Lords Sitting of 4 July 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 Peterborough
The Lord Poltimore—Sat first in Parliament after the death of his grandfather.

MOTABILITY: PUBLICITY
2.38 p.m.
Lord SEGAL: 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 steps they have already taken to make the advantages of Motability known as widely as possible, and what further steps they propose to take in this direction.
Lord WELLS-PESTELL: My Lords, while Motability receives the full support of my right honourable friend the Secretary of State for Social Services and of the Minister for the Disabled, it is a voluntary organisation which is independent of Government. On this basis, and at Motability's request, my Department and the Department of Health and Social Services in Northern Ireland have advised all mobility allowance beneficiaries of what the new organisation has to offer. The organisation has produced two leaflets, one which describes its role and which is for general use, and a second one specifically intended for those who are both in receipt of mobility allowance and are in the age-groups from whom Motability is ready to consider applications for help under its new car leasing scheme. I am pleased to be able to tell your Lordships that the distribution of these two leaflets, to all who may be eligible to use Motability's car leasing scheme, is complete. Copies of the leaflets have been placed in the Library.
Lord SEGAL: My Lords, I should like to thank my noble friend for that very helpful and informative reply. Would
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he not agree that this excellent plan for the leasing of motor cars to handicapped persons affects far more people than the Government's kidney transplant campaign, so warmly advocated by the late Lord Platt, whose untimely death we all deplore and who will be sadly missed in all parts of your Lordships' House?
If the Government do not wish the advantages of Motability to be taken up too rapidly, as happened with the attendance allowance in the case of the previous Government, could they seek to keep the general public fully informed of the progress of the scheme by issuing figures, either monthly or quarterly, of the numbers of disabled persons who have been able to benefit from Motability?
Lord WELLS-PESTELL: My Lords, perhaps your Lordships would allow me to say that all your Lordships, I feel sure, would wish to be associated with my noble friend's comments about the late Lord Platt. I personally had a good deal to do with him on one thing and another, and I think that one had nothing but admiration for what he was trying to do.
With regard to Motability, it will be of interest, I am sure, for me to say that the present intention of Motability is to start with young adults, aged 16 to 19, and work through to those of pensionable age; that is, 65 for men and 60 for women. Then it proposes to deal with applications where a disabled child has a mobility allowance, and finally to invite applications from people of over-pensionable age. This is its method of procedure at the present moment. As I said, it is an independent body. It is made up of members drawn from a very wide field of finance and industry, the various professions, the trade union movement and voluntary organisations. Its priorities seem to be those which are rather urgent at the present moment.

RHODESIA: THE ANGLO-AMERICAN PLAN
2.41 p.m.
Lord HATCH of LUSBY: 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 progress has been made with the Anglo-American plan for Rhodesia.
The MINISTER of STATE, FOREIGN and COMMONWEALTH OFFICE (Lord Goronwy-Roberts): My Lords, Mr. Graham and Ambassador Low are continuing their consultations in Africa. Our goal remains early round table talks involving all the parties. There is increasing recognition among them of the need for such talks.
Lord HATCH of LUSBY: My Lords, while thanking my noble friend for that Answer, may I ask whether he would accept that some of us, including prominent white leaders in Kenya, have been warning those who rebelled against the Crown and the authority of this Parliament of the dangers which now have arisen, unhappily, in that country for both black and white British citizens? Would he further agree that to support the shaky internal settlement and remove sanctions at this stage could only intensify the dangers and violence in that country and involve Britain in a Vietnam-like situation? Would he convey to his right honourable friend the support of many of us with long experience in Rhodesia, or Zimbabwe, and say that we admire his patience and courage in pursuing the Anglo-American plan, which alone can help to solve the problems of that country.
Lord GORONWY-ROBERTS: Naturally, my Lords, I agree with my noble friend that there are dire dangers for all concerned—not only those in Zimbabwe—from a continuation of a situation of escalating conflict and bloodshed. Secondly, the internal settlement to which he refers is seriously deficient; there is no lack of people in Zimbabwe itself and in Salisbury who agree on that point. Finally, I shall certainly convey to my right honourable friend the support of my noble friend for his policies and procedures.
Lord BARNBY: My Lords, does the Minister agree that the support for the internal settlement in Africa must vary in relation to, or as a ratio of, the extent to which it is seen in the country that support is being given by external sources
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—such as Russia, Britain, the United States—to external elements? Does he also agree that this is associated with the fact that inevitably, as the African element will feel that they want to be on the winning side, they will support moves from one side of the balance to the other? Furthermore, would he care to make any comment on the view that the working of the "double-headed" departmental Ministers is effective, as I learn from latest information that black and white Ministers associate on the same platforms in making speeches throughout the country?
Lord GORONWY-ROBERTS: My Lords, the external influence on the internal progress of agreement and cooperation in Zimbabwe is very important indeed. I would add to the list of external influences which the noble Lord mentioned the Organisation of African Unity and the Front-Line Presidents. I am sure that he would not disagree that the list of external influences would be somewhat incomplete without those additions. As to the progress of the internal agreement, whatever its motivation and purpose, unfortunately it has not so far yielded results which have consolidated opinion in Rhodesia to the extent that a ceasefire is any nearer than it was before the agreement was concluded. One wishes that it were otherwise. Indeed, to the extent that the internal agreement approximates to the Anglo-American proposals it will become more attractive to the external influences which the noble Lord mentioned, as well as to the international community.
Lord PAGET of NORTHAMPTON: My Lords, to revert to my noble friend's original Question, I should like to ask the Minister whether he agrees that the simple answer is that there has been no progress with the Anglo-American plan, and that there will not be any progress with it; but that the only plan in existence is the internal settlement? Furthermore, does he agree that the alternative policy is support of the massacre of soft targets, which is what we have in fact been doing by flattering the so-called Popular Front?
Lord GORONWY-ROBERTS: My Lords, my noble friend is not deficient in articulation, but he may be slightly deficient in hearing. I should like to repeat the original Answer I gave.

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Mr. Graham and Ambassador Low are continuing their consultations in Africa. I went on to say that there is increasing recognition among them—that is, the parties in Africa—of the need for round table talks.
Lord BROCKWAY: My Lords, can the Minister say whether Mr. Graham and Ambassador Low were able on their visit to take evidence as to the degree of support which the internal agreement has received? Has the Minister noted that only yesterday Mr. Chinamano, representing the Patriotic Front, urged that there should be all-Party talks to prevent a more horrible war? Is there not increasing support for this view both inside and outside Rhodesia?
Lord GORONWY-ROBERTS: My Lords, of course it is a fact that the Patriotic Front indicated at Dar es Salaam in April its readiness to attend round table talks. It is equally a fact that Mr. Smith and his confreres have indicated that they, too, would attend such talks if they saw some prospect (as they say) of their being successful. It is precisely on that somewhat hopeful basis that Ambassador Low and Mr. John Graham are now working. We think that there is evidence of movement—small, but perceptible—and we must all hope that this movement is accentuated, with the result that we shall get an all-Party round table conference which will agree on the essentials of proceeding to independence on the basis of a ceasefire and a neutrally-controlled transitional arrangement.
Lord HATCH of LUSBY: My Lords, may I finally ask my noble friend to convey to the appropriate channels that there is some desire that this House should debate this most important and responsible issue before we rise for the Recess?
Lord GORONWY-ROBERTS: My Lords, it would seem to me, and possibly to your Lordships, that this matter is being debated almost every day to one extent or another. I would say that, if there was a request through the normal channels for such a debate, we should not resist it. However, in this House we are able to look perhaps more frequently
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than the other place at matters of continuing concern in this way, and no doubt noble Lords will consider carefully before they decide that a time is ripe in the near future for a full-dress debate.
The Earl of ONSLOW: My Lords, would the noble Lord say what happened—
Baroness LLEWELYN-DAVIES of HASTOE: My Lords, with the horrible example of last night, when we rose after 12.30, noble Lords would perhaps like me to remind them that we have 33 speakers today. I am in the hands of the House, but I think we have had quite a good run on this Question.

FOOD INDUSTRY: GOVERNMENT POLICY
2.51 p.m.
Baroness WARD of NORTH TYNESIDE: 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, if any, are their plans on the nationalisation of parts of the food manufacturing industry.
Lord STRABOLGI: My Lords, the Government have no plans to nationalise any part of the food manufacturing industry.
Baroness WARD of NORTH TYNESIDE: My Lords, while thanking the noble Lord for that Answer, may I ask him whether he is aware that there have been all sorts of rumours spreading about; and as, generally speaking, I always like to be fair to my own Party and to the Opposition, does the noble Lord not think that it would be a good thing if he could deal with the rumours that are circulating, as this matter is upsetting to everybody? A great many people in the food trade certainly do not want any nationalisation, and I agree with them.
Lord STRABOLGI: My Lords, I have not heard any rumours. Indeed, we have no record of any suggestion that I know

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of from any Government source that the Government have any plans for nationalisation of the food industry.
Baroness WARD of NORTH TYNESIDE: My Lords, I thank the noble Lord. He may not have heard them and I may not have heard them, but undoubtedly they are there.
Lord STRABOLGI: My Lords, I think one of the difficulties may be that the noble Baroness has been reading—and I am glad she has—the Labour Party's programme. If I may, I would suggest to her that if she were to read the foreword she would see the difference between a programme and a manifesto, where it is spelt out in Clause 5 of the Labour Party constitution. She might also like to read more of the programme; it might convert her to parts of it.
Lord BYERS: My Lords, from what the noble Lord has said, can we take it categorically that no plans for nationalising the food industry or any part of it will appear in the Labour Party manifesto for the next Election?
Lord STRABOLGI: My Lords, I think we shall have to wait until the Prime Minister decides the date of the next Election and until the manifesto is drawn up; but I can say that at present, although no Government can commit their successors, the Government have no plans for nationalising any part of the food industry.

PUBLIC OWNERSHIP OF PORTS
2.53 p.m.
Lord DRUMALBYN: 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 it is still their policy to take into national ownership all the major ports.
Baroness STEDMAN: My Lords, the Government remain committed to ports reorganisation.
Lord DRUMALBYN: My Lords, in thanking the noble Baroness for that Answer, may I ask her whether she is aware that at one time, at any rate, the Labour Party committed themselves, not only to reorganisation but to nationalisation? I am asking whether it is still their intention that the reorganisation should take the form of national ownership. May I further ask the noble Baroness whether she agrees that, if that is so, the sooner the Government make an announcement about this the better it will be for all those concerned with or dependent upon the ports?
Baroness STEDMAN: My Lords, with respect, the noble Lord is under a misapprehension. We at no time said that we were going to nationalise the ports. We said that we would take them under a form of public ownership and control, which is different. As far as our policy is concerned at the moment, it would need major legislation to bring in any form of public control, and there is no Parliamentary time in this Session for it. What we have done is to issue two different consultative documents about ports reorganisation. The most recent of these was in April 1975. We pointed out then that there was perhaps a reason for establishing a strong National Ports Authority, that there might be some provision for the public ownership of private statutory port undertakings, and that there might be a retention or an extension of local rather than national public ownership. Those are the three basic features of that last consultative document, and they have been the subject of considerable and extensive consultation with the unions and with outside bodies. The Secretary of State for Transport has been looking at the various ways in which the desired reorganisation might be achieved, and is still working on the lines of those three major points of the last consultative document. But nothing will be done without considerably more consultation at all levels.
Lord CARRINGTON: My Lords, perhaps I may ask the noble Baroness this question, because I have become rather confused. Does that mean that any future Labour Government will or will not nationalise the ports?
Baroness STEDMAN: My Lords, it depends on the manifesto at the time when the Election is held. At the moment we have for consideration, for all sections of the industry and for the Party, the consultative document of 1975. Consultations are still proceeding on that. I am advised that anything on the lines suggested in the consultative document would mean major primary legislation and some secondary legislation, which might take up to two years to prepare. So I can safely say, with November of next year being the final date for this Government, that there will be no nationalisation within the lifetime of this Government.
Lord CARRINGTON: My Lords, does that mean that the next Labour Government will or will not nationalise the ports?
Baroness STEDMAN: My Lords, I cannot speak at this time for what will be in the next manifesto.
Lord ANNAN: My Lords, has the noble Baroness any information whether the Conservative Party is about to denationalise the coal industry?
Baroness STEDMAN: My Lords, I only know of the rumours, referred to by the noble Baroness opposite, of various forms of policy; and the rumours are that the coal industry is going to be denationalised and that transport is going to be denationalised. All kinds of other horrific things have been put up for consultation, as this has.
Lord DRUMALBYN: My Lords, is the noble Baroness aware that this Question is about port nationalisation and has nothing whatever to do with coal nationalisation?
Lord SHINWELL: My Lords, did my noble friend observe that the noble Lord the Leader of the Opposition, Lord Carrington, displayed remarkable optimism when, on two occasions, when he put his two questions, he referred to a future Labour Government?
Lord CARRINGTON: My Lords, is the noble Baroness aware that I said "any" future Labour Government?
Baroness STEDMAN: My Lords, I am sure the noble Lord meant the next Government.
Viscount ROCHDALE: My Lords, if the answer of the noble Baroness means that there might be nationalisation, and if that intention were to be based on the success of the British Transport Docks Board, which is a nationalised body—a success which no one will denigrate or deny—will they remember that, in the view of many of us who have studied this matter, the success of the Docks Board has been due to the very considerable degree of competition from other forms of ownership of docks, both trusts and other forms of private ownership; and that if that competition were removed it would be very unlikely that one could rely on the same degree of success of the Docks Board as we have had in the past?
Baroness STEDMAN: My Lords, I accept that the British Transport Docks Board has been an extremely successful organisation. What I said in my original Answer was that we were committed to port reorganisation. We are not committed to nationalisation: we are committed to public ownership and control. Noble Lords opposite do not accept that this is different, but there are different ways of getting public ownership and control, in which one may still be in competition with another.

EEC COUNCIL OF MINISTERS: JULY BUSINESS
Baroness LLEWELYN-DAVIES of HASTOE: My Lords, a Statement is being made today in another place about business to be taken during July in the EEC Council of Ministers. With the leave of the House, I will, as usual, arrange for the Statement to be made available in the Official Report.
Following is the Statement referred to:
"With your permission, Mr. Speaker, I will make a statement about business to he taken by Ministers of the European Community during July. The monthly written forecast was deposited on Thursday 29th June.
"Heads of State and Government will meet in the European Council in Bremen on 6th and 7th July. At present six meetings of the Council of Ministers are proposed for that month. The Budget Council will meet on the 18th, the Finance Council on the 24th, a joint ACP/EEC Council

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on the 24th, the Agriculture Council and the Fisheries Council on the 24th and 25th, and the Foreign Affairs Council on the 25th.
"The Budget Council is expected to establish the Preliminary Draft General Community Budget in 1979.
"The Finance Council is expected to discuss a draft Commission Decision adapting economic policy guidelines for 1978 and proposing guidelines for the preparation of public budgets in 1979. The Council is also expected to review the outcome of the European Council meeting in Bremen and the Western Economic Summit in Bonn and may discuss a draft life insurance directive.
"A joint ACP/EEC Council will be held to open the renegotiation of the Lome Convention.
"The Agriculture Council is expected to discuss proposals for the organisation of the market in potatoes and wine, and agricultural structural problems in the Community generally and in the Mediterranean area.
"The Fisheries Council is expected to consider the future of agreements with Norway, Sweden and the Faroes, conservation measures and possibly the other Commission proposals for revision of the Common Fisheries Policy.
"The Foreign Affairs Council will consider any necessary follow-up to the European Council meeting and will discuss issues raised at the joint ACP/EEC Council meeting. The Council will also consider EEC-Yugoslavia relations, review developments in the GATT multilateral trade negotiations, and receive a progress report on the negotiations for Greek accession to the Community. They will have a second discussion of the Commission's enlargement "fresco". They will review progress in the negotiations with Spain on the revision of the 1970 Agreement and may continue their discussion of structural policy in the iron and steel sector. The Council will also review progress made in the arrangements for direct elections to the European Assembly.
"Mr. Speaker, July marks the end of the Danish Presidency of the Council of Ministers and I would like in conclusion to express the Government's admiration for the capable and effective way in which Denmark has discharged the onerous duties of that office. In particular I wish to express our warm regard for the skilful manner in which Mr. K. B. Andersen, the Danish Foreign Minister—a statesman of great warmth, humanity and vision—has presided over the Council discussions and to wish him well for the future ".

REPRESENTATION OF THE PEOPLE BILL
Brought from the Commons; read 1a, and to be printed.

ADOPTION (SCOTLAND) BILL [H.L.]
The LORD CHANCELLOR (Lord Elwyn-Jones): My Lords, I beg to move that this Bill be now read a third time. It is a consolidation Bill.
Moved, That the Bill be now read 3a.—(The Lord Chancellor.)
On Question, Bill read 3a, and passed, and sent to the Commons.

INTERPRETATION BILL [H.L.]
The LORD CHANCELLOR: My Lords, I beg to move that the House do now resolve itself into Committee on re-commitment of this Bill.
Moved, that the House do now resolve itself into Committee.—(The Lord Chancellor.)
On Question, Motion agreed to.
House in Committee accordingly.
[The EARL OF LISTOWEL in the Chair.]
Clause 1 agreed to.
The DEPUTY CHAIRMAN of COMMITTEES: It may be for the convenience of the Committee, as no Amendments have been put down until we reach the Schedules, if I propose the clauses en bloc.
Clauses 1 to 26 agreed to.
Remaining clause agreed to.
Schedule 1 [Words and expressions defined]:
The LORD CHANCELLOR The LORD CHANCELLOR moved Amendment No. 1:
Page 10, line 24, leave out ("under") and insert ("by").
The noble and learned Lord said: This is a minor drafting Amendment substituting the word "by" for "under" in relation to the relevant Act. I beg to move.
Lord HAILSHAM of SAINT MARYLEBONE: While accepting all that the noble and learned Lord has said, and is going to say. may I perhaps—and I hope that I am not wholly out of order—respectifully remind him that as long ago as 1969 the Law Commission recommended Amendments to the Interpretation Act whereas this is a purely consolidation Bill. Will the noble and learned Lord perhaps persuade his colleagues, should

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there be another Session of Parliament, to consider that as a possible candidate for legislation?
The LORD CHANCELLOR: I do not like the ominous words of the noble and learned Lord: "should there he another Session of Parliament". At any rate, no abolition of Parliament, so far as I know, is under immediate contemplation by any responsible party.
Lord HAILSHAM of SAINT MARYLEBONE: Read the Manifesto!
The LORD CHANCELLOR: I take note of what the noble and learned Lord has said. No doubt we will get round to reforming the Interpretation Acts in due course.
On Question, Amendment agreed to.
The LORD CHANCELLOR The LORD CHANCELLOR moved Amendment No. 2:
Page 10, line 25, at end insert ("[1st April 1974").
The noble and learned Lord said: It may be convenient for me to take the remaining Amendments, Nos. 2 to 6, together and en bloc. They all concern the definition in the Bill of the expression "England" and they are all prompted by a point raised in the Joint Committee on Consolidation Bills. The definitions of "England" and of "Wales" both operate by reference to the Local Government Act 1972, and a question was raised why the definition of "England" is applied to existing Acts of any date while that of "Wales" is applied only to existing Acts passed on or after 1st April 1974. It appears that the reason is that both "England" and "Wales" are defined by reference to the Local Government Act 1972 which came into force on 1st April 1974. However, until the Welsh Language Act 1967, England ", surprisingly, was defined by the Wales and Berwick Act 1746 to include Wales and, between 1967 and 1974, England included Monmouthshire.
So confusion has apparently arisen as to the definitions and it is now proposed that the definition of "England" shall, like that of "Wales", be applied to the Acts passed since 1st April 1974. In relation
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to Acts passed before that date, the definition is modified to take account of the position prior to 1st April 1974 and also of that prior to the passing of the Welsh Language Act 1967. I beg to move.
On Question, Amendment agreed to.
On Question, Whether Schedule 1, as amended, shall be the first Schedule to the Bill?
Lord AIREDALE: I should like to intervene briefly to point out that, although the definitions are marshalled in their alphabetical order, with few exceptions, the expression "Commonwealth citizen" is not defined in its proper alphabetical place but comes under "British subject". That, I think, means that the reader could be excused for missing it and supposing that "Commonwealth citizen" is not defined in the Bill. It would have been so easy to put an entry in the proper alphabetical place simply to say: "'Commonwealth citizen' has the same meaning as 'British subject'". I think it is a pity that that has not been done.
The LORD CHANCELLOR: I think endeavour has been made to avoid repetition in the Schedule. It is right, as the noble Lord has said, that it is stated that "British subject" and "Commonwealth citizen" have the same meaning and then the meaning is defined. I venture to think that it was thought, perhaps, not necessary to have a repeat reference to "Commonwealth citizen". It might have been better, but I do not think the noble Lord is prepared to go to the stake on this minor point of criticism.
Schedule 1, as amended, agreed to.
Schedule 2 [Application of Act to existing enactments]:
The LORD CHANCELLOR The LORD CHANCELLOR moved Amendments Nos. 3 to 6:
Page 14, leave out lines 39 to 43.
Page 15, line 7, at end insert—
("( ) in any Act passed before 1st April 1974 a reference to England includes Berwick upon Tweed and Monmouthshire and, in the case of an Act passed before the Welsh Language Act 1967, Wales;")
Page 15, line 19, at end insert ("England") leave out lines 30 and 31.
On Question, Amendments agreed to.
Schedule 2, as amended, agreed to.
Remaining Schedule agreed to.
House resumed: Bill reported with the Amendments.

NATIONAL HEALTH SERVICE (SCOTLAND) BILL [H.L.]
The LORD CHANCELLOR: 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 Recommitment be discharged.
Moved, That the Order of Recommitment be discharged.—(The Lord Chancellor.)
On Question, Motion agreed to.

WALES BILL
The LORD CHANCELLOR: My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the Amendments for the Report stage be marshalled and considered in the following order, vizt.:—

Clause 1,

Schedule 1,

Clauses 2 to 9,

Schedules 2 and 3,

Clauses 10 to 35,

Schedules 4 and 5,

Clauses 36 to 55,

Schedule 6,

Clauses 56 to 58,

Schedule 7,

Clauses 59 to 61,

Schedule 8,

Clause 62,

Schedule 9,

Clauses 63 to 73,

Schedule 10,

Clauses 74 to 78,

Schedule 12,

Clauses 79 and 80,

Schedule 11.

—(The Lord Chancellor.)
On Question, Motion agreed to.

EEC 22nd AND 35th REPORTS: APPROXIMATION OF LAWS
3.10 p.m.
Lord FRASER of TULLYBELTON Lord FRASER of TULLYBELTON rose to call attention to the Approximation of Laws within the EEC with reference to the Twenty-second Report (H.L. 131) of the European Communities Committee on Approximation of Laws under Article 100 and the Thirty-fifth Report (H.L. 199) on the Approximation of Laws relating to Machine Tools and Portable Grinding Machines; and to move for Papers. The noble Lord said: My Lords, the purpose of this debate is to call attention to the Twenty-second Report on the Select Committee on European Communities. The report and what I am going to say this afternoon is very largely devoted to criticisms of certain Directives and proposed Directives for approximation of laws under Article 100 of the Treaty. I want to try and put the criticisms in their proper perspective.
The Select Committee is of course in no way criticising the principle of approximation of laws. Approximation is provided for in the Treaty. It is fully accepted in principle, of course, by the Select Committee, provided—and this is the point of most of what the report has to say—that the approximation is carried out within the limits prescribed by the Treaty.
The Report sets out what we believe to be a complete list of the Directives and proposed Directives for approximation under Article 100 which have been issued since the Community began. There are about 500 of them, although I personally have not counted them. The vast majority of these Directives and proposed Directives appear to be within the limits of the Treaty and to be proper in their content. No criticism of them is made by the Select Committee in any way. They are mainly devoted to technical matters, to removing barriers to trade and setting common standards on technical matters; and they are entirely unexceptionable in the view of the Committee.
The criticism which is made in the report, and which I want to develop in the next few minutes, is made of only a small minority of the Directives. I should like to make that as clear as I can at the

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beginning. The criticisms made by the Select Committee are mainly on two grounds. Some proposals for approximation are, in our view, defective in their substance—that is to say, they may be badly drafted or may set inappropriate standards. For example, the Thirty-fifth Report of the Select Committee, which is also the subject of this afternoon's debate, dealing with machine tools and, particularly with portable grinding machines, referred in one of its paragraphs to a proposed Directive for restricting the permitted noise level of power lawnmowers. The permitted level of noise which is proposed is such—or was at one time such—that, according to the evidence before the Select Committee, no lawnmower which conformed to that standard would ever be able to cut grass. That seemed to the Select Committee to show some defective arrangement in making the proposal. It may well be that the proposal was made after insufficient consultation with the industry and with people familiar with the technical problems.
Another example of a proposed Directive which has been severely criticised is the proposed Directive on selling on doorsteps, which was criticised in another place very severely the other day. Other examples can be cited of Directives which in some way are unsatisfactory in their contents. I do not propose to dwell on them or spend more of my time on them. I believe other speakers in the debate will be referring to some of them. I propose to concentrate so far as I can on the second type of criticism which is raised by the Committee: that is, a criticism of principle, that some recent proposals for Directives for approximation of laws seem to be going beyond the powers of the Community under the Treaty. They seem to be ultra vires. So far there has been only a very small number of proposals which fall into this class. I believe it is less than a dozen out of a total of 500 altogether. So quantitatively and numerically it is a small proportion.
However, the principle is important, because if it becomes established and accepted that Directives for approximation can be issued without regard to the limits imposed by the Treaty, or if it be accepted there are no limits imposed by
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the Treaty, that will mean that the Community may take over fields of legislation within this country, and once taken over they are probably taken over for ever. The Community can remove them from the power of Parliament to legislate upon them. I do not dwell on the fact that this removal is permanent. My noble and learned friend Lord Diplock may be developing that point later. For the moment, all I wish to say is that if there are no limits to what the Community may do, it can take away from Parliament these fields of legislation.
The cases which come into this category have all arisen recently, within the past five years, and they have occurred mainly in two fields: partly in the field of environmental control, and partly under consumer protection. The proposals for the issue of Directives on environmental control seem to have originated from instructions issued at a summit conference of the heads of Government and heads of State in 1972. They were no doubt put forward on practical political grounds as being desirable objects to be pursued, without much consideration of the powers of the Treaty under which it was proposed to pursue those objectives.
It is fair to point out—and I should like to take this opportunity of doing so—that in so far as these proposals originated from the summit conference, the political conference, they are proposals for which the EEC Commission and their officials are not responsible in origin. The same is true of quite a number of other Directives and proposed Directives. There are requests made from all sorts of sources, industry, Members of the European Parliament and other sources, to have Directives on this, that and the other subject. To some extent, the permanent officials in Brussels simply have no alternative but to give effect to these. I take this opportunity of saying that because there is a popular belief that people in Brussels sit with their heads in wet towels wondering what new Directive they can dream up. I believe that to be an entirely unfair travesty of the truth. I should like to say that in defence of these people.
In their terms of reference the Select Committee are instructed to make reports on proposals which seems to raise important questions of policy or principle.

