection (2) above are or may be exercisable,
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at any time direct a probation officer to make to the court under that section a report on the means of the parties.").
The noble Viscount said: This is really a comparison in elegance, and I wish your Lordships to give heed to what I say. Clause 7(8) of the Bill says:
"In any proceedings in which the powers conferred on the court by subsection (2) above are or may be exercisable, the question whether, and if so in what manner, those powers should be exercised shall be excepted from the issues arising in the proceedings which, under the proviso to Section 60(1) of the Magistrates' Courts Act 1952, must be determined by the court before the court may direct a probation officer to make to the court under that section a report on the means of the parties".
It is not immediately clear from that subsection what one is talking about. I think I have written my Amendment in English, and I beg to move.
Lord HARRIS of GREENWICH: I will gladly look at the request which the noble Viscount has made—that is, to consider the language on the face of the Bill. He will be glad to know that, because of the characteristically interesting Amendment that was tabled and our uncertainty as to the particular point he was after, a good deal of research was done into the case of Higgs v. Higgs in 1941. As the noble Viscount will recall, that was the case in which Lord Merriman delivered a particularly interesting judgment—but in fact it was on a rather different point, because we had assumed that the noble Viscount was interested in the substance of the proposal rather than the language. I will gladly look at this particular point to see whether something can be done to improve the flow.
Viscount COLVILLE of CULROSS: I am very grateful. I have, with regret, to reject Higgs. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 7 agreed to.
Clause 8 agreed to.
Clause 9 [Powers of court to commit children to care of local authority]:
4.3 p.m.
Viscount COLVILLE of CULROSS Viscount COLVILLE of CULROSS moved Amendment No. 5:
Page 10, leave out lines 22 to 24.
The noble Viscount said: This is about a child over the age of 17 but under the age of 18 being committed to the care of a local authority. It appears to be engraved upon the tablets of stone that such children do not get put into the care of the local authority. They can be if they are 16 but not 17: they cannot be if they are 17 but not 18, and I do not understand why. I know it is so in other legislation but, if a child leaves school at 16 and does not become adult until 18, what difference does it make if he happens to be half-way between?
It would seem to me that, if there are cases for putting into care children who are over the age of 16, when perhaps such things are normally considered, the provision might as well go straight on up to the age of 18. I seek an explanation from the Government. This is something of comparatively long standing and perhaps it is time it was looked at again. I do not like strange rules which have age limits that do not correspond to anything else. I should like an explanation from the noble Lord, Lord Wells-Pestell, if he can give me one, and I shall listen to it with the greatest interest. I beg to move.
Lord WELLS-PESTELL: Clause 9 (1) states:
"Where a court has power by virtue of section 7(2)",
and we are dealing there with a custody order. As I understand the situation, in Clause 9(6) we are dealing with a court and its powers to make a care order to the local authority. The Law Commission recommended that the provision in Section 3(4) of the Matrimonial Proceedings (Magistrates' Courts) Act 1960 should be brought into line with the corresponding provisions of Section 43 of the Matrimonial Causes Act 1973 by raising the age at which a child may be placed in the care of a local authority from under 16 to under 17. This is for the purposes of making a care order. The omission from page 10 of the Bill of lines 22–24 which the noble Lord is moving would leave magistrates' courts with a power to commit a 17-year-old child to the care of the local authority; but that power would cease on his 18th birthday. So this is presumably an attempt by the Law Commission to bring the provision into line with other practices.
Perhaps I should first emphasise that this provision in the Bill is a re-enactment
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of the substance of Section 2(1)(e) of the Matrimonial Proceedings (Magistrates' Courts) Act 1960 and that it is parallel with the Matrimonial Causes Act 1973, Section 43. It does not mean that the Law Commission's recommendation to re-enact it was taken without consultation and consideration. I have some interest in this in another connection and was at some pains to find out whether consultation and consideration had taken place. I am sure, from what I am told, that it has.
In addition to recommending that the wording of the provision of the 1960 Act should be brought into line with the Matrimonial Causes Act 1973, the Law Commission considered whether some change should be made in the provision in Clause 9(1), to which I made reference at the beginning, that a court should only commit a child to the care of the local authority if it is satisfied that there are exceptional circumstances justifying such a course. The Law Commission concluded that the power to commit to care should be exercisable in any proper case, but had no evidence that the terms in which the power is at present conferred are unduly restrictive in practice, and they thought that—and here I quote—
"the power should be regarded as a power of last resort [and that it was] right in principle that the magistrates' courts' powers, like those of the divorce court, to commit to care should be exercisable only in exceptional circumstances".
If I may make one other point, I think it is clear that the provisions of this Bill as a whole, in so far as they refer to matrimonial and guardianship law, are governed by the general provision in Section 1 of the Guardianship of Minors Act 1971, re-enacting the Guardianship of Infants Act 1925, requiring all courts in proceedings of any description in deciding any question relating to the custody, upbringing or property of a child, to regard the welfare of the child as the first and paramount consideration.
The noble Lord will remember the discussion we had upon that not so very long ago. I think I am fortified in that view by the observations of the Law Commission itself in paragraphs 5(1) and 5(3) of their report. It follows that they saw no inconsistency with this principle in the wording of Clause 9 of the Bill, which they considered with some care; and I suggest that probably there is none.

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Rather, the reference to "exceptional circumstances" is an indication to the court that it can only be in exceptional circumstances that it would be in a child's interests, where his legal custody is in issue as a result of matrimonial proceedings, to place him in the legal custody of a local authority rather than that of either parent or of some other person. I should have thought, on reflection, that that was the right thing to do. The Government are anxious not to accept the Amendment of the noble Viscount because they feel that, quite apart from the fact that the Law Commission went into this matter very carefully, it would seem right in the circumstances to do as provided: otherwise what does one do in the case of a child who is over 17 and who is the subject of these proceedings?
Viscount COLVILLE of CULROSS: That was the question that I asked the noble Lord, and he has not answered it. Exceptional circumstances or no exceptional circumstances is another argument, and it is one to which I shall come when we discuss the criteria on clause stand part. But what nobody has done—neither the Law Commission nor the noble Lord—is to explain why there is the limit of 17. I entirely understand that it is consonant with the other legislation. I entirely understand that it is the same as in the Matrimonial Causes Act. I entirely understand that it goes back to the legislation of 1960. That is why I say that it is engraved upon the tablets of stone. But why must we stick to it? If under this Bill magistrates can make a custody order for a child up to 18, why can they not commit him to the care of the local authority? It may be that only exceptional circumstances would require that to be done, but why are they debarred from doing it? What is the magic in 17?
The noble Lord said that the Law Commission had consulted. I have no doubt that they have, and I am grateful to him for checking up that they have done so. I should have expected them to make the widest consultations. But they have not given us any reasons, and neither has the noble Lord. Why is there this limit of 17? What is the reason for it? Is it just history? Are we stuck, or has
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nobody ever thought to look at it again and rationalise it and bring it into line? I am not trying to be difficult. I simply do not understand, and if the noble Lord can enlighten me any more I shall be very pleased indeed.
Lord WELLS-PESTELL: I take the noble Viscount's point, because my own mind went along those channels. I wondered why this was so, and whether it was just one of those things that one had to accept or not accept. For my own part—and I am sure that I also speak for my noble friend—I should like to take this back, if the noble Viscount will allow me, have a look at it afresh and see whether there is some good reason for adhering to this.
Viscount COLVILLE of CULROSS: That is more than generous of the noble Lord. What I feel has happened is that in 1960 when the precedessor of this Bill was passed, the age of majority was 21 and the age of 18 had no magic one way or the other. Then, along came the legislation under the previous Socialist Administration, the Family Law Reform Act, which brought in adult status at 18, and all the things that flowed from that were not necessarily followed through. Why should they be? It was a very complicated Act, and I remember it very clearly. But this may be one of the things that has remained as an anomaly, and perhaps nobody has thought to ask. Therefore, I very happily take up the noble Lord's offer and, if he will tell me the result of his deliberations, not only I but a number of people in local authorities who have to deal with custody proceedings, and who are equally puzzled, will be grateful, too. So that if the noble Lord can find out before the next stage of the proceedings, he will have done a lot of good to everybody. Meanwhile, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
4.14 p.m.
Baroness MACLEOD of BORVE Baroness MACLEOD of BORVE moved Amendment No. 6:
Page 10, line 38, leave out ("£10") and insert ("£100").
The noble Baroness said: This is a financial A mendment, which seeks to increase the fine for a parent who has

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relinquished all responsibility for a child who is in the care of a local authority, and who does not notify the local authority as the Bill demands. The Bill demands that the parent shall notify the local authority of a change of address, and if he or she does not do that there shall be a fine of £10. As it would cost a very great deal more than £10 to enforce a fine of £10, I have proposed in this Amendment to increase the fine from £10 to £100. I should like the noble Lord's views on this. I beg to move.
Lord HARRIS of GREENWICH: Let me begin with a point of agreement with the noble Baroness. On reflection, I think I would agree with her that the figure of £10 is rather on the low side. Certainly, I make it absolutely clear at the beginning that I do not think that this offence, which is a failure by a parent or guardian to notify a change of address, can be regarded as a particularly serious one, and I should therefore be very hesitant about moving to £100, which is what the noble Baroness has suggested. What I have in mind, it the noble Baroness finds this acceptable, is to replace the existing penalty of £10 with a maximum of £50.
There is a reason for this. I am not trying to find a halfway house between zero and £100. I am doing it because of the provisions of the Criminal Law Act 1977, in which we have sought to introduce some measure of standardisation in fines. The scale of fines which was introduced in that Act, and which we hope in due course to apply right across the board, does not include the figure of either £10 or £100. There is, however, a figure of £50. The next figure on the scale is £200 which, as I have made absolutely clear, would be excessive. Therefore, if the noble Baroness would like to withdraw her Amendment, I will put down Amendments at Report stage to deal with this point, and there will have to be a number of consequential Amendments to other provisions in the Bill.
Baroness MACLEOD of BORVE: I thank the noble Lord for what he has said. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 9 shall stand part of the Bill?
Viscount COLVILLE of CULROSS: I hope that the noble Lord, Lord Wells-Pestell, has a copy of the letter that I sent to his noble friend Lord Harris about the criteria, because it is a complicated matter. But perhaps the noble Lord, Lord Harris, will be dealing with it. It is a question that arises under subsection (1), which covers putting a child into the care of a local authority. As the noble Lord, Lord Wells-Pestell, has said, there has been written into the Bill, as it now stands, the criterion of exceptional circumstances. For all I know, that is absolutely right and I am not criticising that. But what I find a little disturbing is the way that Parliament puts different criteria in practically every Bill that it passes.
I do not want to go too far back, but the noble Lord, Lord Wells-Pestell, has just said, if I heard him aright, that the whole of the proceedings under this Bill—in relation, at least, to care proceedings—will be governed by those fine words in Section 1 of the Guardianship of Minors Act 1971:
"… the court, in deciding that question, shall regard the welfare of the minor as the first and paramount consideration, and shall not take into consideration"
various other things. First, if that is what Parliament means in this Bill, then, for Heaven's sake!, let us say so. The Bill does not say so at the moment. This is supposed to be a self-contained clause, and I do not understand that Clause 9 is assimilated into the ambit of the Guardianship of Minors Act. Therefore, the very first thing that we should have written into the Bill is that criterion.
Although magistrates have perhaps managed to deal with this very satisfactorily—but I should not, if I were a magistrate—they have some cause for complaint. It is not for them to deal with matters under Section 1 of the Children and Young Persons Act, but it certainly is for local authorities. They have powers and duties under that Act to decide whether or not to seek to put children into care. In order to do so they have to satisfy themselves that there is one of a given list of circumstances applicable to the child, and, in addition, that the child is in need of care and control, which he will not get without a care order committing him to the care of the local authority.

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Then there is Section 57 of the Children Act, which rewrites Section 2 of the Children Act 1948. It is, in fact, a resolution by local authorities and, again, I do not think that it comes before the magistrates. But it is something which can be challenged by the parents, and sometimes is. No criteria are set out in that section as to whether they are to act, or whether anybody is to act with the welfare of the child in mind. Now we have this Bill which contains no criteria, either.
The result is that officers who are in charge of the children's part of the social services division of local authorities are sometimes very perplexed. They do not know what court they can go to; they do not know which Act they should use, because every Act lays down different criteria and if they get it wrong they will not obtain the care order, however much the child may need it.
As good an example as any is a recent decision in the Family Division by Mr. Justice Dunn called In re D, a minor. Having despaired under the Children and Young Persons Act, because of the criteria, the local authority concerned went for yet another way of getting a child dealt with; namely, under Section 7 of the Family Law Reform Act 1969, and applied for wardship proceedings. This is a further alternative method of looking after a child where, beyond any question, the welfare and the best care and consideration for the child are paramount. The learned judge said this:
"Far from local authorities being discouraged from applying to t he court in wardship, in my judgment they should be encouraged to do so because in very many of these cases it is the only way in which orders can be made in the interests of the child untrammelled by the statutory provisions of the Children and Young Persons Act 1969".
I know that that is not this case, but in this case we do not have, first, "best interests" as a criterion; it is not written into the Bill. Secondly, we do have "exceptional circumstances". The local authority child officer will look at Clause 9 and say, "Are there exceptional circumstances or are there not? I don't think that I can risk it. This child undoubtedly, in my view, needs to be taken into care. I'm not going to use this Bill, which contains an even newer criterion
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that I have never had before. I'm going for wardship proceedings". If the criterion of "exceptional circumstances" is interpreted strictly by magistrates—and experience shows, as my noble friend has said, that some magistrates have a restrictive approach—then local authorities will proceed under wardship proceedings, as they have had to do under the Children and Young Persons Act 1969.
I find this, upon examination, to be a very confusing and, frankly, a very disturbing state of affairs. Within a matter of about nine years we have passed a variety of Acts—and we are now in the process of passing a Bill—not one of which contains the same criterion. We find that there is a very real problem and a very real differentiation to be made between the kind of courts—whether it is the Family Division or the magistrates' court, or by resolution of the local authority—in which a particular child should be dealt with. I do not say that the problem can be resolved in this Bill, although I think that improvements may be able to be made to its wording. However, it certainly looks to me as though the time is fast approaching when the Government ought to apply their mind to a code for children, even if it is only part of a code, relating to taking into care by local authorities, because I would suggest to the Committee that we cannot go on in this way.
I hope that the noble Lord will forgive me for taking a little time on this matter, but my researches into the Bill led to these extraordinary anomalies. They are all recent; they are all our fault for letting this legislation go piecemeal through Parliament, and I hope that soon we shall take the opportunity to put the matter right.
Lord HARRIS of GREENWICH: As the noble Viscount, Lord Colville of Culross, said when he opened his speech, he wrote to me on this matter—and I am grateful to him for doing so—pointing out what he believes to be inconsistencies between the varying statutory criteria upon which the magistrates' courts may act when considering whether to put a child into care. This is certainly a very wide area which, as the noble Viscount has pointed out, affects a number of Acts. It affects Section 1(2) of the Children and

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Young Persons Act 1969, Section 57 of the Children Act 1975 and, indeed, many totally different situations.
I do not wish to speak at length about all aspects of this wide field, in particular because, as I believe the noble Viscount reminded us, lengthy debates have taken place in this House on the subject, in particular on Section 3 of the Children Act 1975, which relates to the criteria to be applied when adoption is in question. I think also that the issues arising under Section 1 of the Children and Young Persons Act 1969 are rather different from those which arise under the present Bill. Under that provision, a child may have to be placed in the care of a local authority, not merely in his own interest but for the protection of other people. As I think the noble Viscount will agree, this raises rather different questions.
Viscount COLVILLE of CULROSS: Sometimes.
Lord HARRIS of GREENWICH: Yes, indeed. I should like to study with some care what the noble Viscount has said. A number of Government Departments are involved, and many of these issues are matters for the Department of Health and Social Security. I should like to look at this point with my right honourable friend before the next stage of the Bill. It is only fair to say that I cannot hold out any hope that we can resolve these problems in this piece of legislation. I believe that the noble Viscount suggested as much. Nevertheless, it is worth looking at the matter which the noble Viscount has raised in his speech. I shall gladly do so and if I have any news, be it good or ill, I shall communicate with the noble Viscount before the next stage of the Bill.
Viscount COLVILLE of CULROSS: Before the Question is put, I should like to thank the noble Lord very much for what he has said. May I respectfully suggest one thing which could be done in this Bill. It seems to me that "exceptional circumstances" and "welfare of the child" are not inconsistent concepts. If the noble Lord, Lord Wells-Pestell, was right in what he said a little while ago, that the theme of Section 1 of the Guardianship of Minors Act 1971 is supposed to inspire this part of the legislation, then I
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think that it would be helpful to make that clear, so that two Acts dealing with magistrates' courts are going along the same lines—and also going along the same lines as the undoubted jurisdiction in the Family Division when dealing with ward-ship, because they use the same criterion. For the sake of a few words, I should have thought that that might very well be worth writing into the Bill.
Clause 9 agreed to.
Clauses 10 to 12 agreed to.
Clause 13 [Powers of court to make orders for the protection of a party to a marriage or a child of the family]:
The DEPUTY CHAIRMAN of COMMITTEES (Baroness Wootton of Abinger): I have to call the attention of the Committee to the fact that, if Amendment No. 7 is agreed to, I shall not be able to call Amendments Nos. 8 or 9.
4.29 p.m.
Baroness ROBSON of KIDDINGTON Baroness ROBSON of KIDDINGTON moved Amendment No. 7:
Page 15, line 8, leave out subsection (3) and insert—
("(3) Where on an application for an order under this section the court is satisfied that owing to the behaviour of the respondent it is not reasonable to expect the applicant or any child of the family to continue to live with the respondent, and that it is in all the circumstances desirable that the respondent vacates the matrimonial home, the court may make the following orders, that is to say—

(i) an order requiring the respondent to leave the matrimonial home;

(ii) an order prohibiting the respondent from entering the matrimonial home.").

The noble Baroness said: I beg to move Amendment No. 7 which stands in my name. It was very obvious during the Second Reading debate that Clause 13 in particular was generally welcomed by this House because, for the first time, it enables magistrates' courts to make orders for the occupation of the matrimonial home. If the Bill becomes law, it means that there will be three ways in which a spouse can obtain exclusive occupation of the home. It can be done under Clause 13(3) of the present Bill, or by applying for an injunction in the county court or the High Court, or by applying to the county court for an order under the Matrimonial Homes Act. However, in

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order to obtain an order excluding the respondent from the home under Clause 13(3) of this Bill, it has to be proved that there was actual or threatened physical violence.
We all welcome this clause because it will help enormously to protect battered wives, but it seems to me that it places too great a limitation upon the powers of the magistrates' court. I think the wording I have suggested widens the powers without weakening the Bill itself, because it would enable the magistrates' courts to take mental cruelty and mental violence into consideration when adjudicating in a domestic case. It occurs to me that, unless we rephrase this particular clause, the magistrates could find themselves in great difficulties where it could be proved that physical violence had been occasioned by a long period of mental cruelty on the part of the other person.
By re-phrasing this clause we would enable the magistrates to make a fairer judgment in the case in front of them on which particular spouse was at fault. I should very much like to hear what the noble Lord, Lord Harris, feels about this, because I am acutely aware that we want the proceedings in the magistrates' domestic courts to be as similar as possible to the other courts dealing with matrimonial cases. I would be very grateful if the noble Lord would accept my Amendment. I beg to move.
Viscount COLVILLE of CULROSS: would the noble Lord say whether or not he is going to accept the Amendment, because, if he is, it is very unfair; I would have to move manuscript Amendments to include Amendments Nos. 8 and 9.
Lord HARRIS of GREENWICH: I fear that I am not going to recommend the Committee to accept this Amendment. The noble Baroness has pointed out that this Amendment would very substantially widen the powers of the court. We take the view that it would widen those powers to an undesirable degree. We believe that the powers would, quite bluntly, be too draconian. Partly, also, we do not think that the effect would necessarily be what is intended.
In the Bill, as introduced, the issuing of a domestic exclusion order is linked with
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violence and threats of violence. Those are the criteria, plus, of course, a danger of physical assault. The Amendment of the noble Baroness would remove this restriction and replace it by a much lesser requirement to show unreasonable conduct by the respondent. This would be a greater power than the High Court possesses under the Domestic Violence Act, and, I suggest, a greater power than should be given to magistrates' courts. I suggest that problems of this kind, where violence is not involved, should be left to the High Court or county courts to be dealt with under the Matrimonial Homes Act.
As I indicated when I began my speech, we do not think that the provision recommended by the noble Baroness would always produce the right result, or the one that she would favour. It sometimes happens that the spouse who has behaved unreasonably is nevertheless the one who is better fitted to look after the children, and should, therefore, be left with them in the matrimonial home. For those reasons we are not convinced that the Amendment, well intentioned though it is, would improve the Bill. I very much hope the noble Baroness will agree not to press the Amendment.
Baroness ROBSON of KIDDINGTON: I am grateful to the noble Lord for his reply. I will read carefully what he has said and consider how to proceed at the next stage of the Bill. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
4.34 p.m.
Viscount COLVILLE of CULROSS Viscount COLVILLE of CULROSS moved Amendment No. 8:
Page 15, line 22, leave out ("both") and insert ("more").
The noble Viscount said: Perhaps I may, with the leave of the Committee, speak to Amendments Nos. 8 and 9 together because No. 8 is only a paving Amendment. I look at this provision and have in mind the sort of circumstances with which the courts would be confronted. They would have a frightened wife and a violent and angry husband, or, I suppose, a terrified husband and a most terrible virago of a wife, and the person who is the unpleasant character in either case seems to me, if I may use a phrase that

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perhaps has not normally appeared in Hansard, to have picked nits.
If the magistrates say, "Right, out you go", or "Right, you are not going back", that is going to be taken literally. If "Right, out you go" means that you shut the door, having first changed the locks, what good does it do to the other party? I do not see how the person in whose interests the exclusion order has been granted is going to get into the matrimonial home. My Amendment simply enables the court to be quite explicit about it; not only shall the respondent get out but he shall let the applicant get in and stay in. I would have thought that in the circumstances it was worth spelling this out. I beg to move.
Lord HARRIS of GREENWICH: Let me begin by saying that I have some sympathy with the Amendment, before saying that I fear that I cannot recommend the Committee to accept it. This is a difficult matter and the noble Viscount has, as always, made a moderate and considered statement. The basic argument in favour of these Amendments is that the powers given to magistrates' courts for the protection of wives and children should approximate as closely as possible to those given to the High Court and county courts by the Domestic Violence and Domestic Proceedings Act 1976.
However, we must recognise, as the Law Commission did, that magistrates' courts are different in both constitution and procedure. It is true, certainly, that the Law Commission do not refer in their report to the 1976 Act, but they did expressly consider the matter in relation to the power in Section 1 of the Matrimonial Homes Act 1967, and they also referred to the comment of the Select Committee on Violence in Marriage, in another place, that they did
"not believe that magistrates' courts should have power to order the transfer of any interest in the matrimonial home".
They recognised that in one situation, namely, where a wife has fled from home because of her husband's violence, it might be thought that magistrates could usefully be given power to help the wife to get back into it, but they concluded that this jurisdiction was better left to the High Court and the county court.
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Of course, it may be said that merely restoring the wife or children to the matrimonial home does not of itself constitute a property right, and theoretically, of course, this is true. But if a person is turned out of a house or flat and another one is put into it, this really does amount to a decision as to property; and I think, with the Law Commission, that there is a difference between doing this and ordering one spouse to leave the matrimonial home and leaving the other spouse there. The Domestic Violence Act has given, and I am bound to say is continuing to give, a fairly substantial amount of trouble in the courts, and I think it would be going too far to impose on the magistrates the burden of coping with these very difficult cases in addition to those they will already have to deal with under the clause as it currently stands. For that reason I do not think I can recommend the noble Viscount's Amendment to the Committee.
Viscount COLVILLE of CULROSS: I am sorry about that, because I think in part the reasoning that underlies that rejection is in itself mistaken, and I will explain to the noble Lord why. The property implications were one of the things I wanted to ask about anyway. The noble Baroness in the Chair may note that I do not need to raise this on the Question, That the clause shall stand part?, because I will do it now. I understood that one of the restrictions being imposed on the magistrates was that they were not to go into property matters. But it is already inherent in the wording of this clause.
I will explain to the noble Lord what my fears are. There is no provision in the clause which limits the period of the order. It may, therefore, run for years and years. If it were to do so, let us take the example of a council flat. The respondent fortunately had gone and therefore the order was made under Clause 13(3)(c)(ii), prohibiting him from going back in again, leaving the wife and children in the flat. I am led to believe that, after a certain length of time, at any rate some housing authorities would, in those circumstances, be prepared to transfer the tenancy of that flat to the wife. That would not, of course, be anything directly to do with what the magistrates had said, but it would be the necessary implication, at any

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rate in some areas, of what they had done. Therefore, if that were so—and I am told that I am right about this—we already have property implications built into the Bill. I wonder whether the noble Lord, Lord Harris of Greenwich, will look at that matter?
When discussing these sort of provisions in Committee, we are always faced with the fact that there is at least one other Act containing similar provisions, and one must not destroy the comity of legislation by inserting an extra provision in this Bill which is not in the others, particularly when all the others are on appeal to the House of Lords, and so on. If we do not take our opportunities when we have legislation before us and for some reason it is discovered that there is something wrong with the other Acts, the other Acts may be amended; but then it will not be suitable to put in an Amendment about magistrates. So it goes on untidily year after year, and we never get the matter properly assimilated.
The noble Lord sees the point of what I am doing and if there is really something in this, could we not insert something specific about property, that the effect of this order shall not be in any way to tinker with property rights; or specify in some way so as to guard against the fear of both the Law Commission and the Government on this matter? We want practical legislation and we want legislation which will deal with the problem. I entirely accept that not only should the magistrates not deal with property, but they should—and this is my other point—know what they are doing and make sure that they do not, in fact, by way of their order, have any effect on property rights. It would be a positive advantage to write into the Bill something to the effect that any order under this clause would not affect property rights, and then they would at any rate be safeguarded and we might be able to deal with the true merits of the situation.
I hope that that is a constructive way of looking at the matter. If the noble Lord would look at it again I should be very grateful. In the meanwhile, I beg leave to withdraw Amendment No. 8.
Amendment, by leave, withdrawn.
[Amendment No. 9 not moved.]
On Question, Whether Clause 13 shall stand part of the Bill?
4.45 p.m.
Lord PONSONBY of SHULBREDE: I should like to move the deletion of both this clause and Clause 14. Disquiet about this clause has already been expressed by the noble Baroness, Lady Robson of Kiddington, who sought a particular way to try to remedy the faults which she saw in it. I am adopting a different line from that adopted by the noble Baroness because I believe that as in fact the clause is unsatisfactory, it would be better if it did not stand part of the Bill.
From reading the Law Commission Report relating to Clauses 13 and 14 one gets the impression that while the Commission was seized of the problem of enabling protection of the home to be given quickly and by a simple and inexpensive procedure, it was doubtful about the desirability of giving magistrates the necessary power. For example in Paragraph 3.22 it refers to the
"drastic nature of this order from the husband's point of view".
At Paragraph 3.30 it says:
"The need for safeguards is especially evident in the case of the exclusion order, in view of its far reaching effects".
Indeed, when the noble Baroness moved her earlier Amendment, my noble friend Lord Harris of Greenwich, said, in reply, that he was very doubtful about the wisdom of extending the powers of magistrates in the way in which the noble Baroness had asked in order to bring this particular clause into line with the procedure in the county courts. At the time that the Law Commission prepared its report, the Domestic Violence and Matrimonial Proceedings Act 1976 had only recently been introduced as a Bill in the other place.
The fact is that, despite what has been said, the Bill provides a remedy. It enables an applicant to go speedily to any county court without filing a divorce petition—in fact not just to the county courts with divorce jurisdiction, as referred to in Paragraph 3.15 of the Law Commission Report, but to any county court. Therefore, the availability of this particular remedy is very much wider than in fact is referred to in the Law Commission Report.