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That is what this report is about. We think it raises an important question of principle. The question whether proposals are ultra vires has been generally recognised by your Lordships' House as being an important matter of principle, and the Maybray-King Report in 1973 thought that vires should be referred to and drawn attention to when there was doubt whether a particular proposal was ultra vires. The same remit is given to the sub-committee on legal matters.
One practical suggestion that I should like to make is that it may be useful, following upon what is done in the Select Committee, if Government departments, when making their comments on proposed Directives, were to express an opinion whether in their view a particular proposal was intra vires. It is the practice for Government departments to make comments on these proposals, directed entirely to their merits; if they could add a comment on the vires, that might be useful and helpful. I should remind the House that the machinery for the approximation of laws is laid down by Article 100 of the Treaty, which provides that the Council of the Community, acting on a proposal from the Commission, is to issue Directives for proposed approximations.
A Directive, under Article 189 of the Treaty, is
"binding as to the result to be achieved upon each Member State to which it is addressed but shall leave to the national authorities the choice of form and methods".
That is to say, a Directive tells the Member State what is the result to be achieved, but leaves the machinery, the form and method, to the particular State.
That means that once a Directive has been issued it is obligatory on Governments of Member States to which it is addressed to give effect to the Directive by their own legislation. So that if, for example, the Directive on doorstep selling were to be adopted and issued by the Council, the Government of the United Kingdom would be obliged to legislate to restrict doorstep selling in accordance with the Directive. If that is done, there is very little chance of challenging the resulting legislation. One can see that within the United Kingdom any person who was prosecuted or sued for damages for failing to give effect to the legislation
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based upon the Directive would have no defence of saying that the legislation was ultra vires, because it was based on a Directive that was ultra vires, That is because once Parliament has passed a law, that is the law of this country and no court will listen to an argument that the law itself is ultra vires. The same thing would go for an order or delegated legislation, provided it was made by proper machinery and procedure.
There is one possible exception in the case of delegated legislation made under Section 2 of the European Communities Act, but it is rather a refined point which I will not develop for a moment. I merely mention it to show that it has not been overlooked. Subject to that one possible exception, there seems to be no hope of challenging United Kingdom legislation on the ground that it follows upon or is in obedience to a Directive from the Community which is itself ultra vires.
The European Court in theory could say no doubt that a Directive was ultra vires, but the matter has never yet been tested in that Court and there seems very little likelihood of its ever being tested, at least from this country, because a private individual could never get a litigation on its legs far enough to get the matter remitted from the United Kingdom courts to the European Court. The United Kingdom Government, whose consent would have been necessary before the Directive was issued in the first place, would be unlikely to want to say immediately afterwards that the Directive was ultra vires. Moroever, there is at least an argument that the United Kingdom Government, which is a Member of the Council of Europe, consented to issue a Directive, could not be heard to say afterwards that this very Directive was ultra vires, because it had agreed to it.
The fact that the Government may agree to a proposed Directive does not necessarily mean that the Directive is intra vires with the Community, or even necessarily that the Government think that it is intra vires, because one can see that for political reasons the United Kingdom Government might agree to a proposed Directive in order not to antagonise the Governments of other Member States, or because they had another proposal to put forward next

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week for which they wished to prepare the way so they were not prepared to oppose a particular Directive this week, opposition to which might queer the pitch of their own proposal next week. Therefore, there might be an act of Government for political reasons which may not conform strictly to the legal position. That is why it is not satisfactory to leave this to the uncontrolled discretion of the Government of the United Kingdom. I refer, of course, to the Government of the day, to whatever Party it may belong.
I now come to the reasons why we say that some of the proposed Directives are beyond the powers of the Community. This depends on the construction of the EEC Treaty. It is really upon the construction of the Treaty that we find ourselves somewhat at odds with the view prevailing among the Commission and its staff in Brussels. Article 100 of the Treaty deals with approximation by Directives. It provides for the approximation of such provisions laid down by the law of a particular country as directly affects the establishment or functioning of the Common Market; so what is provided for is an approximation of such provisions as directly affect the functioning of the Common Market, reading it in short.
I suggest that two points emerge from that. One is that the approximation is limited to laws which directly affect the Common Market, and the second is that approximation of laws is not an objective of the Community for its own sake. It is merely an instrument for attaining the wider objectives of the Community. The Community was not set up for the purpose of approximating law in general; it merely directs approximation of laws which affect the functioning of the Common Market.
One looks to see what the objects of the Treaty are, and they are set out in Article 2. That details the objects in the following way. It says that:
"the Committee shall have as its task … to promote throughout the Community a harmonious development of economic activities, a continuous and balanced expansion, an increase in stability, an accelerated raising of the standard of living and closer relations between the States belonging to it".
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Those are the objects which are said to he the tasks of the Community, but—and this is the important "but"—the tasks are to be achieved in a certain way. They are to be achieved by establishing a Common Market and progressively approximating the economic policies of Member States. It is largely upon this that our argument is founded, because your Lordships will have observed that the object of promoting harmonious development and so on is tied to economic measures, approximating to economic policies of the countries. It is not left at large to the Community to pursue the objects by any means. In accordance with that, the White Paper issued in May 1967, just before we went into the Community, stated in paragraph 35, in reference to Article 100 and also to Article 99:
"Under both Articles the scope for the creation of Community law is therefore confined to the economic and financial field".
That is the text of my remarks today—that the scope for the creation of Community law is to be confined to the economic and financial fields. That exactly summarises the view that I am trying to put forward. As to whether that is the Government's view now—and for all I know it may not be—I very much hope that the noble and learned Lord the Lord Chancellor, when he replies to this debate, will indicate whether it is their view or not, and, if not, I hope he will be able to explain why the Government have departed from the view expressed in the White Paper of 1967, if indeed they have done so.
In my submission, it is of the greatest importance that both Parliament and the public outside should know what is the position. It may be that what was stated in the White Paper is now out of date or for some reason has been found to be erroneous. If so, that ought to be made clear and we should at least know where we are. But at the moment the matter stands, I say, on the words of the Treaty; and if the words of the Treaty are not to be construed in what seems to me to be their natural construction, then, if that is the Government's view, we ought to be told so.
I referred to Article 100, which is the main Article, and indeed it is really the only Article with which the present report is directly concerned. There are a number

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of other Articles which permit approximation of laws within the Treaty, but they are nearly all tied very directly to economic or financial objectives. Article 99 allows harmonisation of tax laws on indirect taxation and Article 101 allows taxation in order to eliminate the distortion of competition. Obviously those are economic or financial matters.
The only other Article which is at first sight rather wider than Article 100 is Article 235, which provides for approximation without any direct object in the way of these other Articles. But even Article 235, I may say, is limited to attaining the objects of the Community in the course of the operation of the Common Market. That seems to tie it again to the economic functioning of the Common Market. So there may not be any very easy way to get a wider power of approximation than there is under Article 100. If that is so, the answer may be that the Community will have to amend the Treaty if they wish for a wider power of approximation than is already in existence.
I referred to the two classes of recent proposed directives, which we think are vulnerable to the attack of being, in some cases, ultra vires. One of those concerns the environment, and the proposals are put forward and sought to be justified, as I understand it, as being necessary "to improve the quality of life". That is an expression which I have not invented; it is found in the preamble to some of the recent Directives. These proposals for improving the environment follow on a resolution adopted by the Council in 1977, and have led to a programme for improving the environment which was approved by the Council. The preamble to the resolution of the Council is interesting, because it seems to me, if I may put it in this way without being offensive, to give away the weakness of the case for this kind of Directive.
The preamble to the resolution approving of the environment programme sets out at length the objects of the Community from Article 2, which I have already quoted; that is, to promote a harmonious development of economic activities, and so on. But it omits the important words, which I mentioned earlier that the objects are to be achieved,
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"by establishing a Common Market and progressively approximating the economic policies of member states".
So that in the preamble to the environment programme they leave out all reference to the economic policies of Member States. The inference seems to be that an attempt is being made to bury and forget about the economic limitations, which, after all, are in the Treaty, and to disregard them.
Having made that incomplete quotation from Article 2, the preamble goes on to state that,
"…improvement in the quality of life and the protection of the natural environment are among the fundamental tasks of the Community".
That is a proposition which I would dispute, and which I believe the Select Committee, as a whole, would dispute. I should say that I have no particular authority to speak for other Members of the Select Committee, but, in my view, that proposition is unsound. I would say that the fundamental tasks of the Community are those in Article 2 that I have already mentioned, and they are to be pursued only by the economic means that I have mentioned. No doubt, the improvement of the quality of life is a very desirable thing. But I would say that, except in so far as it can be related to economic matters and accompany them, it is not within the present objects of the Community. If the Community wish to bring it within their objects, then the Treaty should be amended to that end.
To some extent, it seems that the Commission accept this argument. They seem to recognise that proposals for improving the environment have to be related, to some extent, to economic matters, and attempts have been made to justify some of the environmental proposals on what I would regard as quasi-economic grounds. The argument is, I think, that if one member sets standards of cleanliness against pollution for, say, the air or the water, which require manufacturers in that State to incur expense, and if other Member States set lower standards or do not set any at all, then competition is distorted, because manufacturers in States with lower standards, or with no standards, have an advantage over manufacturers in States which have imposed higher standards, because the latter have to incur expense.
It is said that the functioning of the Common Market is directly affected in that way, unless all Member States have to comply with the same standards. I would not accept that argument for a moment, for several reasons, each of which is sufficient in itself. Let me assume that additional expense would be required to conform to a particular standard of purity. The cost of conforming to that standard would not be a cost which could be said to be directly affecting the functioning of the Common Market. It merely affects, and is one of many factors which affect, the cost of production of the commodity which is being considered.
However, there are many other factors that affect the cost of production. For instance, there are natural factors, of which the climate is one. If you want to grow tomatoes, you can grow them much more cheaply in the South of Italy than you can in the Northern part of the United Kingdom, because the climate is better. If you wish to grow the same article here, you must have artificial heating and glasshouses, whereas the people in the South do not need them. But it is not a distortion of competition to take advantage of one's natural circumstances.
Conversely, if your natural circumstances are such that you can put effluent into the sea, or into a fast-flowing river quite close to the sea, without doing any harm to the environment, why should you not take advantage of your natural surroundings to do that, even although another manufacturer, who is inland or in a built-up area, has to take expensive anti-pollution measures? In one case, that is merely using a natural advantage in one way, and in another case it is using it in another way.
It may be said that standards of purity are artificial standards, which impose artificial distortions of competition, but I do not think that that, either, is justified. After all, some Member States control wages within those States, either by law or by Government policy; others, perhaps, do not. Is it to be said that the control of wages is a distortion of competition? Some Member States may have higher taxes or higher local rates than others.
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Is that a distortion of competition? How far is it to go?
I do not want to be thought to be treating this matter in any spirit of levity, but I can assure the House that, at a recent meeting with some officials of the EEC Commission, they were asked—I am not sure whether by me, or by one of the other persons present—how far they would press this argument. We said to them:
"Aren't there some subjects, at least, perhaps family law or the law of abortion, which you would not contend could be within the Treaty, limited as it is to economic matters?"
They solemnly replied that they would not think that that was a self-evident proposition. It was said that States which, for instance, encouraged abortion might really be said to be distorting competition by restricting the labour force; and, conversely, that States which by tax incentives encouraged large families might be doing it the other way around. I regard that as a reductio ad absurdum. But the fact that it was not obvious to some of those to whom we were talking was a little alarming.
One recognises that there are sometimes reasons why controls over the environment have to be extended beyond a single Member State; namely, for the practical reason that they would not be effective otherwise. If you have riparian States on the River Rhine, it is no good imposing pollution control on a State on one side of the Rhine, if the State on the other side allows effluent to pour out uncontrolled into the river. That is a reason why you must have an approximation of laws between those particular States. But the practical result to which that seems to point is that the Directive should apply to those States which are themselves directly involved. It should be addressed, perhaps, to the States which are riparian States along the Rhine, or possibly States which border the Mediterranean. But it is not a good argument for addressing the same Directive to all States, some of whom may have no need to control the effluent from factories. It seems to be contemplated by Article 189 of the Treaty, that Directives may be addressed only to certain States; it actually refers to the "States to which a Directive is addressed". So that there is no need for all Directives to be universal to the whole Community. So much for environmental protection.
The other line which, in some cases, seems to have gone beyond the powers in the Treaty is consumer protection. I think we all agree that consumer protection is a very desirable objective and, as a matter of fact, it is an objective which the United Kingdom has gone much nearer to achieving than some of the other Members within the Community. But it seems to me, and, I think, to the Select Committee as a whole, that consumer protection is really only suitable for action by the Community if there are problems across the frontiers between countries within the Community. If, for instance, you cannot effectively protect consumers by having laws in only one country, then it may be necessary to have a Directive for approximation of the laws of several Community countries.
In our view some of the recent proposals for consumer protection have gone ultra vires by not recognising this limitation. For instance, there is one at the moment that I do not think has yet been the subject of a report but probably shortly will be. That is a proposal for a Directive on misleading advertising. One criticism to which that proposal seems to be vulnerable is that there is not very much cross-frontier advertising—at any rate not as affecting the United Kingdom. One does not know, but it may be that there is cross-frontier advertising between Germany and the Netherlands perhaps or Belgium and France, or possibly some other pairs of Member States. In that case a Directive perhaps limited to those Member States might be called for, but as a general proposition to apply to all Member States, including this country, we do not think at the moment that there is a case for misleading advertising being made the subject of a Directive.
There are also some other objections to the particular proposal on misleading advertising, one of which is that it seems to lay down in some detail proposals for machinery by which misleading advertising is to be prevented. It would involve quite a substantial interference with the procedure and operation of our courts and it seems, to say the least of it, very doubtful whether major upheavals in our court procedure ought to be undertaken for the fairly limited purpose of imposing legal controls on misleading advertising, particularly when we already have a
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fairly efficient system of controls of our own.
Another proposal within this field of consumer protection is for controlling home-study courses. Apparently home-study courses in some cases have been inefficient or they have been over-charging or there have been abuses of those sorts. Again, there is no evidence that we know of why that has to be dealt with in this country and again it seems rather unlikely that cross-frontier abuses of that sort are very extensive. It seems very doubtful, therefore, whether a directive addressed to several countries is really justified.
I am afraid I have strayed a little more into detail than I originally meant to, but if I may try to collect together what I have been trying to say. I seek to emphasise the point of principle as I see it. When the United Kingdom entered the Community it did so on the terms of the Treaty which is still in force and which permitted and instructed the Community to seek approximation of laws in certain areas which I have already mentioned. I have tried to explain why, in my view, those areas are limited to the economic and financial fields, but it is perfectly plain that that limitation is not accepted by the Commission, by the Council, I suppose, of the Community. The argument is that the Treaty should receive what is called a "dynamic interpretation". That means to say it should be construed more widely and in a changing way as the Community develops.
There may be something to be said for that. If this Treaty had been in force for 100 years, if we had had a really old-established Community with its affairs closely inter-knit, one can quite see that a greater degree of approximation might be necessary and might be appropriate than it is at the moment. But these are early days yet; we are only starting on the Community and if that sort of argument is to be presented, it must be limited to a very narrow field at the present stage. It is important in my submission that there should be some limit defined beyond which approximation of laws is not to be permitted because if there are no limits—and that seems to be almost the position that is being advocated in some quarters—to the field of law in which approximation may be pursued by the Community, that

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means that the whole of our law, without exception, is open to be compulsorily approximated under the instructions of the Community. It means that Parliament has finally, and in principle, abandoned its sovereignty in the whole field of our law.
That is really a very sweeping proposition if that is the proposition which is seriously contended for. When we went into the Community under the Treaty we thought—at least I believe we all thought—that certain fields only of our law were open to approximation in terms of the Treaty. But, if this argument is right, it means that there is no limitation on the field of Community legislation at all and, conversely, there is no field which is exclusively reserved for legislation by our own Parliament. That means, if it is true, that our Parliament is in a weaker position than the Parliament of a State within a federation, because a State Parliament would normally have certain subjects, certain fields of legislation, reserved to it. But, if this argument is really pressed to its extreme, it means that there is no field reserved for our own Parliament, and once that principle is conceded, if it is conceded, it is only a matter of time before Parliament is reduced to the status of a local authority.
It may be that 100 years from now that would be a right and proper thing; I do not really know. But what f feel sure of is that at this moment if Parliament and the public realised that there was apparently a serious proposition that the Community had power over the whole field of law to issue Directives obliging Parliament to pass legislation for approximation of laws, neither Parliament nor the public would accept that as a proposition that they would welcome. It is certainly not what we were led to expect in the White Paper published in 1967, to which I referred. I do not believe it is something that would be acceptable to anybody in this country. That is why, in my view, it is so important to have from the Government some statement defining as clearly as possible what in their view is the limit of the legislative power of the Community by way of Directive. My Lords, I beg to move for Papers.
3.47 p.m.
Baroness ROBSON of KIDDINGTON: My Lords, I beg to commend the Thirty-fifth Report on the approximation of laws relating to machine tools and portable grinding machines. The chairman and members of Sub-Committee C felt that it was appropriate for us to present our report in conjunction with the report of Sub-Committee E on the approximation of laws under Article 100 of the EEC Treaty, because it emphasises very much some of the problems inherent in the methods adopted to achieve approximation of laws. All of us, I think, are agreed that the aims of approximation should be the creation of a fair competitive climate within the EEC while at the same time safeguarding both quality and safety standards.
Your Lordships' Committee heard evidence from the BSI, the CBI and the Health and Safety Executive, as well as received written evidence from industrial federations and trade associations. In our view, no problems are expected to arise on the machine tools proposals. They are general and acceptable and would facilitate the breaking down of trade barriers whilst at the same time envisaging the control of safety. It is the special Directive on portable grinding machines, however, which raises several difficulties and we felt, therefore, that it was important to report our findings on this special Directive, as it may have—and almost certainly will have—important implications for future special directives.
Our objections to R49/73 are based on the following issues: first, the inclusion of what is known as EN 68 which is a voluntary standard arrived at in the European standard-making body known as CEN, and which the United Kingdom refused to accept on the basis of safety. In other words, that was a voluntary standard arrived at at CEN which is now included in the technical annex to the Directive and therefore makes this standard mandatory instead of voluntary. As that Directive relates to optional harmonisation rather than complete harmonisation, it would have the following effect in the United Kingdom: Optional harmonisation means that products conforming to this standard must be allowed to circulate freely throughout the Community, but it does not prohibit any

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nation from having lower standards or no standards at all within their own boundaries. What it does, in fact, is to prohibit a nation with stricter standards, such as the United Kingdom in the case of portable grinding machines, from excluding articles conforming to the EEC standards.
Your Lordships may well agree with the Committee that this would make it almost impossible for this country to enforce standards from our own producers higher than those from the EEC, because that would create unfair competition so far as our own producers arc concerned. Therefore, the United Kingdom as a country is faced with either having two standards circulating within our own nation—that is if we could enforce the higher standard from our own producers, which would create dangers within the industry—or being forced to accept a lower standard than we are at present prepared to accept. It was made very clear to us by both the Health and Safety Executive and the industry itself that this would not be acceptable to them. I will not go into the details of the difference between the standards set by this country as against the EEC EN68 standards.
Another example which was brought to our attention has already been referred to by the noble and learned Lord, Lord Fraser of Tullybelton. That was the proposal of a Directive to restrict the noise of powered lawn mowers. Lord Fraser said that demands for Directives come from different sources. This particular Directive came from Germany where, no doubt with environmental aims in view, they were very keen to reduce the decibels of noise of lawn mowers. As a Committee we had the most marvellous evidence presented to us by a representative of the lawnmower industry in this country; and I must remind your Lordships that the lawnmower industry in this country is bigger than all the lawnmower industries of all the other EEC countries put together, so it should have something of a say in decisions of this kind and so should this country. The proposal which came from Germany was, according to the evidence that we heard, a quite impossible one. It was that by 1980 the noise should be reduced by five decibels. We would all love that,
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but as a Committee we were convinced by the arguments of the industry—although we are not experts—that this would not be feasible by the year 1980, economically because it would price a lawnmower out of the reach of the average individual, and secondly, as the noble Lord, Lord Fraser, has said, because in the end it would not cut grass.
It seems to me quite amazing that there should have been even a suggestion that a Directive of this kind should come up for serious consideration. I think it came to pass because the consultation with industry within the committees is not close enough. It was pointed out to us, for instance, by our witnesses that on this particular committee the three representatives from Holland were a representative from the Department of Health, a representative from industry and a third representative from the Department of Trade, but at the particular committee meeting when lawnmowers were being considered only the representative of the Department of Health was present and we could all guess what his vote would be. It seems wrong that there is not enough consultation with the actual producers in industry.
So there are two things which we should like to recommend to Her Majesty's Government to look into in relation to special Directives. First, if voluntary standards created in the European standard-making bodies such as CEN and CENELEC are to be used as a basis for technical annexes to Directives, which means that they become mandatory instead of voluntary, then it is desperately important that we should look at the voting systems in those bodies. They are quite different in the two bodies. In CEN there is one country, one vote, and an abstention is not counted. It was in CEN that the decision on the Directive on grinding machines was taken and the voting was six votes for (including coutries such as Sweden, which is not a member of the EEC), two votes against, and five abstentions, which means that in actual fact the decision was taken by a minority of the people entitled to vote. That seems wrong. In CENELEC, who have a slightly better voting system, the votes are weighted, depending on the size of the nations; abstentions count as positive votes. But the difference between

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the two is that in the CENELEC voting system there is no appeal; in CEN there is an appeal. We would urge Her Majesty's Government to look into these two voting systems and attempt to bring them together and get the best out of both as an approach to governing the Directives which, after all, are going to influence all our lives.
Secondly, evidence was given to us by industry that they felt completely removed from influencing the decisions of the Commission's committees because of course they lie in the hands of Member Governments. It is true that industry has an influence on the decisions of CEN and CENELEC but they are voluntary standards. It has not got a chance to influence decisions when they become mandatory, and I think all the countries within the EEC will have to look very carefully to see how we can have much wider and deeper consultation, both with industry and with consumers, before we make a voluntary standard mandatory by including it in a Directive.
I would say that Committee C generally encourage the harmonisation of standards in so far as they remove technical barriers to trade, but we wish to voice a word of warning to Her Majesty's Government as regards Directives in particular cases. This is because they could militate against the main objective of harmonisation, particularly if the voice of industry is not properly represented and standards are created by default because the voting system does not give due weight either to the size of the Member State, and thus of their markets, or to their involvement in the particular industry. I know that my noble friend Lady Seear, the Chairman of Sub-Committee C, will be taking part in the debate later on the wider issues. In the meantime, I beg to commend the Thirty-fifth Report to your Lordships.
3.59 p.m.
Lord TRANMIRE: My Lords, I am sure that the whole House is indebted both to the noble Lord, Lord Fraser of Tullybelton, and to the noble Baroness, Lady Robson of Kiddington, for the way in which they have introduced this subject. If I may add a personal word, I feel greatly indebted to the noble Lord, Lord Fraser, for the way in which he takes the chair at the Legal Committee
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and allows those of us who have not got quite the same legal attainments and qualifications as himself to understand what it is all about. His clarity and his humour as he introduced this subject made what would be rather difficult extremely clear.
May I say that originally, before we entered the Community, I had certain worries about what the effect of joining the Community would be on our Parliamentary sovereignty. I felt that that sovereignty might shrink under the provisions of the Treaty of Rome and the Treaty of Accession. After experience since we joined I do not think my fears have been exaggerated. Some of the work of harmonisation, as the Commission like to call it, has really shown a confirmation of the fears that some of us held on this issue.
The noble Lord, Lord Fraser, defined the powers under Article 100 and I do not want to repeat them; they will be in the memory of all noble Lords. There has been, I think, a far greater rush towards harmonisation than the noble Lord, Lord Fraser, explained. He has talked about the need to harmonise the noise from lawnmowers, and the noble Baroness also explained that. How that can be anything to do with the establishment and functioning of a common market I fail to understand. But it has not gone just in that close limit. You have had an effort to harmonise the water that we bathe in, the habitat of shellfish, and recently, as the noble Lord, Lord Fraser, mentioned, we have the effort to harmonise our senses of humour under advertising.
I want to spend just a moment or two on that, as Lord Fraser rather delicately kept away from it because no report has been published. It is all right for me because I merely read these; I do not make reports, I merely make observations upon them. This comes in R/511/78, under which all misleading and unfair advertising is to be punished under accelerated procedures and with condign penalties that would be far harsher than any British court of justice would impose. There are laid down specifically the actual maximum penalties. Quite unlike another Committee that has been reporting, these proposals are increasing the maximum penalties far beyond anything in our knowledge.

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There is a clear definition of what is misleading. It has to be accurate in every respect and not to omit anything. I remember there was an advertisement, "Glaxo builds bonny babies", and yet I have met many noble Lords and others reared on Glaxo who have not very attractive physiognomies. There was an advertisement, "Put a tiger in your tank". Nobody could claim that was an accurate description of what you did when you filled your car, but under this Directive one would suffer at the hands of one's competitors very harsh penalties. That is all under "misleading". There come even stranger ones under "unfair advertising". I do not know if any noble Lords ever take a walk from this noble House towards Great Smith Street. I do every night, and when I get to that corner of Great Smith Street and Great Peter Street I see a large hoarding which says, "Heineken refreshes the parts other beers cannot reach". It is quite clear that is a very dangerous advertisement, which under this Directive would have attracted dire penalties under the accelerated procedures, because any competitor would be challenging that.
I was interested in what the noble Baroness said about the origin of the grinding machines Directive. I have tried to find out what was the origin of the advertising Directive, and they seem to have come from very nearly the same homes. It is rumoured to me that the reason for this advertising Directive was that the German traders objected to the sense of humour of the Dutch across their border, obviously not the English sense of humour, but the Dutch sense of humour. You will notice that the beer which was advertised at the Great Smith Street corner was a Dutch beer, so I have great sympathy with the Dutch. But let me leave the advertising question. It does illustrate some of the problems we are dealing with in this Twenty-second Report.
I agree with and support all the conclusions in this Twenty-second Report of the Select Committee, but in particular I would remind your Lordships of Conclusion (7), which says this:
"Since the exercise by the Council of the powers given by Article 100 of the Treaty causes an irreversible removal of legislative power from the United Kingdom Parliament, it is essential that the limits of the Article 100 powers should be
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strictly defined and that the Government should undertake to keep within them".
I do hope, in view of this, that Her Majesty's Government will take the necessary attitude when they are discussing these matters in the Council of Ministers. May I remind noble Lords—I am sure I need not remind the noble and learned and Lord himself—of what the Lord Chancellor said in the debate in this House on 21st April (Col. 605 of Hansard). The noble and learned Lord said:
"The Government have been concerned to ensure that this transfer …"
—and he is talking about transfer of sovereignity—
"… should be within acceptable and known limits. The Community only has powers in the clearly defined fields that have been derogated to it by the Member States".
I am sure that at that time the noble and learned Lord never envisaged that the Community and the Commission would be acting so far outside the powers which we believed to be in the Treaty of Rome, and through that in the Treaty of Accession.
It seems to me very important at this stage of development of the Community that Britain should put her case clearly, strongly and definitely. What we have signed we will follow and obey, but we will not agree to the Community and the Commission exceeding the powers of the Treaty and thereby diminishing the sovereignity of Parliament. I believe that to be one of the most important acts we can take towards Europe at the present time. I do not believe that this habit they have of introducing Directives closely defining the procedure laid down is what we envisaged when we joined the Community.
I would far rather the procedure of Article 101 was used, although I know it is limited to cases of competition. Where they find the Common Market is being distorted, then there should be a process of consultation between the countries affected, and after that, if necessary, if there cannot be an agreement, Directives should follow. That seems to me to be a more harmonious way. I believe that if the Commission proceeds along its present lines it will destroy the harmony between Member States that is so essential.
Whatever views we took about joining the Community, I believe that today we

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all have a duty to ensure that so long as we are Members of the Community, the Community works in harmony in the interests of Britain and all the other Member States.
4.11 p.m.
The PRINCIPAL DEPUTY CHAIRMAN of COMMITTEES (Lord Greenwood of Rossendale): My Lords, I should like to begin by saying that I agree absolutely and entirely with the concluding remarks of the noble Lord, Lord Tranmire. Having for many years shared his fears, I now join him in sharing his appreciation of the reports which have been submitted to your Lordships' House this afternoon. I think that we would all wish to congratulate my noble and learned friend Lord Fraser of Tullybelton, the noble Baroness, Lady Robson of Kiddington, and the noble Baroness, Lady Seear, on the magnificent contribution that they have made.
I first met my noble and learned friend Lord Fraser when I was introduced to a club called the "Balliol Rooks" which was a small college discussion group which revelled in the motto, "No respecters of persons". I am glad that in a period of changing values my noble and learned friend is still showing his sturdy radical independence and refusal to compromise with things which he believes to be either craven or confused.
I shall speak very briefly this afternoon because, like the noble Lord, Lord Tranmire, I want to put down simple markers about the political dangers that I think may lie ahead. I am worried by the issues of principle and practice which are raised in the Twenty-second Report and by the example of practice in the Thirty-fifth Report. Like all our reports, of course, these have been unanimously approved by the Select Committee, but individual noble Lords place different interpretations and different values upon them. Perhaps I may say that I agree entirely with my noble and learned friend's interpretation of the duties and powers of the Community.
What weighs very heavily with me is that we are still in the essentially formative stage of the Community. Therefore, I think that now we must be particularly insistent upon refusing to shirk fundamental
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questions like that of vires. Like the noble and learned Lord, I am to some extent reassured by the fact that so far there is not all that much ground for complaint; but there is ground for complaint, and I believe that there should not be. Indeed, there is a heavy responsibility on the Government in the light of the assurances that were given at the time to the noble Lord and myself in another place that the sovereignty of Parliament would not be in any way affected. I hope that the noble and learned Lord who sits on the Woolsack—I know of nobody better qualified to do this—will be able to give a robust, liberal-minded reply when he comes to define the Government's attitude in reply to my noble and learned friend Lord Fraser of Tullybelton. Unless we make the British Government's views and the British Parliament's views very clear at this stage I think that we shall be in danger of creating very great problems for our successors.
Noble Lords will perhaps not need to be reminded of the advice which was given by Junius two centuries ago:
"One precedent creates another. They soon accumulate and become law".
There is the danger that the consequence of having these unfortunate precedents means that, instead of freedom broadening down from precedent to precedent, it may be narrowing down instead. I have not the slightest doubt that every Member of your Lordships' House would deplore that result as much as I do.
I should like to look just a little further afield. We are sometimes criticised in Community circles for the fact that Britain tends to speak very largely on the lines that something will be in Britain's interest. That, of course, is a perfectly respectable political stance to take, but it is not necessarily the best way of exercising influence. I believe that this is an issue where we are peculiarly well qualified to draw the attention of the Communities and their various organisations to these very real dangers that we see. I believe that advice coming from noble and learned Lords in this House can be especially valuable in that respect.
I should like to underline what the noble Lord, Lord Tranmire, said. Paragraph 15 of the Twenty-second Report reminds us that the result of Article 100, as it is now interpreted,

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"is to effect some transfer of legislative sovereignty from Member States to the Community".
Moreover, the additional warning that that transfer is irreversible is, I think, particularly disturbing. I am waiting with great interest to hear what the noble and learned Lord, Lord Diplock, who has made a unique contribution to our consideration of Community problems, has to say on this subject.
The Twenty-second Report also reminds us that Directives are not to be regarded as subordinate instruments. They can, indeed, be of equal status with the Acts of national Legislatures. I do not think that those of us who were apprehensive at the time were so wrong in our apprehension, despite the reassurance that we received. However, it is clear that scrutiny must be scrupulous and unsleeping and that we shall need it for many years. I hope that that scrutiny will be in the spirit of what the noble Lord, Lord Tranmire, had to say.
I should like for a moment to descend to a lower level—if I can call public relations a lower level in the presence of the noble Lord, Lord Lovell-Davis—because I think that it would be foolish to think that at present the EEC stands all that high in public esteem and popularity in this country. If the Government really wish to mobilise support, they must discourage the flow of irrelevancies which do, from time to time, seem to come out of Brussels.
I read with very great interest the view that was expressed by Mr. Douglas Hurd, a Member of the other place, when he spoke to a conference last Saturday. The Sunday Telegraph concluded the report of his speech by saying that what Britain needed to do was to point the Community towards the big issues of world trade and foreign policy and away from the
"foolish zest for theoretical regulation".
Nobody would for a moment question the genuineness of Mr. Hurd's loyalty to the Community, and if Mr. Hurd makes that point it is one that I think we should all take seriously.
My final point really follows from the quotation from Mr. Hurd, it is, that when one looks at the kind of list that is published in this Report, one becomes a little worried, wondering whether there really is
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a strategic plan behind the work of the Commission. The impression is given that from time to time its choice of subjects really is a little haphazard. It is surely a matter for comment that portable grinding machines should at any rate appear to be taking precedence over those major problems to which Mr. Hurd referred. I do not believe that this dissatisfaction with what is regarded as an interference in so many of our national customs and traditions, can be good unless it can be shown to serve some major advantage or provide some major benefit for the Members of the Community as a whole.
It is my most earnest hope that we shall be able to look back upon Mr. Jenkins' Presidency of the Commission as a time when strategic planning and consideration for vires came into their own. If that is the case, the Community will be much the better for it.
4.21 p.m.
Lord O'HAGAN: My Lords, the first report that we are debating this afternoon is, in my view, the most important report that the Select Committee on European Communities has yet given to your Lordships to examine and debate. Perhaps I should explain why I am sitting on the Back-Benches. I have not yet been sacked from the Front Bench on this side of the House; I am merely exercising the traditional right of junior Opposition Whips to speak for themselves from the Back-Benches.
This report, and the pendant to it which has been introduced by the noble Baroness, Lady Robson of Kiddington, give us an opportunity for examining the precise line of demarcation between the control of the Commission and the Community, and our own Parliament. As we are now well into what will be, at the end of it, our sixth year of membership, this is no too early opportunity to take to judge how far we have progressed and how far those fears, as expressed by my noble friend Lord Tranmire, have been justified.
The precise powers under Articles 100, 235, 91 and 101, are not for me, a non-lawyer, to seek to explain or to elaborate. What I should like to do—and what I hope all your Lordships will be hoping that the noble and learned Lord who sits on the Woolsack will seek to answer—is to explore some of the anxieties that the

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present uncertainty gives rise to. Foolish harmonisation is its own worst enemy. It is a gift to those who wish to destroy the Community. When I was in the European Parliament, with a Danish anarchist friend, I put down a Question to the Commission asking them when they were going to harmonise dog licences. I received the very serious reply that there were no proposals to harmonise dog licences yet. It is the fact that I had a serious reply to such an extremely silly Question that gives rise to some of the anxieties that have led your Lordships to take part in today's debate and to prepare the report which we are now debating.
I wish to take a slightly different line from previous speakers, and I wish to differ from some of the thrust which the noble and learned Lord, Lord Fraser of Tullybelton, gave to his opening remarks. I agree with him completely as regards competition policy; I think that the Community is heading for difficulties on competition policy. We cannot have genuine competition policy without having the same currency, the same tax structure, the same rates of pay and the same health and safety at work legislation. I hope and plead with the noble Lord who chairs the Committee on the European Communities to take this danger on board, to look at this problem and to make some recommendations to the Commission before it is too late. Therefore, I am completely with the noble and learned Lord in what he said about the future of competition policy and its present dangers.
However, what concerned me was the attitude taken by the noble and learned Lord, which seemed to lead me—and I suspect other Members of your Lordships' House, and perhaps even those outside—to believe that the Community was only a creature of law. Of course it is a legal entity; it is a system based on the rule of law. I, for one, welcome that and applaud it as an international mechanism for keeping democracies stable and for advancing their economies. So nothing that I am trying to put forward dissents from the view that the legality of the Community is inherent to its nature. If we question its legality and its legal basis, we are questioning the way in which it works.
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I am concerned that the Treaty of Rome is more than a legal treaty; in practice, it is a written constitution without an apparatus for updating it. Therefore, the Community, which was founded in 1958, is already grappling with problems that the politicians and lawyers who drafted its original provisions never dreamt of. The "environment" was a word in a dictionary, and "consumer protection" was a glint in the eye of the Consumers' Association in this country and hardly heard of in other Member States. That may be a little chauvinistic, but I think that, broadly speaking, it is true.
The problem to which the noble and learned Lord and the Legal Sub-Committee are addressing themselves is not merely a problem of law; it is a problem that the Community will continue to face because it has no way of equipping itself —because it has no updating procedure—to cope with changing situations. There is no mention of COREPER in the Treaty of Rome; there is no mention of the European Council in the Treaty of Rome. The day-to-day existence of the Community depends on a development of the Treaty of Rome, because if it did not function to some extent outside the Treaty, it would not function at all. Political co-operation—that is not in the Treaty; foreign policy co-operation—that is not in the Treaty.
Therefore, I should like to align myself with noble Lords who say to the Commission, "Stop this foolish zeal to harmonise everything and take a step backwards before you wish to approximate where approximation is unnecessary". I sat for some while under the tutelage of the noble Baroness, Lady White, on the Environment Sub-Committee of your Lordships' Select Committee on the European Communities. I observed at first hand the lack of scientific backup and the inadequate technical detail that the Commission sometimes brings to its proposals. I agree with the criticisms that these Directives are sometimes inadequately based, particularly on scientific matters. There is only one answer to that: strengthen the Commission; reinforce it; equip it; make it less ignorant and make it more accessible to those who are interested, whether in grinding machines or any other aspect of industry which will be affected; open it up and provide

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opportunities for those with expert knowledge to influence Directives before they are published.
I believe that in many ways the Commission is already more open than the Civil Service here to suggestions from outside. I hope that the noble and learned Lord, Lord Fraser of Tulleybelton, will not consider that I am being cheeky if I say that I detected in his comments on the source of some of the Directives a note of criticism that the Commission had listened to people outside its own doors. I am glad to see that he tells me that I was wrong, because I would take that as something deserving of praise, not as something deserving of criticism.
This occasion provides the Government with an opportunity to tell our friends across the Channel where we believe the door must be shut. It is inevitable that the two systems of law should fall foul of each other, or at least misunderstand each other from time to time. It is especially difficult for those trained in a British legal system, when interpreting the Treaty of Rome, to reach the same view as those trained in a Roman law system who are used to quite different methods of legislation. Thus, conflict and disagreement is to some extent inevitable.
Nevertheless, I believe that this debate will give the Government the opportunity of saying how they feel this protection of the rights that we retained to ourselves when we joined the Community is being secured, and I should like to add my voice in gratitude to all those on the Legal Sub-Committee who have studied this subject to such great profit of the House, and certainly of myself. One of the subjects that they have been studying is home study courses. Noble and learned Lords have plenty of work to do, and I think it is a special attribute of you Lordships' Select Committee on the EEC that they seek to do some home study on European draft legal instruments and then come and inform us about them. Speaking for myself, I am extremely grateful that we have this report as a fruit of their labours.
4.31 p.m.
Lord DIPLOCK: My Lords, the Report on the Approximation of Laws is not
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concerned merely with a technical dispute between lawyers about the rival merits of dynamic or literal interpretation of the Treaty. In my view it raises the most important constitutional issue that we have debated since we debated the passing of the European Communities Act 1972. My only purpose in this debate is to emphasise, before it is too late, the danger of acquiescing in a creeping surrender of our national sovereignty in almost unlimited fields of law.
I want to see, as do many others, the Member States growing closer together in matters outside the purely economic field. I recognise that the Community institutions, particularly the Commission, can provide a useful instrument for doing this by promoting studies, giving opinions, promoting consultations. They can bring about a closer co-operation between Member States with a view to the assimilation of national policies on such matters outside the economic field as foreign affairs, the preservation and improvement of the environment, consumer protection, and indeed all activities which can improve the quality of life, to use a popular phrase which appears now in the preambles to Directives.
At the summit meetings—which, as the noble Lord, Lord O'Hagan, points out, are outside the Treaty itself—of October 1972 and November 1973, the heads of State invited the Commission (and so you cannot blame the Commission for following the invitation) to prepare action programmes for consumer and environmental protection. I suppose there is none of us who would not applaud the objectives. But I, as a constitutional lawyer, am deeply concerned about the methods by which the Commission seeks to achieve those objectives. I am concerned with the constitutional consequences of their useing one method rather than another.
The effect of using Directives under Article 100, the harmonisation of laws, or Article 235, the giving of fresh powers to the Community, is to pre-empt a field of law dealt with until now by national Parliaments, leaving the national Parliament unable to amend the law as laid down in the Directive, or to pass any future Act conflicting with that law. The law is not quite like that of the Medes and Persians; it is amendable,

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but amendable only by the unanimous decision of every Member State upon the Council
When this nation entered the Common Market it accepted a transfer of sovereignty in matters clearly falling within the field of establishing a common market and approximating the economic policies of Member States. At that time we thought that we knew what the Common Market entailed: the customs union; removal of obstacles to the free movement of goods, persons, services and capital; free competition across national borders; common agricultural policy; common transport policy; common policy on iron and steel. As has been pointed out by many speakers, the White Paper issued before entry claimed that this limited field in which sovereignty was to be transferred so lone as we remained Members of the Common Market, left wide areas of law over which the legislative competence of the United Kingdom Parliament remained intact.
A great majority of the harmonisation Directives still fall squarely within those limits of promoting the Common Market and the economic policies of the State. They are clearly referable to the improvement of that country. There may be other grounds for objecting to them in that they are not sufficiently well thought out. With those I am not concerned. They are within the field in which we did transfer our right of sovereignty. What we can do about that is to make sure that when it is exercised by the Community it is exercised well.
However, there are disturbing signs recently of the use of Article 100 to make Directives which trespass far beyond these limits, and indeed the Commission, adopting a dynamic interpretation of the Treaty, claim that those limits have now ceased to exist, and any measure which claims to have as its objective improving the quality of life is within Article 100, however remote it is from the economic field.
It may be that the Commission is right. It may be that in putting that interpretation on the Treaty it will be upheld by the European Court, if ever it were to get to that Court. My noble and learned friend Lord Fraser has explained the unlikelihood of its doing so. But however that may be, the threatened erosion of
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national sovereignty, to the first signs of which the report draws attention, can only proceed with the acquiescence of the United Kingdom representative on the Council, because any Directive under Article 100 requires the unanimous approval of all the Member States.
Acquiescing in this extension of directives outside the economic field is acquiescing in the beginning of the emergence of a federal Constitution for Europe under which all legislative power is potentially exercisable by the federation. Unlike the ordinary federal Constitution, there would no longer be any subjects of legislation reserved to Member States; all would be included in a common list of fields of law in which national Parliaments could legislate only so long as a Directive under Article 100 had not pre-empted that particular field of law. There have been only half a dozen Directives to which attention is drawn in the report up till now, but that there have been only a few is no ground for acquiescing in any of them because it is a characteristic of constitutional law—and must be, where there is no direct method of amending the Constitution—that the longer the erosion is allowed to continue, the harder it is to check.
One can understand the temptation of the British representative on the Council to acquiesce in a Directive outside the normal field, and there are two reasons why it is so tempting. The first is that, if its provisions accord with current departmental policy, it saves the trouble of going through the Parliamentary procedure and having the matter examined in the two Houses; by by-passing that and getting it made as a Directive. The second is the temptation that, if the Directive seems harmless so far as its application in this country is concerned, one can give way on it in the haggling that goes on in the Council in order to get approval of some other proposal which seems of more political importance.
That policy is short-sighted wherever the directive is based only on Article 100 or Article 235, and no convincing case has been made out that the differences between our law, and that of other Member States really prejudices the operation of the Common Market. It is short-sighted for two reasons, one of them practical and the more important, constitutional.

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The practical reason is that our own legislative experience shows that Acts of Parliament meant to deal with new problems in practice tend to need amendment in the not too distant future in the light of experience of how they work. That is even more likely in a Directive which is made applicable to nine States; it will prove in some respects unsuitable for Great Britain, though suitable for Continental States where natural conditions, social habits, traditions and legal systems and procedure are different. Other Member States may, for that reason, not experience the same difficulties as we do. They may be satisfied with the Directive as it stands, and any amendment to suit our different conditions would be to disharmonise law that has already been harmonised, and that is politically impossible in the Council. A harmonisation Directive is a one-way street down which there is no way to return.
The constitutional reason is more important because it involves, as I have pointed out, an irreversible surrender of sovereignty over the subject matter of the Directive. It may be it is right to do so; but, if it is, let us do so with our eyes open. I see no signs that the representatives of this country in the Council are not doing it with their eyes shut. They look to see whether the contents accord with current policy on the topic, not whether the topic falls within the powers that were understood to be transferred to the Common Market when we entered it.
My purpose tonight is not to debate who is right about how the Treaty should be interpretated; the noble Lord, Lord O'Hagan, speaking modestly as a layman, put the case for the dynamic interpretation. Only the Court can ultimately tell us which school is right. My purpose and only purpose tonight is to warn the House of the constitutional implications of what is beginning to happen if it is allowed to continue unprotested and unchecked. I invite the House to urge on Ministers, before they enter this one-way street from which there is no return, to make very sure that the Commission have made out a convincing case that divergence of our law from that of other Member States which the Directive seeks to harmonise really does prejudice the functioning of the Common Market, for unless we do that the creeping irreversible surrender of our sovereignty will go on.
4.48 p.m.
Baroness WHITE: My Lords, I have listened to this debate and, as I hoped, have become more and more instructed in the matter. Noble Lords owe a considerable debt of gratitude more particularly to the two noble and learned Lords, Lord Fraser of Tullybelton and Lord Diplock, for the tremendous amount of work they have put into the study of a most profound and fundamental problem which I think is now becoming more apparent than it was when we originally decided to enter the Common Market.
I am particularly concerned of course with the environmental aspects of this problem and I wish at the outset to apologise on behalf of the noble Lord, Lord Ashby. the Chairman of the Environmental Sub-Committee of the Select Committee; he is carrying out his duty as Chancellor of Queen's University, Belfast, and is unable to be here. I think it important that at least one voice should be heard on this topic; the noble Lord, Lord O'Hagan, is a sort of half voice because he was on the Environmental Sub-Committee but unfortunately found he had other preoccupations and is no longer a constant attender.
Those of us who are profoundly concerned about environmental matters cannot but be disturbed by the general trend of the debate so far. Much play has been made of the diminution in our sovereignty which was potentially a consequence of the various Directives, many of which, quite frankly, I disagree with or find very difficult fully to accept. But I should have thought we were fairly naive if we imagined that we could enter into the European Common Market without some diminution of sovereignty.
Much has been made of a passage in the White Paper of 1967 which suggested, I think erroneously, that changes in our own legislation would be confined to the economic and financial fields. I do not think that anyone who had thought with any thoroughness in the matter could have accepted that simpliciter. Quite frankly, I would be much less interested in a European Community that did not concern itself with environmental matters. This positive side has hardly been touched on so far in the debate. The noble Lord, Lord O'Hagan, did, as one would expect, bring it into his speech, but other noble Lords

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seem to take it for granted that it is desirable that we should continue indefinitely to confine our concern and responsibilities in relation to Europe exclusively to economic and financial matters. That does not seem to me to be the right attitude, whatever the historical basis for it may be. Therefore, personally, at least, I am sympathetic with the expanding view which is now rather taken as common form in the Commission in Brussels. I am sympathetic with it, but I appreciate the very serious caveats that our noble and learned friends have put forward, that at least we should be sure what we are doing.
I think it is only recently that we have woken up to the nature of the path we have taken which fills some noble Lords perhaps with greater apprehension than it does others. We have done so because hitherto we have relied upon our ministerial representatives on the Council of Ministers to fight our battles for us, and on the environment field they have had to fight some very sharp battles on our behalf. But the result of their prowess has been this. Of the 16 matters contained in the appendix to the 22nd report referring to environment, seven have become full Directives and nine still have the status only of Commission proposals. They have the status of Commission proposals because we have not yet acquiesced in them in their present form. In other words, so far, whatever has been done has been done by the United Kingdom consenting. We have a power of veto if we were not prepared, for one reason or another, to go along.
The noble Baroness, Lady Robson of Kiddington, put her finger on a real danger, which is that the unanimity rule which applies in the Council of Ministers does not extend to technical committees of various kinds. As she rightly pointed out, matters of considerable importance could be decided without our full consent even, as she illustrated, on a minority vote, as a result of abstentions or people being absent. That is very dangerous. If those who are of the same turn of mind as I am wish matters of environmental protection and consumer interest to be included in the activities of the Community, then surely the remedy is to extend the legal basis so as to legitimate them.
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I was a little surprised that neither of the noble and learned Lords—to whom we are most deeply indebted—seems to have given much attention to this aspect. It may take a very long time indeed, I would suspect, in the politics of Brussels. Nevertheless it is not impossible, as I understand it, to amend the Treaty, even though no adequate provision has been made for amendment. It is surely not impossible somehow to find a way of amending or extending the legal basis on which our activities proceed.
Lord DIPLOCK: My Lords, the Treaty does contain in itself an article providing provisions for amendment.
Baroness WHITE: I am delighted to hear that. I had supposed, obviously erroneously, from the remarks of the noble and learned Lord that this was not provided for. However, he has now reassured me that it is.
It seems to me that a legitimation is a more constructive and progressive attitude than suggesting that one should simply stand by provisions which were originally enunciated at a time—as the noble Lord, Lord O'Hagan, reminded us—when neither consumer protection nor environmental protection were matters of as keen public interest as they have since become. We are clearly in a difficulty here because of these two different approaches—the constitutional lawyers' approach and the approach of some of us who are not necessarily at all starry-eyed about the Community but who nevertheless feel that if we are in it at all, it should engage in matters which to some of us are of very great importance.
The more extreme view, perhaps, of the expanding nature of Community action has been expressed as recently as 15th June this year in a memorandum entitled Some Principles of Approximation of Laws, issued by the Directorate-General for internal market and industrial affairs in Brussels. Paragraph 11 of this memorandum adduces the proposition that:
"approximation of laws has to take into account in each case the interests of today's industrial society and must make its contribution to the improved quality of life which people rightly expect from the Community. Such orientation of the respective policies of approximation flows and can be derived from the economic, social and political goals of the Community".