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My noble friend Lord Harris of Greenwich referred to some of the difficulties which had been encountered in the administration of the Domestic Violence and Matrimonial Proceedings Act, but those difficulties really relate to the problem of a man and a woman who are living together and not to the problem of a husband and wife. The position at present is that injunctions are being granted to the spouse who most needs the home—generally the spouse who is caring for the children—once it has been shown that the husband and wife cannot be expected to live together.
For those reasons and in view of the fact that the remedies which the Law Commission was not able to consider are working satisfactorily, I believe that it is unnecessary to include these two clauses. Also, as has been pointed out by the noble Baroness, Lady Robson of Kiddington, the remedies proposed are inferior to the situation and more difficult to obtain than in the county courts. Moreover, I would have doubts—indeed the noble Lord, Lord Harris of Greenwich, referred to them—as to whether it is altogether wise to give these additional powers to the magistrates' courts. For those reasons, it might be more satisfactory in the long run if these powers remained in the county courts. I beg to move.
Lord HARRIS of GREENWICH: I hope that my noble friend Lord Ponsonby of Shulbrede will, on reflection and after hearing what I have to say, agree not to press his objection to this clause and the next one. He began by saying, and undoubtedly wholly accurately, that the noble Baroness, Lady Robson of Kiddington, had expressed disquiet about these provisions. Of course, her disquiet was that they did not go further—not that they existed at all. The noble Baroness made it clear—as she did on Second Reading—that she is a firm supporter of this provision.
As my noble friend has said, the situation is that Clause 13 introduces two new and undoubtedly most important powers for the protection of battered wives and children: powers, first, to grant personal protection orders to prevent violence or the threat of violence and, secondly, domestic exclusion orders to
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exclude a violent man from the matrimonial home. I accept at once that these are new and far-reaching powers for magistrates' courts. However, the Government think that they are needed, and they are supported in this opinion by the Law Commission and virtually every other organisation which we have consulted. We all read with distressing frequency in the Press of the plight of battered wives and their children. This Bill offers us an opportunity to mitigate in some measure their fears and anxieties. I accept, of course, that the Domestic Violence and Matrimonial Proceedings Act 1976 provides a remedy by way of injunction, but I suggest that we should reinforce this by the present provisions, bearing in mind the greater accessibility—frankly, the far greater accessibility—of the magistrates' court.
As I mentioned earlier, there has been much publicity and favourable comment on it in the Press and elsewhere, and a general welcome was extended to it by a formidable array of organisations which we consulted on this subject. I have a full list of them here, but perhaps I might mention in particular the Law Society, the Magistrates' Association, the Trades Union Congress, the Justices' Clerks' Society, the National Council for One Parent Families, the National Marriage Guidance Council, the Methodist Church (Division of Social Responsibility) and many other organisations of that character. Indeed, as I have already pointed out, the one debate that we have so far had on this particular matter was on a proposal to extend the powers rather than in any way to limit them.
My noble friend Lord Ponsonby of Shulbrede perfectly rightly drew attention to the relationship between the Law Commission's consideration of this matter and the passage of the Domestic Violence and Matrimonial Proceedings Act 1976. But, of course, as I am sure my noble friend would agree—and, indeed, I think he accepted this point when he spoke a few moments ago—the Law Commission was able to, and did, take account, of the domestic violence legislation, although, as he rightly said, it was not then on the Statute Book but at the stage of being a Bill on its way through Parliament. He will no doubt have seen a reference at paragraph 3.17 on page 26 of the Commission's Report which says:

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"we do not think that the case for the reforms which we are proposing in this Part of our report would be in any way diminished. The Bill [the Domestic Violence and Matrimonial Proceedings Bill] provides some means of dealing with domestic violence; we are concerned with others".
That was the opinion of the Law Commission; it took account of that particular piece of legislation.
As I indicated a moment or two ago, I believe that these proposals are right in themselves. We have here a major problem in our society of increasing violence both against wives and sometimes against the children. I think that these powers have been widely welcomed by a very large number of representative organisations, and I believe that they deserve the support of the Committee.
Clause 13 agreed to.
Clause 14 [Supplementary provisions with respect to orders under s. 13]:
On Question, Whether Clause 14 shall stand part of the Bill?
Lord PONSONBY of SHULBREDE: I made on the previous clause the remarks that I wished to make on this clause.
On Question, Clause 14 agreed to.
Clause 15 agreed to.
Clause 16 [Variation and revocation of orders for financial provision]:
[Amendment No. 10 not moved.]
Clauses 17 and 18 agreed to.
Clause 19 [Supplementary provisions with respect to variation and revocation of orders]:
4.54 p.m.
Viscount COLVILLE of CULROSS Viscount COLVILLE of CULROSS moved Amendment No. 11:
Page 23, line 8, leave out ("defendants") and insert ("respondents").
The noble Viscount said: This and Amendment No. 12 go together. So far as I can see, everywhere else in the Bill the respondent is a respondent except in Clause 19, where he is a defendant. I should have thought there was no reason for this, and I think we should put it right. I beg to move.
Lord HARRIS of GREENWICH: We agree with the noble Viscount.
On Question, Amendment agreed to.
Viscount COLVILLE of CULROSS Viscount COLVILLE of CULROSS moved Amendment No. 12:
Page 23, line 10, leave out ("defendants") and insert ("respondents").
On Question, Amendment agreed to.
Clause 19, as amended, agreed to.
Clauses 20 and 21 agreed to.
Clause 22 [Reconciliation]:
Viscount COLVILLE of CULROSS Viscount COLVILLE of CULROSS moved Amendment No. 13:
Page 24, line 43, after ("2") insert ("or 6").
The noble Viscount said: I personally did not want to enter into a large discussion about reconcilation. Indeed, we have already had one debate on it earlier when the noble Viscount, Lord Hanworth, moved the first Amendment. I have only one small point to make. Under Clause 22 the court is required, where it has what I might describe as a contested application under Clause 2, to consider whether there is any possibility of reconciliation. It occurred to me that we should try to encourage by Statute attempts to reconcile so far as we can, particularly where this time we have the agreement of the Government that the Probation Service can help, because under this clause as it stands, it can.
I should think it would be extremely rare that under a consent procedure under Clause 6 of the Bill reconciliation might arise, but it is not inconceivable. If we require the court to consider, in perhaps 99 cases out of 100 they will consider the matter and dismiss it as being irrelevant, but why deprive them of the opportunity in that hundredth case to see whether there is some spark left in the marriage or in the cohabitation, and of getting a report if they think fit? At the moment they will be debarred. I do not suppose that the power will be used very often, but it seemed to me that it was just worth asking the noble Lord whether the Government could not stretch the probation resources to just that little further extent I beg to move.
Lord HARRIS of GREENWICH: The noble Viscount is a persuasive advocate,

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but I am afraid that with my responsibilities for the Probation Service—and I cannot recall whether he had those responsibilities when he was Minister at the Home Office—
Viscount COLVILLE of CULROSS: No.
Lord HARRIS of GREENWICH: That is, no doubt, why he is proposing this Amendment. However, I fear that I must resist this Amendment. The Amendment would require the court to consider the possibility of a reconciliation even if the application for an order was made with the consent of both parties. I certainly listened with care to what the noble Viscount suggested and noted the arguments which he put forward. However, I must point out to the Committee that the Law Commission did in fact consider this particular possibility, and expressly rejected it. The relevant paragraph—paragraph 4.12—appears on page 37 of their report, where they expressed the view that:
"To oblige the court to consider the possibility of reconciliation would clearly be inappropriate in an application for a maintenance order by consent".
It seems from their other comments that they formed this view because a couple who have agreed to apply for a consent order must already have considered calmly and rationally whether they should part, and that an attempt at reconciliation would therefore rarely, if ever, succeed; and secondly, the attempt would merely delay the making of the order they both wanted.
I think that I should add a few words on the resources of the Probation Service. As the noble Viscount may be aware, and as many in the Committee will certainly be aware, the size of the Probation Service has been pegged at the level it attained in September 1976. At that time it was under a substantial amount of pressure to meet the various existing demands which then confronted it. That being so, I am afraid that I do not think it would be reasonable to ask that service to take on yet another responsibility.
One of the problems which we are facing at a time of increasing crime is that inevitably the responsibilities of the Probation Service for work in the criminal area are, of course, increasing, and
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increasing significantly; at the same time, the amount of civil work also is increasing. I must make it clear that it is the view of the Government that the principal responsibility—the first priority of the Probation Service—must necessarily lie with its responsibility for its work for offenders in the criminal courts.
That is not to under-estimate the value of some of the work which the Service does in other respects. But, at a time when the pressure of rising crime is a matter of which we are all well aware, I do not think it would be right to accept an additional burden on the Probation Service. For that reason, though I know the motivation of the noble Viscount is, as always, benevolent, I fear I could not recommend the Committee to accept this Amendment, and I therefore very much hope that he will not press it.
5.1 p.m.
Viscount COLVILLE of CULROSS: I accept that the Committee would accept the judgment of the noble Lord about what the Probation Service can take on. I put down this Amendment because, with the greatest diffidence, I did not think I agreed with what the Law Commission said. People are infinitely varied and sometimes very fallible, and, if the parties get to the court with what they think is a consent order and one of them looks as though he or she is really not quite sure about it, are the magistrates bound to confirm that order that day? If the noble Lord could tell me this it would help: if a consent order is brought to them under Clause 6, can they, as I suppose, adjourn? Is it the case that they do not have to give the order that day, but can adjourn with a friendly word to the person concerned? If that is possible, it may be that there is no necessity to write it into the Statute. Can the noble Lord answer that, as it would be useful to have it on the record?
Lord HARRIS of GREENWICH: I think the answer is undoubtedly, yes, but I shall certainly confirm that point. If I am wrong in my assumption, I shall let the noble Viscount know, but my assumption is that the situation is as described.
Viscount COLVILLE of CULROSS: I am grateful to the noble Lord. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
The DEPUTY CHAIRMAN of COMMITTEES: I think I did not put the Question, That Clause 16 stand part of the Bill? I shall put that now.
Clause 16 agreed to.
Clause 22 agreed to.
Clause 23 [Refusal of order in case more suitable for the High Court]:
5.3 p.m.
Viscount COLVILLE of CULROSS Viscount COLVILLE of CULROSS moved Amendment No. 14:
Page 25, line 19, after ("refusal") insert ("or may adjourn the application;").
The noble Viscount said: The noble Lord is going to tell me that this Amendment is unnecessary because they can adjourn anyway, but I wanted to make sure that this rather strange proceeding—and I know that it is the same as what we have already—is explicable to those looking at the Bill. I imagine that, at any rate on some occasions, the object of the exercise is that the magistrates should adjourn the order to see what the High Court does. If there are concomitant proceedings going on in both the magistrates' court and the High Court, I should have thought that it would be wrong, and indeed irresponsible, of the magistrates' court to come to a conclusion when the Family Division was also dealing with the matter. Therefore, I had it in mind that the magistrates might want to adjourn the proceedings in their court to see what the High Court would do, and that it might be unnecessary for them to do any more; or alternatively the High Court, as it can, could say that it considered it better that the magistrates should proceed and then the adjourned hearing could resume later. I am not sure that I have got the point of Clause 23. If the noble Lord can clarify this, so much the better.
There is also a minor point on hearsay, to which I am coming later on. Suppose the clerk of the magistrates' court says to the justices, "No, you cannot have that report in evidence before you because it is hearsay", and there are proceedings going on in the High Court where the report is admissible. The magistrates might say, "All right, Mr. Clerk, if that is what you say, we are going to adjourn
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these proceedings and let the High Court have jurisdiction because then it can have all the evidence before it that you are denying us." It occurred to me those two points were worth raising. I beg to move.
5.6 p.m.
Lord HARRIS of GREENWICH: Clause 23 of the Bill re-enacts the existing provision in Section 5 of the Matrimonial Proceedings (Magistrates' Courts) Act 1960 which enables a magistrates' court, where it thinks a case would be more conveniently dealt with by the High Court, to refuse to make an order. The clause makes a slight change in the wording of this provision, in that under the 1960 Act the court is given a discretion to refuse an order where it is of the opinion that the case would be better dealt with by the High Court, whereas under this Bill it is required to refuse an order. The reason for the change is to bring the drafting into line with a corresponding provision in guardianship legislation. It makes little difference in practice, since if the court has formed the opinion that the case would be better dealt with by the High Court it is unlikely that it would want to deal with it itself, as the noble Viscount made clear when he proposed his Amendment.
The Amendment made to Clause 23 would introduce a power enabling the court to adjourn. I do not think that this power is necessary, and I am not sure whether any object would be served by putting this into the Bill. A magistrates' court has power at any stage in matrimonial proceedings to adjourn if it thinks fit, without any specific provision being made in the Bill to that effect. If, however (after adjournments or indeed otherwise) it forms the opinion—to quote Clause 23—
"that any of the matters in question between the parties would be more conveniently dealt with by the High Court",
then I would suggest that that is an appropriate juncture for the court to refuse to make an order, and that the court having formed that opinion no purpose is served by an adjournment at that stage. It would form the view that the thing could more satisfactorily be dealt with in the High Court. If the court considers that a case may fall into this category but feels that it requires

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further information, then the case is not one falling within the terms of the clause. If the court has a doubt as to what it should do, it may adjourn anyway and then at the adjourned hearing make up its mind finally as to what appropriate course of action to take. If it then concludes that any of the matters in question would be more conveniently dealt with by the High Court, then Clause 23 would apply. In that particular situation I do not see why the court should not say so forthwith, and just say that it is better for the High Court to deal with this matter. I hope that this answers the point which I know the noble Viscount has expressed and is the thought behind this Amendment, and explains why we believe it to be unnecessary.
There is one additional point in order to forestall any queries on this particular matter; that is, the sort of case where the power in Clause 23 is most likely to be useful is a case where the parties' assets are pretty considerable. That is the most likely type of case to arise. I think I would carry the noble Viscount with me on that point. In such a case the magistrates' court might well think that the more extensive powers of the High Court to order financial provisions should be allowed to operate. I think that that is the most appropriate way of handling that matter.
Viscount COLVILLE of CULROSS: I do not know whether anybody ever reads our proceedings, but if they do and they happen to be magistrates faced with a decision to be made under Clause 23, I have a feeling that the noble Lord's speech may be very helpful to them. I am grateful to the noble Lord and beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 23 agreed to.
Clause 24 [Powers of High Court and county court in relation to orders under ss. 2, 6 and 15]:
Lord HARRIS of GREENWICH Lord HARRIS of GREENWICH moved Amendment No. 15:
Page 25, line 26, leave out from ("Act") to ("an") in line 27 and insert ("for the making of periodical payments,
(c) an order under section 10(1)(a) of this Act, or
(d)").
The noble Lord said: This is a drafting Amendment. I beg to move.
On Question, Amendment agreed to.
Clause 24, as amended, agreed to.
Clauses 25 and 26 agreed to.
Clause 27 [Enforcement etc. of orders for payment of money]:
5.10 p.m.
Baroness ROBSON of KIDDINGTON Baroness ROBSON of KIDDINGTON moved Amendment No. 16:
Page 27, line 27, at end insert ("but the jurisdiction given by section 5 of the Debtors' Act 1869 to commit to prison a person who makes default in payment of a debt or instalment of a debt due from him in pursuance of an order or judgment shall not be exercisable by the Magistrates' Court in respect of any maintenance order enforceable through the Magistrates' Court.").
The noble Baroness said: I sincerely hope the noble Lord, Lord Harris of Greenwich, will be able to receive this Amendment rather more happily than my previous one. This Amendment brings the procedure for the enforcement of maintenance debts in magistrates' courts into line with the procedure in force for civil debts. Noble Lords will remember that in 1970 imprisonment was abolished for all civil debts, except tax and maintenance. The Finer Committee was united in recommending that imprisonment should be abolished for maintenance debts as well.
As a magistrate myself, I am aware of the enormous amount of work that devolves on the clerks of magistrates' courts as a result of the imprisonment clause. It is both expensive and futile, and in my view benefits neither the family nor the community.
No doubt the Committee is familiar with the form which is sent to a defaulter who has a suspended sentence over his head for the non-payment of maintenance. He returns the complaint form that is attached to the warrant of commitment, and in the result there must be a second sitting of the magistrates' court, where the defendant claims he is no longer able to pay the sum he had originally contracted to pay. We listen, we probably reduce the weekly sum and he goes away. For three weeks probably he pays; then he stops paying and the same procedure

1299
is gone through all over again, and this is costly in time and money for magistrates' courts.
I do not know, but I have a feeling that the incidence of civil indebtedness has not increased enormously since the abolition of imprisonment, and this is something we should consider most seriously as relating to maintenance orders. A man who has been in prison is very unlikely easily to get a job, when he comes out, particularly in present circumstances, so his chances of paying his normal maintenance are even less once he is released from prison. The cost of imprisoning a man is about £96 a week; and although we go through this costly procedure of giving the defendant chance after chance to put his life in order, we still imprison—I believe this is the Home Office figure for 1976–3,252 men for the non-payment of maintenance.
We are spending a lot of money in that way, and noble Lords will notice that my Amendment does not deprive magistrates' courts of other means of enforcement, such as the detachment of earnings; it is purely the prison sentence which I believe does not benefit either the recipient or the community as a whole. In the really hard cases, of persistent defaulters of payment of maintenance, a prison sentence is no atterrent whatever; the man is quite happy to go to prison to have his maintenance order wiped off the slate. I therefore hope that Lord Harris will receive this Amendment with some sympathy.
5.14 p.m.
Lord HALE: I listened to what the noble Baroness, Lady Robson of Kiddington, said with a much lighter heart than I have listened to anything else that has been said today. She referred to the Debtors' Act 1869 and correctly referred to the Amendments made in 1970. The 1869 Act was of course the great bulwark of the constitution; it was the climax of John Howard's campaign and the work done by all those noble people who worked in the prisons. "We are not going to lock people up purely for debt", they said. It was a remarkable measure because it actually said that. Of course there were exceptions, no doubt quite a
1300
lot, but the opening legislation and the final Act contained this declaration of human rights: "You can imprison people for fraudulent debt, but you cannot imprison them for debt qua debt".
That had an effect on the world. I was taught as a law student—indeed, I was taught it as a politician—that we in this country do not imprison people for debt, but that we do imprison them for not complying with an order to pay a debt; and a very great number of people were at that time going to prison. As the noble Baroness said, it was always a futile procedure in maintenance cases. The bad husband—it might have been the bad wife, but it was nearly always the bad husband in those days; it was nearly always the husband who was being sued—just moonlighted and probation officers and policemen were employed for long periods trying to find such men.
Among other things that happened, the then Lord Chancellor in 1964 set up a committee to look into the question of county court debt and brought in this question in our terms of reference. At a very early stage of the proceedings it was suggested to us that Her Majesty's Government would like to know whether we could come to a provisional conclusion on the subject of imprisonment for debt. Having made our inquiries, we decided—it was a silly thing to do of course, and we would not have done it had we not had a silly question from the Government—that we were in favour of abolishing imprisonment for debt.
I will not trouble my noble friend Lord Harris of Greenwich today about the figures; if he will permit me, I will table a Question seeking the figures in the form I want them, to try to find out what is happening today. Nevertheless, I beg leave to raise one point with him. While the committee of which I spoke was considering the matter—remember, it was a strong committee and an extremely experienced one, including among its membership a very fine High Court judge with previous county court experience, a registrar and people of that calibre—we checked up for ourselves, and I went to Strangeways prison to try to find out exactly what was happening in Oldham. I was told, "They do not imprison people for debt in Oldham", and I replied, "They

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have damn well got to in certain circumstances". I was assured that with a bit of advice, a bit of encouragement and a bit of pointing out the futility of it all, it was not necessary. Indeed, in our report we said, in effect, "While people do not sue for debt in Oldham, unfortunately if somebody comes along with a cheque book and says, 'I will buy your old debts from you for four bob in the pound', then of course it is a different matter."
Perhaps I am digressing from the strict terms of the Amendment. I mention these points, however, to express my worry. I sometimes worry a lot about the able gift of my noble friend Lord Harris to expound mysteries with such clarity that one imagines everything will work out in the end. I listened to him talking about orders regarding property and I wondered what would happen if he had a house like mine, with a few years to run on a 99-year leasehold, with goodness knows how many thousands of pounds needing to be spent if it is ever to be got into condition again to prevent it falling down, and which, if I ever get it into good condition again, will, under the Crossman legislation, have a burden of repair of £3,000 or £4,000 a year. What is that going to do for a battered wife, and how do you deal with that? There are problems. One does not like to produce the odd problem. This is not the odd problem: this is a problem which applies throughout the district in which I live, which is a pretty considerable part of London, and in many other parts.
So I hope we are going to hear what the clear intention is about this. I do not want to sound like a reactionary, although I am inclined to think I am a little. Bernard Shaw wrote an entertaining play about a husband and wife who read a pamphlet on the legal dangers of getting married, including actions for tort, libel and so on. The burden then fell on the husband, although some of this has now been altered; but I am inclined to think it might be beneficial to everything except, perhaps, the Stationery Office's balance sheet if a copy of this Bill, when it is an Act, were to be given to everyone who calls to publish the banns, and if an up-to-date book on property law and leasehold law could be placed in the vestry.
Lord HARRIS of GREENWICH: Let me begin by saying that I am looking forward to the occasion when I shall be able to say to the noble Baroness that I can accept one of her Amendments, because she has been a formidable ally on this Bill, as I was saying when she was out of the Chamber a few moments ago, when we were discussing Clause 13 of this Bill; but I am afraid I can go only a very limited way to meet her. She asked whether I would receive the Amendment with sympathy. I can certainly do it with sympathy, but, I fear, in no other more meaningful way. I say that with great regret, because if there was any way in which one could improve the most unsatisfactory situation in our local prisons, where many of these people inevitably have to go, I would be firmly in favour of doing so. But I wish to explain to the noble Baroness why, in our view, this Amendment would not in fact be an improvement as far as this Bill is concerned.
Our advice is that the threat of imprisonment—not imprisonment itself, but the threat of imprisonment—is in many cases the only way of enforcing payment, and that, unhappily, it would not be realistic to abolish this particular power. I should emphasise at the outset that a maintenance defaulter is committed to prison only as a last resort. The magistrates must first have inquired, in the defaulter's presence, into whether the default was due to his wilful refusal or culpable neglect, and may not commit him to prison if it is of the opinion that the default was not so due. The court is also required to consider, before imposing imprisonment, whether an attachment of earnings order should be made. That is the 1952 Magistrates' Courts Act. The maximum term of imprisonment which may be imposed, as the noble Baroness is no doubt aware, is six weeks.
It is true, certainly, as the noble Baroness said, that the Finer Committee on One-Parent Families recommended that imprisonment should be abolished. That is perfectly true; but the Government, unhappily, are unable to accept this conclusion. The result of an informal survey carried out by the Home Office three years ago showed that, contrary to what the Finer Committee thought, the threat of imprisonment is highly effective

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as a means of enforcement. The survey, which was carried out in six magistrates' courts, showed that in nearly 90 per cent. of the cases in which a suspended committal warrant was issued—that is, a warrant for committal to prison unless the default is remedied or good cause is shown—the defaulter did not actually go to prison. It is safe to say that in most cases this was simply because he paid up. What we say to the Committee, quite bluntly, is that without this power we do not believe that, in many cases, the defaulter would pay up. Therefore, one would start to have very substantial sums of money owing to wives who have the responsibility of bringing up small children, who would in fact receive no money at all—because, unhappily, there are men who take a very light view of their responsibilities, as we all know.
If imprisonment were to be abolished, the only remaining sanctions available to magistrates' courts would be attachment of earnings and distress on goods. Attachment of earnings is certainly a useful sanction against a man who is in regular employment—that is a very important qualification—but it is not available against men who are self-employed, and it is highly ineffective against men who frequently change their jobs (many of them, I may say, doing so entirely in order to avoid paying this money to their wives) or who are unemployed or in part-time work of one sort or another. The remedy of distress on goods is not always available to magistrates' courts because, quite bluntly, they do not have the staff to operate the procedure themselves. If imprisonment were abolished for maintenance default there would be no real sanction left in many cases, and it seems likely that, in that situation, very little money would be recovered, with consequent substantial hardship to the wives and to the children involved.
For that reason, I would ask the noble Baroness not to press her Amendment. I very much agree with her intentions in this matter, but, for the reasons I have given, I believe that an Amendment of this character would in fact, quite unintentionally, cause a great deal of distress to people who are in fact some of the more under-privileged of our fellow citizens.
Lord JACQUES: As a magistrate of long-standing, now retired, I should like
1304
to confirm wholly what the Minister has said. The threat of imprisonment is very effective in the courts, and it leads to the courts receiving a lot of money which they would not receive if they did not have this power to imprison. Attachment orders are all right, but, in so many cases, immediately there is an attachment of earnings order the individual changes his employment, especially in periods of full employment, in order to avoid it, and he has to be chased round to see where he is then working. The threat of imprisonment brings in a great deal of money, and we would be disarming magistrates in a very serious way if we took away from them the power to imprison.
Baroness WARD of NORTH TYNESIDE: Perhaps unusually, I think, I should like to support the Minister this afternoon in the statement which he has made in favour of giving to magistrates the power to imprison. I have seen some terrible cases in which men have refused to pay maintenance to their wives, and it can really distress wives enormously. I certainly should not like to accept an Amendment of this kind without having much more knowledge than I already have. I have not obtained my knowledge as a magistrate but from being 38½ years in another place dealing with the problems of constituents. So I am grateful to the noble Lord this afternoon for refusing to accept this Amendment. I noticed, of course, that he said, as always, that he did it with sympathy. I do not know that I have all that sympathy. If the noble Baroness who moved this Amendment had had as much experience as I have had of the difficulties which arise for women whose husbands refuse to pay maintenance and then pop off and cannot be found, I doubt whether she would have had the courage, perhaps, to move the Amendment. Therefore, today, I happen to be supporting the Government.
Baroness FAITHFULL: Very briefly, as a social worker I should like to support the noble Baroness, Lady Robson. My experience is that no good comes from sending men to prison for debt; and, despite what various magistrates have said, I have not found that it has been a deterrent. I was going to speak at a later stage, but perhaps I could speak now instead. Looking at figures for various places throughout the country, I am

1305
interested to see that courts vary in their use of the Attachment of Earnings Act 1971. I know that these orders apply to possibly only one third of the men. Although they apply to a considerable number of men, if a man is out of work or moving his job, they do not apply. I wonder whether the Minister could let us know why some courts use the attachment of earnings orders to a great extent and others do not, and whether, if these were used more, there would be less imprisonment. I wish to support the noble Baroness, Lady Robson.
5.30 p.m.
Lord HARRIS of GREENWICH: May I deal with the point which the noble Baroness has just raised, and in doing so correct her, though on this occasion with a great deal of caution because I note that I have the noble Baroness, Lady Ward, on my side on this issue, which I think is the first occasion in nearly four years in this House that that happy situation has arisen. I did not say that I had sympathy with the effect of this Amendment; though I had sympathy—a very obvious point which the noble Baroness pointed out—with the extremely overcrowded state of our local prisons. Anyone who has responsibility for the Prison Service, as the noble Viscount, Lord Colville of Culross and I have, is anxious to take any steps possible to reduce the grossly overcrowded conditions in our prisons, particularly in local prisons where these people go. Anybody in that situation would express sympathy with the noble Baroness. I did so earlier and I do so again. Unhappily, for the reasons I have given, I cannot recommend the Committee to accept the Amendment.
On the point raised by the noble Baroness, Lady Faithfull, an attachment of earnings order is undoubtedly a useful means of extracting money from sonic maintenance defaulters, but again the emphasis is on "some". It is used quite extensively by the courts, but inevitably different courts apply the law in different ways. It is difficult for a Minister, or indeed a lawyer or even, no doubt, a magistrate, to be absolutely certain why some courts are more likely to use a particular power in a particular way. I cannot enlighten her on that aspect of her question.
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In 1976, which is the last year for which figures are available, magistrates' courts made 1,734 attachment orders to enforce payments under the matrimonial orders. In the same year magistrates' courts granted 6,895 matrimonial orders. It is fair to say that some of the attachment orders may have been made in respect of maintenance orders made by higher courts which were registered for enforcement in magistrates' courts. I think that is the answer to the question put by the noble Baroness. As I say, I do not want to repeat the argument I have already put to the Committee, but unhappily we are not in a position to recommend the Committee to accept the Amendment.
Baroness ROBSON of KIDDINGTON: I am grateful to the noble Lord, Lord Harris of Greenwich, for his sympathy and also to the noble Baroness, Lady Faithfull, for her support of my Amendment. I still find it difficult to accept that this Amendment is not correct. As has been pointed out by the noble Baroness, Lady Faithfull, the attachment of earnings order, if properly used, is a powerful weapon in the hands of magistrates. It is my personal experience that the imprisonment threat or the suspended sentence is used by magistrates' courts basically on the persistent defaulter, the particular person who, I believe, does not mind going to prison in order to have his debts wiped out.
The argument is brought out that we do collect some money by having the prison sentence as a threat. I think it is quite a small sum of money because they are likely to pay for three or four weeks and then default again. It is quite a small sum of money compared with the cost to the community and, in many cases, the destruction of a person who goes to prison, so far as his capacity to earn a living is concerned. I am conscious of the fact that there is not at the moment enough support in this House for my Amendment. I shall read carefully what has been said and reserve my right to bring it back at a later stage. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 27 agreed to.
Clauses 28 to 47 agreed to.
Baroness MACLEOD of BORVE Baroness MACLEOD of BORVE moved Amendment No. 17:
After Clause 47, insert the following new clause—
"Appeals against affiliation orders to lie to Family Division
" . In section 8(1) of the Affiliation Proceedings Act 1957 as amended by section 56 of the Courts Act 1971 (which provides for appeals against affiliation orders to lie to the Crown Court) for the words "the Crown Court" there shall be substituted the words "the Family Division of the High Court".".
The noble Baroness said: I beg to move this Amendment. It seems to me and to several of my colleagues, including my learned clerk with whom I have been in contact, that in the rare exceptions—and they are very rare so far as my figures are available—of affiliation proceedings in a magistrates' court being taken to appeal, now that we have an excellent Family Division of the High Court, it would be right for that Division to hear the appeal rather than the Crown Court. The Crown Courts are full of wise and expert men, but I would suggest that they do not have the expertise of the Family Division of the High Court. The noble Lord, Lord Harris of Greenwich, will quickly tell me whether this is in order. There are so many laws, in this country today, about children and the problems affecting children that may be I have put this out of order. I am certain that the noble Lord will enlighten me.
Viscount COLVILLE of CULROSS: I do not want to spoil my noble friend's Amendment, but if this is the inroad in appeals from the civil jurisdiction of the magistrates, then I can think of lots of other jurisdictions of a civil kind which the Crown Court hates to have to deal with and complains bitterly when they come before it. I suspect that this is only the tip of a very large iceberg.
Lord HARRIS of GREENWICH: One if the pleasures of listening to the noble Viscount is that, although it is four years since he left the Home Office, he makes very good Home Office points, and he anticipated one of the points of substance which I was going to put to the noble Baroness, Lady Macleod of Borve. In fact, the effect of the Amendment would allow appeals in affiliation cases to go to the Family Division of the High Court instead of, as at present, to the Crown
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Court. I accept that there are arguments for saying that affiliation appeals should be heard by the High Court. Certainly, also, there are arguments the other way, and I would not regard it as self-evident that the present avenue of appeal to the Crown Court is unsatisfactory, though no doubt the Crown Court would find it quite attractive to lose their jurisdiction, in some of these matters. In particular it affords an appeal by way of re-hearing with lay justices involved, which I think is valuable particularly in cases of this sort.
However, there are two reasons why it is undesirable to attempt to deal with these matters in the present Bill. The Law Commission are currently reviewing the law relating to illegitimacy. Their review will cover, among other things, the affiliation law contained in the Affiliation Proceedings Act 1957. There is no doubt that the present affiliation law is archaic in a number of respects and we can expect the Law Commission to recommend reforms. In the meantime, we think it is undesirable in this Bill to attempt to deal with this important matter in advance of the Law Commission review. The second point is the one made on my behalf by the noble Viscount, Lord Colville of Culross, which I think there is also a great deal to be said for. As a result of that, I very much hope that the noble Baroness will consider the matter and agree to withdraw her Amendment.
Baroness MACLEOD of BORVE: I thank the noble Lord for his explanation and I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 48 agreed to.
Clause 49 [Interpretation of Part 1 of Maintenance Orders (Reciprocal Enforcement) Act 1972 as respects Scotland.]:
The CHAIRMAN of COMMITTEES: As regards Amendment No. 18, I must point out to the Committee that if this Amendment is agreed to I shall not be able to call Amendment No. 19.
5.39 p.m.
The SOLICITOR GENERAL for SCOTLAND (Lord McCluskey)The SOLICITOR GENERAL for SCOTLAND (Lord McCluskey) moved Amendment No. 18:
Page 47, leave out lines 4 to 15 and insert—
("(a) in subsection (1)—

(i) the definition of "maintenance" shall cease to have effect; and

(ii) after the words "liable to maintain;" in paragraph (a) of the definition of "maintenance order" there shall be inserted the following paragraph—

"(aa) an order which has been made in Scotland, on or after the granting of a decree of divorce, for the payment of a periodical allowance by one party to the marriage to the other party;"; and
(b) in subsection (2), after the words "subsection (1) above" there shall be inserted the words, "to the payment of a periodical allowance as mentioned in paragraph (aa) of that definition,"").
The noble and learned Lord said: I apprehend that the Committee would wish to make rapid progress and would certainly not like to be detained with Scottish business having regard to the likely future for us all, so I shall deal with these matters as shortly as I can. Clause 49 was intended to make it clear that foreign orders for periodic payments by divorced persons in favour of their former spouses could be enforced in Scotland under Part I of the Maintenance Orders (Reciprocal Enforcement) Act 1972 and vice versa. However, two doubts about the wording of Section 21 of the 1972 Act came to light. One of them concerned the meaning of the word "maintenance", which was defined in the 1972 Act as regards Scotland as meaning "aliment". It is thought that that definition is too restrictive, and accordingly one purpose of the Amendment is to put that right. The second doubt related to the definition of "maintenance order". Again, as your Lordships will see, the Amendment is designed to clarify that matter. I hope that in these circumstances noble Lords will agree to accept this Amendment. I beg to move.
Viscount COLVILLE of CULROSS: I thought that I had better put down a token Scottish Amendment. The noble and learned Lord, Lord McCluskey, has now answered my query. I am very happy to hear what he has said. As far as I am concerned, if his Amendments in Clause 54 are in the form of tidying up and drafting, as I think they are, I would have no objection to their being moved en bloc. I do not know what the rest of the Committee might think.
On Question, Amendment agreed to.
Clause 49, as amended, agreed to.
Clauses 50 to 53, agreed to.
Clause 54 [Further amendments of Maintenance Orders (Reciprocal Enforcement) Act 1972 as respects Scotland]:
5.42 p.m.
Lord McCLUSKEY Lord McCLUSKEY moved Amendments Nos. 20 to 35.
Page 52, line 12, at beginning insert ("In any proceedings arising out of such an application as aforesaid the sheriff may")
leave out ("the sheriff may") and insert ("make")
Page 52,line 14, leave out ("make")
Page 52,line 20, leave out ("or where the application has been remitted under subsection (4)(a) below") and insert (", or (on appeal or remit)")
[In substitution for Amendments Nos. 24 and 25.]
leave out from beginning of line 23 to ("and") in line 26 and insert ("(ii) for the words "the sheriff clerk or sheriff clerk depute shall register the order in the prescribed manner in the court" there shall be substituted the words" the order shall be registered forthwith in the prescribed manner in the appropriate sheriff court by the sheriff clerk or sheriff clerk depute of that sheriff court; and where an order of the Court of Session varies or revokes a registered order of the sheriff, the said sheriff clerk or sheriff clerk depute shall amend the register accordingly". ( ) after subsection (2) there shall be inserted the following subsection—
"(2A) In subsection (2) above "the appropriate sheriff court" means the sheriff court making the order or (where the order is an order of the Court of Session) from which the remit or appeal has come.";")
leave out lines 32 to 35.
Page 52,line 38, after ("made") insert ("in respect of that application")
Page 53, line 3, leave out ("or a child of the marriage")
Page 53 line 12, leave out ("subparagraph") and insert ("paragraph")
Page 53 line 17, leave out ("under subsection (1A)") and insert ("with respect to an application under subsection (1)")
Page 53 line 20, leave out ("the said section 5, relating to the payment of a periodical allowance") and insert ("section 5 of the said Act of 1976.
(6) Section 8 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1966 (which relates to the variation and recall by the sheriff of certain orders made by the Court of Session) shall not apply to an order of the Court of Session registered under subsection (2) above.")
line 24, leave out ("words" sheriff court"") and insert ("word" Scotland"")
leave out (""or the Court of Session"") and insert—

(""(a) the words "and no court other than the registering court shall have power to vary or revoke a registered order" in subsection (1) above are subject to any power of the Court of Session on appeal; and

(b)".")

page 58 line 28, leave out (""sheriff' court"") and insert (""magistrates' court or"")
leave out (""or in the Court of Session"") and insert (""in, or remitted from, a"").
The noble and learned Lord said: Responding to that generous invitation and having regard to the fact that anyone NA ho is familiar with Scottish legislation will see that these Amendments are of a technical character, with the leave of the Committee, I beg to move en bloc Amendments Nos. 20 to 24, 24A, and Amendments 26 to 35 inclusive.
On question, Amendments Nos. 20 to 35 agreed to.
Clause 54, as amended, agreed to.
Clause 55 [Amendment of s. 4 of Matrimonial Causes Act 1973]:
Lord HARRIS of GREENWICH Lord HARRIS of GREENWICH moved Amendment No. 36:
Page 54, line 4, leave out from ("treat") to end of line 11 and insert ("as a period during which the respondent has deserted the petitioner any of the following periods, that is to say—

(a) any period during which there is in force an injunction granted by the High Court or a county court which excludes the respondent from the matrimonial home;

(b) any period during which there is in force an order made by the High Court or a county court under —

(i) section 1 of the Matrimonial Homes Act 1967, or

(ii) section 4 of the Domestic Violence and Matrimonial Proceedings Act 1976, which prohibits the exercise by the respondent of the right to occupy a dwelling-house in which the applicant and the respondent have or at any time have had a matrimonial home;

(c) any period during which there is in force an order made by a magistrates' court under section 13(3) of the Domestic Proceedings and Magistrates' Courts Act 1978 which requires the respondent to leave the matrimonial home or prohibits the respondent from entering the matrimonial home.")

The noble Lord said: Clause 55 will ensure that a woman who obtains an
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exclusion order under Clause 13 of the Bill does not find in subsequent divorce proceedings that she is in difficulties in proving desertion during the period that the exclusion order was in force. If the clause is confined to exclusion orders alone, it will throw into doubt whether a period during which there is in force an injunction or other order of the High Court or a county court excluding a spouse from the matrimonial home can be treated as a period of desertion. It would give rise to obvious anomalies if High Court and county court orders were treated differently from magistrates' court orders in this respect. The purpose of the Amendment is to enable a divorce court to treat a period during which the High Court or a country court has excluded a spouse from the matrimonial home, or prohibited a spouse from exercising his right to occupy the matrimonial home, as a period of desertion. I beg to move.
Viscount COLVILLE of CULROSS: It is a beautiful point. I am only envious that I had not thought of it myself.
On Question, Amendment agreed to.
Clause 55, as amended, agreed to.
Clause 56 agreed to.
Clause 57 [Extension of powers of court to make orders for maintenance under s. 34 of Children Act 1975.]:
Viscount COLVILLE of CULROSS Viscount COLVILLE of CULROSS moved Amendment No. 37:
Leave out Clause 57 and insert the following new Clause:
Access and maintenance
(" . For section 34 of the Children Act 1975 there shall be substituted the following section—
"34.—(1) An authorised court may, on making a custodianship order or while a custodianship order is in force, by order—

(a) on the application of the child's mother or father make such provision as it thinks fit requiring access to the child to be given to the applicant;

(b) on the application of the custodian require the child's mother or father (or both) to make to the applicant for the benefit of the child or to the child such periodical payments, and for such term, as may be specified in the order;

(bb) on the application of the custodian, require the child's mother or father (or both) to pay to the applicant for the benefit of the child or to the child such lump sum as may be so specified;

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(c) on the application of the child's mother or father revoke an order requiring the applicant to contribute to the child's maintenance made (otherwise than under this section) by any court;

(d) on the application of the child's mother or father or the custodian vary an order made (otherwise than under this section) by any court requiring the mother or father to contribute towards the child's maintenance—

(i) by altering the amount of the contributions;

(ii) by substituting the custodian for the person to whom the contributions were ordered to be made.

(2) References in subsection (1) to the child's mother or father include any person in relation to whom the child was treated as a child of the family (as defined in section 52(1) of the Matrimonial Causes Act 1973).
(3) No order shall be made under subsection (1)(b) or (bb) requiring the father of an illegitimate child to make any payments to the child's custodian or to the child.
(4) Subsections (2), (3), (3A), (3B). (4), (5A), (5B), (5C), (SD), (5E) and (6) (orders as to the supervision, local authority care, maintenance etc. of children) of section 2 of the Guardianship Act 1973 and sections 3 and 4 of that Act (supplementary provisions) shall apply to an application for a custodianship order as they apply to an application under section 9 of the Guardianship of Minors Act 1971 subject to the following modifications, that is to say—

(a) in section 2(2)(b) and (4)(a) of the Guardianship Act 1973 any reference to a parent of a minor to whom the order relates shall be construed as including a reference to any other individual;

(b) section 3(3) of that Act shall have effect as if the words "or the custodian" were inserted after the words "application of either parent".

(5) A local authority may make contributions to a custodian towards the cost of the accommodation and maintenance of the child, except where the custodian is the husband or wife of a parent of the child."")
The noble Viscount said: I thought that it would be better to write out the new Section 34 of the Children Act since it is so recent and, indeed, since I now discover that it is not even yet in force, so that at least one can see the whole text, as one can of the other amended sections of that Act in the Bill. I hope I have got it right. I beg to move.
Lord HARRIS of GREENWICH: I think the noble Viscount has got it right. I believe that the Amendment improves the Bill and I suggest that we agree to it.
On Question, Amendment agreed to.
Clause 58 agreed to.
Clause 59 [Revocation and variation of orders for periodical payments.]:
Viscount COLVILLE of CULROSS Viscount COLVILLE of CULROSS moved Amendment No. 38:
Page 59, line 18, leave out ("or (b)") and nsert ("(b) or (d)").
The noble Viscount said: I think that I have got this point right. I believe we need a reference to orders that have been varied which will also cease in the circumstances referred to in Section 35 of the Children Act. As this has not been referred to, I think there might have been some doubt about it. A little bird told me that I had put down the Amendment in the wrong place. If I have, then the noble Lord must have thought I was putting down a different Amendment; therefore, we may be at cross-purposes. I thought that (d) ought to come in here; and I think I have put it in the right place. I beg to move.
Lord HARRIS of GREENWICH: I think we had better have another talk with the little birds. If the noble Viscount will withdraw his Amendment, we will go into that point.
Viscount COLVILLE of CULROSS: I agree and I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 59 agreed to.
Clause 60 agreed to.
Clause 61 [Amendment of section 36 of Children Act 1975]:
Viscount COLVILLE of CULROSS Viscount COLVILLE of CULROSS moved Amendment No. 39.
Page 61, line 21, after ("parent") insert ("(or both)").
The noble Viscount said: This, again, is a drafting Amendment. We are putting in a new bit of Section 36 of the Children Act and we are referring to the parents. It is plainly intended that the court should have powers to make them both pay. In the existing Section 34(1)(b) there is a reference to requiring a child's mother or father or both to pay. If we do not have comity between the two sections I think that Parliament will be supposed to have made some distinction. For that reason, I beg to move.
Lord HARRIS of GREENWICH: This Amendment relates to the provision in Section 36 of the Children Act 1975 which enables a court, on revoking a custodianship order, to commit the care of the child to the local authority. Subsection (5) of Section 36 provides that in such a case the court may make an order requiring either parent to make periodical payments to the local authority.
Clause 61, which we are now dealing with, amends these provisions in certain respects so as to bring the powers to order financial provision under Section 36 into line with corresponding provision made by the Bill for matrimonial and other guardianship provisions. The words in Clause 61 which are the subject of the noble Viscount's Amendment are the same words as are used in Section 36(5) as it stands; namely, that an order may be made against either parent. The Amendment adds words to enable the court to make an order against both parents. In our view this is unnecessary. The expression "either parent" which is used in this subsection allows a court to make an order against both parents. There is here no point of substance, as the noble Viscount has recognised in the speech that he made this evening.
The same wording occurs in a number of other places, both in the present Bill and in existing legislation; for example, in Clause 38, page 37, line 18, where there is a corresponding provision in respect of guardianship provisions. Again this follows the existing words in the Guardianship of Minors Act 1973 in so far as it refers to either parent. While there is some attraction in being explicit on this point, such a change in our view is probably not necessary and might cast doubt—and we have referred to this problem earlier today—on the effect of other provisions in the Bill and in existing legislation where the words "either parent" occur. That is our view of the matter. There is no point of substance between us; it really is a question of drafting.
Viscount COLVILLE of CULROSS: I am grateful to the noble Lord. I think we have "or both" elsewhere in this Bill. I cannot now find it. Therefore there are inconsistencies both in this Bill and in the Children Act. So long as both parents can be required to pay, I am quite content. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 61 agreed to.
Clauses 62 to 66 agreed to.
5.52 p.m.
Lord HARRIS of GREENWICH Lord HARRIS of GREENWICH moved Amendment No. 40:
After Clause 66, insert the following new clause—
Provisions relating to Convention adoption orders
(" .—(1) In section 24 of the Children Act 1975 (which relates to Convention adoption orders) after subsection (8) there shall be inserted the following subsection—
"(8A) Section 6(1) of the Adoption Act 1968 (which relates to the annulment of Convention adoptions) shall apply in relation to an adoption effected by a Convention adoption order as it applies in relation to a Convention adoption except that an adoption effected by a Convention adoption order may be annulled only by the court which made that order; and section 7(1), (2) and (4) of that Act shall apply accordingly".
(2) In section 53(1) of the Adoption Act 1976 (which relates to the annulment of regulated adoptions) after the words "regulated adoption" there shall be inserted the words" or an adoption effected by a Convention adoption order".
(3) In Schedule 3 to the Children Act 1975 paragraph 26 (which excludes Convention adoption orders from the provisions of the Adoption Act 1958 relating to notification of the revocation of an adoption order) shall be omitted.
(4) In Schedule 1 to the Adoption Act 1976 in paragraph 6 (which relates to the notification to the Registrar General of the revocation of an adoption order) the words "other than a Convention adoption order" shall be omitted.
(5) In section 6(1) of the Adoption (Hague Convention) Act (Northern Ireland) 1969 after the word "annul" there shall be inserted the words an adoption effected by a Convention adoption order or"; and in section 7(2) of that Act the words "in respect of a foreign Convention adoption" shall be omitted.")
The noble Lord said: The purpose of this Amendment is to correct two errors in the existing adoption legislation relating to Convention adoption orders. I beg to move.
On Question, Amendment agreed to.
Clause 67 agreed to
Clause 68 agreed to.
Clause 69 [Provisions as to payments required to be made to a child etc.]:
Lord HARRIS of GREENWICH Lord HARRIS of GREENWICH moved Amendment No 41:

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Page 65, line 13, after ("under") insert
("Part II of the Maintenance Orders Act 1950 or")
The noble Lord said: I suggest that we take Amendments Nos. 41 and 50 at the same time. These are both drafting Amendments. I beg to move.
On Question, Amendment agreed to.
Clause 69, as amended, agreed to.
Clause 70 (Penalties for disobeying orders other than for the payments of money]:
Viscount COLVILLE of CULROSS Viscount COLVILLE of CULROSS moved Amendment No. 42:
Page 65, line 26, at end insert ("whichever is the shorter").
The noble Viscount said: I do not think there is anything in this. The way that paragraph (b) of subsection (1) is drafted led me to wonder what happened if the person defaulted and he had been given a specific sentence of, say, six weeks which had been calculated on the basis of the amount that he would have had to pay. He then pays the money in respect of which he is in default. Is he immediately let out, notwithstanding there having been a fixed period of six weeks for which he had been committed? I think that it is all right because I am sure that the intention is that he should be let out the moment he pays the money. But I am wondering whether the phraseology is such that it might cause some difficulty of interpretation. I merely ask the noble Lord to look at it again; there may be a more felicitous way of putting it. I beg to move.
Lord HARRIS of GREENWICH: Clause 70(1)(b) gives the court flexibility in the matter of committal to custody. If the court considers that a particular period in custody is appropriate, it can say so, but if it wishes the person concerned to be released when a default is remedied—the noble Viscount has referred to this—it can also say so. This would enable the court to impose a specified period of imprisonment where there was no default to be remedied, so as to be able to deal with single or repeated acts of infringement.
Viscount COLVILLE of CULROSS: I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 70 agreed to.
Clause 71 agreed to.
Clause 72 [Domestic courts]:
Baroness FAITHFULL Baroness FAITHFULL moved Amendmend No. 43:
Page 68, line 8, after second ("a") insert ("specially trained").
The noble Baroness said: I move this Amendment in order to ensure that adequate time and money is allocated to the training of magistrates in the administration of this extraordinarily difficult Bill. I would say to the noble Lord, Lord Harris of Greenwich—and I am sure that he would agree with me—that, in some areas, the training of magistrates is excellent. But it is not excellent throughout the whole country, and it varies from place to place. In the administration of a Bill such as this we should have a high standard throughout the whole country. Therefore I move this Amendment to ensure that note is taken of this point.
I have already referred to training and there should also be a probationary period. There are some magistrates who, finding themselves on the Bench, find it difficult to withdraw. There are some Benches which find that they have magistrates who are not suitable for the work that they are doing. I wonder whether the noble Lord, Lord Harris of Greenwich, would consider looking into the matter of probationary periods on both sides. Regarding the appointment of magistrates, I wonder, particularly with a Bill like this, whether magistrates should be interviewed and appointed by other magistrates before they are finally accepted. I beg to move.
Viscount COLVILLE of CULROSS: This gives me an opportunity to deal with Amendment No. 44 because it is on the same point. I noticed that there was some dispute on Second Reading as to whether it was right that the noble and learned Lord should appoint the panel or whether it was something that the magistrates themselves, on a county or some other basis, ought to be able to decide, since, presumably, they will know each other rather better than will the noble and learned Lord.
I see that the noble and learned Lord the Lord Chancellor is now in his place.