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It goes on in paragraph 13 to propose that
"the concept of approximation of laws is not rigid but flexible by definition ".
Paragraph 14 suggests:
"the Commission will proceed in an open-minded and pragmatic fashion. … Approximation of laws is not done at once and once for all, but it is a pragmatic, continuous, dynamic process in a constantly changing society ".
Obviously such sentiments must keep the noble and learned Lord, Lord Fraser, and the noble and learned Lord, Lord Diplock, awake at night, but nevertheless there is something in them.
I should like to remind your Lordships that there is in Brussels an Economic Environmental Bureau, which is the co-ordinating body for the voluntary environmental societies and organisations within the different Member States of the Community, and in which the United Kingdom voluntary bodies with which I am associated play a lively part. It has prepared a most interesting statement, One Europe One Environment—A Manifesto, which it hopes will be presented in the various Member States to all those who are standing as candidates in the elections next year for the European Parliament.
The manifesto quotes the declaration of policy on the environment by the Heads of Governments made in 1972, which was further formulated in 1973, and to which reference has already been made. It proceeds to point out what has already been recognised; namely, that these environmental matters are not covered adequately—at any rate in the opinion of the European Environmental Bureau—in the existing Treaty. Several different points are covered in questions which it is suggested should be put by those interested in environmental wellbeing to candidates for the Parliament, but I propose to take only those which are relevant to our particular concern today. The second of the key questions for candidates reads:
"The powers of the European Parliament to reduce the environmental impact of human activities are severely constrained by Article 2 of the Treaty of Rome with its commitment to a 'continuous expansion' [that is a continuous economic expansion] and Article 1 of the Euratom Treaty which calls for a speedy establishment of nuclear industries'. The EEB has called for amendment of these treaties. Would you support such a move?"
If we are to express very properly our concern at the course on which we now
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seem to be embarked, we should at least positively and constructively try to consider how we can remedy the situation by an alteration in the Treaty. I must admit that I have very serious apprehensions as to the way in which one can do this, and, quite frankly, I hope that any such amendment would be confined to a general statement, presumably in Article 2. I say this because I think that many Members of the Select Committee and the subcommittees may be aware that numerous legal pundits in various parts of the world have already begun to turn their minds to this problem. I have here a copy of a study published in three languages (but emanating from Germany, on the Competence of the European Communities for Environmental Policy. Looking at the various detailed amendments to the Treaty which are being proposed in this document, I should think that it would be at least another 50 years before we have any agreed alterations that would cover environmental matters.
It is difficult to conic to firm conclusions today on the validity of the conclusions put forward in the 22nd Report. However, I would find Conclusion (7), in particular, extremely difficult if it were to be followed without at least some intention to attempt to amend the Treaty at some future date. The conclusion states:
"Since the exercise by the Council of the powers given by Article 100 of the Treaty causes an irreversible removal of legislative power from the United Kingdom Parliament, it is essential that the limits of the Article 100 powers should be strictly defined and that the Government should undertake to keep within them".
If I were a lawyer I suppose that I could swallow that without any trouble at all. However, as I am not, I find it difficult to be told that one must stay within the strait-jacket when one thinks that the strait-jacket ought to be expanded. I would hope that the legal Members of the Select Committee could help some of us who are in this difficulty by producing in due course a further report, as good in quality as the 22nd Report, suggesting ways in which we could meet this situation, not negatively, but positively.
Lord DIPLOCK: My Lords, before the noble Baroness sits down, I wish to suggest that the way to do it is to amend the Treaty. The difference is that the amendment of the Treaty would require ratifi

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cation by Parliament, while at present this is being done by Government without the ratification of Parliament.
Baroness WHITE: My Lords, I entirely appreciate that the noble and learned Lord is right in what he says. All I am suggesting is that we should consider even more thoroughly the way which we should take.
5.5 p.m.
Lord ALEXANDER of POTTERHILL: My Lords, when I read the Twenty-Second Report I found that I was suffering from a mild attack of schizophrenia, and listening to the debate has not helped me very much in resolving my problem. I find myself fully in agreement with the basic submission of the report that Article 100 is being misused. I believe that this is without a doubt. However, I am in some difficulty in then moving to the conclusion that the European Community has no function other than that which is strictly economic. I have a feeling that, if that strict interpretation is applied—with the greater growing power of China and, in the longer term, the United African Continent—the voice of Britain in the affairs of the world will be little more than a whisper. Thus, I have much sympathy with the view which the noble Baroness, Lady White, has expressed.
I come to the report merely because of Paragraph 10, which relates to proposals on home study courses—what we would call correspondence courses. This matter came before Sub-Committee C of the Select Committee, and we found it very difficult to see how it possibly came under the provisions of Article 100. We could not believe that correspondence courses would make such a dramatic impact upon the economy of Europe. Indeed, we had some difficulty in seeing a European element at all, due to the fact that there is very little trans-border activity because of language itself.
However, we also recognised that the purpose of the proposals was a good one. Indeed, I recall that 10 years ago in this country we recognised the same purpose, and we took steps to provide for it. We set up a council for the accreditation of colleges which dealt with correspondence courses in order to secure the establishment
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of effective standards, and to safeguard the students involved. That council has operated for these 10 years with much success. Of the 500,000 students involved in correspondence courses, 95 per cent. are dealing with accredited colleges where their interests are secured and the standards are guaranteed.
Therefore we reached the conclusion that this was entirely inappropriate to be the subject of a Directive, but we thought that it was a perfectly valid matter to be the subject of a recommendation. This is where I found difficulty with the report. It dealt with this matter very crisply in two sentences:
"The Committee are, on the information before them, of the opinion that this proposal is ultra vires".
I quite agree.
"They consider general as opposed to vocational education to be outside the scope of the Treaty …".
If the Select Committee can distinguish between general and vocational education, I should learn something which I have failed to learn in the 40 years in which I have been engaged in the service of education. I think that that is neither practicable nor desirable. Let us deal with the practicability, first of all.
When the noble and learned Lord the Lord Chancellor studied law, I have no doubt that that was vocational, since it is his vocation. I am equally certain that, when I studied law to a very limited extent, it was general education. I have no doubt that most courses in carpentry and machine minding, machine operations, are vocational courses; but when my son was at Arundel and every pupil, including those in the classical sixth, was required to spend a week in the machine shops, I thought it was general education. When the thousands of young married men, drawn from all the professions—the law, medicine, teaching, banking—attend courses to learn how to paint and hang wallpaper so that they can decorate their homes without incurring the very high costs which would otherwise be involved, is that general education or is it vocational education?
Frankly, I think this is an impossible distinction. More important, I think it is a most undesirable distinction. Only a few weeks ago your Lordships had a debate on engineering. One thing that

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emerged beyond doubt from that debate was that, because of this distinction between so-called vocational education and so-called general education, because of the esteem in which this country has held academic values and academic education as compared with technical education, we had suffered a very great deal—because there is little doubt that it is still true. Therefore, any distinction of this kind will merely tend to create a situation in which the forms of education most likely to produce wealth in this nation rank as second-rate when compared with those forms of education which consume rather than create the wealth of the nation, leading in most cases to the public service.
I have been engaged for most of my life in trying to find the right balance between the activities of central Government and those of local government in this country so far as the education service is concerned. I believe that what we are debating today is a precisely similar problem in the relationship between this country—indeed, between each of the countries in the Community—and the Community itself. I walk wholly with the noble and learned Lord, Lord Diplock, on the legal issue and on the constitutional issue, but surely there must be a means whereby the Community, while accepting that interpretation in terms of Directives, can make recommendations which each of the countries can carry into effect, so that the purposes which are sought can be very largely fulfilled. Certainly this would be true in the sphere with which I am concerned. I think there would be every possible advantage in much closer co-operation in the field of education throughout the European Community. I have no doubt about that at all. But I do not think it needs a Directive; I think it can be secured on a recommendation.
Baroness WHITE: My Lords, I apologise, but may I interrupt the noble Lord for just one moment? I think he will appreciate that in the field which he is discussing, education, a recommendation would probably be valid. It might be more difficult, possibly, in the environmental field, where you are dealing with scientific standards.
Lord ALEXANDER of POTTERHILL: My Lords, I think this is probably
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true, and this is one of the problems: to determine those areas or activities where a Directive is necessary; where (as I would put it) unity requires uniformity, as distinct from the areas in which, in my judgment, unity could be achieved with diversity. This seems to me to be the essential difference; but I believe that unity and diversity can make just as great a contribution to the development of the concept of a European Community and its influence upon the world as unity and uniformity. Therefore, I very much hope that this House will not merely approve the narrow interpretation, though I accept that it must as a matter of law, but will rather indicate the Government's readiness, while acting legally on that basis and taking great safeguards to protect the constitutional position, to support recommendations which would lead to a strengthening of the European Community and its influence in the world.
5.16 p.m.
The Earl of ONSLOW: My Lords, this debate, as has already been said, is of enormous importance, and for that we must certainly thank the noble and learned Lord, Lord Fraser of Tullybelton. To argue or dispute, as a layman, with Law Lords on the interpretation of treaties is not only foolhardy but a forlorn hope. Forlorn hopes have on rare occasions succeeded, and I would attempt to try. The Treaty of Rome—and we should and could all have read this before we joined the Community—begins (and I quote verbatim):
"His Majesty The King of the Belgians, The President of The Federal Republic of Germany, The President of The French Republic, The President of The Italian Republic, Her Royal Highness the Grand Duchess of Luxembourg, Her Majesty the Queen of the Netherlands,
Determined to establish the foundations of an ever closer union among the European peoples,
Resolved to ensure by common action the economic and social progress of their countries by eliminating the barriers which divide Europe, …".
Those are the first ten lines of the Treaty of Rome. In my humble opinion, that is not the preamble to a zollverein, like that of Germany after 1815; it is not the preamble to a Customs union: it is the preamble to a treaty embodying something greater. To say, as does the noble and learned Lord, Lord Fraser, that the Treaty of Rome is an economic treaty only is contradicted, I suggest to your Lordships, in those opening ten lines.

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Furthermore, my Lords, it must be impossible to separate economics from social progress, as it is totally impossible to separate economics from politics. Politics arc the affairs of a city or polis. The affairs of a city, using "city" in its earlier Greek sense and not its modern sense, are the provision of the wherewithal and the welfare for the people of that city to obtain a prosperous social and economic existence. Both are interchangeable, and both are indivisible. The other day I bought a new tractor. This has now had to have an expensive, sound-proofed safety cab on top of it. The cab is so quiet you can sleep in it, so it has a wireless. That tractor would be £2,000 cheaper if it did not have that cab. On account of its greater height, extra expense is involved in lopping trees. There is an EEC standard for tractor cabs, and that is why I had to have a new tractor cab. It is a very sensible attempt by the European Community, agreed by our own Government, to protect farm-workers from accidental damage and from social damage to their ears by the noise, and so on. That is a social law. If there had not been that, those who have to add £2,000 to the cost of their tractor would suffer an economic disadvantage to those who did not.
A further point, my Lords. The trade unions in this country have a long, honourable and very successful history of pressing for the advancement of safety measures for their members. At the moment it could be said, reasonably fairly, I think, that the trade union movement is lukewarm in its support for the European Community. If safety and social welfare were taken out of it, I suggest they would become vociferous opponents to it. I think the grinding machine Directive has been so excellently dealt with by the noble Baroness, Lady Robson, and there is such a great deal more business to deal with today that it would be silly of me to continue any further on that point.
Your Committee has produced its opinion which has stated concisely in paragraph 23 of the 35th Report. It suggests that this Directive has got its social and economic mixture unbalanced. To say, as do the noble and learned Lords, Lord Fraser and Lord Diplock, that the
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Treaty is an economic one and not a social and political one, surely flies in the face of English legal history. They know better than I that Chancery Law was invented to by-pass and make fairer common law. Lord Justice Cooke who, incidentally, tied his daughter to a bedpost and beat her into marrying someone who would advance his career at court knew his law backwards; even though he thought that Parliament started in the reign of King Arthur. He used this encyclopaedic knowledge of the law to invent the triune doctrine of Parliament. Some of this was made up; but we have all benefited quite enormously through that. This has been called the English genius of constructive hyprocrisy. This has come into our dealings with the EEC. The political Parties have been playing down the first 10 lines of the Treaty of Rome because it has not accorded with what they think are the political principles or prejudices (call them what you will) of the voters of this country.
To call in doubt the social and political content of the Treaty of Rome is, in my view, to reopen the whole of the EEC argument. That I hesitate to do; that I am not qualified to do. I do, however, suggest that no treaty can stand still. I suggest that all treaties, and especially this one, will benefit by a liberal dose of the English genius for constructive hypocrisy. Perhaps the noble and learned Lord, Lord Denning, who seems to be an inventive judge—and I say that in admiration and not criticism—might come to a different conclusion from the noble and learned Lords, Lord Fraser and Lord Diplock. I hesitate perhaps even more to put words into the mouth of a judge than to argue with a judge. That is probably even more dangerous. This does not mean that we should lower our standards of scrutiny but, as the noble Lord, Lord Greenwood, said today, we should point out very hardly to the Commission when they commit foolish irrelevancies which, sometimes, they unfortunately do.
5.22 p.m.
Baroness SEEAR: My Lords, the main contribution to this debate of Sub-Committee C, of which I have the honour to be chairman, is the report on machine tools and on grinding machines, on which, I am relieved to say, my noble friend

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Lady Robson has so distinguishedly contributed this afternoon, relieving me of the duty of dealing with technical detail which I am incapable of understanding. Both the grinding machine issue and the other points so powerfully raised by the noble and learned Lords who have spoken raise matters of the very greatest seriousness. On the grinding machine issue, I would wish merely to re-emphasise one point which the noble Baroness has made. This was to urge the Government as strongly as I can to consider ways in which we can get a greater technical competence among those who are making these regulations. This is not a new issue to be discussed in this House. When debating Directives and proposed Directives from the EEC, we have on previous occasions raised the issue of the lack of scientific and technical knowledge which goes into the formulation of those Directives and, particularly, the technical anneexes of the directors.
May we ask the noble and learned Lord the Lord Chancellor who is to reply at the end of the debate to tell us whether there are any steps which can be taken so that what we do not yet again have to come to your Lordships asking that these highly important technical matters should not be left to such a large extent in the hands of lawyers—whose brilliance in their own field has been demonstrated this afternoon; but, with great respect, that is not a brilliance which qualifies them to deal with lawn mowers and grinding machines—if a way can be found, by taking practical action, to see that this does not go on.
Lord O'HAGAN: My Lords, if I may interrupt the noble Baroness, there is only one answer to this problem; and that is to reinforce the Commission. That is something that the Finance Ministers turn down year after year. Unless the Commission can be given powers to make itself better informed, it can never improve the quality of the Directives. Is that the matter on which the noble Baroness is addressing the noble and learned Lord the Lord Chancellor?
Baroness SEEAR: My Lords, I am asking the Lord Chancellor to reassure us that this time some action will he taken and that the Government will throw their weight behind getting a better level of
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technical competence in the making of these Directives.
Leaving that aside, we in Sub-Committee C went a long way with a great many of the points so brilliantly put forward by the Law Lords. In particular, we would reinforce the criticism of the present use being made of Directives. I doubt whether the noble Lord, Lord Alexander of Potterhill, is entirely correct in saying that the trouble is that it should not have been a Directive that was being used in a number of these circumstances, but that it should have been a recommendation. There are a number of occasions on which that is the right distinction to make, because a recommendation, unlike a Directive, leaves it open for the Member States to decide whether or not they are going to follow the line of policy indicated. But, surely, one of the points, about which we have complained previously in debates arising out of documents from the EEC, is that Directives, as laid down in the Treaty, are not intended to go into great detail as to what should be done by the Member-States. Directives, unlike regulations, as I understand it, indicate where Member States are to arrive by a process which they themselves can determine, provided that they achieve the policy objective which is laid down.
This is a complaint which can be made again and again about the proposed Directives which have been coming before Sub-Committee C—and the case of the correspondence courses, the home study courses, was a good example. Whether or not we needed anything from the EEC on home study courses, we certainly did not need a Directive. We needed to be told that there are perhaps certain objectives to be reached. We already in this country in that regard had taken steps which met the policy objectives which the Directive was trying to establish; but in a way different from that proposed in the draft Directive from the EEC.
There is a second important point. It is not only whether we need to have a Directive but whether it is not the case—and I am sure it is in a number of the proposals coming before us that, in fact, Directives are going to into a degree of detail which is quite inappropriate and which is appropriate only to regulations and which make it far more difficult for a

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Member State to be willing to consider conforming with the proposals that come before them. I would ask also that the misuse of Directives by making them far too detailed, instead of following the line of saying that a Directive is there when it has been decided that there is a common policy objective that the Nine should achieve; but that they are free to achieve it, travelling their own path and using their own methods, provided they arrive at the required end as the result of the steps they have taken.
Certainly that was the case in the home study Directive that came before us where it appeared to all the Members of Committee C that the steps we had already taken in advance of the proposals of the EEC met the requirements perfectly adequately. The same could be said of some of the Directives in the field of environment, which is not my subject, but I remember very well the noble Baroness, Lady White, pointing out that requirements were being laid down in Directives, the objective of which was to see that fish did not die. Our fish did not die anyway, because the waters were different. Surely all that mattered was that the fish did not die until we chose to kill them. That is the important issue. We do not have to save their lives in a way prescribed in the greatest possible detail by the Commissioners in Brussels, with or without expert knowledge of the way in which fish live and die.
It is the abuse of the Directive as well as the use of the Directive which is one of the problems that we are up against. Perhaps the fact that this abuse has taken place has served a useful purpose in that it has drawn our attention to the whole issue which we are discussing this afternoon. It has also roused the Law Lords to look with the greatest possible detail at the question of ultra vires. Looking—as lawyers obviously must—at the Treaty of Rome line by line, comma by comma, alarmed that the Commission is doing good by stealth or ill by stealth—according to one's point of view—and disapproving of anything being done by stealth, surely it is right that we should at least know what we are doing and do it with our eyes open, rather than being blindfolded by Directives the implications of which we do not totally appreciate when we sign on the dotted line.
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As the noble and learned Lord, Lord Diplock, suggested, in the inevitable process of "horse trading" which goes on in Brussels, as in all other political centres, it is easy to give away far more than one is aware in the longer run in order to obtain an immediate advantage. In examining the vires of actions under the Treaty, is it not true that the Law Lords are attempting to limit the purposes of the Treaty very narrowly indeed to its economic objectives? The noble Earl, Lord Onslow, referred to the preamble to the Treaty. I should like to argue that we want to look very carefully at the possibilities of development of social policy inside the European Community.
Many of us would be extremely reluctant to err on the side of a very rigidly narrow economic interpretation of the Treaty. In wishing to extend the Treaty to broader areas of social policy, not covering the whole of British law as has been suggested by some speakers today, recognising that there are many areas of social policy of great importance which can best be handled if they are approached on a Community basis rather than on a national basis, we have been encouraged by a number of statements coming from high places. The noble and learned Lord, Lord Diplock, referred to statements which have been made by the Council of Ministers going so far back as 1972. I quote from a statement made in 1972:
"The heads of State or heads of Government emphasised that they attached as much importance to rigorous action in the social field as to the achievement of the economic and monetary union. They thought it essential to ensure the increasing involvement of labour and management in the economic and social decisions of the Community. They invited the institutions, after consulting labour and management, to draw up between then and 1st January 1974 a programme of action providing for concrete measures and the corresponding resources particularly in the framework of the social fund".
In the preamble drawn up by the Commission for the social programme in 1973 it was said:
"…from now on both the whole approach and scale of social action must be changed".
When the social action programme was launched in 1974 the Council asserted its belief that
"…economic expansion is not an end in itself but should result in an improvement of the quality of life…".
That is a rather overworked phrase, as the noble and learned Lord, Lord Fraser of Tullybelton, commented—

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"…as well as of the standard of living".
So we go on. I can even quote in aid the lawyers themselves. In the European Court in the Defrenne case the judgment said, referring to Article 119:
"Secondly, this provision forms part of the social objectives of the Community, which is not merely an economic union, but is at the same time intended, by common action, to ensure social progress and seek the constant improvement of the living and the working conditions of their peoples, as is emphasised by the preamble to the Treaty".
That presumably was the judges' comment and interpretation of the Treaty which they saw, in making that judgment, in a Community developing its social as well as economic purposes. It may well be that the noble Lords, Lord Fraser and Lord Diplock, will say that we have been misled by these statements that it is the result of leadership such as this through the Council of Ministers that we have proceeded along this dangerous path which they see as being ultra vires. Clearly, this matter has to be thought out very carefully indeed.
I wish to make only three more points. First—and this matter has already been raised—to draw the distinction between what is economic and what is social is in practice far more difficult than at first sight might seem to be the case. The noble Lord, Lord Alexander of Potterhill, has already illustrated this very powerfully in discussing what to me, as to him, is the entirely invalid distinction between education and training, vocational and non-vocational education. It was only yesterday in your Lordships' House that we discussed the issue of productivity. Surely that is an economic issue if ever there was one. But unless the highly social question of unemployment and provision for unemployment is taken into account, what hope in practice is there of any real raising of levels of productivity? The social issues involved in moving to a situation in which one can get the desired increase of productivity calls for social action. Social and economic matters are closely intertwined.
It is surely all too apparent to those of us who from the very beginnings of the Treaty of Rome have been strong supporters of this country's entry into Europe that there is no great ground swell of enthusiasm for the European idea in this country today. But if we want a
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real response and support for the development of Europe, if we are to maintain support for it in this country, the action taken by the Commission and the Council must be seen to ordinary men and women to be relevant to them in their ordinary lives. This means that the social aspects of their life as well as the economic aspects must be taken into account. If it is not seen by ordinary people that the Community has something to say through their ordinary social needs, then the support that we need to keep alive and develop the idea of Europe will not be forthcoming. It is surely the idea of Europe about which we are talking.
Europe was a great political idea; some people have said that it was the greatest political idea of the 20th century. As we all know, it was born out of hideous travail. Nobody imagines that the founders of Europe thought that it was intended to be confined within the limits of the Treaty. It is an idea which must either grow or die: it is a political idea. Of course you have to have the Treaty to give it a legal base, but we must surely find a way—and we are immensely grateful to the noble and learned Lords, Lord Fraser and Lord Diplock, for having made it so clear to us this afternoon that we have not yet thought through adequately the way in which this problem should be solved—while abiding by the Treaty and not abusing it, to see that this great political idea can grow and express itself in new forms and in new ways.
5.41 p.m.
The Earl of MANSFIELD: My Lords, the noble and learned Lord, Lord Fraser, and the Select Committee have rendered a valuable service by producing this report which considers the approximation of laws under Article 100 of the Treaty. The debate has provided your Lordships, or some of them who are perhaps less than enthusiastic about our membership of the European Community, with the opportunity to voice their fears. It has, at least to the noble and learned Lord, Lord Diplock, given an opportunity to voice fears about our decreasing sovereignty in the future.
The whole world of the Community seems to be somewhat unreal, and the lack of enthusiasm which was mentioned a few minutes ago by the noble Baroness,

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Lady Seear—and I agree with her that there is a noticeable lack of enthusiasm in this country—arises from the extraordinary nature of the subject which we debate. Who would consider that two Law Lords and a whole host of other noble Lords with vast experience in many fields would embrace a debate which would encompass portable grinding machines the noise levels of lawn-mowers and doorstep selling. These, if I may say so, are postules on the body politic of Europe; but what we are considering goes a great deal deeper than that.
At grave risk to myself and to my reputation, I should like to come back to the report of the Committee and refer to some aspects of that, because so many of your Lordships have ranged much wider in the debate; that is indeed natural. The Committee has chosen to consider in this Report the whole field of approximation of laws under Article 100, and it is unusual in that it normally considers and reports on a much narrower field. It seems to me that the Committee expresses its dissatisfaction, so far as this form of Community legislation is concerned, on three main fronts.
First, it is said that the text of Article 100 should be construed strictly and that where it states in the latter part of the first paragraph that—
"the proposed provisions shall directly affect the establishment or functioning of the Common Market",
the word "directly" must be given a narrow meaning. Furthermore, the dominant purpose must be economic, and other purposes, if included, must be clearly incidental to the economic purpose.
Secondly, it is said that the Commission, when preparing draft proposals, should do a great deal more research into the law of the various Member States, and where divergencies are capable of affecting the functioning of the Common Market the causation should be made plain. I do not suppose anybody would quarrel with that point of view. In passing, in a number of instances it is claimed that the Commission's drafting is bad and poorly thought out. I should like to return to that point a little later.
Thirdly, the Committee is concerned that by virtue of the Commission's
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proposals under Article 100 some transfer of legislative sovereignty from the Member State to the Community takes place, and that this process is irreversible. It recommends in terms that the limits of powers under Article 100 should be strictly defined and that the Government should be asked to undertake to keep within them.
If I touch briefly on these three points, it is because—speaking purely for myself—I should not like it to be thought that there is no case at all against the findings of the Committee; because I believe there is one. I do not say that it is a strong case and, still less, that it is an overwhelming one; but there is a case and I believe that it ought to be put.
The first matter I should like to consider is the scope of Article 100. The Committee rightly points out that the Article needs to be read in the context of the Treaty, particularly having regard to Article 2, which I would define as the "purposes" article. Also, although the Committee appears perhaps less strong on this matter, they consider that it should be read in accordance with Article 3, which I would call the "activities" article of the Treaty.
I would say that there is at least an argument for saying that Article 100 is merely the machinery by which the purposes of the Community are carried out, and that the last part of the first paragraph of Article 100 indicates, generally speaking, the fields of approximation. It could be—I say this with great diffidence and respect to the Committee—that too much stress has been put on the word "directly". In any event, I would submit that approximation can be justified by looking at Articles 2 and 3 and perhaps, in particular, Article 3(f), which I would have thought that in certain circumstances could bring in the machinery provided for by Article 235.
This is technical stuff, and I apologise. As to the argument whether approximation should be confined, the Committee recommends cases where the purpose is dominantly economic or at any rate clearly incidental to some economic purpose. I should have thought that approximation would be justified, and would fulfil the last part of the first para-

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graph of Article 100, if the object of the Directive is to prevent the distortion of competition.
I should like to pass to a rather different subject, about which quite a lot has been said this afternoon. That concerns the protection of the environment. As has been said, a Community environmental policy was adopted by the Council in, I think, November, 1973. Assuming that the policy exists, which it does, even if it is right that Article 100 is to be read in a narrow fashion by the interpretation given to the words "Common Market" at the end of the Article, I would have thought that provision for such social matters exists, or at any rate is inherent, in Article 235. If one substitutes the word "Community" for the words "Common Market" in paragraph 1 of Article 100, then I submit it would be right for approximation to take place under that Article.
The Committee's Report deals with a number of environmental proposals, some of which it criticises and at least two of which it considers to be ultra vires. I shall not go into the arguments which have already been rehearsed today, but I wonder whether it is fair to say in effect to the Committee that, for instance, when it criticises the Directive on Water Pollution it bases its criticism on the ground that the principle of variable limits within the United Kingdom is preferable to uniform limits of discharge. That may be good sense from the environmental point of view, but I wonder whether it is so sound from the point of view of establishing fairer competition. I bear in mind the noble and learned Lord's point about his tomato houses, but I am not sure that the two go exactly hand in hand.
Summing up this part of the argument, there is a fundamental difference of approach here. One is the, perhaps, narrower legalistic argument, between those who believe that the Treaty provides a framework of rules and that it is wrong to go beyond them—for instance, to use the framework as a basis on which to carry out an environmental policy—and, on the other hand, those who believe that the Community is a changing, evolving entity, and that Article 235, for instance, exists for just this kind of purposes. Several noble Lords have commented on this. A number of remarks have been
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directed at the way in which the Commission sets about its work. That has come in for quite a lot of criticism from time to time, and not only from the legal point of view. In the past, industry found that the Commission tended to waste its resources on proposals for Directives for which there was no need, and that, in consequence, there has been inadequate consultation and poor quality draftsmanship. I do not suppose that anybody would quarrel with that analysis. The point was well made by the Committee. I believe that the CBI has, since 1976, with its sister organisations within the Community, made a number of representations, and I think I am right in saying that some worth while improvements are taking place. Some of the low priority projects have been dropped and more consultation now takes place.
Having said that, I do not believe that the situation is in any way satisfactory, as yet, but at least the Commission now understands the criticisms that are levelled at it. We should not forget that the Commission is, after all, a creature of the Community, and it is up to the Governments of the Member States to mould the Commission, in so far as it is within their power to do so, to produce proposals which make sense and commend themselves to the members.
I come now to the question of sovereignty, which is probably the most emotive part of the Committee's report. The accession of the United Kingdom to the Community has resulted in a loss of sovereignty, and that is beyond argument. But the Committee recommend that the limits of the powers under Article 100 should be strictly defined, and this recommendation follows on from the view that the Community cannot exercise any authority, except to the extent that authority has been conferred upon it.
Here we come to a problem which has been exercising your Lordships' House for some weeks, particularly over the Scotland Bill. How does one lay down the limits of power for a devolved authority, when the area in which it is expected to legislate is so wide and so constantly shifting, as life and commercial practices in the Community evolve? So that even if the limits of powers under Article 100 were capable of satisfactory definition—

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and I do not believe that they are—it is difficult to see how the Commission, and indeed Government, could be kept within them.
One comes back to this, which is the central part of the whole argument. This is really a matter of what I might describe as mixed law and politics. The Committee is right to enjoin the Government and Parliament to be vigilant and, where appropriate, to take effective steps to stop erosion of our Parliamentary sovereignty, unless it is legal and proper that some sovereignty should be given up. But, as has been said by a number of noble Lords, the real protection lies in the Council of Ministers, and it lies within the power of the Government of the day to examine each proposal which is put before it, and to veto—as some Governments are not slow to do—anything which it considers improper, ultra vires or against the proper interests of this country.
That, I hope, is what the noble and learned Lord the Lord Chancellor will tell us this evening; that the Government are alive to their responsibilities in this field and to the fact that there is a certain concern—I will not say alarm—at the way in which some of these new proposals come from the Commission, and that the Government are thinking of ways in which we can be alerted, as we are, in good time, and that measures, where appropriate, can be taken.
5.56 p.m.
The LORD CHANCELLOR (Lord Elwyn-Jones): My Lords, I am most grateful to the noble Earl, Lord Mansfield, for so admirably summarising the reply which I was proposing to make on behalf of Her Majesty's Government to this fascinating debate. We are most grateful to the noble and learned Lord, Lord Fraser, for having introduced it, and of course, above all, we owe a great debt of gratitude to the Select Committee of your Lordships' House for the excellent report which they have produced, which has not only been an admirable basis for this distinguished debate, but represents what I regard as a major contribution to our appreciation of what is going on in the law-making activities of the Community, and provides a most valuable
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analysis of the trends of the proposals that are so far put forward.
The report is both critical and constructive. There is a great deal in its conclusions to which I readily subscribe, but I have my reservations about some of them. I certainly favour the suggestions which the Committee make on the preparation of the Commission's proposals. I welcome the suggestion in paragraph 22(2) of the report, that the Commission should, when preparing a draft proposal, demonstrate how and to what extent the differences between national laws are affecting the functioning of the Common Market. I, too, should like to see their proposals supported by evidence of the consultations they have undertaken and by some reference to existing national laws. I particularly endorse the suggestion that, where the proposals concern matters of major importance, papers similar to our own Green or White Papers should be published for discussion and comments, before draft proposals are submitted to the Council.
Whether a great deal of technical detail is desirable in a Directive—and the noble Baroness, Lady Seear, has questioned that—must to some extent depend upon the subject. But where it is desirable, it clearly must be set out with competence as to both the drafting and the technical basis of the proposal. It may well be that, in regard to the limitations of technical competence, the noble Lord, Lord O'Hagan, was right in pinpointing that it is largely a matter of funds. But I will certainly draw to the attention of my ministerial colleagues the suggestions that have been made in this field.
I certainly accept the suggestion in paragraph 22, that alternative means of obtaining the desired result should be examined before the method of a Directive is necessarily chosen. Indeed, there may well be on occasion a greater benefit by the use of a recommendation, and the noble Lord, Lord Alexander, gave a good illustration of that in relation to home study courses. Also, in regard to other matters it may be far better to achieve what is sought not in a Community instrument at all, but in an inter-State convention. But I assure the House that, on a number of occasions, our representatives in Brussels have urged an examination of the alternative methods

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available to deal with what is proposed to be done.
My Lords, these are all matters concerned with the working methods of the Commission and the preparation and form of the Directives. When one comes to consider their content and the subject matters to which they should apply, I do not think it is possible to generalise quite so readily. Article 100, about which we have heard much today, has been used for a wide variety of purposes. The Directives issued so far fall into three main categories—eliminating technical barriers to trade, including the fiscal elements attached to trading like customs and taxation; then harmonising laws which safeguard public health, protect working conditions or preserve the amenities of the environment; and, lastly, approximating the conditions in which work or trade takes place and the consequences which flow from those activities.
The Government welcome wholeheartedly the removal of trade barriers—so, I venture to think, would most Members of your Lordships' House. The great majority of Directives in that area have been acknowledged to be of benefit to us. It was estimated by British industry in 1975 that about two-thirds of the Directives brought forward by that time had been or would be of direct advantage to them. There can be no question I think that Article 100 is the right means for bringing about the removal of technical barriers and that its use for that purpose is to be encouraged. But I think even in that area there needs to be caution. The programme should not become overloaded as the conclusions of the report suggest, nor should it concern itself with minor technical harmonisation. I agree again with much that was said by the noble Lord, Lord O'Hagan, about the need to avoid needless subjects for action.
Harmonisation may be costly, particularly in the short term while industry has to adapt its products to any new specifications. The long-term advantages may outweigh this, but the phasing has to be carefully considered and the process must not be hurried. There must be time for my colleagues responsible for trade or industry or energy to have full consultations with industry. I am informed that in fact those consultations, have been taking place in the past, but
904
certainly they are essential—in particular the right method of harmonisation needs to be closely examined.
I believe that the desire to concentrate on the quality rather than the quantity of Directives is shared by the Commission, and it may be significant to note that in 1974 they proposed 33 new Directives for the removal of technical barriers to trade, in 1975, 15, in 1976, 13, and last year only six. So there is not an excess of zeal continuing in this field.
I do not think I need say much about the Select Committee's 35th Report on the proposals for draft Directives concerning machine tools in general and portable grinding machines in particular, about which both noble Baronesses have spoken with such abundant clear authority—a field of female expertise I had not previously suspected to exist. As regards the proposed special Directive on portable grinding machines, the Government shares the Select Committee's concern about the technical standard prescribed by the Directive which is substantially inferior in safety to existing United Kingdom controls. However, negotiations are far from complete and we shall certainly seek to secure a more acceptable standard to be substituted for the standard at present found in the Directive which bears the technical name of EN68. I agree that the circumstances in which that standard came to be adopted by the European Committee for Standardisation (CEN) are, as the noble Baroness, Lady Robson of Kiddington, indicated, not satisfactory and certainly do not make EN68 a satisfactory measure for a Community Directive which will set a standard which must be accepted by all Member States.
The case for harmonising under Article 100 matters concerned with public health, working conditions or a wholesome environment—the second category of Directives I mentioned—is plainly not so clear-cut as is the case for eliminating barriers to trade. Where it is a question of ensuring appropriate standards of safety, health and hygiene, few I think would question that these must directly affect the operation of the Common Market. One cannot expect one Member State to allow the free importation of articles of food or drink or pharmaceutical products which fall below its own accepted standards of safety or health or hygiene,

905
but that does not mean that it is necessary to introduce uniformity into the things we eat and drink. There has been little enthusiasm in this country for "Eurobeer" or "Euro-bread", but whether those matters have been seriously put forward I do not really know.
It is the case that the United Kingdom has resisted, and will continue to resist, any suggestions of harmonisation which do not meet a genuine need for overcoming barriers to trade or discrepancies between the rules of Member States designed to safeguard public health or protect other important welfare interests of the Member States. But in arguing against such suggestions I venture to think that it will often be more productive to rely on their inadequate merit and dispute the need for the particular harmonisation, rather than to lean too heavily on a possible challenge on grounds of vires.
Another group of Directives related, like the food Directives, primarily to public health are those which have been much discussed and which form part of the programme for the protection of the environment. The Select Committee's report is very critical of the legal justification for using Article 100 for this purpose. I think it is the case that that Article has sometimes been given a somewhat strained interpretation to justify Directives dealing for instance with pollution of water, the sea or the atmosphere. It is in practice not infrequently cited as an empowering provision along with Article 235. That Article, as noble Lords will remember, authorises any measures
"…necesary to attain in the course of the operation of the Common Market one of the objectives of the Community"
where the Treaty has not provided the necessary powers.
With respect, I doubt whether an analysis of the powers would serve much purpose in this context. It certainly is not an approach which finds any response among other Member States and probably—though of course I would not be sure—I do not think it would be heard with much sympathy by the European Court if a relevant Directive ever came to be challenged in that court on grounds of vires. The fact is that a programme for the protection of the environment was en
906
dorsed as an important part of Community policy by the Heads of State of the EEC at their Paris meeting in October 1972, and an environmental action programme was adopted by the Council in November 1973, by which time of course the United Kingdom was a Member. The noble Earl, Lord Mansfield, pointed that out. That was renewed in a Resolution of the Council and of representatives of the Governments of Member States in May of last year, and it is now generally accepted, as the Resolution states, that
"…improvement in the quality of life and the protection of the natural environment"
are among the fundamental tasks of the Community.
It is, I think, the case that the Community is not a static organisation. It has a certain dynamism of its own, and I doubt whether it needs "constructive hypocrisy"—to use the notable phrase of the noble Lord who spoke—to justify that. Its objectives are capable of development in accordance with the policies desired by the Member States. There are those who argue—and from a strictly constitutional point of view this would no doubt be the model solution—that the Treaty should be amended so as expressly to embody the protection of the environment. Indeed, I think my noble friend Lady White was thinking on those lines. There has been pressure for such an amendment, but I understand that there is no intention at present of seeking to make one. But I believe that even as it stands Article 100 is clearly relevant to certain environmental Directives like those relating to the lead content of petrol or to the noise levels emitted by different types of vehicles.
In such cases environmental objectives can easily be obtained through our harmonisation of product standards. In many others Article 235 can properly be invoked. Where the particular harmonisation itself is open to serious objection—and I agree with the Select Committee that there have been quite a few cases—we would wish to resist the proposal on substantive grounds rather than by making vires the main ground of objection. The difficulty about the vires approach is that the objectives stated in the Treaty of Rome are very wide indeed. I would certainly not accept that the EEC can operate under Article 100 or Article 235

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in fields outside the stated objectives of the Treaties. But when we look at those objectives, and, for instance, at Articles 2 and 3—I will not read them out in view of the lateness of the hour—it will be seen that they are capable of very wide interpretation or a narrow interpretation, depending upon how sympathetic one is to the objectives that are sought.
Furthermore, greater emphasis might be given to any particular objective or to some aspects by the expressed consensus of the Member States and their representatives, for instance, as a result of summit resolutions. I would certainly not share the Commission's view—if this indeed is the Commission's view—that any branch of the law is potentially a subject for approximation. But this is a field where I think the indications of the problems that arise, pointed to by the noble Earl, Lord Mansfield, are real.
I come briefly to another area where concern has been expressed about the harmonisation of Community law; namely, the miscellaneous Directives which are aimed at approximating the conditions in which work or trade takes place and the consequences which flow from those activities. Criticism has been expressed at the impact which inflexible Community Directives of this type can have on the development of our own civil law. The report cites as an example the draft Directives on liability for defective products, on doorstep selling, on commercial agents and home study courses, and I think there is real ground for concern in this direction. I share the concern that was pointed to in regard to draft Directives like that on unfair and misleading advertising which the noble Lord, Lord Tranmire, dealt with so effectively.
All these proposals have already received a critical examination in reports of the Select Committee and debates both in this House and in another place, and I assure the House that the Government share the Committee's concern that piecemeal changes in small areas of our general civil law on contract or the sale of goods, agency or civil liability for wrong, and similar areas of long established general rules, can do a great deal of damage.
The Law Commission has warned of the distortion of the common law of agency and of other areas of commercial
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law which may result from some of these Directives. Another area in which any projects of approximation should be viewed with the greatest caution is of course the criminal law. Our own criminal law and procedures have developed in their particular ways over the centuries, often differently from that of other Members of the Community, and any incursion on our criminal law in some limited area for the purposes of harmonising it with the laws of other States could well produce anomalies and distortions. If, for the sake of greater uniformity, it is necessary to have criminal sanctions for breaches of some uniform law, it is generally better to leave it to each Member State through its own legislation to apply its own sanctions and its own method of imposing them.
Time is going on and there are many other serious matters for debate this evening. Although I agree with so many of the reservations that have been expressed by the Select Committee about the use of approximation Directives, especially in relation to matters appertaining to our general civil law, I repeat my own hesitation in subscribing totally to the weight which the Committee puts on arguments on vires. As I have said, these matters of strictness of interpretation give rise to different views within the Community itself.
There is, of course, room for further negotiation in which elements of a Directive which seem to be ultra vires can be altered or deleted, or the basis of the instrument can be deflected from Article 100 to Article 235. Where we think that approximation is inappropriate we have in the past resisted it and, as has been pointed out by the noble and learned Lord, Lord Diplock, in the last resort there is the important safeguard of a requirement of unanimity for all relevant Directives, whether under Article 100 or under Article 235. This does not mean that, if at any time the Government were convinced that it is not within the power of the Council to make a particular Directive, we would nevertheless acquiese in such an instrument.
In this connection I must repudiate the suggestion that is made in paragraph 15 of the report, that the issue of Directives under Article 100 might deliberately be used as an easy alternative to securing

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corresponding legislation by the normal Parliamentary procedures. At no time has such a consideration entered into the Government's attitude to any Article 100 proposal. Equally, there is no justification for the suggestion also made in that paragraph that the Government might be willing to agree to something it considered ultra vires simply in return for a concession on another matter. It is of course the case that the process of negotiation in the Community involves a certain amount of bargaining, but I do not think that includes a deliberate adoption of invalid instruments.
I end by underlining the value of the report and of this debate, and I shall draw the attention of my colleagues who have to deal with these matters in Brussels to the important points that have been made. We shall certainly see that full account is taken of the warnings that have been sounded in the House today. Certainly we do not want to see happening what has been described by the noble and learned Lork, Lord Diplock, as "creeping irreversible surrender of our sovereignty". That is something about which we have been alerted and about which we have been most watchful. This debate will strengthen the resolve of the Government not to allow such an improper transfer of legislative powers to take place, which might do damage to both the substance and the coherence of our own law.
6.20 p.m.
Lord FRASER of TULLYBELTON: My Lords, I believe this debate has been a useful and interesting one and, I hope, possibly helpful to the Government. I must say, with the greatest respect, that I cannot regard the reply of the noble and learned Lord on the Woolsack as entirely satisfactory, although there were certain crumbs of comfort I was glad to pick up.
I do not propose to make any sort of elaborate reply. One of the troubles of speaking at the beginning of a debate like this is that one finds that later speakers say what one had meant to say oneself and say it much better; I have been suffering from that all afternoon. Several speakers really agreed in substance with what I tried to say. It would be a waste of time for me to go over and reiterate what they have said. I believe I may have failed to make
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myself quite clear, and I noticed that particularly in what the noble Lord, Lord O'Hagan, said. If I gave any impression that I thought the Commission were wrong to consult outside interests, I certainly did not mean to; the more consultation that goes on the better. What I did suggest was that they do not always consult the right people. I think they are a little inclined to go to academic people and lawyers, when they really ought to go to engineers or people who know about the particular problem.
The noble Baroness, Lady White, referred to the fact that some diminution of sovereignty was implied when we entered the Community, and of course I fully accept that that must be so; otherwise there would be no point in going into it. What I do find difficult is that having entered a Community which involved certain, as one would have thought, fairly well-defined limitations on our sovereignty, we should find those limits forever expanding. If I could be satisfied that we knew where the limits were, then I would not have so much anxiety, and I do not believe my noble and learned friend Lord Diplock would either. What we find a little alarming is that it seems to be impossible ever to find where the limits are. If you regard the Community as a growing thing, something to be treated and construed in a pragmatic and dynamic way, it is difficult to know where you do draw the line. Unless you can draw the line in some way, then we shall be in the position of having lost the whole of our sovereignty.
The Treaty is, of course, quite capable of being amended by agreement of all the parties. Article 236 actually provides for amendment by a suitable machinery involving agreement of all countries and involving ratification of the agreement. That in the case of the United Kingdom would involve ratification by Parliament, and the result would he that the definition would be published and approved by Parliament and not merely done ad hoc by the Government in particular cases.
The noble Earl, Lord Onslow, referred to the fact that the preamble to the Treaty is wider than a merely economic one. That is true in a way but, after all, the title of the Treaty is the European Economic Community. He referred to the fact that it holds up social progress

911
as one of the purposes of the Community. That is quite true, but I think "social" is used in the Treaty in a rather narrow sense. If he looks at Article 118 he will see that the social field is said to refer particularly to employment, labour law, social security and things of that sort. They are social, in a way, but they are very nearly economic, too. So it does not really allow a very wide range of social legislation, I would have thought.
The noble Earl, Lord Mansfield, raised a really fundamental issue on the construction of Article 100. It would not be useful to me or tolerable to your Lordships if I were to enter into an elaborate argument about that now. I noted carefully what he said. I do not entirely agree, but this is a fundamental issue on which we have each put the argument on opposite sides, and I do not think it would be useful to go over it again now.
Finally, if I may refer again to the noble and learned Lord the Lord Chancellor, I noted with pleasure that he accepted several of the conclusions of the report, and I am sure the noble Baroness, Lady Robson, will be glad to note that he accepted the view of the Committee on the grinding machines. I understood what the noble and learned Lord said that it is better to rely on criticising the merits of proposed Directives than to fight them on vires. I can quite see that; if there are good grounds for criticising it on merits it may be easier and better to go for that. All the same, I would repeat that it seems to me important to keep an open eye for proposals which go ultra vires; otherwise if we always allow them to go through it will become impossible to criticise them.
I did welcome particularly his reference to the criminal law as being a field of law which is unsuitable for approximation in Community arrangements. I am particularly glad to hear that, because I have seen a book written by one of the Community lawyers in which he says that approximation is necessary and appropriate in all fields, including criminal law. I have read that with some alarm. I am sorry I do not have the reference immediately available, but that has been said by a responsible person on this matter. My Lords, I beg leave to withdraw the Motion for Papers.
Motion for Papers, by leave, withdrawn.

MR. D. C. ANDERSON, Q.C.
6.26 p.m.
Lord DRUMALBYN Lord DRUMALBYN rose to move That this House calls on the Secretary of State for Scotland to reconsider the case of Mr. D. C. Anderson, Q.C., in the light of the Third Report of the Committee on Criminal Appeals in Scotland (Cmnd. 7005), the Report of the Bryden Working Group on Identification, and the Report of the British Section of the International Commission of Jurists ("Justice"); and to take early appropriate action either by advising Her Majesty to exercise the Royal Prerogative in favour of Mr. Anderson or by instituting an independent inquiry as to whether substantial grounds exist for believing that a miscarriage of justice may have occurred. The noble Lord said: My Lords, I beg to move the Motion standing in my name on the Order Paper. It is a long Motion, and I am sorry to have to tell your Lordships that I am going to inflict on your Lordships a fairly long speech. I only hope that I can make it reasonably interesting and that I shall carry conviction, if that is the right word to use.
This is the third time this case has come before Parliament. It has already been debated both in the House of Commons and in this House, and there have been a number of Questions asked in the House of Commons about it. But I hope to show that there are good reasons for bringing it before your Lordships again this afternoon. It is a most unusual case. The trial of Mr. Anderson took place over five years ago under summary procedure without a jury, for in Scotland the accused has no right in summary trials to require a jury. Under summary procedure no official written record of the proceedings is made, but in this case a certified written record was made, unofficially but with court consent, by the senior shorthand writer of a firm which acts for the court officially in High Court trials. I believe that record was ignored both by the sheriff and by the Crown until after the debates in Parliament.
The justification for bringing this case before your Lordships again is to he found on page 4 of the Justice Report:
"The summary discloses strong possibility that an innocent man has been convicted without adequate appellate means of review or redress

913
and with the consequence as a practical matter of dismissal from his career as a senior civil servant and total destruction of his reputation".
A Petition was submitted, along with the written record, to the Secretary of State. It was signed by well over 1,000 people, including 80 Members of both Houses of Parliament, ministers of religion, 100 members of the legal profession, doctors and many other people. There has also been considerable interest in the Press; there have been letters to the Press and there have been editorials in the Press, particularly in Scotland, of course, and widespread comment.
What caused the concern? Here was a man of proven ability and reliability, with a distinguished War service and an exemplary family life—a man who had just been appointed to a position of responsibility as Chief Reporter in Public Inquiries. That man was convicted of an offence which almost certainly would, and in fact did, mean the loss of everything except his devoted family and his closest friends who knew him best. He was convicted on the judgment of one man without having any right of appeal on the facts as found by that one man; for in Scotland the law still allows a right of appeal from summary conviction on points of law only. All the Appeal Court can do as regards the facts is to look at the Stated Case submitted to it by the sheriff and say whether, on the facts as stated, the sheriff was entitled to convict.
The defence has a right to see the draft Stated Case and to propose adjustments to it reflecting evidence which the defence believes the sheriff has not taken into account or not taken fully into account. But the sheriff has, in theory at least, complete discretion whether to incorporate the proposed adjustments, or any of them, in his Stated Case or to reject them. Before deciding, the sheriff may allow the defence a hearing, but again that is discretionary.
In this case the procurator fiscal opposed all the adjustments except one of a minor technical nature. The defence referred the proposed adjustments to the Crown Office, but the fiscal confirmed total opposition, presumably on the advice of the Crown. The sheriff deferred to this Crown pressure and exercised his discretion accordingly.
Pages 12 and 13 of the Justice Report summarise the adjustments that were thus rejected. The Justice Committee, whose excellent report many of your Lordships will have read, criticised the Crown very severely for what it called, their "blanket opposition"
"This",
they said
"was tantamount to suppression of facts from the Appeal Court".
I should like to refer again to the Report of the Justice Committee. It said:
"In the absence of reasonable explanation, the inference is inescapable that the Crown's blanket opposition was not based on a selective and proper examination of the merits of each adjustment, but was a policy decision to oppose them in toto whatsoever their contents and irrespective of their merits".
That being so, the Minister of State owes the House and the public an explanation for this blanket opposition.
I now come to the three reports to which I refer in my Motion. First, the Committee on Criminal Appeals, chaired by Lord Thomson, presented its Third Report last December. That report deals with summary jurisdiction appeals. Should there be a right in Scotland to a re-trial as in England and Wales?—as the noble and learned Lord, Lord Hailsham of Saint Marylebone, at an earlier stage thought was essential for the protection of the citizen. The Committee thought not. Scottish criminal proceedure differs considerably from that in England because there is no middle tier to hear the appeals. It considered a right to re-trial unnecessary in Scotland. But did it consider satisfactory the present procedure in summary jurisdiction? Emphatically, no!
The Committee gives its recommendations in Paragraphs 8.18, 8.19 and 8.21 of its report in the following terms:
"We consider therefore that a hearing on adjustments, at which both parties should have a right to attend, should be mandatory, unless both parties intimate formally that they have no adjustments to propose and the judge does not himself wish to make any alterations to his draft".
It then goes on:
"Where, however, the adjustments incorporate new findings in fact or other matters not covered in the draft and the judge proposes to reject them, we consider that he should state not only the fact of his rejection but his reasons therefor. Similarly, if a particular finding in fact is challenged as being unsupported by the evidence, the judge should he obliged to state the evidence upon which the finding is based. We recommend accordingly".