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I hope that he will remain for Amendment No. 51 because he will like that. I was saying that, wise, omnipotent and universally knowledgeable as the noble and learned Lord is, it was suggested by some Members of the House on Second Reading that the choice in each area of magistrates to sit on domestic panels might be at least as well made by the other magistrates as by the noble and learned Lord. It does not seem to me inconceivable that the rules which the noble and learned Lord is to make under subsections (5) and (6) might provide in some or all circumstances for that, or at least for the magistrates in the area to be consulted about those whom the noble and learned Lord chooses. A little more clarification of what is intended would be appreciated. My understanding is that Benches of magistrates find that they are able fairly accurately to judge the abilities of their colleagues to serve, and probably they will at least like to have a say on these points. Therefore, if we could have a little more explanation, the Committee would be grateful.
The LORD CHANCELLOR (Lord Elwyn-Jones): I can give the assurance that the intention is that local benches should, in effect, make the selections. We have in mind the same procedure as already exists in the Children and Young Persons Act 1969 in respect of juvenile court panels. It is of some value that the final ministerial responsibility for the appointment of magistrates and for the exercise of their various jurisdictions should lie in the Lord Chancellor. I do not think it would be suitable to take the reserve powers which remain for the appointment of magistrates to the new domestic panels, and, indeed, for the rarely necessary exercise of the power to remove them. But I hope that, on the strength of that assurance, the distinguished members of the magistracy who have spoken on this point before will be reasonably reassured.
Viscount COLVILLE of CULROSS: That reply has not dealt with special training, which was the point of the Amendment before the House.
Baroness WARD of NORTH TYNESIDE: In view of what he said, may I ask the noble and learned Lord the Lord
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Chancellor whether he goes into the training which is given to magistrates in each region? I fully support the Amendment moved by the noble Baroness, Lady Faithfull. In other words, if the noble and learned Lord will forgive me, I am trying to find out how much work he does to ascertain whether magistrates have a sufficiently good training in every area, because that is very important. If he will forgive me, I should like to know how much work he does so that he can establish in his own mind how the training of magistrates is carried out in each area.
Baroness PHILLIPS: Before the noble and learned Lord tells us of all his exercises throughout the countryside. I should like to take up the point about the probationary period which was mentioned by the noble Baroness. I must say I found it rather astonishing. As I understood it, she said there were magistrates who could not withdraw: in other words having been appointed, they did not like to come off the Bench. I find that very strange and I also find it strange that she should suggest a probationary period for magistrates. After all, we elect Members of Parliament without any probationary period at all, and they are not going to administer the law but actually make it. Nobody has ever suggested that there should be a probationary period for Members of the other place—half of them would probably be rejected at the end of six months!
As a magistrate myself, and moving around the countryside and meeting groups and Benches of magistrates, I am impressed by their quality at this time. I think that what the noble Baroness said might well have been relevant a few years ago when the regional appointments were rather made because "old Joe had worked hard for a political Party"; but that is not true any more. The nominations have to go through a sieve and when people get on to the Bench they are people who have already made a service to the community.
Baroness MACLEOD of BORVE: May I, as one who spoke on this particular point during Second Reading, thank the noble and learned Lord very sincerely for the assurance he has given to magistrates this afternoon? We had been slightly perturbed by the idea that he was

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going to draft people from inside. In my Bench, which is, as the noble and learned Lord knows, very extensive, there is a first period of training before anybody is allowed to adjudicate. Then they have to serve for two years before being allowed to go on to the juvenile panel. Then they are invited by other members of the Bench to be members of a juvenile panel by virtue of various qualifications and personal attributes that they may possess. I hope I can infer from what the noble and learned Lord has said not only that the domestic court magistrates will have training but also that they will have a period of two years adjudicating in an adult court before being allowed to adjudicate in a domestic court after that training. Is that correct?
The LORD CHANCELLOR: I have precisely those ideas in mind. It is a very responsible job, the selection of this special panel, and, certainly, I contemplate that these people would have to be experienced in the ordinary work of the court before being nominated or selected for the panel. Of course, it is not contemplated that they would do nothing else but work for the panel. I think there is a certain danger in over-specialisation, and it is a useful thing for a magistrate to have overall experience of the work. I am happy to say that my thinking is on exactly the same lines as the noble Baroness has indicated.
I do assure my old friend—if I may so call her—Lady Ward, that I have been working jolly hard, particularly in the matter of training arrangements for the magistracy up and down the country. These are in the hands of extremely expert and competent people, and I am very glad to have the assurance from the noble Baroness, Lady Macleod, that that is so. Therefore, I think that the noble Baroness, Lady Ward, can be content: the great improvement that has taken place in recent years in the training of the magistracy has produced a very great benefit indeed.
Lord HARRIS of GREENWICH: If I may just address myself for a moment or two to the rather narrower issue raised in the Amendment moved by the noble Baroness, Lady Faithfull, certainly, on this matter we sympathise with the intention of the Amendment; but I am
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afraid I cannot recommend your Lordships to accept it. The gulf between us is not one of principle but is essentially procedural, and it relates to the central problem of bringing the Bill into force. In short, we shall be in the position, when the Bill becomes law, of having no justices at all who can be described in the statutory sense as "specially trained" those are the words she wants to inject into the Bill—to be members of a domestic panel, although of course many justices have long experience in adjudicating in domestic proceedings and many of them have been given informal training, often at their own request.
It is the intention of my noble and learned friend the Lord Chancellor that new justices joining the panels after they have been set up should have special training, and, indeed, the main purpose in setting them up is to make that possible. The clause contains a specific provision that provision may be made in rules for, among other things, the eligibility of justices to be members of such panels. Therefore, in these rules it will be possible to specify, at the appropriate time, that justices appointed must be specially trained. However, this would not be possible in the first place unless we were to suspend the bringing into force of this clause for a very long period of time indeed and, incidentally, to compel some very experienced magistrates to go through this special training before they could sit.
I therefore suggest to the noble Baroness that she might withdraw the Amendment, on the understanding that, for appointments other than in the initial period, the principle that magistrates joining the domestic panels should be specially trained is fully accepted by the Government.
Baroness FAITHFULL: In withdrawing my Amendment, may I make a final point concerning the training of magistrates? I happen to have worked for an extraordinarily outstanding Bench, and therefore know what it is to work for a very good Bench; but I do wonder whether sometimes there is not a gap between the professionals and the magistrates which could be considerably narrowed if particular training was included in the magistrates' courses on professinal attitudes towards, for instance, child and family care. I just wanted to

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make that point, and now beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
[Amendment No. 44 not moved.]
Clause 72 agreed to.
Clause 73 (Persons who may be present during hearing of domestic proceedings]:
6.9 p.m.
Viscount COLVILLE of CULROSS Viscount COLVILLE of CULROSS moved Amendment No. 45:
Page 70, leave out lines 23 and 24.
The noble Viscount said: This Amendment concerns the people who are no longer going to be allowed in the court when domestic proceedings are being heard. The first Amendment, I hope, is the one that deals with other persons whom either party desires to be present. Under the law as it now stands they can be there; under the Bill they will no longer be able to be there. Whatever one may say about the next Amendment, which concerns legal representatives either learning or waiting for their case to be heard, I cannot understand why the Government wish to exclude people whom either party wishes to be there. I suspect that these cases will quite often be handled in person.
An individual making an application, particularly under legislation which is new and which involves matters such as lump sums, might very easily want to take along somebody who will literally hold his hand—and it may be no more than that—so I cannot understand why these people are being excluded. In view of the business that is yet to come, I am afraid that this is not the time to go into this matter in great detail. But it is something on which I feel fairly strongly and I should like to hear the Government's justification for this provision, because we may have to come back to it again. I beg to move.
Lord HARRIS of GREENWICH: Perhaps we might take the other Amendment at the same time, if the noble Viscount is content with that. We will do just as he likes. I am in his hands.
Viscount COLVILLE of CULROSS: Very well, as long as we can sub-divide
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them, because they are two different points. I am less concerned about solicitors and counsel, either there with L-plates on or waiting for another case. But there is also a point which indicates to me that we might think again about this matter. As my noble friend Lady Ward and others have pointed out today, in magistrates' courts there are different approaches to the handling of certain matters, and there is nothing more tiresome for the magistrates, or indeed more unsuccessful from the point of view of the client, than to get the whole Bench against you, because you go about a case in the wrong way. Both solicitors and counsel are under professional rules, which require them not to discuss with anybody else what they have heard, and there are good arguments for allowing them to listen to proceedings of this kind and not be turned out, as the Amendment proposes. It is something of less importance, but in order to get efficiency and, to some extent, uniformity as between one magistrates' court and another—because counsel can argue that something is done differently somewhere else—we ought to think again about it, and I am not convinced on this, either, by the argument put forward on Second Reading.
Lord HALE: With the permission of the noble Viscount, I will deal only with the second Amendment, while joining him in moving both. The Law Society attach some importance to this provision. One does not normally make a fortune out of matrimonial cases. Therefore, it is sometimes difficult to get advocates to take them. The trouble, as they point out, is that if you keep all the young people out of court you will never develop experienced advocates. The young advocate sitting in court can be learning the business. Apart from that, as the Act provides for the formation of courts for two separate districts, provided that they are larger than a petty sessional area, you will get courts in which cases follow one another when it is to everyone's advantage—and not merely a matter of convenience, although even convenience matters when counsel may be having to face the problem of time, coming here or time going there, and wanting to be present in order to check up and find out what is happening—that the door is not barred.
There appears to be no useful purpose at all in this proposal. I cannot think of

1325
one sensible purpose that it serves. Normally, counsel and solicitors have no special or personal interest of any kind in anyone else's case. But they want somewhere to sit down and see what is happening, and they should have the opportunity, which every advocate values, of finding out the general attitude of the court and whether points will be accepted without going into too much detail. It is to the advantage of the court, and of the profession to which I belonged at one time, as well as in the general interest, if they are allowed to be present. A bar should not be laid down, which, after all, is a breach of the general principle which is breached for special reasons only in connection with children; that is, that justice should normally be conducted in public. If it were felt that matrimonial cases should not be held in public, I would not question that, but to exclude people who are working in the court and knowing the court is an unnecessary requirement, and I cannot think of any useful purpose behind it.
6.15 p.m.
Lord JANNER: I should like to add a few words to what has been said by my noble friend Lord Hale. In considering this point, I do not think that the effect was fully realised. It is important for a practising solicitor or barrister to have not only experience of his own case but experience generally in the practice of the courts and in seeing how the proceedings are taking place, so that if he happens to be briefed in a case he will know the position and how to deal with it. We have heard, from time to time, about magistrates needing to be trained properly in order to carry out their work. I do not know whether your Lordships realise that, nowadays, young barristers and solicitors are immediately thrown into active practice—it is very different from the early days when I was practising—in consequence of the Acts which prevail, which provide possibilities for inexperienced young persons to practice in the courts straight away.
I do not think I am doing an injustice to my own profession if I say—and I think that most magistrates will agree—that quite a number of people who practice before magistrates in the courts today are not of the highest experience and knowledge, in regard to conducting cases.
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One often hears magistrates complaining about the fact that young counsel and others who appear before them have very little experience. I hope that my friends in the profession will not think that what I am saying is casting any aspersion on the profession itself. But what on earth can there possibly be against a solicitor who is an officer of the court—that should be taken fully into consideration—being present? He will not utilise what he has heard in these courts in a way which would place him in danger of completely losing his profession. The only possible disadvantage would be if somebody broke the rules, and exposed himself or herself to the danger to which I have referred.
I do not practice in the courts today, but I did so for very many years, and I think that it would be to the detriment of all concerned if counsel and solicitors were not allowed to remain and listen to the proceedings. My noble friend Lord Hale has explained the differences in the various courts, and it would save a lot of trouble and anxiety to magistrates if those who went before them knew what action was considered unnecessary or was disliked, instead of magistrates murmuring afterwards—I put it on the lowest possible basis—"What a funny chap this fellow is. He does not seem to understand what he is about". In my view, it would be of additional help in carrying on their profession if counsel and solicitors were not deprived of the opportunity to listen to cases but could hear the proceedings and the magistrates' views. I hope that my noble friend will see it from that point of view and will accept the noble Viscount's second Amendment.
6.20 p.m.
Lord HARRIS of GREENWICH: If I may deal with both of these Amendments, subsection (1) of the clause provides for the same measure of privacy to apply to domestic proceedings as now applies to juvenile proceedings. I must draw the attention of the Committee to the fact that very special factors are involved in cases of this kind where people are revealing the most intimate details of their private lives. In these often very distressing circumstances it is not unreasonable to try to ensure some limitation of numbers even though, unhappily, some people will feel that they are disadvantaged

1327
by this procedure, since they believe that it would be of great professional interest and value to them if they were allowed to be present. We have an obligation to the people who are using magistrates' courts for these purposes and must take account of their very proper concern. It is on that basis that we approach both of these Amendments.
There was extensive consultation on this point and these recommendations were widely welcomed. It is undesirable to fly in the face of disapproval by keeping the existing arrangements. To take the point which was in the mind of the noble Viscount, Lord Colville of Culross, may I assure the Committee that subsection (1)(b) is not intended to deprive the parties to the proceedings of the helpful or comforting presence of a friend or relative. But let us imagine the situation where one party brings along the very person whom the other person alleges to be responsible for the breakdown of the marriage—either the girl friend, or the man that the wife has run away with. I am told by the Justices' Clerks Society that the provisions of the existing law can often cause a great deal of intense embarrassment in cases of this kind, not even leaving out of account the fair amount of "agro" which can go on in the court, notwithstanding the need to maintain proper judicial decorum.
Our provision seeks to enable the court to have a valuable discretion—nothing obligatory but a discretion—where at present it has none. It is perfectly right that the issue should be raised but, as I have said, we have to try to establish a fair balance and it is perfectly reasonable in the situation which I have described to give a discretion to the court where, I repeat, at present it has none.
Subsection (1)(c) excludes from domestic cases solicitors and counsel in attendance for other cases. I accept at once that some people may lose out by this provision. They may feel that it would be helpful to their careers if they were present. At the moment, however, they cannot attend juvenile proceedings. I have not heard it suggested, although it may be suggested by some, that because they are not able to be there members of the Bar, or solicitors who appear before juvenile courts, are gravely disadvantaged. That has not been argued.
Lord JANNER: If I may be allowed to interrupt my noble friend, is he quite sure that it would not be advisable for professional people to attend juvenile courts? Might that not be helpful when the time comes for them to conduct cases before the juvenile courts?
Lord HARRIS of GREENWICH: I do not believe that is a proposition with which the Government would agree. I do not believe, either, that it is a proposition which has been argued. Certainly we have seen no evidence that there have been serious consequences so far as the cause of legal education is concerned. That being so, the Government see no particular reason why it is not reasonable to apply to these cases what already applies to cases in the juvenile courts. If individual members of the profession wish to attend domestic proceedings in order to gain experience, they will be able to do so at the court's discretion. Once again it is a matter for the court to decide, and I do not think that is unreasonable. However, the merits of providing this training for the legal profession should be weighed against the attitudes of the parties to the case who may find the presence of a significant number of unnecessary observers both distracting and highly embarrassing. It is perfectly reasonable that we should consider their interests. I understand the feeling of all those who have spoken in the debate, but for the reasons I have indicated the Government are clearly of the view that it is desirable to maintain unamended the provisions of the clause. Therefore I very much hope that the noble Viscount will not press his Amendment.
Viscount COLVILLE of CULROSS: I am acutely aware of the time. I know that there is an important debate to follow these proceedings. I do not see the discretion written into the Bill. It is not written into the next subsection, and I do not understand how the discretion is proposed to work. I hope that the noble Lord, Lord Hale, will join with me when I say that I shall refrain from pursuing today either Amendment No. 45 or Amendment No. 46. A very similar point arises on my Amendment No. 47. I want to know why the people in adoption proceedings whom the court

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considers should be in court are being excluded by the Government. I have a not dissimilar point on Amendment No. 49; namely, why these domestic proceedings are not domestic proceedings under Clause 56.
This is a new look at the whole of this part of the Magistrates' Courts Act. I should have thought that it would be in everybody's interest to stop discussing the matter in Committee and to get together somewhere in private to deal with it. I hope that course will prove to be agreeable to those who have taken part. I believe that each of us has good points to make and that we are not all that far apart. We are much more likely to make progress in private than if we continue to debate the matter in Committee. If that procedure is agreeable to the noble Lord, Lord Harris of Greenwich, perhaps he would indicate it. I see that that course is agreeable to him. Therefore, I beg leave to withdraw Amendment No. 45.
Amendment, by leave, withdrawn.
[Amendments Nos. 46 and 47 not moved.]
Clause 73 agreed to.
Clause 74 [Restriction on newspaper reports of domestic proceedings]:
6.29 p.m.
Baroness MACLEOD of BORVE Baroness MACLEOD of BORVE moved Amendment No. 48:
Page 71, line 23, leave out ("£500") and insert ("£1,000").
The noble Baroness said: I beg to move Amendment No. 48. I, too, shall try to be brief. The law is that the Press is not able to reveal the name and address, or the school, of any child, or any of the proceedings in domestic courts. This is absolutely right, but I wonder whether a deterrent of £500 is sufficient. When the Press is involved, it is very important that one should make the fine realistic. I do not believe that a fine of £500 would deter the reporting of a "juicy" case in either the local or the national Press. As the fine is not to exceed the amount stated, I submit that £1,000 is a far more realistic figure. I beg to move.
Lord HARRIS of GREENWICH: Clause 74 amends the penalty in
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Section 58 of the Magistrates' Courts Act 1952 for the offence of publishing certain particulars of domestic proceedings. The previous penalty provided by Section 58 is a maximum fine of £100, or imprisonment for a term not exceeding four months, or both. Clause 74 removes the penalty of imprisonment but increases the financial penalty to £500. The noble Baroness's Amendment would increase the financial penalty still further, to £1,000.
I am bound to say I do not believe a fine of £1,000 is appropriate for this type of offence. It is in fact the maximum fine which a magistrates' court can impose in any type of case. While I do not underrate the seriousness of a breach of the restrictions imposed by Section 58, I do not think such a breach should merit the severest penalty available. Equally, if one is talking about a large national newspaper in relation to what the noble Baroness described as a "juicy" case, I do not think the disincentive of £1,000 makes a great deal of difference in a case of that sort. I do not believe that national newspaper editors lightly flout the law; and I am sure the noble Baroness would agree.
In fixing the present penalty in Clause 74 we had in mind the fact that there are comparative offences in Sections 39 and 49 of the Children and Young Persons Act 1933 relating to the publication of particulars of juvenile proceedings. The penalties for these offences were increased to £500 by the Criminal Law Act 1977. Clause 74 would bring the penalty for the corresponding offence in domestic proceedings into line with the penalties in respect of juvenile proceedings. Since the penalties for juvenile proceedings were raised to £500 as recently as last year, I do not think there is any justification at this stage for providing a higher penalty for offences in respect of domestic proceedings. In the light of that explanation, I hope that the noble Baroness will agree not to press the Amendment.
Baroness ROBSON of KIDDINGTON: I hope the noble Lord is aware that I mentioned local Press as well as national Press. I was talking mainly about the local Press, because they, rather than the national Press, are the people who would

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be reporting in magistrates' courts. However, after hearing what the noble Lord has said, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 74 agreed to.
[Amendment No. 49 not moved.]
Clause 75 agreed to.
Clause 76 agreed to.
Clause 77 [Periodical payments payable by one person under more than one order]:
Lord HARRIS of GREENWICH Lord HARRIS of GREENWICH moved Amendment No. 50:
Page 73, line 14, after ("under") insert ("Part II of the Maintenance Orders Act 1950 or").
On Question, Amendment agreed to.
Clause 77, as amended, agreed to.
Clause 78 agreed to.
6.35 p.m.
Viscount COLVILLE of CULROSS Viscount COLVILLE of CULROSS moved Amendment No. 51:
After Clause 78, insert the following new clause:
Hearing evidence
(" . Without prejudice to section 11(6) above, a magistrates' court, in exercising its jurisdiction under

(a) Parts I and III of the Children Act 1948;

(b) Part I of the Children and Young Persons Act 1969;

(c) Section 2 of the Guardianship Act 1973;

(d) Parts II and III of the Children Act 1975;

(e) Part I of this Act,

may notwithstanding any enactment or rule of law relating to the admissibility of evidence taken into account any evidence and give to it such weight (if any) as the court thinks fit.").
The noble Viscount said: When I wrote in my Amendment my handwriting must have been worse than usual. This is meant to be "hearsay", not "hearing", and it was accompanied by a neat little Amendment to the Long Title which never got printed at all. This is a point to which I attach great importance, and I am sorry I am not going to do justice to it. Perhaps I could just outline the point to the Committee. For reasons which are unknown to me, there have never been brought into force for civil
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proceedings in magistrates' courts the provisions of the Civil Evidence Act 1968 which allow for certain relaxations of the appalling rules on hearsay evidence. The extent to which, therefore, in domestic proceedings—and I hope I have listed the right ones—in magistrates' courts hearsay evidence is admitted, is largely a matter for the learned clerk—and there are learned clerks and learned clerks. Some of them take a broad view and some of them take a narrow view, and there are all shades in between. This is of considerable importance because a good deal of the material upon which the justices will come to their conclusion, about, for instance, who is the right person for the child to go to, is bound to depend upon rumour, or upon what the teacher said—but the teacher will not come because that will affect her relationship with the child—or upon what somebody else said, but they will not come either, and anyway it is all secondhand. It is at that sort of stage that nobody knows how much of it is admissible in evidence and how much of it is not.
My view about this, for what very little that may be worth, is that the magistrates are perfectly capable of saying how much that sort of evidence is worth. To some of it they will attach importance, but other bits they will dismiss as being totally hopeless and quite unreliable. They are the best people to judge, but we will not let them because they are not allowed to hear it as a matter of law anyway. You get to the ludicrous situation which occurred in a recent case, reported in 1973 3 All England Law Reports, where, because of these technical rules, the Humberside County Council had to go to the Divisional Court to find out whether the magistrates were allowed to hear the evidence of somebody who was extremely important and relevant to the case. I think it is high time this was stopped.
Not only is it silly from the point of view of the magistrates' court, but it causes this further problem: sometimes the result of knowing that the court is not going to listen to a certain kind of evidence means that, for instance, the children's officer of the local authority knows that it is no use going for a care order to the magistrates' court, so he has to go to the High Court, where the Civil Evidence Act does apply and where he can bring hearsay evidence. Thus, a

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great deal of money and expense and time is involved quite unnecessarily. It is all very well if you are somewhere near a district registry of the High Court; then it may be fairly easy. But if you are miles away, it is not possible. The situation is very unsatisfactory and I should like to have something done about it. I am going to be told that this is not the Bill to do it, but it is the Bill upon which to raise the complaint. I beg to move.
Lord HARRIS of GREENWICH: I think the noble Viscount would agree that it might be sensible to return to this matter in the future, all the more so because we have been working on the assumption that the noble Viscount's intention was different from what it in fact is, because of this unfortunate misprint. The Amendment on the Marshalled List would have had the rather surprising effect of giving each magistrates' court, when hearing cases arising under the provisions specified, a discretion either to admit or reject any evidence it might think fit. It did not seem likely that that was the intention. Therefore, it seems to me that we might return to this matter, all the more so as there is a general desire to proceed fairly speedily because of the forthcoming business on the Order Paper.
Viscount COLVILLE of CULROSS: I am very happy to do that. Now that I have explained it, will the Government look at this? I only meant hearsay evidence. I am sorry if I drafted it wrongly. I think there is a real probem here which ought to be tackled. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 79 agreed to.
Clause 80 agreed to.
Clause 81 [Short title and extent]:
Lord McCLUSKEY Lord McCLUSKEY moved Amendments Nos. 52 and 53:
Page 75, line 20, after ("54") insert ("(Provisions relating to Convention adoption orders) (1) and (3).")
line 22, after ("paragraphs") insert ("1A.,").
The noble and learned Lord said: Amendments Nos. 52 and 53 are of the
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same character. They extend the application to Scotland provisions of the Bill, in the first case to cover the effect of Amendment No. 40, and in the second case to cover the effect of Amendment No. 56, an Amendment to Schedule 2 which we shall shortly come to. I beg to move.
On Question, Amendments agreed to.
Lord WELLS-PESTELL Lord WELLS-PESTELL moved Amendment N0. 54A:
[In substitution for Amendment No. 54]
Page 75, line 25, leave out ("79(5), 82(a),") and insert ("(Provisions relating to Convention adoption orders) (5), 79(5), 82,").
The noble Lord said: With the permission of the Committee, I should like to speak also to Amendments Nos. 55, 57, 59 and 61. These Amendments are consequential on Amendment No. 40 which was moved by my noble friend Lord Harris in my absence, and I apologise to him for not being present in my place. These are orders, governed by the Hague Convention on jurisdiction of decrees relating to adoptions, which the Government propose to ratify for the United Kingdom within the next few weeks. In order to do that, it is necessary to make certain changes in other Bills so that this convention will apply to Northern Ireland and to various other parts. As my noble friend pointed out, Amendment No. 40 is very technical and these Amendments are consequential. As Amendment No. 40 was accepted, I beg to move.
On Question, Amendment agreed to.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 55:
Page 75, line 27, at end insert ("and Schedule 3").
On Question, Amendment agreed to.
Clause 81, as amended, agreed to.
Schedule 1 agreed to.
Schedule 2 [Minor and Consequential Amendments]:
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 56:
Page 77, line 14, at end insert—
("The Sheriff Courts (Scotland) Act 1907 (c.51)
1A. In section 5 of the Sheriff Courts (Scotland) Act 1907—

(a) in subsection (2), after the words "Actions of aliment", there shall be inserted the

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words "(other than any action mentioned in subsection (2A) below)";

(b) the following subsection shall be inserted after subsection (2)—

"(2A) Actions, arising out of an application under section 31(1) of the Maintenance Orders (Reciprocal Enforcement) Act 1972, for the recovery of maintenance: "; and

(c) in the final proviso, for the words "the second subsection" there shall be substituted the words "subsection (2) or (2A)".").

The noble and learned Lord said: This is a drafting Amendment, but I should say one sentence about each part of it. The first part has the effect of amending Section 5 of the Sheriff Courts (Scotland) Act 1907 to give the sheriff express jurisdiction to deal with all applications for maintenance under Section 31; that is to say, jurisdiction to deal with applications for maintenance by divorced spouses as well as other applications. The final proviso to Section 5 of the same Act allows the sheriff to remit maintenance cases to the court of session where appropriate. That is also to be amended by the second part of this Amendment so as to enable such remit in all cases under Section 31 of the Maintenance Orders (Reciprocal Enforcement) Act 1972. Accordingly, I beg to move.
On Question, Amendment agreed to.
Schedule 2, as amended, agreed to.
Schedule 3 [Enactments repealed]:
Lord WELLS-PESTELL Lord WELLS-PESTELL moved Amendment No. 57:
Page 84, line 29, at end insert—

("1969 c. 22 (N.I.).

The Adoption (Hague Convention) Act (Northern Ireland) 1969.

In section 7(2) the words "in respect of a foreign convention adoption."")

On Question, Amendment agreed to.
Lord WELLS-PESTELL Lord WELLS-PESTELL moved Amendment No. 58:
Page 85, line 16, column 3, at beginning insert—
("In section 17(1) the words "under the age of 16".").
The noble Lord said: With your Lordships' permission I should like to move Amendment No. 58 and speak to Amendment No. 60. These Amendments
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are consequential on Clause 65 of the Bill which alters the age at which an order for supervision or an order committing a child to care of a local authority may be made in adoption proceedings. Clause 65 has been accepted and these Amendments are consequential upon it. I beg to move.
Viscount COLVILLE of CULROSS: Have not all the three remaining Amendments been spoken to, in which case they could be moved en bloc?
Lord WELLS-PESTELL: Yes, that is so.
On Question, Amendment agreed to.
Lord WELLS-PESTELL Lord WELLS-PESTELL moved Amendments Nos. 59, 60 and 61.
Page 85, line 18, column 3, leave out ("paragraph 12") and insert ("paragraph, 12 and 26")
line 19, column 3, at beginning insert—("In section 26(1) the words "under the age of 16 years".")
column 3, at end insert—
("In Schedule 1, in paragraph 6, the words" other than a Convention adoption order".").
On Question, Amendments agreed to.
Schedule 3, as amended, agreed to.
House resumed: Bill reported with the Amendments.