915
At paragraph 8.19 the report says:
"We recommend that any proposed adjustments which are not withdrawn by a party but are rejected by the judge, should be included in the minute of proceedings",
and it then proposes a possible style for that. At paragraph 8.21 it says:
"We consider that the present power of the High Court under Section 452(1) of the 1975 Act to remit a case back to the inferior court for amendment should be retained".
The second report is that of the Bryden Working Party. It was set up jointly by the Secretary of State and the Lord Advocate to consider how far the findings of the Devlin Committee on Identification in England and Wales were applicable in Scotland. The Working Party agrees with Devlin that eye-witness identification is fallable, but recommends that for Scotland it is preferable to improve identification procedure rather than to strengthen requirements of evidence. The Working Party recommends in Paragraph 4.41:
"… there will continue to be occasions where informal identifications will be necessary, and we are concerned that the evidence resulting from such informal identifications should be as valuable and as fair as possible. We have agreed that the Rules should state explicitly that witnesses should not be together at informal identification".
In the Anderson case the witnesses were two young girls and they were placed together in the back of a police car. The inference is that the informal identification procedure in the Anderson case was neither valuable nor fair. Yet, the procurator fiscal told the sheriff in his final address that the case turned on the identification of the girls. I shall come back to that matter for I must now come to the trial itself as recorded in the transcript of evidence, and I shall not go beyond the evidence there recorded.
The third report mentioned in the Motion is that of the Justice Committee, which is the United Kingdom Branch of the International Commission of Jurists. The report was prepared by a working party of five experienced Scottish lawyers and was approved by the full Committee nemine dissentiente. The group included two distinguished former sheriffs, one now a professor of law, and three solicitors. The Committee is too well known and too highly respected to need any introduction from me in this debate. It is sufficient to say three things. First, the noble Lord, Lord Foot, who is to speak
916
in this debate, is an officer of the Justice Committee. Secondly, the Justice Committee very rarely inquires in depth into individual cases. Thirdly, I understand that it was moved to do so in the Anderson case because of the existence of the transcript of evidence, and it based its conclusions largely upon it.
Before I deal with the trial itself, let me say that nothing in my speech is intended in any way to impugn the integrity of anybody. I am sure that everyone concerned acted as they believed was right in the circumstances. But anybody can make mistakes, and mistakes have certainly been made in this case on both sides.
Your Lordships may recall that on t he night of Monday, 18th December, two girls, both 14 years of age, were walking along the Prestwick/Ayr road, in the direction of Ayr, when a man got out of a car which was parked practically under a street light in a reasonably well lit road. He came up from behind them and said, "Excuse me". He then asked the way to Troon. He said that he was from Edinburgh and was staying at an hotel in Troon. According to the girls, the man was polite, well-spoken and sober. He invited them to take part in a "rag"—a very clean rag, he said. He wanted them to jump on him, kick him and walk on him. He said that a woman at Edinburgh University had bet that she could "lay" him at judo, and he wanted training for this encounter. One girl said "What! Here?" He offered to take them somewhere quieter and invited them into his car to talk it over. The girls said that they would rather stand on the pavement and talk to him there. He then offered them £1 each to take part in the "rag". Each girl, in turn, said "No", one adding that she was only 14 years of age. At that the man said:
" That's all right then; it was really older girls I wanted".
The girls then turned and walked off laughing. One of the girls later told her parents that she thought he was a hit of a crank.
There is no evidence that the girls were at all alarmed. Yet Mr. Anderson was charged with conducting himself in a disorderly manner and alarming the girls. On the evidence of a boy who the girls talked to immediately afterwards, they were "not unduly excited". Certainly

917
their respective parents thought that they were not excited enough, and they soon put that right by the time the police arrived.
In his final address to the court the procurator fiscal said:
"This is basically a very simple case of breach of the peace, and is utterly dependent on the evidence of the two girls … If your Lordship takes the girls as credible witnesses, in my submission this charge has been made out".
The credibility of the witnesses is not in question. In his Stated Case to the High Court the sheriff said that he accepted the evidence of the girls "in its entirety". However, when compared with the trans-script of evidence his Stated Case shows otherwise. In particular, he did not accept their evidence on what proved to be the most vital point of all; namely, the alleged identification of the car; nor did he accept the girls' own description of the man.
Two nights later the girls were taken by a police sergeant and a policewoman to look at cars. After visiting two other hotels, they went to the car park at the Tower Hotel where Mr. Anderson was staying. They were taken to the car park by the policewoman only, while the police sergeant went into the hotel. There they saw an estate car which, according to the policewoman's evidence, each girl said was "like" the car that they had seen at the place of the incident —"like" the car they had seen. One of the girls who was more interested than the other in cars, and who had thought that the car at the incident was a saloon car, said:
"Actually, it would have been more like it if it hadn't been an estate car".
But she added:
"I never really got a good look at the back of it",
meaning the car at the incident. But she did have a good look at the front of it, and in particular at the number plate, while she was talking to the man. As soon as she returned home—within half an hour or so—she wrote down the number. It was BCS or BSC, then three figures one of which was a five, another a four and the third she could not remember; then there was the letter L. The number of Anderson's car was BSC 555L. She thought that the car at the incident was
918
a blue Chrysler saloon, whereas the car in the car park was a Triumph estate car, which the same girl described as dark green.
The girl testified that she was able to see the car "quite distinctly". There was a street lamp just in front of the car. The sheriff, however, wrote in his Stated Case that the girl had:
"no clear view of the number".
Justice described this error as "inexcusable and prejudicial". Conclusion 7 in the Justice Report says:
"It is conclusively established from the transcript that the sheriff did misdirect himself in holding that Jill had no clear view of the car number. This misdirection was on a critically relevant point, as but for it there would have been no explanation to account for the witness having remembered a number different from Mr. Anderson's 555".
One cannot make a mistake about three fives any more than about three nines—999. But the girl seems to have remembered that there were three different figures.
After leaving the car park, the policewoman and the girls rejoined the police sergeant. Questioned by the police sergeant, the girls seem to have given him the impression that they did think the car in the car park was the same car as they had seen at the incident, not just one very like it. This was not what they said at the car park, and it was not what they said in court. No further search for a car even more like the car at the incident was made. It stopped at that.
This muddle about the identification of the car had a serious effect on the subsequent purported identification of the man. The next day but one the scene was set for identification. A car, with two policemen in the front and the two girls on the back seat, was parked some 40 yards or more from the Prestwick Police Office, at which arrangements had already been made for Mr. Anderson to call and hand in a photograph of himself on his way to the inquiry over which he was presiding in Kilmarnock.
Before long the girls saw the car which they had seen in the car park draw up at the police station. They saw a man get out and go into the police station. A minute or so later he came out and went towards the car. The girls looked at him and then looked at each other. That alone vitiates

919
the identification. Justice, on page 9 of the report, finds:
"Influence of one witness on the other did take place".
Defence counsel asked Jill, one of the girls, if she took anything from the fact that her friend turned and looked at her. Jill answered:
"Well, I thought it meant we both had the same sort of idea that that was the man".
Counsel also asked:
"Were you expecting a car to come to the police station with the man you had seen before in it?"
The witness replied:
"We hadn't been told it would be. But I thought myself that is how he would come".
The sheriff wrote in his Stated Case that the police had acted "very ably and discreetly". The Justice Committee, on the other hand, found that the police had acted:
"in breach of the Official Instruction Book for the Scottish Police".
The report goes on:
"There was no justification for the breach—no factor or emergency or urgency".
I have already referred to the recommendation of the Bryden Working Party on Identification. Unlike the Devlin Committee, the Bryden Working Party was not required in its remit to inquire into the merits of particular convictions based on identification. None the less, it plainly had in mind the Anderson case, among others—including that of Oscar Slater—when making its recommendations. Indeed, Sheriff Bryden was quoted in the Press as saying, presumably at a Press conference:
"We would consider that the Police were wrong in taking the two principal witnesses along to identify Anderson together in a police car. We have indicated that witnesses should he kept apart as far as possible".
He added very properly:
"That is not to say that Mr. Anderson did not do what he is alleged to have done".
Very properly for that was not within the remit of his working party. What it quite plainly means is that the purported identification is of no use at all to prove that he did do it. Yet the procurator fiscal told the sheriff that the case turned on the identification by the girls.
Add to this the fact that the description given by each of the girls of the man at the incident differed markedly from the
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physical features of Mr. Anderson in height, build, shape of face, eyebrows, shape of eyes and in colour of hair. The two girls each separately gave much the same description. The man at the incident wore a greatcoat and a cloth cap. Mrs. Anderson testified that her husband had not taken either a greatcoat or cloth cap with him, and the prosecution did not challenge her evidence.
On identification let me read a brief extract from page 15 of the transcript of evidence. Bear in mind, my Lords, that the purported identification at Prestwick Police Station was made at 40 yards range or more.
"Procurator fiscal: Although the man was dressed differently from what he had been on Monday night, had you any difficulty in recognishim?
Witness:"
That was the first girl to give evidence.
"No.

Procurator Fiscal: Do you see him in court this morning?

Witness: Yes.

Procurator Fiscal: Where is he?

Witness: There behind you.

Procurator Fiscal: There are a lot of people behind me?

Witness: The one at the end.

Procurator Fiscal: The one who is writing?

Shorthand writer's note:—the witness pointed to me".

She was then asked to try again and she pointed to the man in the dock—Mr. Anderson.
The point is that the features and build of the shorthand writer corresponded closely with the description given by the girls both on the night of the incident and the following morning, and were quite different from those of M r. Anderson. I should add that the sheriff duly recorded this incident in his stated case. No adjustment needed there. That concludes my summary of the trial. I should only add what Justice said in paragraph 6 of their conclusions:
"The cumulative weight of the positive indications coupled with the unreliability factors is so great that no judge properly directing himself, weighing these against the identification, could have failed to hold that reasonable doubt existed".
That, I would remind you, was a working group which included two ex-sheriffs.
There is one further matter I must mention before I conclude, if only because, if I did not, the noble Lord would be tempted to say that I had passed over it deliberately. This matter falls outside the

921
evidence. He may attach more importance to it than I do. After the policeman had called on Mr. Anderson and told him of the incident and that his car had been identified as having been involved in it—which proved to be false, though no doubt the policeman believed it to be true—he wrote to the police denying any involvement.
Later, following a visit to the Crown Agent, he wrote a letter to him admitting that he had taken his car out and met two girls. This was something that the police had mentioned to him. He was not aware at the time that any offensive suggestion had been made to the girls, and he was relying on the police sergeant's remarks to him that it was a very minor matter. He also made some kind of admission to the Permanent Under-Secretary of State. These admissions he withdrew when he learned that the charge was of a more serious character. The Justice Report deals convincingly, in my view, with this unwise action in Appendix 3. The purported letter of admission was not produced in evidence by the Crown, so it has never been examined in court.
Let me come to the prerogative side. The Motion calls on the Secretary of State either to exercise the prerogative of mercy or to set up an inquiry. A letter written on behalf of the Secretary of State on 6th September 1976, explaining why the Secretary of State in the circumstances of this case would be taking no action on the petition signed by over 1,000 people, said this about the exercise of the prerogative:
"His"—
that is, the Secretary of State—
"only function is to consider whether there are extraordinary circumstances in the case before him in recommending to Her Majesty the exercise of the prerogative for a free pardon or remission".
Is it not an extraordinary circumstance that a sheriff should use his discretion to reject 10 pages of adjustments to his stated case, or even to discuss them with senior counsel, and so to deprive the Appeal Court of an opportunity to take into account the facts and considerations omitted in the stated case? That is surely a "factor of substance", of such considerable substance that Lord Thomson's Committee has recommended that this
922
should never again be allowed. Surely the glaring gap in the present law ought not to be ignored in this case—a gap exploited by the Crown to procure what Justice calls this act of maladministration in discretion; that is to say, the rejection of the adjustments. Justice points out that the defects in the law do not excuse the conduct of the Crown. They aggravate it. The gap may be said to have created a duty on the Crown to be more careful to be fair.
Surely, in these circumstances, the Minister of State cannot rest on the statement that he made in the debate on 21st January 1976, at column 555 of Hansard, that
"… there is no doubt that Mr. Anderson was duly convicted in accordance with the criminal law of Scotland".
He cannot justly maintain that a power of discretion in a lower court is utterly unchallengeable however it is used or misused. Discretion must itself be discreetly used. Even if he were to do so, he must also take into account the definition of the purpose and exercise of the Royal Prerogative which the Secretary of State gave in the House of Commons on the 8th December 1976 at column 455 in connection with the Meehan case when he said:
"The existence of the Royal Prerogative of Mercy is an integral part of the constitutional system which exists to protect the citizen against a possible miscarriage of justice".
Note the word, "possible".
"The Secretary of State should not hesitate to recommend the exercise of that power if he has substantial grounds for believing that a miscarriage of justice may have occurred for which there is no remedy available in the courts".
Note that this definition does not contain the limitation which the noble Lord, Lord Kirkhill, referred to in the last debate that there must be new factors which were not before the sheriff. That is absent from that definition.
Mr. Anderson had only one possible remedy. That was to have the case remitted back by the Appeal Court. That remedy was denied to him by the Crown which, for reasons not disclosed, opposed defence counsel's motion for the case to be referred back. Now he has no remedy in the courts at all. He can rely only on the Secretary of State to exercise the Royal Prerogative to protect the citizen against a possible miscarriage

923
of justice. If the Secretary of State accepts as, the Justice committee so unequivocally have accepted in their final conclusion, that there are substantial grounds for believing that a miscarriage of justice may have occurred, surely the Secretary of State should exercise the prerogative of mercy in this case and rescind the conviction which has ruined the career and blighted the life of Mr. Anderson. If he wants further elucidation of any matters at issue, he can set up a public inquiry. To do so, we have been told in the course of debates on the Scotland Bill, is part of the prerogative. Then he can decide, in the light of the inquiry's findings, whether or not to exercise the Royal Prerogative. My Lords, I beg to move.
Moved, That this House calls on the Secretary of State for Scotland to reconsider the case of Mr. D. C. Anderson, Q.C., in the light of the Third Report of the Committee on Criminal Appeals in Scotland (Cmnd. 7005), the Report of the Bryden Working Group on Identification, and the Report of the British Section of the International Commission of Jurists ("Justice"); and to take early appropriate action either by advising Her Majesty to exercise the Royal Prerogative in favour of Mr. Anderson or by instituting an independent inquiry as to whether substantial grounds exist for bellying that a miscarriage of justice may have occurred.—(Lord Drumalbyn.)
7 p.m.
The MINISTER of STATE, SCOTTISH OFFICE (Lord Kirkhill): My Lords, as we know, this House discussed the case of Mr. David Anderson on 21st January 1976, following a debate in another place on 11th April 1974. I told the House then that, as in all prerogative cases, the Secretary of State for Scotland was always willing to consider any new information that might become available about the case. I assured the House that he would carefully consider the petition then circulating and certain matters raised in that debate. But I also explained why, on the information available at that time to him, the then Secretary of State took the view, like the previous Secretary of State who had considered the matter in 1973, that no action on his part was justified. Perhaps it would be of assistance to the House if I referred to subsequent events.
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The Petition I have mentioned was sent to the Prime Minister, and to the Secretary of State, some time afterwards, in 1976. I should perhaps mention, because prerogative cases have always received the very personal attention of the Secretary of State, that in the meantime there had been a change of Secretary of State, so that reponsibility for consideration of the Petition fell to a different person. Nevertheless, after a full consideration of the case, the present Secretary of State came to the conclusion that there were no grounds, either in the case itself or revealed by the Petition, for departing from his predecessor's decision.
The case was then the subject of a report prepared for the organisation Justice by a group of Scots lawyers, and referred to by the noble Lord, Lord Drumalbyn. That report was submitted to my right honourable friend the Secretary of State for Scotland in March this year. It was suggested that the report contained additional information about Mr. Anderson's case, in the light of which my right honourable friend should consider the report. He also received further representations from Mr. Anderson himself. The Secretary of State carefully examined the report and Mr. Anderson's representations, but came to the conclusion that he had no grounds for departing from his previous decision. If I may say so, his reasons for that conclusion were entirely consonant with the assurances I gave the House in 1976. A careful examination of the report, and indeed the Petition of 1976, shows that, in the words of the letter which my right honourable friend sent on 24th May 1978 to the solicitors who submitted the report, they
"do not provide any further information relevant to the offence"
—that is, to the events which resulted in Mr. Anderson being tried and found guilty.
I have no desire to repeat my own speeches, but, particularly on account of the suggestions that there have been discrepancies in the criteria used by the Secretary of State in different prerogative cases, I feel that I must repeat the very full explanation of the Secretary of State's constitutional position in cases of this kind which I gave to your Lordships in the 1976 debate. I said:
"His"—

925
that is, the Secretary of State's—
"prime function is to uphold the rule of law. What has been done by a court of law must be presumed to be duly done and its orders upheld. unless there is reason to doubt its correctness. His second function, and one that the Secretary of State, like his predecessors"—
and, if I may interject, his successor—
"finds one of his heaviest responsibilities, is to consider whether there are any reasons to doubt the correctness of a verdict. If information comes to his attention that the court's verdict appears to have been in error—that a person who was innocent may have been convicted—then it is his duty to investigate the case and weigh up the fresh issues carefully against the court's decision and, if there are sufficient grounds, to provide a remedy. For this purpose, he has been given the extraordinary power to make recommendations to Her Majesty the Queen for the exercise of the Royal Prerogative of Mercy.
I have referred to it as an extraordinary power because such it is. The Secretary of State is not empowered to re-try a case and decide on the merits of a conviction on the evidence at the trial. Leaving aside his lack of powers for the moment, even a Court of Appeal armed with a transcript is in no happy position to do that … for it has not heard the witnesses under oath and examination and observed their demeanour. What is required, if he is to exercise his powers in a case of this kind, is some additional information —sonie further factor—not before the court, which points towards a miscarriage of justice. It cannot be some fanciful or unconfirmed doubt or possible alternative explantion. It must be a factor of substance."—[Official Report, 21/1/76; cols. 552–3.)
I must remind the House that Mr. Anderson was convicted by a court of law and, whatever may be the limitations of the appeal system—a matter to which I will proceed—any impropriety of law or procedure would have been dealt with by the Appeal Court. Apart from the evidence before the court when it convicted, the only additional items of information of substance regarding the case against Mr. Anderson are the two separate admissions he made about his involvement in an incident with two girls which are in conflict with his alibi defence, and his subsequent explanations of why these admissions were made.
I have repeated a passage from my speech in the 1976 debate at some length, because the Justice report makes much of an alleged discrepancy between the criteria adopted by my right honourable friend in the case of Mr. Anderson on the one hand and Mr. Patrick Meehan on the other. In Mr. Anderson's case, the letter conveying my right honourable friend's
926
decision on the petition described his responsibility as follows, and Lord Drumalbyn referred to this:
"His only function is to consider whether there are extraordinary circumstances in the case before him which would justify him in recommending to Her Majesty the exercise of the Royal Prerogative for a free pardon or remission".
The Justice Report contrasts this with what my right honourable friend said in another place on 8th December 1976 following Lord Robertson's criticism of the granting of a free pardon to Mr. Patrick Meehan:
"The Secretary of State should not hesitate to recommend the exercise of the power if he has substantial grounds for believing that a miscarriage of justice may have occurred for which there is no remedy available in the courts".
Thus, Lord Robertson. I am sure your Lordships will see, from the full statement I have made, that there is no conflict between those two statements, each made in its own different context and in particular between the phrase "extraordinary circumstances" used in relation to the Anderson case and the phrase "substantial grounds for believing" used in the Meehan case There is no question of a stricter standard being applied in one case than in the other. Quite simply, the phrase "extraordinary circumstances" denotes the fact that prerogative intervention in the decisions of a court of law is an extraordinary and, rightly, a rare occurrence which requires very special features to be established in the case. But it is a power and a responsibility in the Secretary of State and it is right that he should exercise it by making a recommendation to Her Majesty when he has
"substantial grounds for believing that a miscarriage of justice may have occurred for which there is no remedy available in the courts".
The case against Mr. Anderson turned largely on evidence of visual identification and it has been argued his appeal, heard under the Scottish law on summary appeals, was an inadequate review of the case against him. It is natural that those who are concerned about the case should direct attention to these aspects of the criminal process. Indeed, the possibility that it might disclose the need for legal reform on those issues is one of the main arguments given by the Justice Committee for their suggestion for some further form of inquiry. May I say three things about what the Justice Report says on these issues?

927
First, may I reply to certain comments on my speech in the 1976 debate. It was suggested that I had said to your Lordships that everything was satisfactory in Scottish criminal procedure and that I had subsequently been contradicted by the Lord Advocate. In fact, while I suggested general confidence in the summary criminal courts and their procedures—a suggestion borne out by Lord Thomson's Committee in its Second Report—I specifically made reservations about the right of appeal from those courts. I said "The criticism might well be justified", and referred to the further work of the Thomson Committee. I see no conflict with the Lord Advocate's subsequent remarks. Similarly, what I said in the 1976 debate, when I am alleged to have condoned a breach of identification procedures by the police, is contrasted with the remarks of my right honourable friend, the former Secretary of State, in the debate in another place in April 1974. I should like to make it clear, however, that I did not say that the police were entitled to make the specific arrangements they did for the identification of Mr. Anderson. I accept that these arrangements are not those provided for in the recommended rules for police procedure, which, I must emphasise, have no formal binding status. What I said was that, Mr. Anderson having refused an identification parade, the police were entitled to make other arrangements than an identification parade for possible identification.
Secondly, on the issues of identification evidence and appeal I must point out that both those issues have been the subject of recent extensive inquiries by strong Departmental Committees—the Bryden Working Group and the Thomson Committee—and cases such as Mr. Anderson's have loomed large in their inquiries. These bodies have recently reported. Whether their recommendations are right or wrong I do not know—I am not an expert in these fields. But we can be confident that such extensive inquiries will have brought out all the considerations relevant to those issues. In accordance with normal practice, the Secretary of State and the Lord Advocate, on the publication of these reports, asked for advice and opinion on them and approached the main Scottish legal bodies for comment. If Justice or any of your Lordships have any views to express, I
928
am confident that the Secretary of State and Lord Advocate would very much welcome them to assist them in reaching conclusions on the Committee's recommendations.
For my third point I must revert to what I have already said about the constitutional position. Mr. Anderson was convicted by a court of law after the hearing of the evidence in the case, and it was a conviction according to law, as the Appeal Court held. That is the machinery under our constitution for the resolution of disputed facts in criminal cases, and that would be the end of it, but for the Secretary of State's long-stop powers. I am sure it is right that matters of this kind should, so far as possible, be the subject of judicial rather than executive determination.
I appreciate that there are some who believe that Mr. Anderson was not party to the incident with the two girls, and that others are concerned that there may have been a miscarriage of justice. The Secretary of State has, on two occasions, personally examined this case in the light of representations made to him. He has read the unofficial transcript of the Ayr trial, from which the Justice report draws much material in dealing at length with the acquisition and sufficiency of identification evidence. He has also carefully read the Justice Report itself. He concluded, however, as I have said, that that report did not bring out any fresh factor relating to the charge against Mr. Anderson. I think the House will accept that suggestions of doubt about the evidence at the trial or the inadequacy of the appeal procedure, while matters to be taken into account, are matters which arise in many criminal cases, and do not as such constitute grounds for Executive interference in the decisions of courts of law.
I must repeat that the Secretary of State's mind is never closed in a prerogative case. If there were reason to believe that some further inquiry or investigation would reveal facts or factors bearing on the events on the night of 18th December 1972 which would assist him in his decision, then the Secretary of State would willingly make arrangements for inquiry to be made. But he has identified no such line of inquiry, nor is one revealed by the analysis in the Justice Report.

929
I regret therefore that I can give the noble Lord, Lord Drumalbyn, little satisfaction—perhaps only that, insofar as the case may raise anxieties about the possibility of miscarriages of justice under our law on visual identification and summary appeal, these are matters which are already under examination and on which reports have been published. My right honorable friends would welcome any comments any of your Lordships might wish to make on these reports.
7.16 p.m.
Lord FOOT: My Lords, may I begin by expressing the thanks of the House—I am sure it will be the thanks of the House—to the noble Lord, Lord Drumalbyn, for having raised this matter. That expression of gratitude to him is no formality. It was necessary, if this was to be an intelligible and intelligent debate, that somebody should start off by putting before the House the basic facts of the Anderson case. That was no easy task. The way in which the noble Lord was able to bring the essential facts of this case within the ambit of only 30 minutes is something for which we should all be indebted. Some of the things that I had planned to say arc now unnecessary. However, I shall seek in what I have to say to underline and emphasise some of the points which the noble Lord brought out.
The second thing that I should like to say by way of preliminaries is this. Some of your Lordships may have felt until they heard the noble Lord speak that it was scarcely justifiable to bring the Anderson case—which in essence, at any rate originally, was a simple little matter of a summary trial—before this House on a second occasion in a full-scale debate. I hope that that is a view which few of your Lordships will share. In the history of this country some of the most important legal cases, and some of the cases that have had the most profound influence upon our history, have been those which in essence appeared at first to be matters of trifle. One thinks of course of John Hampden and his resistance to ship money. That in itself appeared to be a very small issue. It involved great constitutional questions. One thinks of the case of the Archer-Shee boy, which concerned the theft of a five-shilling postal order—a case which divided the nation for a period of something like
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two years and resulted in the vindication of the reputation of that boy. Therefore I hope that this debate will not be dismissed because this was a minor summary offence committed by somebody and not suitable for your Lordships' consideration.
Indeed, one of the most striking facts about this case, it seemed to me, as I pondered over what I might say, is the original apparent simplicity of it. One may state what the issue was in a couple of sentences. As Lord Drumalbyn explained more extensively, what happened in this case was that on one evening in December 1972 there were two girls in the neighbourhood of Prestwick. A man came up to them driving a motor car, and made an improper suggestion to them. Subsequently Mr. Anderson, who on that particular evening had been staying in a hotel at Troon, about seven miles away, was charged with the offence. In his subsequent trial the only evidence that was produced against him leading to a conviction was the evidence of identification by the two girls. There was no other corroborating evidence of any kind. He was convicted by the sheriff. He appealed to the Appeal Court in Scotland, and his appeal was rejected. What could be simpler than that? It is the kind of case which I suppose comes up in the magistrates' court in this country and in the sheriff court in Scotland probably every day of the week. The only significant feature of it was perhaps the character and the personality of the defendant who was charged.
Contrast that, my Lords, with what has happened since. I do not suppose that there has ever been a case tried summarily in a magistrates' court or in a sheriff court which has subsequently been the subject of so much scrutiny, examination and re-examination as the case of Mr. Anderson. There may be comparable cases—I do not know—but it would be difficult to believe that any similar case has been subjected to so close an examination as this case. At the end of the day, and in the course of subsequent years, a great number of people—individuals and committees—have come to the conclusion which was expressed by Justice when it said that there was reason to believe, and that it was led to the conclusion, that substantial grounds exist for believing that a miscarriage of justice may have occurred.