BEEF PREMIUMS (PROTECTION OF PAYMENTS) ORDER 1978
Lord WALLACE of COSLANY Lord WALLACE of COSLANY rose to move, That the Beef Premiums (Protection of Payments) Order 1978, laid before the House on 11th January, be approved. The noble Lord said: My Lords, I beg to move that the Beef Premiums (Protection of Payments) Order 1978, which was laid before this House on 11th January, be now approved.
This order makes statutory provision to protect Community and Exchequer payments resulting from the operation of the Beef Premium Scheme. Perhaps it would help if I were to remind noble Lords of the essential elements in our beef support system. Alone among Community countries, we operate intervention and variable premiums in tandem. Intervention here is run on broadly the same basis as elsewhere in the Community. The premiums are similar to the deficiency

1337
Payments which we used to operate under the Fatstock Guarantee Scheme. What is unique about our arrangements is that intervention and premiums are linked. The average target price is worked out on a seasonal scale of weekly target prices very similar to the old Fatstock Guarantee Scheme scale, but within limits laid down by the Community. When the average market price for clean cattle in any given week is below that week's target price, a premium is payable to make up the difference between the average market price and the target price. This secures producers' returns.
A good deal of money is at stake in the premium system. Since 1974, we have paid in successive years £56 million, £90 million and £9 million, to the end of the last financial year. Most of this comes from the United Kingdom Exchequer. In point of fact, as f understand it, the proportions are 75 per cent. United Kingdom and 25 per cent. EEC. I should say, however, that the expenditure for the current financial year is estimated to be over £20 million. It is, therefore, very important that our payments should be adequately protected and that is what the order before your Lordships seeks to do.
It provides for the examination, certification and marking of animals and carcases by and on behalf of the Intervention Board for Agricultural Produce; for records to be kept of purchases, sales and slaughter of certified animals, and for the production of these records and movement records pertaining to cattle. It affords protection against double payment of premium and prohibits the use of certified animals for breeding or milking and authorises the Board to require their slaughter.
This order replaces similar legislation which was approved by the House on 17th April 1975. The House will therefore wish to know why it is now necessary to re-make the order and add new powers to it.
The new provisions are necessary for the following reasons. First, since the 1975 order was passed by the House, the requirements of the EEC have been tightened up to require that an animal on which a premium is paid must be slaughtered in the Member State where it is certified and not elsewhere in the Community. However, this requirement
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can be waived if the premium that the animal has earned is repaid to the Intervention Board. This means that the exporter must know how much premium was paid and be under art obligation to repay that amount to the appropriate authority. The order now before the House makes such provision.
Secondly, the House will recall that, as from April 1976, certification for premium in Northern Ireland has been confined to carcases, with the exception that eligible live animals exported to Great Britain may be certified at the port. This order makes provision for the marking and certification of such animals.
Thirdly, the order will permit the Board to require the marking of animals imported into the United Kingdom. This is necessary to ensure compliance with the EEC Regulation which permits premiums to be paid only on animals born and reared in the Community. It will also protect against a second premium being paid on any animal. This provision was previously contained in the Imported Livestock Order 1958, the relevant sections of which are revoked by this new order.
It has also been necessary to amend the marking provisions for animals approved for certification to permit marking in either but not both ears. As this is a complicated matter to explain, we have placed a memorandum on it in the Library and, indeed, in the Printed Paper Office. Briefly, the need for the changes comes about because of the imminent ending of calf subsidy. At present animals presented for certification have generally either received a calf subsidy (right ear punched), or have been imported (left ear punched). In each case the opposite ear is then punched on certification. Clean eared animals—that is to say animals which have neither ear punched—may not be certified live.
Thus fraudulent representation of certified animals can be prevented. Because of the ending of calf subsidy, an increasing number of animals presented for certification will in furure have clean ears and to avoid the need for double punching and to maintain protection against fraud, we need to move to punching the left year only for certification.
As the first step to achieving this, it is necessary to change the import mark to

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the right ear as soon as possible. After a period of transition during 1978 we shall then be able to drop the marking of animals imported from the Community countries into Great Britain, but it will be necessary to continue ear punching imports from the Republic of Ireland into Northern Ireland. Thus, we shall in due course be able to reduce very considerably the amount of ear punching. So as to avoid any confusion among applicants for premium or others associated with the marketing of fat cattle, a notice indicating which ear is to be marked will be displayed at every centre while marking is in progress.
Finally, the opportunity has been taken to obtain statutory cover for an arrangement to overcome problems which some applicants for beef premium can face in the more remote parts of the United Kingdom. The provisions in the order will enable a producer in such a remote area who owns animals intended for slaughter in his own butchery business, to obtain premium payments by having his animal accepted for certification and marked at a live market but leaving the certification process to be completed only when the animal is actually slaughtered in his own abattoir. I commend the order to the House and beg to move.
Moved, That the Beef Premiums (Protection of Payments) Order 1978, laid before the House on 11th January, be approved.—(Lord Wallace of Coslany.)
6.54 p.m.
Lord SANDYS: My Lords, your Lordships will be grateful to the noble Lord, Lord Wallace of Coslany, for repeating the details of this order. It is, in fact, a very controversial order. Noble Lords may have examined the Ninth Report from the Joint Committee on Statutory Instruments, the Committee of both Houses which scrutinises delegated legislation. In its report that Committee had a great deal to say about this particular order. It is significant in the Ninth Report, where they were considering no less than 26 Statutory Instruments, that this particular one aroused their anxiety.
The Committee said:
"In the opinion of the Committee, section 6(3) of the European Communities Act 1972 does not have the effect of extending section 5(1) of the Agriculture Act 1957 to cover arrangements which
1340
may be made as well as arrangements in force, and the Order would be ultra vires of construed in the way intended by the Ministry.
The Committee consider, therefore, that the drafting of the Order is defective in that article 3(1) refers merely to "Community arrangements", rather than to "Community arrangements in force", thereby inviting a construction of the Order which would make it ultra vires".
This, of course, is a matter of great concern, but I understand that the law officers, who were invited to examine this matter in detail, have been able to report to another place that it is, in fact, entirely in order. We understand that a Statement was made to that effect by Mr. Bishop, the honourable friend of the noble Lord, Lord Wallace of Coslany, this afternoon. I believe that on all occasions we should take note of what the Joint Committee says about a particular Statutory Instrument, and I hope that for record purposes what I have said this afternoon will settle that particular point.
There are three questions that I should like to ask the noble Lord about this order. First, can he confirm tile date of the ending of the calf subsidy? Secondly, in regard to the memorandum by the Agricultural Departments and the Intervention Board on marking the ears of animals, can he confirm that copies of this document will be liberally available at ports and other centres? The noble Lord referred to that, but, of course, it is important that the notices to be displayed at ports and other places should be changed at the dates mentioned, because, as the noble Lord described, this is a complicated matter.
Thirdly, I think it would be helpful if the noble Lord could give us a few more details about both the carcase trade and the live trade with Northern Ireland and the Republic of Eire—indeed, I have given the noble Lord private notice of that question. Finally, we, on these Opposition Benches, welcome this form of support. The combination of premium and intervention has worked well since the Scheme was introduced early in 1975.
Lord GLADWYN: My Lords, I hesitate to intervene in this discussion because I am in no way an expert on beef premia. I do so merely because my noble friend Lord Airedale cannot be present at the moment and he has asked me to say a few words, which I suppose should follow

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on from the remarks just made by the noble Lord, Lord Sandys.
I should like to refer to the Ninth Report from the Joint Committee of both Houses appointed to scrutinise delegated legislation, to which the noble Lord, Lord Sandys, referred. I understand that the Ministry of Agriculture, Fisheries and Food maintains that Section 5(1) of the Agriculture Act 1957 must be interpreted as meaning that orders made under it cover arrangements which may be made in the future, as well as arrangements in force at the time of the making of the order; whereas the Joint Committee feels that the wording of the section and more particularly its reference to "arrangements in force," limits its effect to arrangements in force at the time of the making of the order and not to future arrangements.
If it is merely a matter of drafting, no doubt Article 3(1) could be altered so as to refer simply to "Community arrangements in force rather than to "Community arrangements". But, on the face of it, there seems to be a rather fundamental difference of approach on this matter. If the Minister of Agriculture, Fisheries and Food is right in praying in aid Section 6(3) of the European Communities Act 1972, which seems to provide that Section 5 of the 1957 Act:
"shall apply in relation to any Community arrangements for or related to the regulation of the market for any agricultural produce",
then presumably we might not be acting in accordance with the provisions of the Treaty or Rome if we restricted the application of the order in the way proposed by the Committee.
I understand, however—and I had not heard this before—from the noble Lord, Lord Sandys, that this matter has been referred to the Law Officers of the Crown who have pronounced against the opinion of the Joint Committee and in favour of the thesis put forward by the Ministry of Agriculture, Fisheries and Food, in which case there is nothing more to be said. Of course, if the matter ever arose in the future and this order was reversed in spite of legal obligations, I imagine that in the last resort the point would have to be submitted by the Commission to the European Court; there would be no other alternative. I hope that I have it right.
Lord WALLACE of COSLANY: My Lords, I am grateful to noble Lords who
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have spoken in this debate. So far as the legal side is concerned, the Government were concerned that the Joint Committee considered that the order could be construed as being ultra vires. While we are all in full sympathy with the Committee's desire to protect the rights of Parliament, the Joint Committee's view did not accord with precedent, and, if accepted, would make it necessary to have a new order every time a change was made in the Community arrangements covering beef premiums. Since there can be no assurance that the timing of such changes would permit a new United Kingdom order to come into force simultaneously, there would be thus a serious risk of a hiatus in the legal cover for the protection of the premium payment made from public funds. We are very glad that the law officers have expressed the view that the order is not defective, and I sincerely trust that this view will be accepted by the House.
May I take this opportunity, as a former member of the Joint Committee on Statutory Instruments, to say that, unless noble Lords have served on this Committee, they probably will not realise the tremendous amount of detailed work and close examination that takes place. Therefore, although they have been critical in this case and in other instances too, that does not mean that they are not doing a first class job in the service of the country and protecting the consumer and the citizen as a whole. I should like to place on record my own personal tribute to the Committee for the very hard and not exactly cheerful work they have to get down to. It is what some people in another place might term "gutty work".
The noble Lord, Lord Sandys, asked about the calf subsidy date. I am grateful to him for giving me advance indication of what he wished to know. The calf subsidy was introduced under the Agriculture (Calf Subsidy) Act 1952. It was announced at the 1975 Annual Review that the subsidy would come to an end with the end of the United Kingdom transition period into the EEC this January. The necessary legal powers to end the subsidy have already been taken. The last animals to qualify for subsidy will be those born before 30th April 1977. The majority of eligible calves are certified at about 10 months old. They must be offered for certification before 1st May this year. Carcases certified

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before 30th June 1978 will also qualify. But after these dates neither calves nor carcases can qualify for subsidy—though payments will probably continue to be made for some months yet. Incidentally, imported animals are not eligible for calf subsidy.
The other point that the noble Lord made was about display of this somewhat complicated information. I can assure noble Lords that there will be a full display of information by statutory notice at ports and live markets at all times. The noble Lord asked for some words on the Irish trade, which of course is quite a considerable business. Imports of cattle from Ireland have been a traditional part of British beef production for many years. Noble Lords will recollect that the Anglo/Irish Free Trade Area Agreement of 1965 envisaged that the Irish Republic would send us 638,000 store cattle each year. These store animals are needed by beef producers in this country; and together with Irish fat cattle imports provide valuable work for our slaughterhouses. In the past, all these animals had one ear punched on import. This put them on the same basis as United Kingdom animals that had received the calf subsidy—in other words, when they were offered for certification at liveweight, they did not have two clean ears. As the calf subsidy is phased out we expect that, by the early autumn, we shall cease punching the ears of Irish cattle shipped direct to Great Britain.
However, cattle from the Republic of Ireland will still have their ears punched when they go into Northern Ireland. This is because we have agreed with the Government of the Irish Republic that there should be a domiciliary period before cattle from the Irish Republic can move on from Northern Ireland to Great Britain. I believe that it is a period of 13 weeks.
If there was no domiciliary period it would be easy for southern cattle to flood into Northern Ireland whenever a high rate of premium was payable there and then go in transit to Great Britain.
So far as the trade in carcase beef from the Irish Republic is concerned, the
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order does not apply to this beef. It is concerned with protecting payments on live animals and on carcase beef produced in the United Kingdom. But I recognise the recent concern that, as Irish exports of live animals have gone down, falling well below the figure of 638,000 for some years, carcase beef imports from the Republic into Great Britain have risen. Irish sendings of carcase beef were particularly heavy in 1977, partly because of the shortfall in our own production and also because of monetary factors. The action which the Government have taken to reduce the monetary compensatory amounts by a total of 7½ per cent. by the beginning of the new beef marketing year will in fact reduce the net monetary compensatory amount on Anglo/Irish trade by one-third and thus should lessen any adverse impact on the United Kingdom beef market from this source. Those are all the points that I have to make. I hope that I have met the noble Lord's case, and I sincerely trust that the House will now accept the order.
On Question, Motion agreed to.

ABINGDON MARKET PLACE BILL [H.L.]
Read 2a, and committed to a Select Committee.
CHRIST CHURCH WOBURN SQUARE AND SAINT MATTHEW OAKLEY SQUARE BILL [H.L.]
Read 2a, and referred to the Examiners.
KENDAL MARKET BILL [H.L.]
Read 2a, and committed to a Select Committee.
MILE END GARDENS (PORTSMOUTH) BILL [H.L.]
Read 2a, and committed to the Committee on Unopposed Bills.
UNION THEOLOGICAL COLLEGE OF THE PRESBYTERIAN CHURCH IN IRELAND BILL [H.L.]
Read 2a, and committed to the Committee on Unopposed Bills.

RHODESIA: SETTLEMENT NEGOTIATIONS
7.7 p.m.
Lord GEORGE-BROWN Lord GEORGE-BROWN rose to ask Her Majesty's Government their attitude towards the steps being taken to achieve a peaceful settlement in Rhodesia which assures majority rule. The noble Lord said: My Lords, the purpose of seeking a discussion on the subject of Rhodesia at this time is quite deliberate and is, I think, important because so much confusion is in fact arising in various people's minds as to what the aims of the Government really are, what their priorities are, and what their view is of what is the best route to achieving a justifiable, negotiated settlement in Rhodesia. I hold the view that the Government have in fact been drifting—I do not think they have been doing it deliberately, but the Minister will no doubt tell us—from their original position to a position now reached which is quite incompatible with the purpose that we all had in mind after UDI over 12 years ago.
There is going on at the moment in Salisbury, a series of negotiations, about which I hope the Minister will give us as full an account as he can of the Government's information. I understand that the Government are in very close, almost day to day, touch at any rate with some of the participants in those talks. All the House has so far had to go on are the various somewhat confusing and contradictory accounts in the newspapers. We should be glad to be told as much as the Government are able to tell us about what they understand to be the position there. In particular, we really must ask the Minister to tell us now much more clearly than, with respect, he was able to tell us in the Question and Answer session the other day, the Government's attitude to these negotiations.
Many people feel that by the introduction of the Anglo-American plan the
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Government have put themselves in a position of competition with the negotiations in Salisbury and that, far from being in the position of someone who wishes to encourage a negotiated settlement, they are rather afraid that a negotiated settlement might emerge and put their own plan—the joint plan with the Americans—out of court. This seemed to be borne out the other day—I have with me a whole list of quotations, but in view of the hour I will not refer to them unless I am pressed—by a statement, attributed to a Foreign Office spokesman, rather to the effect that no settlement would be approved by Her Majesty's Government unless it was in accordance with the Anglo-United States plan. It seemed to be further borne out by the Resident Commissioner Designate when he said, on leaving Mozambique—and he was quoted directly—that if too much attention was given to the internal discussions in Salisbury, it would draw attention away from the Anglo-United States plan.
When did the Government see themselves as being in conflict with—what I understood was always our aim—an attempt to negotiate a settlement inside Rhodesia? It is surely permissible to put it squarely to the Minister that if Mr. Smith had been willing to negotiate along these lines 10 years ago, we would all have been delighted; that is what we were seeking to get him to do and we expressed regret that he did not do it. Why he has got to the point of doing it I will come to shortly, but it seems to me, on the whole, to be irrelevant whether he has come to it by a good or bad route. If he has in fact come to it, I would find it hard to see, were I now the Secretary of State, why I should be bothering my head overmuch about his reasons instead of concentrating on keeping him going.
I have never met or negotiated with Mr. Smith; in my day as Secretary of State the two offices were still separate. However, I am prepared to respect the very near unanimity of view among those of my friends who have, that he is a very difficult gentleman, to put it mildly, and that keeping him to his word is very difficult. But there are all kinds of difficult people in the world, and if we started conducting our foreign policy on the basis that we would negotiate only with nice, easy, kindly gentlemen we would hardly be in business today. Some of the

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other characters in the drama being played out in Southern Africa are not very nice, easy, kindly, gentlemen either, but I shall return to that in a moment.
Thus, I start by putting it to the Minister, firmly, but I hope politely, that despite all the protestations which the Secretary of State makes in another place and which the Minister loyally repeats here, the present Owen-Young policy and actions are preventing—discouraging, if not actually preventing—a settlement, and are certainly not promoting it. We are elevating something we refer to repeatedly as "the international community" above all else, and that is open to various interpretations. Mr. Young, for example, says that any settlement in Salisbury "must be acceptable to the East"; I quote his words. "The East" in this context must, I think, mean the Soviet Union. If we are to say, as the plan does and as the repeated replies of the Secretary of State do, that it is the international community, meaning the Soviet Union, that must approve of any settlement, then I am bound to say I wonder what we think our policy is.
The present operations of the Soviet Union in Africa hardly seem to be addressed either to the peaceful settlement of conflicts, other than their way, or to anything other than reducing the capacity of the West to get access to its raw materials, to its essential supplies and to its essential sea routes. I appreciate that the Minister does not answer in this House for Mr. Andrew Young. On the other hand, the Secretary of State makes great play of the fact that this is a joint Anglo-United States operation. I would therefore ask the Minister whether in fact he accepts that it is essential to judge any settlement by whether the East approves of it, and the East must mean Soviet Russia.
The other day at the Dispatch Box the noble Lord was vigorously denying the proposition put to him that the Secretary of State's operations at present were handing a veto to Mr. Mugabe and Mr. Nkomo; he said, "No, certainly not". But if the proposition must be acceptable to Soviet Russia, then what, assuming that ordinary words still mean what they used to mean, is that but giving Soviet Russia a veto? It simply must mean—it has to mean—that if Russia says the
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proposition is not acceptable to her, we will not ourselves endorse or accept it.
We elevate the Patriotic Front. I put this to the Minister the other day and he did not accept it, though I was not persuaded. He makes a tremendous point of the consultations with Mr. Mugabe and Mr. Nkomo and their guerrilla forces while they are conducting a bloody war and while Mr. Nkomo is referring to the black leaders who are negotiating inside Rhodesia as a criminal clique who must be finished. We are also elevating, it seems to me, the one party in all this whose aim is not to have a negotiated settlement because, as it has been put so clearly by commentators here, they think, rightly or wrongly, that they have brought Mr. Smith to this negotiating position by the power of force they have deployed against him. And, as it has been put, they do not want to see the fruits of that use of force enjoyed by Bishop Muzorewa, Mr. Sithole and the other negotiators inside Rhodesia; they want to enjoy those fruits themselves. This seems to me to be elevating force as a desirable means to an end, whereas, clearly, I would think that any policy pursued by this Government must not do that.
We elevate the front-line States. The Times correspondent, normally very well informed, described the mood of the High Commissioner-designate when he left Mozambique as one of elation. With great respect, it is Rhodesia we are talking about; it is the Rhodesian people and Rhodesian interests we are talking about. I cannot see why one should go off to Mozambique to get elated. They exist; they are a fact in Africa; but they are not a party, or they ought not be be admitted to be a party, to this conflict. It seems, indeed, that everybody is elevated by the Government except those who have chosen to stay in Rhodesia—I am talking about black people—and seek to negotiate their way to a settlement, rather than to impose it or force it from outside.
I am saying this not aggressively but rather firmly because I want it to be clearly read and understood across the way as well as in this House. We will listen, obviously, to what the Minister has to say if he feels I am wrong about this; but I hope he will put it to the Secretary of State. I hope, too, that, if these debates are read in the State Department and the White House in America,

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and if they are read in Rhodesia, as I am quite sure they will be, the fact that this view is held by some of us—and held by some of us who have no links with the white settler community in Rhodesia at all; held by some of us who could not be called, by any stretch of imagination, Right-Wing reactionaries—will be clearly understood by them.
With respect, I do not think it is for us—and this is one of the major criticisms of the plan—to impose a plan of our own, however good. I do not think it is for us to choose whom we would wish to see become the Government, the Administration, in Rhodesia after a settlement is reached. It is for us to monitor; it is for us to "jolly along"; it is for us to help to guide if we can, and to make suggestions. But the other day, when addressing the other place—and I have the quotation here if noble Lords want me to read it—the Secretary of State repeated:
"It is the Government and this House alone who can confer independence upon Rhodesia",
and he proceeded to say that,
"We would not do it if the settlement did not accord with the Anglo-US plan".
But why, my Lords? In the first place, I think the allegation "we alone can confer" really may be legalistically right in the sense that an Act of Parliament would need to be passed in order to clear the situation up, but 12 or 15 years on is an awfully long time to go on repeating the old thing.
I am constantly being reminded by my ex-colleagues and my friends in the Government that yesterday's terrorists often turn out to be tomorrow's statesmen. Obviously, there are many examples around the word to prove that that is so; but by the same token, yesterday's white rebels can also turn out to be tomorrow's statesmen. It would be a long list to produce of British politicians and British Ministers, past and present, who have been succoured and sustained by marriage to the daughters of the American revolution. So, obviously, there is a point at which that becomes respectable, without the rebels giving in. I ask the Minister not to make that particular point again. After 12 or 20 years—at some point—it is no use going on with the old argument; and certainly it is no use replacing the
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principles set out by the previous Prime Minister by the Anglo-US plan of today. The two things are not the same. To say, as used to be said and as was said by Sir Harold Wilson when he was Prime Minister, that any settlement must satisfy what began as Five Principles but to which was added a sixth a little later on, is one thing; but to say, we having produced, a decade later, a detailed plan of our own, "It has got to fit that", is a different thing altogether.
The Secretary of State is getting the Prime Minister very confused here, because, while the Secretary of State is telling us that it must satisfy the plan, in the other place the other day the Prime Minister, in answer to a Question, said that he wanted to see it against the Five Principles, and if it met those or a substantial number of them he would be very pleased. They are two quite different answers. The other day the Minister of State himself was using the Anglo-US plan as though it were the Five or Six Principles. It is my view that it is not. It is quite a different thing altogether; and I believe that this is where the Government went wrong. We should have adhered to our principles and tried to secure that other people who are doing the negotiating were helped to adhere to them.
Here, let me ask something I was going to raise later on but which I might as well raise now as it fits in. We read lots in the newspapers about the communications which are said to be passing between the Foreign Office and the participants—or, rather, some of the participants—in Salisbury. Apparently they are going to Mr. Smith, they are going to Bishop Muzorewa and they are going to the Reverend Sithole, but for some reason or other they are not going to Chief Chirau, who is the third of the black negotiators. That is for some quite legalistic reason, that ZUPO, his organisation, did not exist in 1971, or something or other, which seems to me to be a highly dubious reason. So they are going selectively to the participants, as we understand it, and they are going to Mr. Mugabe and Mr. Nkomo. It is being alleged that these documents turn up at inconvenient or convenient moments, and that, indeed, they played some part in Mr. Muzorewa's hiccups the other day, when, having agreed, he withdrew.
I think it is fair to put it plainly to the Minister of State. It is no use pretending that these deductions are not being drawn. They are. It is believed in Salisbury, as I know, by black leaders that there have been attempts by the British Government to draw attention to issues for the purpose of discouraging or disturbing the negotiations or of making them more complicated. I understand now from sources (as they say in the media) that an enormous document, with very many pages indeed, is about to be on its way, if it has not already left, to the same selected people, elaborating all that has been sent before. Again, it will be assumed that the reason for doing this is to put another spanner in the works of what are already very difficult negotiations. Would the Minister please tell us what documents have passed and what documents are passing? What is the purpose of them? Why are they only selectively circulated? And will he please consider putting them in the Library of the House?
If they are the British Government's statement of the British Government's position and what the British Government think negotiators must take into account, we cannot have a very intelligent participation either in this House or the other place if we do not know what is in them. They cannot be all that sensitive, because with that number of people receiving them obviously they get out—otherwise how do I know about them? We are being denied them as one of the legislative Chambers who will be asked to pass the legislation at the end and to comment on the Government's handling of the negotiations.
May I turn for a second to say that the other thing which I want to get clearly to the Minister and to the Secretary of State—and this particular Secretary of State, whose accession to office I welcome. I should have preferred that the Chancellor of the Exchequer had filled the vacancy when, unhappily, it occurred. I thought the Chancellor of the Exchequer easily the best qualified, over the many years he had taken a major interest; but if the Government, quite properly, decided it could not be him, I was happy at the elevation of the present Secretary of State.
But no consultation takes place with this Secretary of State. There are X
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Secretaries of State in this House and in the other House who would very happily be available for consultation, just as I used to see my predecessor, and as my successor used to see me. But no consultation takes place at all. I do not think I have exchanged a single word with the present Secretary of State since I left the other House seven years ago. Therefore the only way of addressing him is publicly in this way.
The point I want to put to him is this: Is he really trying to co-relate what is happening in Rhodesia, what he wishes to happen, what could happen there, with other events going on in Africa? I have a terrifying feeling that he is not. I have a feeling that the office is not getting through to him. From the developments around the Horn of Africa, which are very serious from our point of view and the point of view of the whole of the West, the present developments in Ethiopia and the subsequent possibility of risk to the Sudan, to Egypt, and all that flows geographically from there, without being an old cold war warrior it is quite apparent that a Soviet grand design is being worked out there.
We know that the Americans have been tortured by the consequences of Vietnam, Nixon, Watergate and all that, and have rather disqualified themselves at the moment for long-term clear thinking about this matter. It can only be we who draw attention, and if we are going to permit or encourage—at the end of the day we cannot affect what happens in that sense—the Soviet Union's other clients, the Patriotic Front and some of the front line States in Rhodesia, then not only are we contributing to the grand design but we are extending it, ensuring its extension southwards as well as in the direction in which it is at present moving.
I see no reason not to conclude that the Foreign Secretary, who would not deliberately want to bring this about, is not taking time and care and trouble to be advised and guided, either by his advisers in the office or those outside who would like to discuss with him the way in which all these pieces fit together. Of course one can be so interested in travel and instant decisions and instant policies that one ends up by not really studying the brief, and that may have happened here.
May I say to the Minister of State fairly that I think the hallmark of the Government's attitude may be put like this: They have this detestation of Mr. Smith and of the white settler community, to which I have referred already, and they find it hard to get over. I must say that Mr. Smith has dealt with pretty well every British politician and Minister of distinction we can throw at him, and, if my noble friend Lord Home of the Hirsel will allow me to say so, he seems to have survived all of them pretty well intact. There is something to be said for taking seriously a bloke who has survived all this and still knows when to temper to the wind. I repeat that one has to deal with those who are there. The great Ernest Bevin, whom all of us who were then on these Benches or were allied in some way to these Benches, remember with fond affection and great admiration, put this straight to a Party conference at Bournemouth, at which I was present, when he answered, I think Mr. Mikardo and various others who are still with us, by saying he had to make his foreign policy with those who were there and not those whom he wished were there. I would commend that to our present Secretary of State so far as Mr. Smith is concerned.
The second hallmark of the Government's approach is their disparagement of the internal leaders and their astonishing partiality for Nkomo and Mugabe, when I should have thought, in such a situation as this, that everything points to trying to get Nkomo and Mugabe apart. As Mr. Smith wrote very plainly the other day in the Sunday Express—it was clear and it had his name attached to it—
"We did not exclude Nkomo and Mugabe; they excluded themselves."
He made it quite clear that if either or both wished to go back and join in as a negotiator—not as a commander in the field or shooting Rhodesians black and white—then they could do so.
I was talking today to somebody well known to everybody in this House, very well informed on the situation, who said that there would be no difficulty about that, that even today Nkomo and Mugabe are not on speaking terms. Yet instead of seeking to persuade Nkomo to go back to where he was, namely, as a negotiator, and to encourage him to believe that by that
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means he will ensure that all power does not after settlement go to Muzorewa, Sithole and Chirau (if that is what he is bothered about), we are in fact so elevating them, so puffing them up, so letting them understand that it is their say-so that will be required, that we are virtually signalling all the time, "do not give in, boys; at some point Muzorewa and Sithole will slip apart, the negotiations will come to an end and you will be the only fellows in the field." Were I Foreign Secretary it does not seem to me that that is the message I would be wanting to put up. Quite the reverse.
The next hallmark is the elevation of the use of force. Because others have used force, are using force and, as it was put to the Secretary of State, will still be in the field after negotiation, and you might have black shooting black—meaning that you will have the Patriotic Front (so-called) troops shooting those blacks who have made an agreement—it does not seem to me good to say that we cannot make an agreement of which they do not approve. That is just a signal to everybody that we do not, ourselves, believe in negotiations.
I have said why I think we should go back to the Five Principles. I do not count the sixth: all that it said was that the majority should not discriminate against the minority and that the minority should not discriminate against the majority. A slightly dubious presentation; but we can all agree with it. I stick to the original Five Principles.
We should go back to them. Let the Anglo-US plan lie. It is no great hurt to our pride. It can always be revived if everything else fails. A spokesman for the office who was quoted in the papers said that if it was not pushed ahead by February it would run out of steam. The implication is that this is one of the reasons why so much pressure has been applied in the last few weeks: it is to avoid the negotiations in Salisbury getting too far down the road.
I do not mind if the Anglo-US plan runs out of steam. What I would mind would be if any settlement by anybody, did not match those Five Principles which we hammered out when I was in Government just around the time of UDI. I repeat that, had Sir Harold Wilson I succeeded, as he thought he was going

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to succeed at that time—he really did think that—in getting Mr. Smith to negotiate within those principles, we should have made no point about an Anglo-US plan; we should have made no point about the front-line States; we should have made no point about the Patriotic Front or anything else; we should have been happy to encourage everybody to get down to negotiating on that basis. I, myself, do not see why, just because it is a few years later, we should change from that.
Perhaps I may draw what I was going to say to an end. Many of my noble friends have stayed in order to take part at this inconveniently late hour and I shall not go on for long. To sum up, I think that our present actions are misconceived. I do not want to turn this into a great battle with the Foreign Secretary. I hope I have made it quite plain that I should like to help him. I have no desire to do the Foreign Secretary down or to do him any harm. I should like to see him make a success of it.
However, I think, for the sort of reasons I have given, that our actions are misconceived. I think that we are just adding to British mistakes that have gone on throughout this period. I cannot remember whether the Minister of State was with me in the House in 1945. I think so; but I have been in the thing long enough before 1945 and since 1945. I am thinking particularly about the time of the central African Federation, of the late Jim Griffiths—that very dear man—who let Welensky down on some ridiculous legalistic argument that we should not let the Colonial Office Commissioners go and advise the people at their meetings how to vote. We could go and explain but we could not give them any advice. As a result, we let Welensky down: I think that we have contributed to the downfall of every liberal-minded white leader until, finally, we got Smith.
We have made mistakes all along the line because we will not treat the blacks as equals; we keep on feeling that we must somehow cosset them and treat them in a way we should not treat white people. I am a great believer in total non-racialism.
I believe that you should treat one man as you treat another man. The blacks can work things out for themselves
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without us leaning over backwards. We have always done that and still, to some extent, are doing that.
We are wrong to moralise. I am a Christian as is the Secretary of State; but I do not think that that should lead us to be continually moralising about the issues and the people we are dealing with. I do not mean that one should keep Christianity only for Sundays; but I do mean that one does not parade it on every issue.
We are wrong to try to choose acceptable leaders. I think we are wrong to resurrect colonial responsibility here. There came a point—and the Minister of State will remember when he and I were working together—when I took the view in Cabinet (and I did not succeed in persuading all my colleagues) that the time had come for us to say that we had no more responsibility for Rhodesia. This was just after sanctions were imposed and we were being heavily attacked for not applying sanctions more efficiently. At one painful meeting, I was heavily attacked by the then Foreign Minister for Zambia because we were not imposing sanctions more efficiently. He said that we were doing it because we fancied the trade. At that time, our balance of payments was suffering very badly and that of Zambia was growing very fast.
I took it ill. I came back from New York and I expressed the view that the time had come to say that this was not a special British problem, that this was no longer a colonial problem—we had never administered the Colony anyway—and that we should, in fact, accept our share of the responsibility in the United Nations in the same way as anybody else—no more and no less.
The Anglo-US plan resurrected the rather special colonial responsibility on our part. I do not see why we should accept it. I do not think that we should become activists because we were once a colonial power. We should seek to be bridge-builders. We are assuming the guilt and the blame here. Whatever happens, the outcome of this will be that we shall be blamed and accused of being the ones who made matters go wrong by trying to be so active. We can do nothing if the talks break down in Salisbury either because we did not help enough or because we interfered too much; we

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could do nothing thereafter but ensure the success of terrorism.
I want this put clearly to the Secretary of State. No nice playing with words! If this fails and we have any share of the responsibility for its failure, be it a positive or a negative share, we shall have achieved nothing but to ensure the success of terrorism in that area and the handing of influence to the Soviet Union.
I think that is really what I wanted to say. I should perhaps have said it differently if I had not had the feeling that I ought to consult the interests of those noble Lords who have come down today and who wish to speak. I should perhaps have said it at greater length and less dogmatically and affimatively. I hope that the Minister will not think that it suffers because of the way I have chosen to put it. I do not want, speaking for myself, a continuation of the using of words in order to fluff the issues.
I believe that we are making a great mistake at the moment. I believe that we have the policy wrong and our operations wrong. I believe that we have not thought the thing through. I believe that it has to be our only mission to help being about a negotiated settlement which, whoever makes it, can be tested against the Five Principles and seen to fit. I do not believe that we have a role beyond that. I think we have made a great mistake.
I should very much prefer, as I said in an article that I wrote two or three months ago, that Mr. Andrew Young should stay out of this. I have discussed this matter with him and he is really naive about it. He really does see it much more like another State of Georgia problem than as the great complex problem that all African problems are. I would much rather he stayed away from it. I know how little part it really plays in White House—State Department—thinking. They have too many other things on their minds. It all comes back to politics with them; and especially in a mid-term election year.
Frankly, I would rather our own Secretary of State stayed at home rather more and that I had the feeling he was directing affairs instead of always wanting to be leading the tactical battle at the front with nobody really able to do the strategic planning at the back.
My Lords, please do not take too hard what I have said or the way I have said it; but let us have from the Minister of State as much as he thinks he can tell us by way of answer. He should not read us the brief if it does not cover those points because the Secretary of State would rather that he did not enter into them. Just let him tell us that it does not cover those points but that he will put all this before the Secretary of State and let us perhaps have another debate at a better time of day. But I wanted it tonight. I wanted to make these points before the negotiations break down, and not in the form of an inquest after they have done so.
7.50 p.m.
Baroness ELLES: My Lords, any informed debate on the future of Rhodesia and its people must of course be subject to the political realities of the day. No subject has been more intransigent, intractable or more fluid than the attainment of a peaceful transition to majority rule. Therefore we can only speak in the context of the situation as it is today. We are grateful to the noble Lord, Lord George-Brown, for having raised this issue, and for having expressed so clearly and so cogently many of the arguments that we on these Benches share. I will not seek to repeat any of the questions he has already put to the Minister, because we have a long list of speakers and I know that we want to get the benefit of their wisdom and contribution. I should say from these Benches that nobody will be listened to with more respect than my noble friend Lord Home of the Hirsel who has such knowledge and experience on this matter. I know that the noble Lord, Lord Goronwy-Roberts, will be paying particular attention to these statements.
This short debate enables us to ask the Government to clarify their position in relation to the negotiations with the various parties concerning the fate and future of Rhodesia, and their objectives. I accept that we bear in mind in a period of delicate negotiations of this nature that, while having clear objectives, it is essential to keep options open. But no one Party should become a prisoner of their words or be pegged to a position which is no longer realistic or practicable, and from which they cannot then withdraw.

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I will not expect a studied answer to night to any questions I put to the noble Lord, who, I know, always answers with extreme courtesy. I should be much more grateful to have a studied written answer later.
The very complexity of the situation has allowed, and still allows, many options to be open to the Foreign Secretary. His choice so far—and this was indicated by the noble Lord, Lord George-Brown—must lead one to believe that he appears to have been guided more by prejudice or pressure than by wisdom. He remarked, for instance, on his return from Moscow that he wished to explain to the Soviet Union—and I quote as per the Daily Telegraph—that "Our intentions are exactly the same as theirs in relation to Rhodesia". This was later reinforced by open negotiations only with the Patriotic Front one of whom, according to the Financial Times, is alleged to have declared that he is fighting not to bring about a ceasefire but to bring about political change. That is politics at the muzzle of a gun.
This leads to the belief that the Government are playing into the hands of those seeking to destroy any more democratic rule in a future Zimbabwe. The noble Lord, Lord George-Brown, has already drawn attention to developments in other parts of Africa. I therefore will not enlarge on those now. The Government have an opportunity to give a reassurance that we are being misled by the Press, that their intentions are not as they appear to indicate. Will the Government allay the genuine fears, both of the people of Rhodesia and those outside, by confirming that the Government will only approve a settlement, internal or otherwise, which involves free and universal elections before majority rule. Mr. Smith appears to have accepted this principle. As has already been said, Mr. Smith has been severely criticised in the past for accepting and appearing not to keep his word. For the time being, he has appeared to accept this principle. The Government are therefore at the very least entitled to call his bluff and confirm that principle. I ask the Government therefore to do so.
Since the Government have accepted the responsibility of bringing Rhodesia to independence, what are their views
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concerning the possibility of an internal settlement? It is admittedly not yet reached; but it is of course, as we all know, now in the process of negotiation by Bishop Muzorewa, the Reverend Sithole, Chief Chirau and Mr. Smith, who, it is generally agreed—and I have not seen anybody deny it—command at least 75 per cent. of the support of the population. I recognise—if I may call her this on this occasion—my noble friend Lady Gaitskell has been concerned for so many years with United Nations instruments on human rights, and the principle of self-determination for colonial peoples has always been supported by the present Government and many others. How do the Government envisage the realisation of that principle? Is a ceasefire considered to be a precondition to the acceptance of an internal solution, or do the Government accept that the majority of the people of Rhodesia are there to show how they determine their future? In this connection, it must be asked whether Mr. Nkomo or Mr. Mugabe have been encouraged to join the internal talks?
We accept that many things can happen; but, nevertheless, we are at the moment in a stage of negotiations where these internal arrangements are possibly coming to some kind of conclusion. If the internal solution falls within the Six Principles, which have been upheld by successive United Kingdom Governments—and despite what the noble Lord, Lord George-Brown, said about possibly leaving the Anglo-American plan on the table—within the conditions laid down in paragraph 3(a) (it looks at the moment as though the internal solution may be reaching that stage) the Government of course will be faced with a situation, certain consequences of which would devolve on themselves in view of their accepted responsibility.
Therefore, surely the role of the Government must change from one of negotiation with one faction only to one of conciliation, not of confrontation; to conciliate and not exacerbate the relations between the Patriotic Front and the leaders in Salisbury. It must be realised that while the Patriotic Front may have arms partly—if not mainly—provided by the Soviet Union, they are fighting against their own people. Hundreds if not thousands, of black Rhodesians have volunteered to fight in the Rhodesian

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forces to protect their own people and their own territory. This factor cannot easily be brushed aside by the Government which they always seem intent upon doing.
There is the offer to the members of the guerrillas who are prepared to undertake routine training in the Rhodesian forces to be accepted into those forces. Do the Government consider that is a fair offer and one that can be agreed? If an internal settlement is agreed in conformity with the Principles that I have mentioned, are the Government considering measures to ensure that such an agreement is acceptable to the people of Rhodesia? Of course, by "the people of Rhodesia" I mean all the people of Rhodesia, black and white. In this, Mr. Smith cannot believe that any consultation with the white minority is a sufficient or adequate answer to that acceptability.
I should like to ask the Minister whether the Government have considered how this assurance might be achieved. For instance, have the Government considered holding a referendum? If not, will they undertake to consider this suggestion? It is no more than a suggestion but it is something which should be seriously considered by the Government should an internal settlement be reached within the principles which we have already mentioned. Further, will the Government consider the legal and procedural steps which will need to be taken to ensure that the process is fair and just? It will obviously take some time to prepare electoral lists; but they will be needed in any case for eventual elections. Will the Government consider how this can be done? Are they prepared to offer specialist assistance to Mr. Smith and his colleagues now seeking a settlement? This is a role that the Government could usefully play.
Another consequence would be the need to make arrangements for international observers to verify the fairness of a referendum. There would obviously be a lot of consequences flowing from this and I ask the Government to consider them very seriously.
The arrangements for a transitional period must also include some guarantee of protection for the people, both black and white, against aggression, both external
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and internal. The Anglo-American proposals, about which we hear so much in Cmnd. 6919, contain a reference to a United Nations-Zimbabwe Force, whose role, it is stated, may include, "support of the civil power". I should like to ask the Minister: On what basis is that proposal made? It is my understanding—and the Government will know better than anyone else—that a United Nations peace-keeping force has no authority in any way to undertake such a role. Therefore why is it mentioned and what alternative proposals would the Government suggest, knowing full well that such a peace-keeping force could never ever fulfil that particular role under its statutory authority.
Great responsibility rests with the Government to ensure a peaceful transition to majority rule. As the noble Lord, Lord George-Brown, has pointed out, if it fails it will be the British Government who will be blamed, and indeed the United Kingdom as a whole. In ensuring the protection of the lives and property of all the population—that is, of all those living in Rhodesia—the good faith of the British Government is being tested and international acceptance may well depend on the Government's attitude.
The noble Lord, Lord George-Brown, referred to the necessity, as it appears, of such international acceptance, but a great deal depends on the attitude of the Government themselves in leading this international acceptance; and the Government must accept that this is so. Therefore, I would ask that, for the sake of the future of a country which is undoubtedly beautiful and undoubtedly rich in resources, with people who have one of the highest standards of living in the whole of Africa, the Government must show that it is capable of rising above prejudice and playing a role more fitting to an old democracy, encouraging and helping a new country to have a new Government which will have at least a chance of stability, security—above all, a Government which is representative of the majority of the people of Rhodesia.
8.2 p.m.
Lord GLADWYN: My Lords, when I spoke on this vexed question last November, I was rather gloomy, perhaps too gloomy, expressing the view that any successor regimé in Rhodesia, always

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provided it was in command of the army and the police, would decide on its own what part the settlers would play in the future, and that if it were not in such command it would very probably not be accepted by the powerful forces now operating both inside and outside the country. No terms agreeed in advance, I thought, were in any case likely to last for very long, and when the transfer of authority did take place, as it must one day, there would quite likely be a struggle for power and we should be lucky if a civil war were averted.
I also said that we on these Benches believed that the Government were doing what they could and that all our sympathies must be with them in a terribly difficult and quite possibly hopeless task. These are all sentiments which my friends and I see little reason to repudiate today. I agreed with a great deal of what the noble Lord, Lord George-Brown, so eloquently said, although I should not like altogether to associate myself with his general criticism of the Foreign Secretary's policy, because I believe that the Foreign Secretary has been doing what he could, where he could and in whatever forum he could. I think it is even quite possible that indirectly his long struggles—now, it seems, fruitless—with the representatives of the Patriotic Front may have even produced a situation which is now more hopeful as regards some kind of settlement which seems to be emerging in Salisbury.
Since last November, of course, a more hopeful development has taken place in the shape of the parallel negotiations of which we now hear so much. My impression, though it is only an impression, is that the Government would if not welcome, at any rate accept, any resulting agreement, even before a cease-fire, provided it could be shown to be in broad conformity with, if not all the Six Principles, perhaps five of them, and even if no actual provision were made for a British presence but perhaps only for a United Nations presence of some kind—not necessarily a force but a United Nations presence—during any transitional period preceding elections on the basis of "one man, one vote" already accepted by Mr. Smith. If I am wrong on this, as I well may be, no doubt the noble Lord who is to reply will correct me.
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Unhappily, but perhaps not unexpectedly, these general suggestions appear to have been stalled by Bishop Muzorewa's insistence on a smaller white representation in the proposed new legislature—a minority presumably incapable of blocking any constitutional alteration in the future and, more importantly, perhaps, on at least some participation of the forces of the Popular Front in any new defence force that would, as we all admit, have to be constituted before the elections to any such legislature can take place: some small element, perhaps, of the guerrilla troops which would not necessarily play a decisive part in any defence force that might be organised.
I imagine that insistence on such conditions as these by the bishop is due to his belief that their acceptance by Mr. Smith might possibly disrupt the Patriotic Front and even result in the return to Salisbury of one or more of its leaders. That may well be his objective. I believe that the majority of your Lordships would feel that if that were to be the result of the Salisbury talks it would, and should, be generally welcomed, even though, as I said last November, the future of the small white community could not even then be absolutely guaranteed except perhaps for a few years, though it would undoubtedly give them a desirable breathing space. No doubt it is towards that end that Mr. Smith is now directing his not inconsiderable talents. But what seems to be an ineluctable if distressing fact is that if the bishop does not succeed in inducing Mr. Smith to agree to his proposals, or to something like them, what is called the armed struggle of the Patriotic Front will continue.
If so, what policy can now best be pursued? I should have thought that if the Anglo-American talks with the Patriotic Front are indeed dead, as the noble Lord, Lord Carrington, suggested on 2nd February—I do not say that they are—as a result of the Front's complete intransigence and its demands to take over completely from Mr. Smith prior to any transfer of power, we should still do our best to get them to contemplate some constitutional proposals on the general lines of those now proposed by the bishop, and even to return to Salisbury, if by any chance his proposals should be accepted by Mr. Smith. That should be

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our objective in any negotiations we may still have with the representatives of the Patriotic Front. Equally, though we may have little influence in Salisbury—though I gather from what was said by the noble Lord, Lord George-Brown, that we have people there who can still make representations to the régime—it would surely be our duty to tell Mr. Smith that unless he agrees on a new Constitution with the local black leaders, including the bishop, who represents a very large proportion of the population of Rhodesia, he has really had it.
The war, in those circumstances, will go on, and after another year or two the position of the whites will, to all intents and purposes, be hopeless. One has only to imagine the possible intervention of modern fighters and even tanks, operating from one or more of the bordering countries, to realise that the prospect of some extremist or Marxist régime being imposed by force is very real: some might even say it is inevitable. Would not the Government think, therefore, that short of some proposal for partitioning Rhodesia on tribal lines, as suggested by the noble Lord, Lord Alport, last November, the sort of tactics I have suggested represent now about the only line they can hopefully pursue? I say "hopefully" because, bleak though the prospects now seem to be, we must never lose heart.
Even if the Patriotic Front remains completely obdurate, is it not still possible that some of the so-called front-line Presidents, notably President Kaunda, might see some advantage in what one might call the "revised Muzorewa proposals" and that President Kaunda might himself be prepared to recommend them to his guest, Mr. Joshua Nkomo? After all, if he did care to exercise a little pressure on Nkomo he has the means of doing so, owing to his present tolerance of a considerable Matabele army in Zambia. I shall be interested to know how the noble Lord who is to reply to the Question of the noble Lord, Lord George-Brown, would react to this general line of thought.
Finally, in the absence of real progress in Salisbury, there is of course one other alternative which I hesitate to mention, but I think it would appeal to some citizens in this country. That is, to admit
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that all attempts on the part of ourselves and the Americans to achieve a peaceful settlement are now useless, and that all we can do is to leave Mr. Smith and his friends to their, no doubt, rather unpleasant fate—and if we do not look out, I think that a great many people will increasingly come to share that, as I think, unfortunate point of view—making it clear at the same time, as I suggested last November, that we should be prepared to receive at least some of the settlers in this country, as, after all, General de Gaulle received many more pieds noirs into France when it became clear that they had no future in Algeria. Even if we and the Americans do not adopt this policy of despair, it looks as if it might, in the long run, he forced upon us by events.
Many of your Lordships would, of course, instinctively react—I should myself—against, so to speak, washing our hands of the whole affair; others may want us to lift sanctions at once and back up Mr. Smith, whatever he may choose to do. It is difficult, however, to see what positive action either school of thought would, in practice, expect the Government to take, other than that which I have suggested, that could conceivably result in the peaceful emergence of a new State of Zimbabwe, which would have the slightest prospect of obtaining international recognition.
I am afraid that the debate this evening—it is in no way the fault of the noble Lord, Lord George-Brown: very much the contrary—is taking place at the wrong moment, since, clearly, we must await the final result of the Salisbury talks before coming to any conclusion about what to do next; and of course the Government are in the same position as we are. But perhaps it will at least do something—I hope that it will—to clear the air and, as the noble Lord, Lord George-Brown, said, define the basic issues which will, I am afraid, become plainer and plainer as time goes on.
8.13 p.m.
Lord PARRY: My Lords, the news from Salisbury is not good. I think it is clearly understood that there are great difficulties there in the internal talks which are proceeding and, while no one in this House would take any pleasure whatsoever in that fact, it is something which

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we must bear in mind in this debate. I have listened as has this House and as well we might, with close and detailed attention to the words of the three earlier speakers in the debate. We shall do the same to those who follow. By the time this debate is over, we shall have heard from former Foreign Secretaries, from a former Prime Minister and from former diplomats of great repute. They have asked for assurances and have raised questions for which they seek answers from the Government. Yet, as I have listened with care and noted in detail the questions, I have discovered that no question has yet been asked in this debate which has not already been answered. As I looked through the reports of debates which I studied before coming here, I found that every question raised in this debate had been answered before on the pages of Hansard in this place or in another. I may take this:
"The acceptance of one man, one vote was an important change in Mr. Smith's position, and one of the central demands in the Anglo-United States' initiative".—[Official Report, Commons, 2/2/78; col. 705.]
That was a statement by our young Foreign Secretary on 2nd February in another place. It is a direct acceptance of the question that arises in the minds of those who are informed, as of those who are uninformed, about the complexities of a war which is going on in a former colonial territory—in the sad and saddening country of Rhodesia. We are not talking abstractly about conditions that we can affect by measured phrases in this House. We are talking about a war, a civil war, which is taking place; where some men are struggling to bring peace; some, perhaps too late, are coming to conclusions that, as has already been said, they should have come to 10 years ago. Yet we are debating the situation and we are all, each in his or her way, trying to help from this House at this hour of the night.
The Foreign Secretary, speaking in another place in the same debate, took up the point of the Patriotic Front agreeing to stop fighting. He said:
"It is a fact that while two armies are fighting each other we do need both sides to agree to a cease-fire. The question of achieving a cease-fire between the two armies, neither of whom has won or lost the battle, is extremely difficult".
No-one would deny that. If there is a
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war going on, a ceasefire has to be achieved. We have part of the responsibility for achieving it. I happen to believe that the Foreign Secretary, as, indeed, has our own Minister of State, who needs no help from me in replying to the debate, has given constant reassurance. We are able to reassure ourselves and reassure this House and, through this House, the nation that the Foreign and Commonwealth Office and its major Ministers of State have acted with total responsibility to this country in the discharge of their duty.
There is another point which I should like to make from the debate in the other place. I quote:
"The right honourable Member asked whether I urged the Patriotic Front to talk to other nationalist leaders. The answer is "Yes, I have done so continuously and consistently". It is the division of opinion within the nationalist leadership that is one of the most serious problems in Rhodesia, and it is one reason why it has always been very difficult to achieve a solution".
I feel, as do other Members of this House, nothing but respect and affection for those Members who have taken part and particularly for those who inspired my own youth in politics for the great service that they have given to the cause of peace, freedom and democracy in this country. I believe that one of the saddest, one of the most painful and, at the same time one of the most human and intelligent remarks that I have ever heard, I heard one night following a General Election when the initiator of this debate, whom I thank, said "Democracy has democked" accepting that there comes a moment in democracy when those who have long been chosen to speak for the people are denied, by the people, the opportunity, to speak again, in that role. We are dealing with problems of democracy in this debate tonight and one of the difficulties about being an ex-Foreign Minister or an ex-Prime Minister or an ex-Minister in a former Government is that, like ex-generals, there is always a tendency to think of the next stage of the diplomatic war, the next move in terms of the strategies of the old.
I do not say this in any disrespectful sense. I accept the way in which the mover of this debate, bluntly and courageously, put the points that he had to put, and I do so with equal vigour in exchange. I say that one of the difficulties, after democracy has "democked", is that the diplomats, the former Foreign Secretary and even

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the former Prime Minister are also debagged and debriefed and, like any other one of us, come naked into this conference chamber. Not having the information, not—and, rightly, within our democracy—being privy to all those details which are available to those who continue in office and who carry the mandate of the people, they have, more than us, both a double responsibility and a double challenge. That is all that I want to say on that point.
It is customary in our debates, and it is a good custom, to say, "I agree with the former speaker here, and I agree with him there". The former speakers in this debate will accept that there are issues on which I agree with them. They will not want me to be hypocritical, because there are some on which I disagree. For example, a major point in a major speech, which will be read with concern and interest not only in this country but throughout the world and which was made at the beginning of this debate, was that the Government "elevate the Patriotic Front". I do not agree with that.
Secondly, I do not agree that we elevate the front-line States. I do not agree that "everybody is elevated by the Government except the Rhodesians". Finally, I reject the assertion that we have elevated force. I reject it as being unworthy of the rest of the speech. There is nobody on this side of the House, nor, I suspect, on the Cross Benches, nor, indeed, on the opposite side of the House, who would say that this Government have elevated force or have failed at any time to challenge force where it has been used as an argument in international affairs. Let us discount that argument and say that we consider force to be at all times damaging both to those who use it and to those upon whom it is used. Therefore, I speak in this debate as one who feels as deeply as any Minister in high power, but as one who has never held office because democracy for me "democked" at an earlier stage. I find myself in this House as a conspicuous failure—
Lord PEART: My Lords, never!
Lord PARRY: —but nevertheless as one who is committed, as I have always been, to the principles of democracy. I am grateful to my noble leader for giving
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me such encouragement in the middle of this serious debate.
One point needs to be taken up and answered seriously. It relates to Watergate and the trauma of Vietnam. Anybody who has been in America, as I have been several times recently, and who has walked through the graveyards in the provincial villages and the great cities and seen the flags—the Betsy Ross and the Old Glory—flying over the graves of the soldiers who were squandered in Vietnam will understand that it was a national trauma and that Watergate was something from which even a great democracy does not easily readily recover. It would be a shame if it went out from this House tonight that, because of the tragedy of Vietnam and the iniquities of Watergate, the American people should be discouraged, even for five minutes, from trying to bring their massive power and authority to bear upon the great problems which we share. They know that these are not national but international and supranational problems. It is for this House to welcome the presence, at the side of our young Secretary of State, of the Secretary of State of the United States and of their representative at the United Nations. In a particular and peculiar sense, that man not simply shares the spiritual and physical problems of running vast States in a post-colonial period but also shares the problems that accrue to a man who has a different coloured skin. He knows the problems that arise from it.
It was said that nobody wishes to let down the Foreign Secretary. I hope that is true and that it is the co-ordinated will of this House that what the Foreign Secretary is attempting to do should be understood and supported. Relating to the discussions that he held recently in Malta with the Patriotic Front, the Foreign Secretary very carefully said this:
"The Malta talks, rounded out, completed the pattern of talks involving all parties in Rhodesian-Zimbabwean political life".
This was not a case of singling out the bullies, nor was it a case of singling out the men who are with their troops in the jungle now and who see themselves, however we may see them, as fighting for the freedom of their particular group in their country. It was a case of completing a pattern, and the talks in Malta had that justification and sanction. It was

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a United Kingdom, United States, United Nations initiative, not a matter of a young lad who has got on in the Labour Party, accompanied by a young black from a Southern State who has got on in America, going to exercise their egos in the African frontier States.
This was a case of men representing not simply their nations but the United Nations as well because, as they again said, the United Kingdom, the United States and the United Nations have
"never wavered in their view that the Command 6919 proposals represent the best route to independence and the surest guarantee of peace and stability".
We, as nations—and who am I, a single member of a national State, to speak for nations—
"accept responsibility for bringing the territory to independence".
There should be elections. They should be free and they should be impartial. The United Kingdom, the United States and the United Nations' initiative—the "Owen-Young policy" and actions—are not preventing a settlement. They are designed and carried through with energy in order to bring it about.
I shall not enter into the complexities of the Russian dimension or into the fact that when there are fish in a pool everybody takes his rod to its edge. Nor shall I go into what the noble Baroness Lady Elles said. She asked for a Government assurance that their position had not changed. We had the Government's absolute and total assurance in a debate which took place in this House on 12th February when the spokesman who replied from the Government Front Bench said:
"Internal discussions are taking place in Salisbury and my right honourable friend has clearly stated that it is not part of his policy to discourage or to frustrate those in any way. Indeed, he has said that he would welcome the implementation of the Six Principles from whatever source the proposals came, including, of course, Salisbury … If a peaceful, orderly settlement is to be arrived at there must be a cease-fire, and the people who cease firing are those who are firing and that means the Patriotic Front".
There has to be local and internal discussion of the problems. We hope and pray for a local and internal settlement of those problems. But, even if they do succeed, are they not building
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insecurity into the very future pattern of that particular area of Africa, the type of insecurity into which others might well move? There has to be international acceptability of all that we achieve. I say that what we should be asking for tonight is that the Government should continue their efforts, and that, if there are areas where there is confusion, that confusion should be removed, but that we should accept that the Government recognise that no discussions on Rhodesia can take place and be of value if they effectively ignore the context of Continental Africa itself.
Nor can our discussions come to a conclusion if we ignore that what is happening in the whole of the Continent of Africa is complicated by that other great issue of human relationships—namely, the problem of men of different races, creeds and colours rapidly finding an accommodation for each other's differences so that they can live in harmony and peace and save not simply the province of Rhodesia but the world for our children and our children's children.
8.28 p.m.
Lord GARNER: My Lords, I retired from Government service precisely 10 years ago this month. For the last six years of that service, largely spent advising the noble Lord who opened the debate with such powerful eloquence this evening, my career was frustrated by one single problem, that of Rhodesia, because of the intractable nature of the internal problem and because of the repercussions outside, particularly in the Commonwealth where such strong emotions were felt. Both of those problems are still with us today. After 16 years nobody would dare to be optimistic, and I certainly do not wish to add to the difficulties of so complex a situation by any questions that I may put to the Minister this evening.
As the noble Lord, Lord George-Brown, has made abundantly clear, there is anxiety, but equally, as the noble Lord, Lord Gladwyn, showed, today there is light as well as dark on the scene. Much has happened in the last year, and I am not sure that during this debate the Foreign and Commonwealth Secretary has received all the credit to which he is entitled for the astonishing change which has come over the scene. Taking advantage of the opening admittedly made by Dr.