931
I want to deal almost exclusively with the question of what is the function of the Secretary of State in the exercise of the Royal Prerogative, but first I wish to make one or two preliminary observations. When we speak of a miscarriage of justice, what do we mean? We—and I speak now for myself, and I think, also for Justice—do not mean that it has been in any way proved that Mr. Anderson was innocent. Short of a miracle no one will ever know whether or not he was innocent. Short of a miracle, or short of discovering the person who actually committed the offence, there is no way in which it can be positively proved that he was innocent. That is not conceivable. What we mean by a miscarriage of justice is that when one looks at the case as a whole it has not been demonstrated —indeed, we are miles from having it demonstrated—that Mr. Anderson's guilt was proved beyond that reasonable doubt that the law requires.
I turn now to my second preliminary point. I would concede that a belief, however well founded, that there was a miscarriage of justice in this case would not, in isolation, justify a call for the Secretary of State to invoke the Royal Prerogative. That is not sufficient in itself. However, consider the position when one finds that the matter goes very much further than the belief of an individual or of a committee, and when one finds, as one does in this case—as I hope to be able to demonstrate in a few moments—that if there was a miscarriage of justice, it was not mere human fallibility. It was not the fault of the sheriff who may have misdirected himself. After all, in cases of this kind, and in more important cases, we are all fallible, and from time to time in isolated cases there must be miscarriages of justice. The contrast, and the difference in this case, is that it has been demonstrated—as indeed I shall demonstrate—that the conviction of Mr. Anderson in the court in Scotland was directly attributable to, if it did not positively result from, grave defects in the whole of the Scottish criminal procedure.
I shall draw attention to only two of these major defects. Let us consider the first one. In this case Mr. Anderson was convicted on identification evidence which was not corroborated in the court by evidence of any other kind. I do not
932
think that is challenged. Since the time he was convicted in 1973 there have been two Government-appointed committees, or working parties, which have reported on this very problem of identification. The first was the Devlin Committee which produced the Devlin Report of 1976. That report concerned only England and Wales, but its relevance to the case of Mr. Anderson is, I suggest, that its main finding and recommendation was that eye-witness identification is insufficiently reliable to convict, unless corroborated by evidence of another sort, or unless exceptional circumstances are present.
I say without fear of being contradicted that in this case there was no evidence of another sort to corroborate the evidence of the two girls about identification. If one looks for exceptional circumstances one finds—and these may be exceptional; I do not know, but I should have thought that they might be—-that the exceptional circumstance of the case was that the girls' evidence describing the offender and the car which he used bore no relation to Mr. Anderson or to the car which he was driving. That was the only exceptional circumstance in the case. Because of the Devlin Report, and the fact that it has been accepted and acted upon by the Government, and cases where there was some doubt about whether the identification evidence was sufficient have been referred back by the Home Secretary to the Court of Appeal, am I not justified in saying that if Mr. Anderson had had the good fortune to have been tried in England after the Devlin Report there is no possibility that he would have been convicted?
The second report on this question was the Bryden Report, which was produced by a committee, or working party, set up in September 1976 for the specific purpose of considering the law in Scotland of identification by eye-witnesses as it might be affected by the recommendations of Devlin. As we have been told, that committee did not accept in toto the principle which Devlin had recommended; that is to say, that you ought to have evidence of another kind, or there ought to be exceptional circumstances, before a person can be convicted on eye-witness evidence alone. What that committee said was that different circumstances prevailed in Scotland, and they recom

933
mended that there should be a change in the procedures. But when they came to deal with what are called informal identifications—that is to say, identifications which do not take place on an identification parade—the one recommendation they made was that what had happened in the Anderson case was wrong. That was the whole of their comment upon that aspect of the matter. So we had those two reports.
May I put two simple propositions for your Lordships' consideration? If the Bryden Committee reported, as they did, that the method which had been used in this case to try to identify the offender was wrong, and if, as I say, had Mr. Anderson been tried in England under the English procedure after Devlin he would almost certainly have been acquitted, are we to say that the Secretary of State is impotent to take those two matters into consideration? If we are told by these Government committees that the procedures were wrong, that the evidence was inadequate, and that if Mr. Anderson had been tried today, at any rate in England, he would have been acquitted, is that not something which the Secretary of State ought to be prepared to take into consideration? Are we impotent to try to put that matter right?
The second major defect in the procedures is the other one to which the noble Lord, Lord Drumalbyn, has referred: that in Scotland there is no appeal against a summary conviction except by way of stated case. I do not want to cite to your Lordships again—certainly not to the Scotsmen—what that procedure consists of, but what it amounts to is this. If a person is convicted in a summary trial by a sheriff and he then appeals, the form that the appeal takes is that the sheriff who dealt with the case draws up a stated case setting out the facts that he found and the reasons for his decision. That then goes up to the Court of Appeal, and all that the Court of Appeal can consider is that doucment and any legal argument that may be addressed to them. The result is that, under that procedure, the only material before the Appeal Court is what the sheriff has thought fit to give them. The second thing is that they do not see the witnesses, which of course applies in this country too; and the third thing,
934
which does not apply in this country, is that under that procedure there is no method by which you can check the accuracy of the sheriff's report against the transcript, because there is not one. It is a recipe for error, is it not?
One contrasts with that the situation in England—the situation as it has been for a very long time. If a person is convicted before a summary court in this country, he has a right of appeal to the Crown Court, and when it gets to the Crown Court there is a trial de novo. There is a complete rehearing; all the witnesses are called as before, and indeed any others that may be available. On the occasion of the last debate, the noble and learned Lord, Lord Hailsham—and the noble Lord reminded us of this—who intervened for only a brief moment said (Hansard, 21st January, col. 559) that after his long experience he considered that a completely new trial on appeal to the Crown Court was
"an absolute necessity for the protection of the subject".
Mr. Anderson's case is a cautionary tale illustrating all the risks of the Scottish appeal procedure. There is first of all the fact that in the ordinary way there is no transcript. In this case—and it must be one case in a thousand—permission was given for a transcript to be made; and as a result of that transcript having been made we are today in a position to make a comparison between the stated case and the evidence which was actually given. What does this comparison disclose? It discloses two things, in particular, which my noble friend, if I may call him that, dealt with in greater detail. It shows, first of all, that the stated case omitted factors and facts of crucial importance, and that in at least one instance there was a grave misrepresentation of the evidence which had been given in court on a crucial issue; that is to say, the sheriff said that the girl who said that she had seen the number of the car had had no clear view, which was a complete distortion of what the girl had said, because she had replied that she had had a view which was quite distinct.
The other part of the defect in the Scottish appeal system is this matter of proposed adjustments to the stated case. Much the same thing goes on in this country when you have a case stated to

935
the Divisional Court, where only a matter of law is involved. In that event, what happens is that, if there is an appeal against, say, a magistrates' court's finding, the clerk to the justices draws up a draft of the case which is to be sent to the High Court; the defence and the prosecution are then called in to see whether they want to make any suggestions as to its amendment; and then, when it has been agreed by all parties as being a correct record of what happened, it goes up to the Divisional Court.
In this case application was made to the sheriff for ten pages of adjustments to be made. The Crown, as the noble Lord has said, refused to agree to any amendment whatever, except on one matter of small procedural importance. The sheriff accepted the representations of the Crown en bloc, and refused to make any amendment except on the matter of procedure. So his stated case, which was a travesty of what had happened in the court, went up to the Court of Appeal for their consideration.
Those, then, are the two grave defects in the Scottish procedure to which I wanted to draw attention. But, just as in the case of identification evidence there have been two committees—three committees if you include the report of Justice—which have considered this case, so there has been the Thomson Committee, which was charged with the duty of examining the Scottish appeals procedures to see whether any changes were required. They made their report on the 17th December of last year, as we have already been told. I can most simply summarise what they said by quoting from the Scotsman on the day the report was produced. They said, and said quite rightly, that the Committee had recommended sweeping changes in the appeal procedures.
By way of keeping the thing short, in their summary of the relevant recommendations of that committee, they said:
"The Committee say that the stated case has been the subject of much criticism over the years. This was mainly on the grounds that cases were often badly stated. Sheriffs and district court judges might make findings in fact which were not justified by the evidence or omit relevant facts or incorporate deductions as if they were proved or admitted facts".
You might think that the Committee were writing about the Anderson case. The report goes on to say:
936
"They"—
the Committee—
"propose that appellants should state their grounds when making an appeal and could add further grounds later".
They also recommended a mandatory hearing with both parties to adjust a stated case. Even though a judge rejected adjustments, they would he included in the appeal with the judge's reasons. All that was recommended by the Thomson Committee and there you have the same condemnation of the Scottish appeals procedure as you had in the Devlin Report and the Bryden Report on the matter of identification.
What is the resulting position? The resulting position is that the outcome of Mr. Anderson's case would certainly have been one of "not guilty" if he had had the good fortune to be tried in England for that offence after Devlin. The second conclusion which I suggest can be unquestionably drawn is that the result of this case might well have been different in Scotland if the recommendations of the Bryden Committee had then been available and had then been implemented and/or if the recommendations of the Thomson Committee about the appeal procedures had been in existence and had been implemented.
So the resulting situation is this: that a man has been convicted upon the sort of evidence and according to certain procedures which three Government Committtees have condemned as being wrong. That is the situation. There is no escaping from it by the noble Lord or by the Secretary of State.
Can I turn now to what the noble Lord was telling us about the prerogative? The noble Lord—and I am bound to say that it must have come as an enormous disappointment to all those interested in this case—appeared to be satisfied to rehash and repeat what he had told us in the earlier debate on 21st January 1976. That is extremely disappointing and, in my submission, is entirely wrong because all four reports—Devlin, Bryden, Thomson and "Justice"—have all appeared since the noble Lord told us on that occasion what were the functions of the Secretary of State in the exercise of the prerogative. I do not need to remind the House of what the noble Lord said then, for he has repeated it. He said, quite

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rightly, that it is not the business of the Secretary of State to re-try a case; that is not his function. He said, quite rightly, that the primary duty of the Secretary of State is to uphold the law; that is, that in the vast majority of cases it is not for the Executive to interfere with the decisions of the Judiciary.
However, the very existence of the prerogative of Parliament obviously implies that there must be cases where the judicial system breaks down. The noble Lord on that occasion when he went on to define what was the function of the Secretary of State put it in this way. This was where he placed his emphasis. He said:
"What is wanted is some new substantial information of a kind which was not available to the court".
That was the test he put forward. He emphasised it more than once. Towards the conclusion of his speech he emphasised it again and said that this was what was so important. He said:
"I turn now to the relevance of these points"—
that is, some points about the history of the case—
"to the Secretary of State's functions"—
and this is very important.
"It might be suggested that they are factors"—
the things that he had been talking about previously—
"to be weighed in the scale, as there are factors of this kind in many criminal cases but they are issues already before the court".
Later on, when the Secretary of State was dealing with the criticism of Lord Robertson of his decision in the Patrick Meehan case, he adopted different criteria. Perhaps I may quote to the House the words which he used about the duties and function of the Secretary of State in exercising that prerogative. Lord Robertson, as the House will remember, had criticised the fact that he granted a pardon at all to Patrick Meehan. In his reply in the House of Commons on 8th December 1976, the Secretary of State said:
"The existence of the Royal Prerogative of mercy is an integral part of the constitutional system which exists to protect the citizen against possible miscarriages of justice. The Secretary of State should not hesitate to recommend the exercise of the power if he has substantial grounds for believing that a miscarriage of justice may have occurred for which there is no remedy available in the courts".
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There is no mention there whatever of there being a necessity or a need for new information which was not available to the court.
I have kept the House for too long. I will finish in this way. Supposing that the noble Lord, Lord Kirkhill, is right about this and that the essential test is: is there new evidence which was not before the court? I would contend—and, I suggest, contend with some reason—that if that was the state of the law and of the constitutional convention, even then in this case there was information which was not before the court. The use of the word "court" in the Scottish context is ambiguous. Are you talking about the court of first instance or are you talking about the Court of Appeal; or, when you speak of there being information which was not available to the court, are you talking about both courts? If it means that there is new information in the sense that it was information which was not available to the Court of Appeal then, unquestionably in this case there is new information.
However, I would prefer to accept the criteria which were laid down by the Secretary of State in the quotation that I have just made. It seems to me that is what the convention is and that that is what the convention ought to be: that is to say, the Secretary of State in considering these matters shall consider all matters of fundamental or serious import and their bearing on the question as to whether there has been a miscarriage of justice. Let me finish in this way. If that is the correct criteria—that the Secretary of State should look at everything that has happened—how can be fail, when he finds (as we all find) that three Government committees and the unofficial committee of Justice have all pointed to the grave faults in the procedures and the laws under which Mr. Anderson was convicted, to find also that there are not in this case extraordinary circumstances which would justify the exercise of the prerogative?
7.50 p.m.
Lord GARDINER: My Lords, I have the feeling—I may of course be wrong—that this is one of those cases which are simply not going to lie down. I have had some experience of those cases, as has Scotland since the Oscar Slater case.

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We first considered this case in 1974, when I was chairman of Justice. Ordinarily, we do not concern ourselves much with Scottish cases, not that we do not have Scottish Members but because most of us are not Scottish lawyers, and because English lawyers as a whole are brought up to believe that Scottish law and procedure is, on the whole, better than ours. But, being introduced to the case, in 1974 we appointed a sub-committee which had the advantage of reading the transcript—which of course the Court of Appeal did not—and they reported and went into the matter very fully.
The council resolved that the conviction was unsatisfactory and that a public inquiry was needed. By that time there had been a Petition; there had also been discussions in Parliament. We had our debate in this House, thanks to the noble Lord, Lord Drumalbyn, and, as I understood my noble friend Lord Kirkhill on that occasion, he was saying that the Secretary of State's mind was not closed, that of course we had still to await the reports of the Thomson Committee and the Bryden Committee when the matter could be considered again.
The three things which have happened since then are: the report of the Thomson Committee; the report of the Bryden Committee, and the report of the Justice Working Party. This working party, it will be observed, is all-Scottish. It included Sheriff Prain, CBE, of the Scottish Bar, a sheriff and a past-president of the Association of Sheriffs; Professor Wilkin-son of the Scottish Bar and Dean of the Faculty of Law, Dundee University, and a former full-time sheriff; magistrates, and so on. Their unanimous first conclusion is this: there are substantial grounds for believing that a miscarriage of justice may have occurred for which there is no remedy available in the courts. I still do not quite understand the difference regarding the Royal Prerogative between the Secretary of State—for whom, if I may say so, I have a high regard—and my noble friend Lord Kirkhill. But they have said entirely different things. What the Secretary of State said in the other place on the 8th December 1976 at (column 455 of Hansard) was this:
"The existence of the Royal Prerogative of Mercy is an integral part of the constitutional system which exists to protect the citizen against a possible miscarriage of justice. The Secretary of State should not hesitate to recommend the
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exercise of that power if he has substantial grounds for believing that a miscarriage of justice may have occurred for which there is no remedy available in the courts".
Not a word about the necessity for new evidence or the qualifications to which my noble friend referred in that last debate, and again today.
So far as the Scottish procedure as a whole is concerned, what my noble friend said when we discussed it on the 21st January 1976 (at column 554 of Hansard) was this:
"I am not aware of any general feeling of disquiet in Scotland about these courts and their procedures".
I cannot help feeling that he must have been surprised when he read the report of Lord Thomson's Committee. One of the first things that they said, in paragraph 1.08, was:
"The procedure has been the subject of much criticism, including Parliamentary criticism, over the years, …".
If, as I suspect, he read the next day's leading article in the Scotsman, he must have been even more surprised. It said this in the editorial:
"The findings of the final Thomson Report will be widely welcomed as going a long way to curing one of the glaring defects in Scots law, the quite unjustifiably restrictive rights of appeal in summary cases. So far in Scotland such appeals have been possible only on points of law, and the facts of a case have been absolutely excluded from further consideration after the initial hearing. The implicit assumption was that the judge who presided then must have got his interpretation of the facts indisputably right—an absurdity, for humans, even legal humans, are after all fallible. This archaic proceeding was further distinguished by being one area where Scots law was clearly inferior to English law, which allows not just an appeal on fact but in the most extreme instances even a complete retrial".
The article concluded:
"It would be no exaggeration to say that the case of the unfortunate Mr. D. C. Anderson has done more than anything else to expose the unsatisfactory state of the law on this point: no doubt it was that which set the Thomson Committee on to the problem in the first place. If the law had been different three years ago, Mr. Anderson would at least have had the right to a thorough examination of the grounds on which he claims his innocence; as the law stands, he has no such right. The Thomson Committee has in effect admitted that Mr. Anderson was hard-done-by, in the way the procedural conventions restricted his position as an appellant if in nothing else. Any remaining reasons why a public inquiry should not he conducted into his conviction have now disappeared. If the authorities are so sure of their facts, they have nothing to fear, and a great deal of public disquiet would he stilled".

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The Justice report is very full. I am particularly anxious to be very short. I am not going to read any part of it—I have only read the first conclusion. I should have thought that on any view of the case there must either be a public inquiry or an exercise of the Royal Prerogative, unless in some respect the Justice report can be shown to be wrong. My noble friend Lord Kirkhill has not pointed to anything in it which he thinks is inaccurate. He has not pointed to any conclusion reached in it which he thinks is not justified by the facts they found.
As I am anxious to be very short I have neglected the Bryden Report. The Police Manual is not an Act of Parliament; but it is accepted by all the chief constables of Scotland, and the Bryden Committee clearly found—contrary to what my noble friend told us last time—that the police did wrong in not following the only rule in the Manual which applied where there was not to be an identification parade and the accused was not in custody.
I would only say that if the Justice report is right, it falls four-square within what the Secretary of State said about the exercise of the prerogative and when it should be exercised. I ask my noble friend when replying to do three things: first of all, could he tell us of any point in the Justice report which he thinks is not justified? Secondly, will he give us his legal authority for the view which he takes of the Royal Prerogative as distinct from that expressed by the Secretary of State about new matters, and so on? I should have thought that it was difficult for any Minister to put fetters on the exercise of a Royal Prerogative.
Thirdly, would he make some reply to the charge which the noble Lord, Lord Drumalbyn, has made that one of the things which went wrong here, and went wrong in the appeal, is that the Crown, for whom my noble friend is speaking, opposed all the suggested adjustments to the record? Anybody looking at the suggested adjustments could see they obviously ought to have been included. The sheriff apparently merely accepted the blanket opposition of the Crown. This is not an allegation of bad faith; but it is a serious allegation to make that it was the Crown which was responsible
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for so much that went wrong on the appeal and that so far, despite hearing the speech of the noble Lord, Lord Drumalbyn, my noble friend has made no reply at all. I would venture most respectfully to hope that at the end of this debate he may be able to deal with those three points.
8 p.m.
Lord MACKIE of BENSHIE: My Lords, I intervene in this debate because I think that probably a lay Scotsman's view should be heard, and certainly that justice should be seen to be done in the eyes of the layman as well as in the eyes of the lawyer. I feel strongly that Mr. Anderson has not had a fair trial in this case. The procedure to which learned lawyers have referred time and again, in this debate and elsewhere, for an appeal against a summary trial is well known in Scotland by any intelligent layman to be absolute nonsense. I have had it summed up to me in non-legal language when a man who had lost his appeal said: "It's a piece of nonsense. How can you appeal when you are appealing against a judgment by a fellow who states the case to the superior court?"
Of course, it is wrong, and has been seen to be wrong by the ordinary citizens of Scotland for a long time. I find it very difficult to understand why the Secretary of State has not given way to the many appeals made to him by extremely distinguished bodies before this time. That in itself, I think, is grossly unfair. How much does he want? This present debate has already pulled out categorical statements by three very distinguished lawyers, saying that they believe an injustice has been done. He is being asked to exercise the Royal Prerogative and the noble Lord, Lord Drumalbyn, also says that an alternative would be to hold an independent inquiry. In my view, this is the very least he can do.
There is no question to a layman, on reading the evidence, that Mr. Anderson did not get a fair trial. There is no question at all about that to the layman. This is backed up by the lawyers. I think the opinion of this House will be very strongly against the attitude of the Secretary of State, and I appeal to the Minister to consider whether or not these deep considerations of the Secretary of

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State might not be wrong. Certainly, the lawyers are against him, and I think I can say that, looking at the evidence, the laymen in Scotland who are interested also against the attitude of the Secretary of State and believe the least he could do would be to hold an independent inquiry.
8.3 p.m.
Lord STRATHCLYDE: My Lords, I am no lawyer; I am a layman, like the noble Lord who has just spoken, but I cannot avoid the feeling that an injustice has been done in this case. I can only hope that, after the course this debate has taken, and considering the very eminent people who have spoken in it, further consideration may be given to the case by the Secretary of State. I think that is what we would all like to see. I am sure that, when I say that, I am speaking for very many people in Scotland, who feel exactly as I do about this matter.
8.4 p.m.
Lord MACLEOD of FUINARY: My Lords, I shall not detain the House for long. The essence of the Motion before us is that the Secretary of State for Scotland should reconsider the position of Mr. D. C. Anderson in light of fuller information and that he should take appropriate action either by advising Her Majesty to consider exercising the Royal Prerogative or by instituting an independent inquiry as to whether substantial grounds exist for believing that a miscarriage of justice may have occurred.
This is essentially a legal issue which has been presented to us in no fewer than 27 closely-printed pages of foolscap. Those pages speak for themselves—indeed, I would say they shout for themselves—as to the immediate need for at least an inquiry, Indeed, if I am honest, I am personally tempted to hope that in the light of the Justice report alone steps should be taken at once to approach Her Majesty regarding the possibility of exercising the Royal Prerogative.
As I am not a lawyer, I do not propose to enlarge on the legal issue which has been so well represented on both sides of the House. Why, then, do I intervene? It is, in terms of the last noble Lord who spoke, to represent the growing concern among the people in Scotland over both the legal and personal aspects. At an
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earlier stage of the on-going inquiry it was stated on behalf of the Government that there was little evidence of public concern. There has been much discussion about that. It might well have been true at the actual date, but since then, as we have also been told, the up-to-date papers in the case prove that at least 1,000 persons have expressed their concern. I doubt whether there is any other legal issue on which 1,000 persons have expressed their concern.
Those people include judges, in their personal capacities, a panel of lawyers, including a professor of Scottish law, a sheriff and no fewer than 100 members of the legal profession in Scotland; solicitors and advocates, some drawn together as a working group indeed by the appointment of the Secretary of State for Scotland and the Lord Advocate to examine:
"… identification procedure under Scottish law, as aroused by this and other cases".
That was in April of this year. Presumably that was set in motion by such things as leaders in the Scotsman and comments by Press correspondents in December of last year regarding the inadequacy of Scottish law as compared with English law, as has been so strongly stated, and rightly so, here.
There is little doubt that Scottish law will soon be amended by the inadequacy of its present terms; but I am certain there will be nationwide comment if the matter is left to a defect in the law alone: that is, if no parallel action is taken regarding the plight of the person whose particular case has given us the possibility of discussing the inadequacy of the law. This personal aspect is becoming very much a matter of public concern in Scotland.
This leads me to the only other point I wish to make. Could I, to give it edge, put it this way: let us suppose that you or I found ourselves involved with an alleged blot on our character and involved publicity. I care not whether it be labelled as some psychological disorder or moral depravity. Might not our first reaction, if we found ourselves in that position, be for the good name of our family or the fair name of our profession? Might not our first reaction, justified or not, be to resist the accusation openly and to battle on?
However, supposing that resistance bore no fruit? Supposing you or I were