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Kissinger, the Foreign and Commonwealth Secretary has kept the situation moving, and to my mind this is a most welcome change after the period of stagnation and frustration which we have endured for so very long. All the parties involved in the dispute seem to me to have moved, and some of them a very long way.
The British Government certainly have. I thought that their proposals last September were original and imaginative, but I think I part company a little with the noble Lord, Lord George-Brown, here, because I do not interpret those proposals as a rigid scheme in any sense. It seems to me that they were designed as a practical way of trying to put into effect the basis of the Six Principles. Here I ought to interpose that I think the Six Principles are now a little out of date, because once you assume that there is a majority Government, then some of the earlier principles fall by the wayside. I thought that the proposals were certainly a startling innovation. I thought it required great courage on the British Government's part to say that they would be willing to shoulder the burden of responsibility for administration in a territory which for its nearly 90 years of existence the British Government have never administered themselves. I thought it showed great insight to appoint a man of the eminence of the noble Lord, Lord Carver, to act as the deputy Resident Commissioner.
However, many others have moved too; the United States very powerfully in support; the United Nations to some extent; Mr. Smith above all. There indeed is a dramatic change, and it is a key point in the current discussions that he has been willing to accept at least the principle of majority rule, although admittedly he is trying, as has always been his wont, to tight a rearguard battle for certain provisions in the transition stage. Tragically, in a way, the only people who have not moved as far as one would have liked them to are the various groupings among the nationalists, because you still have the division; although in their own way each has moved, the nationalist parties in Rhodesia by being willing to have negotiations with the régime, the Patriotic Front at least to the extent, in the recent discussions as I understand it, of being willing to accept at least a degree of British responsibility during the transition
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period. So there has been a dramatic change in the situation.
But I must confess—here I agree with some of the things said in the opening speech—these advantages have been gained at a certain price, and the price is that the impression has certainly been given that the Government are more willing to listen to the terrorists than to others in Rhodesia. Indeed, it has been argued—it was suggested even this evening—that the Government's contacts with the Patriotic Front prejudice the success of any internal talks in Salisbury. I think I would take the contrary view to that. I think to a large extent the Government's behaviour has probably acted as a spur, as a stimulus to Mr. Smith—who is often in need of a stimulus, may I add—to hurry up with seeing whether he cannot reach a reasonable settlement internally.
I think one can see, to some extent, how this impression has been created. In the first place, obviously any parleying with terrorists is unpalatable. In the second place, it appeared that the conference in Malta was rather a dramatic affair. The Minister will correct me if I am wrong, but I think perhaps this was really an erroneous impression. The reason for the conference in Malta was that the Foreign Secretary had been able to talk to all the other parties, either on the spot in Rhodesia or in Africa or in London, but no other arrangement could be made for talking to these particular people.
Thirdly—and Lord George-Brown touched on this in some of his remarks—I think it is the case that some of the more extreme extravagant remarks made, particularly, if I may say so, by American spokesmen, have given this impression of appeasing the terrorists. But no doubt the Minister will tell us more. However unfair that impression is, the fact is that it is there and it seems to me serious from two points of view: first, in this country, because, although I know there have been great strains and stresses, we have had remarkable success hitherto in what is an extremely difficult problem for the British people as a whole, in achieving broad agreement between the political Parties. If that were to break down, it would be a tragedy, to my mind, in itself, but it would be a further tragedy because of its effect in Rhodesia itself. It is to that I should now like to turn.

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It seems to me not impossible—I would not rate it too highly, but it is not impossible—that in the future it would be conceivable to reach some settlement that assured a reasonable future for all races. But two elements, in my view, could upset that. The first clement is the black extremists, and I myself would share the Foreign Secretary's view that there is really no future for Zimbabwe if the terrorists are determined to carry on the struggle. Of course, one cannot overlook that there are dangerous influences at work who for their own reasons would be willing to support them in doing so. The other element that could make infructuous any settlement is the European element in Rhodesia itself. I have no doubt that many whites will want to go when there is a complete change in the political set-up, and no doubt some of them should be encouraged to do so. But a Zimbabwe without any expertise at all from the European element, in banking, commerce, administration and so on, is really a recipe for disaster. It would be most unfortunate if the minority group in Rhodesia felt in any way that they were being left in the lurch or ignored and were ready to leave what they would regard as the sinking ship when a final settlement came.
There is a further general point I would make. Lord George-Brown touched on the international dimensions of all this. I think I agree with most of what he said, but I think we must bear in mind that we should not pay undue attention to everything that is said by all those concerned. The United Nations, for example, we know perfectly well does adopt double standards, particularly in matters that affect racialism or colonialism. The Front-Line Presidents, admirable men as they are, are subject to very severe political pressures from the OAU and elsewhere, and it is difficult for them to take a moderating line. The United States, for reasons which have already been mentioned, while their support is absolutely vital to us, do have rather different angles. I think there have been some examples of this in the Rhodesian problem itself. We all know they do have an angle on the situation with which we would not totally agree. Therefore, I do say that, while we want all the support we can get, we must act, if necessary, on our own, and should not be unduly
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swayed by advice from outside. In the end it is a British problem. It is a British responsibility; and the day will come, I hope, when this House will be asked—and it is only this House that can do it—to confer legality on whatever régime emerges in the territory and to accord the final act of independence.
The way ahead is not clear, and no one could in present circumstances be optimistic, but for my part I really see no alternative to the Government pursuing, with all the imagination and flexibility that they can, the proposals in the White Paper, and trying to achieve a peaceful solution by negotiation that will stick. It is very important that the arrangement should stick. I hope that today's debate may serve both as an encouragement to the Government to carry on and persevere with those efforts, and also perhaps as a slight warning that if they are to succeed they must carry conviction that they are ready to pay equal attention to the requirements of all the parties involved, including the European minority and the various groups so painfully seeking a negotiated settlement in Salisbury at this time. My understanding is that that is the Government's position, but doubt has been expressed about it not only in this House, but outside. I hope that the Minister will be able to give us a resounding and comforting reply.
8.41 p.m.
Lord HOME of the HIRSEL: My Lords, no one knows better than the noble Lord, Lord George-Brown, the difficulty of timing debates on sensitive international issues. The day is never right, and now it seems that the time of day is never right. However, I am glad that he took the risk, if only because it seems that there may be a prospect that the theme of all the speeches this evening from the Benches on both sides of the House, may be a desire to help the negotiating parties in Salisbury to come to a Rhodesian settlement.
After "Tiger" and "Fearless", which were rejected by the Europeans, and after the provisional settlement which I made with Mr. Smith in 1971, which was rejected by the Africans, I concluded that the only settlement which had a reasonable chance of acceptance and a reasonable chance, as the noble Lord, Lord Garner, has put it, of sticking, was one contrived by Rhode

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sians for Rhodesians in Rhodesia. Therefore, with some reluctance—because although the British power has diminished we still have something to offer in the art of political compromise—I concluded that a cut-and-dried plan which had its origins outside Rhodesia, whether that plan was inspired by the front line Presidents, by Dr. Kissinger or by the British Government, certainly could not be imposed and in all probability would not find favour either with the Europeans or the Africans in Rhodesia.
It is necessary to remember that the Rhodesians who stayed at home and have borne the heat of the day have not only seen some of their countrymen ally themselves with guerrilla forces sponsored by the Soviet Union and supported by Cuban mercenaries, but seen some of the African countries and some members of the Commonwealth hold out to them no hope of anything but fighting and no hope of anything really but perpetual civil war. They are therefore hypersensitive on the question and subject of any intervention from outside. They are terrified—of this I am quite sure—that the British Government may seek to appease those kinds of people who had offered them nothing but war, and therefore those Africans and Europeans now want to keep the control of events in their own hands. I believe that they will accept advice, but they will not accept orders.
The motive of the British Government is, I am sure, well-intentioned. But if it is their purpose, as I believe it is, to relaunch a British plan including, for example, during the period of interregnum between European and African rule, a resident Commission, a United Nations force, and a reconstruction of the armed forces within six months, I trust that it will not be presented as an Anglo-American plan on a "take it or leave it" basis. That, I think, is what the noble Lord, Lord George-Brown, said in rather stronger terms; and, to use his own words, this must not be a plan which is competitive with the designs that may be being worked out by the Rhodesians themselves, but rather—if one calls it and dignifies it with the name of a plan at all—it should be used as a way to discover how the British Government's ideas can help to complement and complete the tentative pattern for settlement being negotiated by the Rhodesian leaders in Rhodesia.
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I am bound to say that my strong preference would be for the continuation of quiet diplomacy with the stated goal of achieving a settlement which the Rhodesians can claim that they thought of themselves. In a sentence, that is almost the whole art of diplomacy. However, I would repeat the question posed by the noble Lord, Lord George-Brown. There has been no collusion between us but, for various reasons, I have arrived at the same kind of anxiety as he expressed, and therefore I hope that we can have this anxiety removed by the noble Lord, Lord Goronwy-Roberts. Are the Government seeking to help Mr. Smith, Bishop Muzorewa, Mr. Chirau and Doctor Sithole to arrive at a settlement? Will they not themselves be inhibited by the need to please the front line Presidents or anybody else? In other words, if the settlement comes, and it has merit and is within the Five Principles—although I agree with the noble Lord, Lord Garner, that some of them have now been diluted or disappeared—will the Government give that settlement their support and use it as a basis for independence for Rhodesia?
What is the real status of Britain in this affair, acknowledging that we have, of course, lost a lot of power? First, we must give advice stemming from our knowledge of the checks and balances involved in majority rule and minority rights. We have had great experience of this kind of exercise. But, more tangible—here I qualify in my own mind something said by the noble Lord, Lord George-Brown—is Britain's ability to place Rhodesia's independence on a basis of law. The noble Lord, Lord Garner, is quite right in saying that only the British Parliament can do that, and their decision will not be affected by the United Nations or by anybody else. It is the British Government's right to give this independence; and I do not discount this as a formality, because I believe that, despite the last 10 years, inside Rhodesia there is a strong desire among European and Africans to resume what I might call a productive contact with Britain. If that is there in Rhodesia, that feeling is certainly reciprocated here.
Legal independence is, I believe, an incentive to agree. I assume that Mr. Smith, having conceded majority rule, would like a rapid settlement. The

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indications of the kind of mechanism which he seems to be willing to accept for the protection of the European minority in Parliament point, I think, to the conclusion that the tactics of which the noble Lord, Lord Garner, hinted, "waiting for something better to turn up", are clearly over. In such circumstances, I think that it is permissible, now the great prize for the Africans, of majority rule, has been won, to suggest that the Africans can afford to be generous and can compromise on the number of seats for Europeans in the Parliament and the progress towards a common role. I do not know, and nobody but the Rhodesians can settle this, but the transfer to the latter in two Parliaments would seem to be reasonable against the prospect of a common role in perpetuity and majority rule in perpetuity too. As I say, no one can settle this except the Rhodesians, but there is a very real sense in which the future of Rhodesia hangs, not on cold statistics of this sort, but on racial co-operation, understanding and goodwill.
There is one area in which the concern and the interest of Rhodesian Africans, Rhodesian Europeans and the British coincide; it is in the physical security of the new State of Zimbabwe. If Rhodesia is to survive, its armed forces must have a tradition of loyalty to the State, approved discipline in the field, professional leadership and a high degree of skill in the use of modern weapons. I hope that that is understood. I expect that Mr. Smith understands it: he fought in a European war. But I wonder whether the African leaders understand it; they have had no war until now. But unless it is understood what ingredients the Rhodesian forces must contain, then the Rhodesians will be sent reeling by the impact of Russian power and Cuban mercenaries—of that there can be no doubt at all. There would then be no Smith, no Muzorewa, no multi-racial society, and the call of "freedom for Zimbabwe" would simply be a mocking cry.
The noble Lord, Lord George-Brown, spoke of the grand design of the Soviet Union. The noble Lord, Lord Goronwy-Roberts, knows that I have been critical of the inertia of the Western allies for failing to halt Cuban intervention in Angola. I cannot understand now why the allies are not taking the Soviet Union
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to the Security Council on a charge of action leading to a breach of the peace. Veto is neither here nor there. I should like to see our Foreign Secretary get up in the Security Council and expose to the world—and especially to the Third World—the most cynical and cruel use of power that many of us have seen for a long time. The point is that the appetite grows with eating, and it is as certain as I am standing here that from Angola the Russians have graduated to a strategic position in which they can obtain control of the Red Sea and some control of the oil routes from the Gulf; nothing is more certain than that they will move South.
Therefore, I pray that this debate will help the Rhodesians to settle their own political affairs; that they will recognise the urgency of the situation and that within a reasonable time we, in this House, shall be able to endorse a settlement which is within the Five Principles, or such of them as remain, and which will place independence on a legal basis—a basis which the House of Commons can unanimously support and to which it can give its backing.
Lord STONE: My Lords, before the noble Lord sits down perhaps I could ask him one small question. When, towards the end of his remarks, he referred to the Rhodesians, did he mean the white Rhodesians, the black Rhodesians or both?
Lord HOME of THE HIRSEL: My Lords, I hope that I have been talking all the time in the context of the African Rhodesians and the European Rhodesians jointly taking those decisions.
8.53 p.m.
Baroness GAITSKELL: My Lords, it is a privilege to follow the noble Lord, Lord Home of the Hirsel, and I was particularly interested in what he had to say. I find myself in complete agreement with the remarks made by the noble Lord, Lord Garner, and those made by my noble friend Lord Parry. We can all be grateful to the noble Lord, Lord George-Brown, for initiating this debate because it is important to know and understand everything about the Anglo-American endeavours for a settlement in Rhodesia, and to understand the position in Rhodesia itself.

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I am not quite sure about the rather snide word used by the noble Lord, Lord George-Brown, when he asked what the Government's "attitude" was towards Rhodesia. He spoke of a great deal of confusion. I believe that he is a little confused himself. The Foreign Secretary, Dr. David Owen, was under attack in the other place on 8th February last when answering Questions put by the Opposition, but the superior tone affected by the speakers was not enhanced by their ignorance about the Malta talks. Although the noble Lord, Lord Garner, did not actually name the Malta talks, I believe that he was referring to the results achieved at the Malta talks.
Personally, I like the style of our Foreign Secretary. His replies in the other place were frank, forthright and factual. I wonder how many people have a clear idea of the political tapestry that makes up Rhodesia—the different Parties and what they stand for. I think precious few. So today I should like to send a Valentine to a member of the Press—namely, Colin Legum of the Sunday Observer. In last week's issue of the Sunday Observer he set out the results of the Malta talks, and he was the only member of the Press who did so. The noble Lord, Lord George-Brown, referred to the Press but it was obvious that the noble Lord has not read Colin Legum's article. Colin Legum is an expert on African affairs.
Baroness ELLES: My Lords, perhaps the noble Baroness will allow me to interrupt her. I believe that this is one of the criticisms that we had and it relates to the remarks that the noble Baroness made about the Opposition in another place. The fact of the matter is that we had to read about the Malta talks in an article in the Observer which was extremely well written by Colin Legum. It would have been better if the Minister himself had given us the results of the talks in Parliament.
Baroness GAITSKELL: My Lords, with great respect to the noble Baroness, the talks were secret, but Colin Legum had a healthy disregard for diplomatic secrecy and wrote about the results. I applaud him. The Press are really our everyday communicators and researchers on the complex problems of Rhodesia in
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the long aftermath of decolonisation, which results in responsibility without power. As I say, the most lucid and comprehensive account on Rhodesia that I have read in the last few days has been an article by Colin Legum—an absolute expert on African affairs. In his article after the Malta talks there was no requiem for dead negotiations or a moaning about a drift into war. He analysed and assessed the outcome of the talks frankly, stating the hopes and strong difficulties that still remain before a peaceful settlement can be brought about.
We all know that terrible atrocities are being committed all over the world, and that includes ugly deeds in Rhodesia. But if we use the words "Marxism" and "guerrillas" only as expletives, how can we explain that they have gone so far in the battle of equal rights between black and white people in Rhodesia? The peevish pessimism about the Malta talks is a feeble weapon; it is realism that ultimately wins the day. That is why I have been impressed by this analysis of the possible outcome of the Malta talks.
I shall touch very briefly on a few of the points which give some hope for the future. First, the gap between the Patriotic Front lead by Mr. Nkomo and Mr. Mugabe is still very wide, but not so great as it was before the talks. Second, that all the parties are thus committed to free elections towards an independent Zimbabwe. Third, it came out of the Malta talks that the Patriotic Front is not ideologically committed to armed struggle to achieve its ends. Fourth, the central issue is how to arrange the transition period. Here lie most of the greater difficulties. The Patriotic Front—and I think that this is very important—has accepted a period of colonial rule under a British High Commissioner, Field-Marshal Lord Carver, during the interim period, and the Patriotic Front has agreed to a UN rôle. This is a terrific change for the transition period.
My Lords, many differences of view remain. One cannot blame the Patriotic Front for claiming that its armed struggle was the only reason why Mr. Smith agreed to the internal settlement talks—nor can one blame it for being rather difficult at the moment, because it wants a dominating position during the transition period. The Anglo-Americans are totally opposed to the Patriotic Front's guerrillas being the

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only force in the security forces. That too seems to me to be a very great advance.
One more point only I wish to mention, and I think it most important. Dr. Owen and Ambassador Andrew Young agreed at Malta to change their present attitude about Lord Carver's role so that he would not have dictatorial powers but would be assisted by an advisory govering council composed of all the people who are involved—Lord Carver, a UN representative, Mr. Smith's Rhodesian Front, Bishop Muzorewa's UANC, Mr. Nkomo, Mr. Sithole, and even Mr. Mugabe. These are some of the proposals emerging from the Malta talks, and I think they are profoundly important and hold out a good deal of hope.
Finally, my Lords, though I have shamelessly stolen and agreed with the analysis and arguments in the Observer article. I myself have known from my experience in the UN that groups like the Patriotic Front comprised of freedom fighters, guerrillas—call them what you will—cannot be left out of any settlement or agreement that is meaningful or strong enough to endure.
9.3 p.m.
Lord HANKEY: My Lords, I am not an admirer of the way our policy in Rhodesia has worked out in practice in the past. If anyone had known that sanctions would prove so ineffective and go on so long, we should never have voted for them. I think that that is very regrettable. But I have not come here to make carping criticisms; I really want to make a positive contribution to the situation we have now, as many other speakers have done before me.
First, the situation has been very much changed by Mr. Smith starting these internal negotiations and accepting the principle of one man, one vote. I am coming to admire the courage, initiative and resource of Mr. Smith in doing this and in opening negotiations with the leaders of the main Parties in Rhodesia. A considerable number of our own countrymen here are beginning to feel the same because they have begun to take account of the real change in the situation. I suggest that this is something that a go-ahead and practical diplomacy on our part really ought to take account of.
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The whole object of our policy has been to produce a one man, one vote situation in Rhodesia, and Mr. Smith is now trying to achieve exactly this. It would be quixotic and quite absurd for us to make things more difficult for him. We ought certainly, as the noble Lord, Lord George-Brown, implied, to do the opposite to the best of our ability. This means that Ministers and Members of both Houses of Parliament, and also the media, must be prepared to move with the times and not keep on the old lines of carping criticism regardless of this new trend. Let us hear less talk of rebels for one thing. I think it always was pretty inappropriate in the case of Rhodesia.
It is vital that we should take no action which could possibly wreck the internal negotiations. These are our countrymen in Rhodesia. Their country will be no good without them. If things go seriously wrong, they are all going to be pushed out penniless from the land which they have developed and enriched, and a great many are liable to be murdered along with the Africans who have worked with them. I think Her Majesty's Government would be quite powerless to stop it. We cannot even properly control Northern Ireland on our own doorstep.
I hope that the Government will recognise that this would not—and I repeat, not—be a successful or creditable outcome of British policy over the last decade, even if some sort of nominal Zimbabwe eventuates from it. Indeed, I really think there would be a great revulsion of feeling here, and that abroad the United Kingdom would be brought into considerable discredit among the allies it has pressed, with such dubious success, to apply economic sanctions.
On every ground we must want these internal negotiations to succeed, and even when they succeed we really must try to stop the sanctions which have fatally damaged our trade and benefited that of France, Germany, Japan and others. I believe, but I admit I have no statistical proof, that sanctions have almost certainly harmed the African population more than the white population in Rhodesia, as the Africans have been deprived of a great deal of education and perhaps of some employment which they might otherwise have enjoyed. I therefore urge that we should all now adopt not a change of

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policy—I believe it is too late for that—but a new open-minded attitude about the internal negotiations and even about the continuing necessity for sanctions. What I advocate is a really new emphasis and one that moves with the rapidly changing times.
That brings me to Messrs. Nkomo and Mugabe. I have not had the advantage of meeting them, as some noble Lords have, and I am glad that our energetic and enterprising Secretary of State has been able to do so. Speaking with that reservation, but on the basis of a close study of Press and television programmes, I cannot share Mr. Andrew Young's sympathetic view of them. I think, rightly or wrongly, I hope wrongly, that they really have committed themselves to the Communist Powers who finance and arm their forces. It may well be that they can at present reasonably hope to bring down any Government in Salisbury resulting from an internal settlement, and I quite understand the Government's argument on that; but that is the case partly because hitherto the Government in Salisbury have been on the wrong leg with the outside world and with a considerable part at least of their own African population. If that position were altered by an internal settlement and by the dropping of sanctions, might not the security situation be altered? At least I think that would merit further careful consideration.
I have another reason for being chary about Messrs. Nkomo and Mugabe. The Communists aim everywhere to remove and supplant Anglo-Saxon and Western European influence. They have done so in one country after another; this is not really a matter of controversy. In my view, we have made it much too easy for them by making agreements which they proceed to disregard. I am thinking of Yalta, of Poland, a most distressing and shocking case if ever there was one. I am thinking of Hungary, where I likewise lived through a Communist revolution. I am thinking of Vietnam, where we and the Russians together fathered at Geneva a partition-type settlement which the Communists, with Soviet help, flagrantly disregarded.
The conditions in Aden, Ethiopia, Maputo, Angola and in other countries do not lead me to believe that we can
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reasonably press Mr. Smith or Bishop Muzorewa to let Messrs. Nkomo and Mugabe join the new régime with their guerrillas, unless perhaps they get a lot of support at the polls; that might put a new aspect on it. I feel that, at best, it would be another Yalta, another Geneva Agreement; we should see our friends sold down the river and we should fatally undermine the very democracy we hope to see established in Rhodesia. At worst, all the opposing leaders and many other people would be murdered or imprisoned without trial, as we have seen in other countries.
These are hard things to say, but it is essential to face facts. One must always try to settle disagreements with the Communists and I myself have tried for years as hard as anyone to do just that; but in my experience the Communists will keep an agreement only if one can make them do so or if it is very strongly in their interests. I do not think that would be the case in Rhodesia, and at any rate, so far as our own powers are concerned, I am sure we should be in no position to compel them.
For that reason, I earnestly hope that we will not accept such a responsibility, certainly not too much responsibility, although I realise that this is a part of the Anglo-American plan, because I do not think we could do so nearly as effectively as Mr. Smith and the others with an internal settlement behind them. And if it all went wrong under our auspices and many of our countrymen and African friends in Rhodesia were murdered or imprisoned, as has happened in Aden and various other places, it would be an undying disgrace for our country. That is another overwhelming reason why we should try to promote and in no way hinder a good internal settlement which should become part of any general settlement which we try to achieve about Rhodesia.
I entirely agree with my noble friend Lord George-Brown that we should not look at Rhodesia in isolation. It is time to recognise that wherever we allow European influence to be weakened and a Power vacuum to be created, the Russians move their pawns in followed by their castles, their knights and other chessboard characters. The Russians are superb chess players. If chaos in Rhodesia

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is followed by chaos in South Africa, will the Soviet Fleet not eventually appear at Simonstown, which we so unwisely got out of, as it has at Aden, in the Red Sea and in the Indian Ocean?
Yet without the oil that comes round the Cape of Good Hope, neither the American nor the Western European economies can be kept going; nor can their Armed Forces be kept in the field or at sea for a long time. Do not forget that oil was Germany's achilles' heel in the last war, and it might very well be the achilles' heel of NATO in the next one. Might the Russians, in certain circumstances, be tempted to say, "Checkmate"? I do not know what else their vast fleets and overseas bases, their enormous army, air force and nuclear capability are intended for unless it is something like this. I made a carefully documented speech about this on 10th November in your Lordships' House.
To conclude, I urge that it is high time to be a great deal more open-minded about the position of the Europeans in Rhodesia and Southern Africa. I am all for human rights. I entirely share the views on human rights of the noble Baroness who has just spoken, but let us not press the point to the degree where those hostile to our vital interests are assisted to take power, especially as the first thing they do when they get power anywhere is to abolish truth, mercy and justice and themselves disregard human rights.
I am very sorry; I am recovering from a serious operation and am under medical orders. I shall not be able to stay until the end of this debate as it has not taken place at the time that everyone expected. I hope your Lordships will not impute it to me as discourtesy. I shall read every word that is said with the closest attention. I offer your Lordships my apologies.
9.16 p.m.
Viscount MASSEREENE and FERRARD: My Lords, I shall stick strictly to five minutes because like the noble Lord, Lord Hankey, I, too, have to make an apology to your Lordships. It is not that I have had an operation, but I had no idea that this debate would last so long and I have to catch a train to the country. So I hope that the noble Lord, Lord Goronwy-
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Roberts, will excuse me; but I shall read carefully everything that he has said. I was extremely interested to hear the speech of the noble Lord, Lord George-Brown, and I agree with everything that he said, particularly regarding the Soviet grand design in Africa. I have spoken about this over many years in your Lordships' House. When I first brought it up I think people thought I was mad; but I can remember speaking in this House about the dangers in the Horn of Africa which would arise one day, and that was about 16 years ago. However, of course that is all beside the point.
If we look at this matter very quickly—and I have spoken on it, I do not know how many times; 50, 60 or 70 times; I spoke in the last debate we had here and in the debate before that—we have only two alternatives. We have the alternative of supporting the internal discussions which are now going on in Rhodesia. Those discussions will, I hope, lead to an agreement, and then, of course, there will have to be a transition period—and the shorter the better—out of which will come a new constitution. We shall have to be very tactful during the transition period. It will be a very delicate matter. I understand that, under the Anglo-American plan, United Nations observers would play a superintending rôle. I think that that would be a mistake. By all means have observers, but I do not think that we want to be—in fact, I do not think we can afford to be—too arrogant and to superintend, which is the role which the Anglo-American proposals would appear to lay down.
What are the risks of accepting an internal agreement? The risks are, of course, that the guerrilla war will go on for a bit longer, but it will gradually peter out, as I said in the last debate. Once there is majority rule in Rhodesia, the war is bound to run down. Russia is bound to block the raising of sanctions, but, in the end, she will have to give way over that. Of course, the other alternative is a solution by force. Up to date, certainly, it would appear that Dr. Owen has rather backed that solution, but, if that was to be the policy of the Foreign Office and were the guerrilla forces of Nkomo and Mugabe, backed by the Soviets and with the connivance of the United Kingdom and the USA, to take over Rhodesia or attempt to take it

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over, there is no knowing where matters would end. It would probably start the most bloody war and it would not be as easy—a walkover with Russian tanks and Cuban troops—as some people may think. Eventually, South Africa would be bound to be drawn in. I think it is fairly common knowledge that South Africa has the atomic bomb, so we do not know where it would end. Her Majesty's Government must shy away from a solution by force. Supposing the guerrillas eventually won, we should never get a stable Government; the guerrillas would have to be destroyed, as has happened throughout history before stable government.
All I have to ask in the very short time available is that Her Majesty's Government should give some encouragement to the negotiations in Salisbury. I think it was the noble Lord, Lord George-Brown, who mentioned that the Government appear to be in conflict, to be favouring one side, the Nkomo and Mugabe side. This should not be a matter of Party politics; it is far too serious. It appals me that Party politics are brought into it. As I think the noble Lord also said, it is a great pity that Her Majesty's Government have not used their influence to get Mr. Nkomo and Mr. Mugabe to join in the negotiations in Salisbury. I do not want to be disrespectful to Mr. Nkomo, but, if you study his career, you must regard him as a considerable opportunist. He appears to have favoured all sides. A short time ago, he was dealing with Lonrho and with Mr. Rowland, and I should think that would hardly have endeared him to the Socialist Party, but, if the Government had put pressure on Mr. Nkomo or had advised him, he would no doubt have joined the negotiations in Salisbury.
I think the fact that many Africans in Rhodesia look around and see what is happening in Mozambique, Zambia and Angola and they say to themselves, "We do not want it to happen here" has been overlooked. Any question of a guerrilla take-over appals the average African. We must also remember that, for a considerable time—certainly over the last decade—the Rhodesian Government have been training Africans to take over the country. They have done a very good job. There are some very highly trained Africans in Rhodesia who would make good Ministers and fill responsible posts.
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In fact there are I believe already one or two African Ministers.
Finally, I should just like to repeat what the noble Lord, Lord George-Brown, said, about a bridgehead. Though we are no longer a colonial power we must try to form bridgeheads, and use the vast experience in colonial matters that we have built up through our former colonies. In fact, Rhodesia never was a colony and we have responsibility only for her foreign affairs and defence. I shall end by asking Her Majesty's Government to show some real support for the efforts in Salisbury to achieve an internal agreement and a settlement. I ask them to put their emphasis on that and to leave aside any personal prejudice regarding Mr. Smith and any of the other members of the government in Salisbury. My Lords, this is far too important; it is a constitutional issue of vast importance. Do forget all the personal prejudices!
9.26 p.m.
The Earl of LYTTON: My Lords, I like following the noble Viscount, Lord Massereene and Ferrard, whether it is in the matter of the spoken or the written word. In fact, as an admirer of his written works, I am now under suspicion in the Library for having purloined his book on the Lords (which is out of print) and not having returned it. I repudiate the charge; but I am getting old and my memory is poor. I may come cap in hand for a spare copy to replace it.
I have taken part in the last two of these debates, and presently I will mention that the only outward evidence of any impact that I had was a letter from an African representing those who claim to represent 75 per cent. of the people of Rhodesia. The impact on him led him to ask for my views—which I gave—and I shall come back presently to say what they were.
I should like to begin by saying that the noble Lord, Lord George-Brown, has robbed me of everything that I could have said. I regard him as the Colossus of the two debates that we have had recently on the subject. All that I wish to do is to underline one or two points. I thought that he made a considerable impact on the Government Front Bench, particularly on the noble Lord the Leader of the House.

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My Lords, it is my function in life to judge people by looking at them and by reading what they say. I read every day what the BBC monitors of all the people with power in the Middle East and Africa, which is my pitch. I no longer wander about very much; but all the things that were quoted by the noble Lord, Lord George-Brown, I have heard before: the Foreign Secretary's remarks in Moscow and the remarks of the noble Lord, Lord Carver, in Maputo. There are others, too: the remarks of Mr. Andrew Young in the United States on the subject of Marxism and the remarks of President Carter on the subject of Mr. Andrew Young. These are the only ways in which, nowadays, as a recluse in the country, I keep in touch with the world. But sometimes people write; and in my reply to the comments of this African who is struggling for an internal agreement, I warmly supported what he had said, that they were anxious for an internal settlement. Everything that he said implied that one imposed by the Anglo-US plan was not to their liking.
Moreover, I have studied Mr. Mugabe's broadcasts from Maputo and those made on his behalf. I have no doubt in giving this advice to the people who are seeking an internal settlement in Rhodesia: Have no truck with Mugabe. In no circumstance dilute your security forces with the terrorists under his command. That will be your ruin. It is you black men who will suffer. You will be on the blacklist, your bodies will be found on the municipal dump. It is not the white men; they will all presently escape and find their way out. It is you black men who are educated who, in a revolutionary Marxist context, will go.
I say it because I have experienced it in the Balkans at the end of the last war. It is a horrifying thing to see the shutters go up and the Marxists come. That is what is going to happen if these people are let in. I dislike the way in which these concessions to force are made. I entirely agree with the expressions used by the noble Lord, Lord George-Brown, on this matter. I felt that he was trying to make out that he was not accusing members of his former Party in this matter, but endeavouring to show that by one circumstance or another they had slid into that position. That is what I think has
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happened. If I can suggest anything of any use, it is that Mr. Andrew Young is a very weak link. He knows nothing of Africa and nothing of Marxism, either. He is extremely tolerant to Marxism for that very reason. He has not seen the bloody thing it is on the ground.
Perhaps I deviate a little from the noble Lord, Lord George-Brown, who knows so much more about the subject than I do. He says he does not count for much in the councils of Washington. But I have heard President Carter commend him in the highest terms. President Carter is an admirable man, our friend and our shield. We cannot afford to be rude to anybody whom he chooses to be his general in the field or his representative.
All I can suggest is that if the Government agree with anything that the noble Lord, Lord George-Brown, has said—and they will agree to it because he said it, not because I did—a joint withdrawal from this rather difficult position of making the Anglo-US agreement an obstacle, or perhaps a lower profile on the part of both the Foreign Secretary and Mr. Andrew Young might be possible. My Lords, I think that the same tone of debate as last time has persisted. Everybody seeks an internal agreement, and it does not seem to be very far away.
9.34 p.m.
The MARQUESS of HEADFORT: My Lords, Rhodesia offers Her Majesty's Government a crucial opportunity to influence the course of events in Africa. Of the various areas of vital important to the West capable of being brought under Communist influence, the Russians now regard Africa as politically the most vulnerable, and minerally and strategically the most valuable. Rhodesia remains a British responsibility as we are frequently reminded, not least in the United Nations. If our discharge of that responsibility appears lamentable, it is in part due to our trying to act without the power that we abandoned at the time of UDI. Instead of conducting affairs from Salisbury, we try to do it from HMS "Tiger", HMS "Fearless" or Malta. The Anglo-American suppository for guerrilla aspirations prescribed by Dr. Own is no cure for an opportunist inflammation of the Rhodesian anatomy. It is no remedy for Rhodesia, for the Russians are on the

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move, stalking jungle and scrub with the Caribbean carabiniers provided by that other medicine man turned politician, Dr. Castro.
What we are seeing is worse than Munich at the time of Hitler. Mr. Callaghan cannot dismiss the Rhodesians as a "far-off people of whom we know nothing", as Mr. Chamberlain dismissed Czechoslovakia in 1938, but his Foreign Secretary is offering "peace in our time". We will appease the Patriotic Front, whose legitimacy has received scant recognition even among black Rhodesians. The man who is holding the pass is Ian Smith, a former Battle of Britain fighter pilot, to whom much is owed by many, of whom too few have the courage openly to say so. Ostracised and blockaded by the world, his enemies encouraged by the Government of the Sovereign to whom he continues to owe allegiance, Ian Smith and his tiny, highly efficient security forces are fighting a war of infiltration on three frontiers as well as in their own backyard.
Undermined by those to whom one might have thought he could have looked for help, Smith is also fighting for time to achieve an internal solution to the immense problem of making a stable transition to majority rule in a community traditionally dominated and brought to prosperity by a numerically far from insignificant minority. If our Foreign Secretary would take his stethoscope to the hearts of the British people, and indeed of the Western nations, he would find them beating overwhelmingly for "Smith".
I referred to the opportunities we have to influence events. Instead of helping the guerrillas to drag him down, Her Majesty's Government should hold out a hand and grant him and his Ministers an amnesty. This would be on the understanding that British rule would be restored in Salisbury. Responsibility for Rhodesia's defence and foreign affairs would be assumed here, pending an internally acceptable restructuring of that internal independence Rhodesia legitimately enjoyed before UDI.
If we can forgive and make up with other rebel leaders with whom we have been faced in the course of our Imperial rule—from President Kenyatta, "the Burning spear of Mau-Mau", to the Irgun

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gunman, Mr. Begin, from Pandit Nehru to Archbishop Makarios—we ought to be able to make it up with Ian Smith, who has never hurt a hair on our heads, though he may have punctured our self-esteem.
The purpose of helping, instead of thwarting, him would be not to prop up an unwanted dictator but to hold the ring while a constitution was established. Once that was working properly we could, on the analogy of our relinquishment of colonial rule elsewhere, finally grant full independence—this time with stability. Those of Mr. Mugabe's and Mr. Nkomo's misled followers who wished to return peaceably to their homes in Rhodesia could, after due screening, do so. The effect of such a reconciliation between London and Salisbury would be far-reaching. We would have allied ourselves with a gallant redoubt against Cubo-Communism, instead of associating ourselves with attempts to reduce it. We would have helped to foster the most successful example of black and white collaboration in the world.
The Salisbury Government has shown it is perfectly possible for a quarter of a million whites to survive and prosper among Africans, even in the teeth of world hostility and without the help of friends on whom it ought to be able to count. The lifting of trade embargoes, and therefore the reinforcement instead of the destruction of this phenomenon, would have beneficial effects beyond Rhodesia's borders. It would be an example and an inspiration to the increasingly Laager-like mentality of the South African Government and so serve to speed up overdue reforms in that country. It could provide a formula for the return to Mozambique and Angola of many of the 100,000 Portuguese civilians now refugees in Portugal who, until ditched by the revolutionary Marxist Government then in power in Lisbon, were making a major economic success of these two countries now miserably impoverished. It could help to extend stability to the shores of Lake Nyasa and help to keep the Russians from dominating three-quarters of East Africa.
By showing that whites and blacks can not only work but live successfully together, more would be done for relations with coloured immigrants in the United Kingdom than the Race Relations Board

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seems capable of. Above all, Southern Africa could thus be helped to become politically and economically viable, instead of appearing, as it does now, a region of doom. It would make that part of the African Continent a place in which it would be enjoyable to live and work. It would be a place with which the British people could identify, and in which they could take pride.
By their steadfastness and resolution, the Salisbury Government and people of Rhodesia have set an example which I hope Her Majesty's Government can bring themselves to recognise. It is impossible to see the policy currently being pursued by them commanding anybody's respect, be they friend or foe. If Ian Smith and the Rhodesian leaders, with whom he is now seeking an internal settlement, succeed, we shall be left having backed the wrong horse. If they fail and Rhodesia is engulfed by guerrillas, we shall have betrayed not another Czechoslovakia which would be bad enough, as it was then, but a quarter of a million of our own flesh and blood. The Russian bear would be the bulgier and the Western Powers the weaker. What I am suggesting would avoid such ignominy, such a disaster. It would raise British standing and fortunes in Africa as nothing else could, and would command overwhelming support in Britain and the West.
9.41 p.m.
Lord GORONWY-ROBERTS: My Lords, on 2nd February, when I repeated a Statement which my right honourable friend the Foreign and Commonwealth Secretary had made in another place, a number of noble Lords responded with expressions of concern about our approach to a Rhodesian settlement, which looked to them as being too rigid. This concern has been apparent in the speeches of noble Lords this afternoon, and eloquently and effectively put forward by my noble friend Lord George-Brown. I wish, therefore, to recall the principles upon which the Anglo-American settlement proposals are based, and to relate these to the present state of our negotiations and discussions with the parties, and of the talks currently in progress in Salisbury.
Our fundamental principle is that independence must involve a genuine transfer
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of power to a Government representing the majority of the people of Rhodesia, following free and fair elections on the basis of universal adult suffrage. These elections should be open to all parties, and be held under conditions which ensure that the outcome truly reflects the will of the majority. Only so can they help to establish the internal legitimacy, the international acceptability and, indeed, as the noble Lord, Lord Home of the Hirsel, reminded us, the legality of the new State in an independent condition.
The Anglo-US proposals incorporate the essence of the Six Principles. I would put it to my noble friend Lord George-Brown that the Six Principles remain firmly the basis of our policy, and that the White Paper and the clarificatory notes to which he referred, and on which I will have a little to say in a moment, are working documents to show how those Six Principles can be put into effect. There is no dichotomy, there is no paradox at all, between the Six Principles variously expressed in a long series of Government statements and documents, and in the White Paper Cmnd. 6919; that is, the Anglo-US proposals. Those proposals seek to marry the principles with reality, as that reality develops.
We heard from the noble Lord, Lord Garner, how there has been a perceptible shift of position in almost every party to these negotiations, and this is true. There has been no shift in principle but there has been a shift in circumstance, and the talks which were held in Malta were the continuation of talks which had been held with other interested parties, as the noble Lord pointed out. They helped to round off what is essential in this situation; namely, talking to everybody so that, in the event, everybody, we hope, will be involved in a durable and equitable solution.
They involve the laying down of an administrative and military framework within which a peaceful transition to majority rule and independence can be achieved. These concrete proposals—covering the transitional period, the independence Constitution and the rôle of the United Nations, to which the noble Baroness referred, including the composition and purpose of what we may call a United Nations-Zimbabwe Force—have been elaborated without departing in the

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slightest from the basic principles, and they have been refined, even since the publication on 1st September of Cmnd. 6919, in the light of our further consultations with the parties and, indeed, with our friends and allies. The principles remain. The negotiations move on. That is a fundamental fact of diplomacy that perhaps more than anybody my noble friend would appreciate.
Her Majesty's Government have been accused also of according too much attention to the claims of the Patriotic Front. The recent meeting at Malta has been held up as evidence supporting this charge, but I hope I have shown that unless those talks had been held in Malta—and there may be others—then the full round of consultations with everybody concerned would have been imperfect. These talks were our first opportunity for serious and detailed discussion with the Patriotic Front and were therefore nothing more and nothing less than a continuation of consultations which were held last year with other parties in Africa. My noble friend Lady Gaitskell brought out this point very clearly when she referred to the Malta talks as having had important and helpful results. This is the position. We did not emerge from that sector of the talks with a ready made agreement, but we did come away from those talks with a firm belief that many points of difference between us and the Patriotic Front had been solved and that a far greater mutual understanding of each other's attitudes had been attained.
As to the rôle of the Patriotic Front in these negotiations, I should like to refer to the very powerful speech of my noble friend Lord Parry who faced this question head on. It is not a fact; it is not true that we have elevated the Patriotic Front over and above any other element or Party in these negotiations. Nor is it a fact, as my noble friend Lord Parry pointed out with telling quotation, that somehow we have been elevating force as a token of respectability and entitlement in these negotiations. It is quite the other way. The whole purpose of these talks and negotiations and the whole purpose of the scheme is to avoid bringing about in Rhodesia a solution by force.
Lord HARMAR-NICHOLLS: My Lords, may I ask the noble Lord a question on this point? The noble Lord,
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whose attitude is very impressive, is not meeting the main point which was made by the noble Lord, Lord George-Brown. As I understand it, the point which the noble Lord made was that whether or not these things are being done, the impression has been given that they are helping those groups in that way. Does the noble Lord, on behalf of the Government, recognise—whether it is just or unjust that the impression should be there—that the impression does exist, and is anything being done to remove it?
Lord GORONWY-ROBERTS: My Lords, all this has been done to remove impressions, but if impressions are concocted nobody can remove them. Here I would pay a tribute to the speech made by the noble Lord, Lord Gladwyn; he made a speech which I thought was helpful, constructive and utterly fair. If there are impressions, genuinely false impressions, and some sedulously spread abroad, then the responsibility for playing fast and loose with the facts rests not with the British Government but elsewhere. The attitude of the British Government, the attitude of my right honourable friend the Prime Minister and of the Foreign and Commonwealth Secretary has been crystal clear from the start. If my noble friend, as I am allowed to call him, wishes an assurance from me that we certainly would not wish any impression other than the one I have described from this Box today to go abroad, he has it.
The purpose of our policy has been, as I stated at the beginning, to bring Rhodesia, Zimbabwe, into sovereign independence, hopefully within the Commonwealth, certainly within the Commonwealth on the basis that the noble Lord, Lord Home, described, the reconciliation not only of peoples within Rhodesia but between Rhodesia and ourselves. In both countries the great mass of the people and their leaders want to see a re-creation of the relationship that used to be so fruitful and so hopeful. Most of us have kin in Rhodesia; I have, and I know that the feeling the noble Lord described is a very real one there, as it is in this country.
I go on to one or two other remarks about these consultations. I come to Lord George-Brown's point about documents. I take the point he has made.

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He will equally take the point I am going to make now. Following these consultations, we have circulated to the parties working documents containing revised proposals for the peaceful transition, including the proposed governing council, and our own preliminary thoughts on the rôle of the proposed UN Zimbabwe force—which, of course, is ultimately a matter for the UN and not ourselves to determine—and our detailed ideas of an independence Constitution. That is, I suggest, a forthcoming description of what by mutual consent need to be, at least for the moment, private working papers. We have circulated them. The second query that the noble Lord put to me was, what about the circulation? Well, we based this on the membership of the Geneva Conference, and in that sense Chief Chirau is not a direct recipient of copies of these documents. But Mr. Smith, of course, is entitled to make what use he might wish of these documents, and indeed he already has been doing precisely that.
Baroness ELLES: My Lords, would the noble Lord allow me to intervene for one moment. Would he not accept now that the Geneva Conference is finished and has gone into history; that the Government should look at this in a new light and include all those who are negotiating with Mr. Smith in Salisbury, and include Chief Chirau in any further distribution? Would it not be a matter of courtesy on the part of the British Government not to exclude him?
Lord GORONWY-ROBERTS: My Lords, it is a matter of judgment and of arrangement who you include in a distribution of this sort. I am not disposed at the moment to argue specifically about one or other. There are others. I think I said at the time somewhere—not here—that there are white Rhodesians not necessarily represented in Mr. Smith's movement or Government. We all have pleas for inclusion in these matters, and if and when the noble Baroness is engaged in arranging these matters, she will find it is not all that easy to draw up the right list. I do not think that the noble Baroness feels that they are fundamental to the success of these negotiations.
I should like to point out one further characteristic of the Malta talks. They
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showed that, while we are ready to give close consideration to the views of the Patriotic Front and to accommodate them where this is possible within the framework of our proposals, we are, as I have said, rock firm on the essential principles. We have rejected any claim to exclusive representation in the transitional government for the Patriotic Front. That is the litmus test. Any undue favour shown to the Patriotic Front would meet them on that point, because that is their central demand at present. I hope that it will cease to be, because that would compromise the principle of fairness to all parties—not simply to Chief Chirau, but to others already in the negotiations.
Our aim at the next meeting with the leaders of the Front—if it comes about—must be to persuade them to accept that they are one element in a number or in a composition of elements on the basis of which an equitable and durable settlement must be based. It is for that reason, among others, that we must reserve our position on the Salisbury talks to the extent that the intention appears to be in practice to negotiate and implement a settlement which does not include all the elements of Black Rhodesia.
I was asked by, I think, the noble Lord, Lord Home of the Hirsel—I took a note of his words and if I may say so it is never necessary to note the noble Lord's words in order to correct him but only in order to correct oneself—whether, if a settlement arrives, and it has merits, Her Majesty's Government will give that settlement their support. I think that the noble Lord himself gave the answer when he spoke of how Her Majesty's Government's plans (Cmnd. 6919) can complement and complete any internal plan.
I shall go a little further and say that it all turns on merit or, as the Prime Minister said the other day, the proof of the pudding is in the eating. The merits of any so-called settlement which may emanate from one direction or another must really be tested in two ways. First, it must be tested against Rhodesian acceptability and African acceptability. One noble Lord mentioned that those involved in the Salisbury discussions represent 75 per cent. of the Rhodesian population. That may well be, but there is the other 25 per cent. and there are

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also a number of Rhodesians who do not live or work within Rhodesia but are outside the country. There are a number of countries which have the best vested interest in a stable and peaceful Rhodesia. They lie all round Rhodesia and they are Black African States. Moreover, as some of us know, they are as keen as any one of us on a peaceful, orderly and durable solution for the Rhodesian problem. I shall not name them.
The front-line Presidents are very much in the front-line. Their interest is in a solution and not in a Congo solution. They want a British solution, an Anglo-British solution if one wants to describe it in that way. They want a solution which is based on pulling everybody in, and on talking to everybody. That solution must in the first place be acceptable to Rhodesians and Southern Africa and—and may I add this as a bonus?—it must be acceptable and helped on by South Africa. I am glad to be able to say that the interest of the Republic of South Africa lies precisely in the kind of solution that I have described—and that we should welcome. Before now, Mr. Vorster has signally helped to get people to be less rigid and to discuss matters in a constructive way. I have absolutely no doubt that he and his Government will do so in the future. They have a vested interest in that kind of solution.
The Earl of ONSLOW: My Lords, perhaps I may interrupt the noble Lord. If the internal settlement comes up with a solution which fits in with the most important of the Six Principles, which is that it is acceptable to the Rhodesian people as a whole, and the Patriotic Front rejects it, what happens then? Everyone will agree that my surmise is just as hypothetical as the noble Lord's.
Lord GORONWY-ROBERTS: My Lords, the noble Earl is very able at putting forward these hypotheses with which I do not claim to be able to cope for a moment. After all, a radical Whig is always far more difficult to handle than a modern Tory. As the person who introduced me to that excellent biography of Talleyrand, I always approach him with a mixture of awe and admiration. It comes to this. If there is merit in whatever emanates from whatever source, then that carries with it the antibiotic
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which will put paid to the persisting pretensions of the extremists.
That takes me to the second test, the first being the test of acceptability to Africans. The second test is that of acceptability to the international community. It is no good saying that people should not interfere. With one breath we are told "Leave it to the Rhodesians. Do not let anyone else intervene"; in another breath we are reminded of the Horn of Africa. In one breath we are told that we must look at Rhodesia in the light of what is happening in the Horn of Africa, but then we are told that we must not look at it in the light of what may be happening among the front-line States. We must be consistent about this. So acceptability is the second test. After all, for this to stick it must be generally accepted, not only in Africa but in the United Nations, because very probably the United Nations will have a major part to play in making the transition stable and peaceful.
That brings me to the quotation—which I have been unable to identify—from Mr. Andrew Young—not that I am responsible for everything that every American everywhere says, any more than he is responsible for what I say. This was very skilfully done by my noble friend, the suggestion being that Mr. Young thought that nothing could be done unless it pleased the East. I should like to look at the full context of what he said. I am absolutely certain that the Anglo-American proposal means that it must be acceptable to East, West, North and South. If that includes the East, so be it. But as for East, West, North or South having a veto—no. That is what makes it so difficult.
In the past, the imperia settled difficult questions by imposing their own veto. That is how it will be done at the end of the day. It cannot be done that way today. You simply must carry a variety of people and interests with you. During the past 10 or 11 years at least three times we have been within an ace, as we thought, of settling this problem—very close indeed under the leadership of the noble Lord, Lord Home, and at least twice when my noble friend was Foreign Secretary and Sir Harold Wilson was Prime Minister—but at the end of the day one element or other pulled out, and in pulling out pulled down the whole edifice. I shall not today,

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when we are hoping for a solution, identify the hand that pulled the plug on all three occasions. I think, partisanship apart, everybody will agree that at least on three occasions one hand wrecked perfectly feasible, perfectly reasonable, very hopeful possibilities of solution.
I can well understand the widespread desire in Parliament and in the country, after all these years, to find a quick solution to the Rhodesia problem. The endorsement of Mr. Smith's negotiations would appear, on the face of it, to offer an immediate opportunity to do so. We shall certainly not do anything to discourage, hinder or frustrate the efforts now being made in Salisbury. I have said so from this Box, and my right honourable friend has said so in another place beyond all misunderstanding. We shall seek to complement whatever proposals come from Salisbury, or anywhere else, by our own efforts; always remembering what I said at the beginning, that the principles remain, and that our White Paper is an executive document aimed at offering a best way of implementing those principles.
Finally, I think we are all agreed as to how complex the situation is. Few would say today that the solution is simple. There have been criticisms of the Government's handling of this matter. I think they are unfounded. Governments must continue, as the noble Lord, Lord Gladwyn, said, despite the immense complexities and difficulties of this problem—and my noble friend knows them as well as anybody. Despite that, we must carry on. We must seek, through negotiation, information, exchange of ideas, opinions, examining views, and indeed prejudices—not all the prejudices are on one side—so that we may hope to create a solution of sense and stability.
My right honourable friend expressed last week the hope that this might be done without resort to force. In saying so he, as always, revealed his thoughts, and he said that he sometimes thought that it might not be so. Who has not had that thought? He expressed it, but that does not mean for a minute that he, or any one of us, feels that force is the solution. Exactly the contrary. Having listened to a debate of very high standard, if I may say so without presumption—and I think my noble friends who have been here all
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the time and have listened would agree with me—and a debate to which noble Lords and noble Baronesses of great distinction and experience have contributed (beginning with the noble Lord who put the Question in a speech of extraordinary ability, as always, my noble friend Lord George-Brown) I would hope that the message from this House to Rhodesia, to Zimbabwe, would be a united one.
We wish to see, and we would all continue to work to see, a solution which is not based on force but which is based on agreement between black and white within Rhodesia and throughout Central and Southern Africa. We wish to see a transition which is peaceful and based on the will of the people, of all colours, creeds and backgrounds, to free and fair elections, supervised it may be by the world authority. We wish to see, speaking from Britain, a Rhodesia that enters its next phase as a sovereign, independent African country in which all its people can take part with pride and efficiency, a country which will resume its warm and rewarding special relationship with the United Kingdom.