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guilty. Then, I ask you, would any of us go on and on and on through the years, if in fact we were guilty and inwardly feared the ultimate revelation of a public inquiry? Would we not, again for the sake of our family and for the reputation of our profession, after the first flurry begin to retreat from our protest, begin to pack in and let things take their dismal course to their inevitably sad conclusion without further inquiry?
What impresses me under this heading is the unswerving insistence of Mr. Anderson, who can get neither reprieve nor public inquiry—his unswerving insistence to go right on through the years because he knows it is not to the bitter end but to the ultimate restoration of his place in his profession and in the sight of the public if an official public inquiry is instituted. It is this unswerving determination through the years to go right on that convinced me of the justice of his case. If it is not fully inquired into officially, the public outcry in Scotland will not be just about the inadequacy of the Scottish law in these regards. But it will be about a man who, in a public position, has been publicly discarded, without having been given the chance of a public and official hearing. It is for this reason that I plead with your Lordships to vote either that the Royal Prerogative be sought now, or that the fullest and most public inquiry be instituted now.
8.10 p.m.
The Earl of LISTOWEL: My Lords, I start by what I intended to end with, and that is by endorsing the plea in the last sentence of the speech of the noble Lord, Lord Macleod of Fuinary. But I have some experience of occasions when the House has been acting in a quasi-judicial capacity on a matter of private rights, which is how your Lordships have been asked to act on this Motion of the noble Lord, Lord Drumalbyn. For Private Bills always raise these questions of private rights, and they are decided by Committees of your Lordships' House, which of course sit in a quasi-judicial capacity. It has been my duty on such occasions to make sure that your Lordships are provided with the relevant evidence submitted by the Promoters and the Petitioners, and presented in the way
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they choose, whether by counsel or in person. That is the way in which we have decided in this House that evidence must be considered, in order to give a fair hearing to the Promoters of Private Bills, and to Petitioners against them, when your Lordships have to decide these matters in a judicial capacity.
Bearing in mind our own procedure for ensuring that all relevant evidence to give such a fair hearing is available to Committees of the House, I have studied the procedure followed for the submission of evidence in the Anderson case, and it has caused me serious concern—concern I share with the three noble Lords who have deduced this Motion, and with all noble Lords who have spoken in the course of this debate, apart from the noble Lord, Lord Kirkhill. I should like briefly to explain my reasons for this concern.
It appears, as the noble Lord, Lord Drumalbyn, has explained clearly, that in Scotland evidence on appeal from a summary court is limited to a stated case prepared by the judge of first instance—in this case, the sheriff. The Appeal Court can take into account only the sheriff's statement and the legal argument made on it by the parties. The Court has no power to take into account evidence submitted by the appellant alone. This procedure excluded from the cognisance of the appeal judge important evidence of fact that Mr. Anderson regarded as essential to his case, for the sheriff—as he was entitled to do—refused to include this evidence in his statement.
The sheriff went on to refuse a hearing on the rejected adjustments, so that none of this evidence was argued in either court. These facts, in Mr. Anderson's view vital to his case—although he had no choice in the matter—were contained in 10 pages of additions to the sheriff's statement, the so-called adjustments, which Mr. Anderson had asked the sheriff to include but which he rejected without a hearing. I cannot conceive that any noble Lord, hearing a description of this kind, would say that this was a fair way of presenting evidence, or a way in which we would present evidence in the conduct of our own affairs in this House.
It was made clear in the Report of the Thomson Committee, to which reference has already been made, that that Com-

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mittee regarded the procedure I have described as unsatisfactory. Lord Thomson has recommended that the High Court should be given "specific power to look at rejected adjustments", as well, of course, as at the sheriff's reasons for their rejection. That Committee also recommended a mandatory hearing for disputed adjustments. So there is no doubt, as the noble Lord, Lord Foot, pointed out, that the Thomson Committee had criticised very severely, and wishes to alter, the present procedure and the procedure that applied in the Anderson case.
Whether this unsatisfactory procedure results in a miscarriage of justice depends on the circumstances of a particular case. I take the view that the importance of the facts was not available to the Appeal Court in the Anderson case. Facts relating to the identification of Mr. Anderson and a possible alibi cast considerable doubt upon the verdict. I am no less concerned about the evidence of eye-witness identification by two 14-year old children. Mr. Anderson was convicted on this evidence alone, as has already been said, and it has not been contradicted by the noble Lord, Lord Kirkhill, or by any other speaker in this debate.
It will be remembered that, in his report—and this report has been accepted by the Government—Lord Devlin would not allow conviction on eye-witness identification alone. He said that there also had to be
"exceptional circumstances or substantial evidence of another sort".
Again, no one denies that in the Anderson case there were neither exceptional circumstances, nor substantial evidence of another sort, to corroborate the eye-witness evidence of identification. Is it really possible for anyone to say that the case against Mr. Anderson has been proved beyond any reasonable doubt? That, may I remind your Lordships, is the question before you this evening; not the question of whether Mr. Anderson was guilty or innocent.
Since the last debate in January 1976, four reports by great authorities on the law have been published, and their findings increase the doubt about the verdict in the Anderson case. There was the Devlin Report, to which I have
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already alluded. Then there was the Thomson Report of December 1977, recommending changes in appeal procedure from the summary courts to remedy the defects in present procedure, defects which I believe prevented a fair hearing for vital evidence in the Anderson case. There was also the Bryden Report of April 1978. After that Report, there was a sharp reference by Sheriff Bryden, which has been mentioned, to the breach of police convention—it was not a police rule—by the identification of Mr. Anderson by two witnesses when they were taken together.
Finally, there appeared this year the report of the four distinguished Scots lawyers who examined the Anderson case on behalf of Justice. Here I must say that the House owes a debt to the noble and learned Lord, Lord Gardiner, and to those distinguished lawyers for bringing their minds to bear on this case, and for producing such a very interesting and valuable Report. It was their conclusion that:
"substantial grounds exist for believing a miscarriage of justice may have occurred".
In view of all these new developments, which favour Mr. Anderson, since our last debate in 1976, and of the increasing concern of public opinion in Scotland, as shown by responsible articles in the Scottish Press—and the noble Lord, Lord Macleod of Fuinary, has referred to public opinion in Scotland—I am sure that there are many noble Lords, in all quarters of the House, who wish the Government to reconsider their decision not to reopen the case. I hope that they will now be willing, at least, to set up an independent inquiry which would finally remove the doubt that hangs over this case by disclosing grounds which would justify a free pardon or confirm the verdict of the courts. There is a great cloud of doubt that hangs over the whole case, and I am sure that that is the only way in which this great cloud of doubt can be removed.
8.19 p.m.
Lord AIREDALE: My Lords, I intervene for only a moment to say a word about the exercise of the Royal Prerogative, which is one of the remedies asked for in this debate. The Royal Prerogative is usually exercised by what is called a free

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pardon. "Pardon", in ordinary language, denotes forgiveness for a sin actually committed. But the effect of a free pardon is quite different from that. The effect of a free pardon is beautifully stated in a single sentence by Sir Frank Newsam, who was a Permanent Under-Secretary of State for the Home Department, in his book entitled The Home Office. On page 114, Sir Frank wrote:
"A Free Pardon wipes out not only the sentence or penalty, but the conviction and all its consequences, and from the time it is granted leaves the person pardoned in exactly the same position as if he had never been convicted".
This curious expression "free pardon" comes down to us from the days when it was thought to be unwise to admit to the uneducated masses that the High Court was capable of a miscarriage of justice. But in these more sophisticated times I suggest that it is time to get rid of this unfortunate expression "free pardon" and replace it by a happier and more accurate expression which denotes exoneration.
8.21 p.m.
Lord SHINWELL: My Lords, one preliminary observation and it is this: there is no indictment against the Minister of State. He is not in the dock. It is the Secretary of State whom we indict, for he is vested with authority and if he is short of the necessary authority he can obtain it from his colleagues in the Cabinet. I have not the least doubt that if we had a full House tonight in your Lordships' House, and after listening to the speeches of eminent lawyers like my noble friend Lord Gardiner and the noble Lord, Lord Foot, and eminent Members of the House like the noble Earl, Lord Listowel, and so on, if a Division were taken the Government would find itself on the other side of the political fence.
I heard my noble friend Lord Kirkhill announce in such familiar language— how often have I heard it—"if only new evidence could be produced, then we might reconsider the matter". How often has that been said? I have heard it over the years. Let me tell my noble friend Lord Kirkhill that, almost before he was born—although perhaps I am not correct in that description—when the famous Oscar Slater case came before the country I was not involved but I happened to be
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living in the area where the murder was committed, right across from where I was living. I recall that the accused produced the alibi that he was engaged in a gambling venture with a number of his colleagues, perhaps disreputable colleagues, because there was no doubt about it that he was an inveterate gambler and, although not a gangster, was a notorious kind of person. But none of that was taken into account.
What happened? He served 18 years in that Scottish prison. During those 18 years—and I recall it so vividly—the late Conan Doyle initiated, or pursued with agitation, a plea on Oscar Slater's behalf, and many of us living in Scotland at the time joined in. I remember that time and again when the matter came before the legal gentlemen associated with the Governments that were in existence, we had the same, the familiar, conventional language, "if only new evidence was submitted". I repeat that I have heard it so often I am sick and tired of hearing it, and my noble friend Lord Kirkhill must find some other kind of language. Even if he cannot find better arguments he must find some rather more suitable language in order to produce what is regarded as the defence—I am sorry to say, regretfully—on the part of the Government.
Moreover, what is this about? I do not know and have have never met Mr. Anderson, but I have been interested in the case from the very beginning. We talk about human rights. If perhaps the noble and learned Lord, Lord Hailsham of Saint Marylebone, who is very philosophic on matters of that sort and very realistic also, initiated a debate on human rights, the House would be full and we would all be glorying in it because we want freedom for everybody. Human rights must be established without any reservations or qualifications. We would glory in that. But here is an example of human rights to be vested in a person who has been convicted on the evidence of two young persons.
I do not impute any wrong motives to those young persons, but they were two young persons who, apparently under the direction of the police at the time, identified the person who is accused of committing an act which, if Mr. Anderson had been accused on this side of the border, would have led at least to a not proven decision. Incidentally, in the Scottish courts when

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the case came before the sheriff, if there had been a verdict of not proven, it might not have been entirely satisfactory but it would have been better leaving it as it is than to bring about the ruin of a man who, so far as the evidence enables us to judge—and particularly because of the discussions that have taken place all along the line, and the arguments against the conviction and all the rest of it—should not continue to suffer as he is doing.
I am not concerned about the emotional side of it as the noble Lord, Lord Macleod of Fuinary was, although I understand his sentiments and perhaps on some other occasion would applaud them, but I regard this matter objectively. If only the noble Lord, Lord Kirkhill, could prove to me that the evidence that was presented by the police and by the procurator fiscal—who by the way was as stubborn as a procurator fiscal in Scotland can be, and I have had some experience of them myself, as noble Lords know—was so overwhelming on the part of the procurator fiscal that the sheriff, with such a mass of evidence, so abundant, so overwhelming, had no alternative but to convict Mr. Anderson, I could understand it. There must be general agreement in the House at the present time and in Scotland too—although perhaps with some exceptions—that the question of Mr. Anderson's conviction on the offence of which he was accused admits of reasonable doubt. Surely that could be agreed. There is some reasonable doubt as to whether he should have been convicted, and in those circumstances I do not care very much and am not sure about the prerogative of mercy, about a pardon, but I think there ought to he another inquiry.
The Justice Report that has been referred to, with all its legal subtleties and legal arguments, and the forensic presentation of the case should all be taken into account. Then, although Mr. Anderson would not be the happiest man in the world, at any rate he would have a sense of freedom, the high moral principle of human rights would have been established and we could claim that we were to some extent responsible.
I just want to say one thing further. If the noble Lord, Lord Drumalbyn, wants to divide the House tonight, I shall be
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right by his side. That would not mean that I was seeking to indict the Government or that I wished to prevent the Government winning the next Election. Nothing of the sort; dismiss all those political suggestions because they have nothing to do with the case. But I should like this House to demonstrate by a Division that it believes that here we are presented with a miscarriage of justice; that there has been something wrong—whoever may be responsible—and that the noble Lord, Lord Kirkhill, should be asked, deliberately, objectively, but wisely, to go back to the Secretary of State and tell him that, whatever they may think about the House of Lords, threatened with extinction and all the rest of it, when it comes to a question of human rights we have as good an understanding of the matter as the Secretary of State or even the Members of another place, although I believe they might be on our side.
So I am on the side of the noble Lord, Lord Drumalbyn, and indeed I am on the side of everybody else who has spoken. By the way, nobody has spoken in support of the noble Lord, Lord Kirkhill. Has he noted that? There is nobody on his side. I shall challenge the House: is there anybody who would like to speak on behalf of the noble Lord, Lord Kirkhill? Is there any Member of your Lordships' House who will raise his hand and say: "I am on the side of Lord Kirkhill"? Nobody! So let it go forth from your Lordships' House tonight after this debate, to the country and to Scotland and to everybody concerned—and particularly to Mr. Anderson—that your Lordships' House is on the side of Mr. Anderson and wants to re-establish his reputation, so that he can face the world and that he and his family can glory in the fact. Let us do that; it is the least that can be expected of us.
8.32 p.m.
The Earl of MANSFIELD: My Lords, after the ringing declaration of the noble Lord, Lord Shinwell, your Lordships may well conclude that there is little, if anything, more to be said, and partly because of his speech and partly because of the overwhelming expression of dismay by your Lordships from all parts of the House at what has happened in this case of Mr. Anderson, I can keep my remarks

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brief and, I hope, truncated. May I make it clear that, although I speak from this position geographically in your Lordships' House, this is no Party matter and I speak for myself. I speak as a member of the English Bar who happily for many years earned his living prosecuting and defending in many cases similar to that of Mr. Anderson, and it was only because of the death of my father which transferred my earning capacity to other fields and my advocacy, such as it is, to your Lordships' House, that I find myself here this evening.
This has been a fascinating debate, not least because it shows that our Parliamentary institution, at a time of considerable pressure, when perhaps there is little time to debate things which many folk think should be debated, still finds time to conduct a Parliamentary inquiry in the form of a debate into the affairs of one single individual who is no doubt aggrieved by what has happened to him.
When my noble friend Lord Drumalbyn asked me to interest myself in his Motion I am bound to say that I did so and found it disturbing in more senses than one. I found a number of features about the whole matter which troubled me considerably, and quite obviously have equally troubled many Members of your Lordships' House. One has to ask the question: has Mr. Anderson been treated in this case in the manner in which we pride ourselves in the United Kingdom that every person is treated before the law, and should expect to be so treated? And I believe the answer must be "no".
I will not go through the case because it has been done extensively by other noble Lords, but there are three matters in the conduct of the prosecution before, during and after the trial which to me at any rate are specially worrying. By now your Lordships are more than familiar with the evidence, but putting it in a few sentences, two teenage girls made allegations about Mr. Anderson—or rather his behaviour—to the effect that he made some sort of overtures to them of an indecent nature. It is right to point out that at the trial there was no corroboration of their evidence at all, and the whole case depended on the identification of the accused man by these two girls. Quite apart from the inherently unsatisfactory
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nature of the case for the prosecution, the pre-trial conduct of the police, in retrospect, made a conviction even more unsafe.
Why do I say that? The two girls were placed together in a police car in circumstances in which they knew that the accused—the suspect—would come along and that they were expected to identify him. They were both together in the police car, and I suggest that the result is that any possible evidential value of that confrontation—because that is what it amounted to—would be minimal. Taking the evidence of the girls as a whole, I would say without hesitation that it would be quite unsafe to convict on their evidence. I will not weary your Lordships with the details, but the evidence was inconsistent as to details of the car, the appearance of the man who accosted them—one of them identified the shorthand writer in court as the man who had accosted them—and I think that if one had been conducting the case oneself, or putting oneself in the position of somebody in that court, one would have said that there was no case to answer and the matter could have been disposed of at the end of the case for the prosecution.
In the event Mr. Anderson was convicted, and we come to the second disturbing feature. There was no appeal on fact from the judge of first instance, sitting alone and without a jury. I am not going to criticise the sheriff; I have no reason to do so and it would be improper, but if the sheriff asked himself at the end of the case for the prosecution whether it was proved beyond reasonable doubt, it is difficult to see how he came to the conclusion which he undoubtedly reached. If I differ at all from the very erudite and powerful arguments of the noble Lord, Lord Foot, I should have said that the evidence as it was at the end of the case for the Crown would have rendered a conviction unjustifiable, even before the conclusions of Lord Devlin, for the reasons which I have given.
At any rate no appeal lies, nor did it lie, against the facts. A restricted appeal lies in matters of law, but the sheriff refused to allow 10 pages of proposed adjustments to go forward as part of the stated case; he even refused to grant counsel a hearing to argue the matter

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and this, let us remember, was in a case of the greatest importance, bearing in mind the character of the accused and the nature of the evidence. It is fair to say—and these are hard words but I think they should be said—that the sheriff acted according to the wishes of the prosecution, and it is difficult to see that the Crown was acting in the manner that it should, ensuring that justice was done and that the case was being conducted on the basis of prosecution and not persecution. It is difficult to reach the conclusion that the Crown was acting fairly.
Not altogether surprisingly—and it goes without saying—the appeal was dismissed, if only because the court was not properly seized of the facts, and no doubt the argument could not be mounted in an effective way. I am not concerned with debating the merits of the defence case; what I am concerned with is the fact that to my way of thinking justice must be seen to be done and appear to be done.
I can put this in another way—and I am coming now to the end of my remarks and the question of the prerogative. If it is shown that a subject of the Crown has been tried and convicted and a miscarriage of justice has taken place, and that this miscarriage has taken place in very large part due to acts of those whose duty it was to ensure that the trial was fair, and where the legal premises in at least two aspects have been shown to be out of date and unjust and unfair, does it then lie in the mouths of those who speak on behalf of the Crown—in other words, the noble Lord, Lord Kirkhill—to claim that the Crown cannot now remedy the injustice which has been perpetrated in the name of the Crown in the first place? I do not believe that it is so. If it were, the safety net, as I call it, which we believe to exist in the use of the Royal Prerogative would have a gaping hole in it.
Since the case was heard not one but two official bodies have concluded that the bases upon which the conviction was obtained, and the basis upon which the appeal went forward, are condemned, and we are now informed that the Secretary of State does not feel empowered to act. As has been said by other noble Lords, so often in the annals of our criminal history the Executive is extraordinarily reluctant to admit mistakes in criminal proceedings,
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and also reluctant to put matters right, to right a wrong. If the Secretary of State acted in the way that this Motion of my noble friend suggests, could I suggest to the noble Lord, Lord Kirkhill, that it would not be a confession of weakness, it would not even be a precedent which could be used by others who are aggrieved by virtue of the handling or mishandling of their own cases. I urge the noble Lord even at this late stage to accept my noble friend's Motion and agree to it, so that the matter can go forward from this House as an expression of concern at what has happened, and determination that if possible the wrong should be righted.
If the noble Lord, Lord Kirkhill, does not accede to the Motion, I do not at present know what my noble friend will do about it. It is not a Party matter, and certainly it is not a matter of whipping. Can I just say this. If my noble friend was minded to divide the House I should follow him into the Lobby, and I should do it on this basis: that those of us who are privileged to have a say in the conduct of affairs in this country cannot rest easy in our consciences if we allow a manifest injustice of this nature to pass unchallenged.
8.44 p.m.
Lord KIRKHILL: My Lords, if I have the leave of your Lordships, I might respond briefly to a number of points which have arisen. Perhaps I might just say at the outset of my remarks that those of your Lordships who sat, as I certainly did, through many hours of debate on the Scotland Bill will at least accord me this, that I attempt to respond to the relevant points made with as good grace as I can and with as much judgment as I can bring to bear on issues as they arise. But in this particular situation I am, of course, sensitive to realities. I am sensitive to Mr. Anderson's personal position. I am sensitive to the position of my Secretary of State, and I must keep that very clearly before me.
However, there were one or two direct points put to me. The noble Lord, Lord Foot, asked me to which court I referred in my earlier remarks, and I should say that I was referring to the court of first instance which heard the evidence. My noble friend, Lord Gardiner, asked of me what is wrong

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with the Justice report. The Justice report is a careful analysis of the case which brings out, as happens in many criminal cases, arguments that the verdict might be wrong. The question, however, is whether, taking account of the other information, such as the two admissions, this shows such substantial grounds for believing that a miscarriage of justice has occurred as to justify the exercise of the Royal Prerogative. That must be a matter of judgment for my right honourable friend the Secretary of State for Scotland, and to that extent he must be seen to differ from the Justice members.
My noble friend, Lord Gardiner, asked of me how there were, as he saw it, differences between my interpretation of Royal Prerogative and that of my right honourable friend the Secretary of State for Scotland. I think your Lordships might agree that in the speech I made earlier I made it clear that there was no difference between the criteria I set out in my speech in 1976 and the Secretary of State's in the case of Mr. Patrick Meehan. It is no new statement of law or limitation on the exercise of the Prerogative to say that factors of substance must be present before the Secretary of State can be justified in intervening in decisions of courts of law.
The noble Lord, Lord Drumalbyn, and my noble friend Lord Gardiner asked about the Crown's objections to proposed adjustments of the stated case, and there has been some suggestion made that I, as a representative of the Government, must share some responsibility for the objections by the Crown to the proposed amendments to the stated case. There has been some suggestion that these objections were the result of some policy decision. I can assure your Lordships' and I believe your Lordships will accept this assurance, that the Crown, as prosecutor—that is, the Lord Advocate and his staff—are entirely independent of the Government in their actions. The Crown's decision to object was not an attempt improperly to influence the court, which could accept or reject the amendments as it chose.
If I could turn my attention very briefly to the terms of Lord Drumalbyn's Motion, I must remind your Lordships that we are speaking here of a prerogative decision,
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an action by Her Majesty on the recommendation of one of her Principal Secretaries of State. This has always been accepted as a personal decision to be taken by the Secretary of State alone, and, while there is no objection to such cases being debated in your Lordships' House, it is reasonable for me to remind your Lordships that our discussions must be taken against just such a background. The Secretary of State makes his recommendation entirely upon his personal responsibility, and it is improper, in my view, to intervene in that area of his entirely personal responsibility.
Were the Motion to be carried, if we go to a Division, then the responsibility still remains with the Secretary of State, and he must personally justify his decision. I must make it clear to your Lordships that he does not consider himself so justified. In this he is not acting on the advice of his officials; it is his personal decision based on his very careful examination of all the aspects of the case.
8.50 p.m.
Lord DRUMALBYN: My Lords, first I should like to thank all noble Lords from all quarters of the House who have taken part in this debate. I should also like to acknowledge the care with which the noble Lord, Lord Kirkhill, has dealt with the matter even though, as he quite rightly said, he could not give me very much comfort.
I should like to deal with the matters which the noble Lord, Lord Kirkhill, has just raised. Of course, in tabling this Motion I recognised that the personal decision of the Secretary of State was involved and that was why I said, very unusually;
"That this House calls on the Secretary of State for Scotland to reconsider the case of Mr. D. C. Anderson, QC …".
Normally Motions are tabled to call on Her Majesty's Government. The Motion was deliberately directed towards the Secretary of State for Scotland as, indeed, the House is surely entitled to do. It is right that the House should make its opinion quite clear to the Secretary of State for Scotland. None of us envies the Secretary of State for Scotland as regards the responsibilities that he has to exercise concerning the Royal Prerogative, but surely in the course of this debate enough

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has been put forward for the Secretary of State for Scotland to reconsider the attitude that he has so far taken. That is the point.
The hour is late and I am sure that noble Lords will not wish me to speak at length. However, there is one matter which I should like to dispose of as a question of fact. It has repeatedly been said in the past that Mr. Anderson refused to attend an identification parade. I must put the record right on this matter, and I do so by reference to the evidence of Mrs. Armstrong, the policewoman who was present when the police sergeant was dealing with Mr. Anderson. The questions to which I shall refer were put in cross-examination. She was asked:
"Could you just describe to his Lordship in a little more detail what happened?"
She replied:
"Well, Sergeant Pringle was obtaining his name and address"—
that is, Mr. Anderson's name and address—
"and he offered to give a photograph if this would do in place of the identification parade as he did not want to be involved in a public police office et cetera with the public".
She was then asked:
"What happened after that? What did Sergeant Pringle say?"
She replied:
"Well, he agreed to accept the photograph".
I think that it is fair to add that he did not agree to accept it in substitution for an identification parade. Two or three questions later she was asked:
"So, as a result of that, was the question of an identification parade postponed?"—
not refused, but postponed. The witness replied:
"It was".
Do not let us hear any more about the refusal of Mr. Anderson to attend an identification parade.
The noble Lord has so far signally failed to give any reason whatsoever for the Crown opposing the adjustments. That is surely the core of the case. That is what prevented the Appeal Court from
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considering the matter in its entirety. Whatever the reason or reasons may be, the Secretary of State should decide in his own mind as between those reasons and the manifest failure of the system to provide a satisfactory examination of the evidence in this case.
We must bear in mind that whatever the reasons the Secretary of State may have they have never, at any stage, been tested in the courts. The noble Lord referred to the two admissions. They were never tested in any court. Therefore, the Secretary of State should either exercise the prerogative, as I think most speakers have advocated, or hold an inquiry so as to test the reason on which he was advised. As we have discussed this matter in such a non-political atmosphere tonight, and as I do not want to cloud the issue in any way, I think that I should point out that, of course, it was not the present Secretary of State or the previous Secretary of State who was involved. What is more, the noble Lord is quite right in saying that the Crown Office is independent in the action that it takes here. But what has to be justified if the Secretary of State still demurs from exercising the prerogative of mercy is the reason why the Crown Office opposed with what was called "blanket opposition"—and pretty wet blanket opposition—all the adjustments, not only in the first instance but when the case came on appeal, when they opposed the motion that it be referred back.
That is the core of the matter, and I believe that your Lordships ought to be given the opportunity to express your views. I am grateful for all the support that I have been given in this debate and I hope that we shall, as the noble Lord, Lord Shinwell, said see that human rights are observed in this case.
8.57 p.m.
On Question, Whether the Motion shall be agreed to?
Their Lordships divided: Contents, 44; Not-Contents, 8.

CONTENTS

Airedale, L.

Hampton, L.

Rathcreedan, L.

Baker, L.

Harrowby, E.

Ritchie-Calder, L.

Barrington, V.

Kimberley, E.

Segal, L.

Boyd-Carpenter, L.

Lindsey and Abingdon, E.

Shinwell, L.

Brockway, L.

Listowel, E.

Simon, V.

Cork and Orrery, E.

Lyell, L.

Strathclyde, L.

Craigavon, V.

McGregor of Durris, L.

Tweeddale, M.

Craigmyle, L.

Mackie of Benshie, L.

Vivian, L.

Davies of Leek, L.

MacLeod of Fuinary, L.

Wade, L.

Denham, L.

Mancroft, L.

Walston, L.

Drumalbyn, L. [Teller.]

Mansfield, E.

Ward of North Tyneside, B.

Elliot of Harwood, B.

Mottistone, L.

White, B.

Foot, L. [Teller.]

Mowbray and Stourton, L.

Winstanley, L.

Gainford, L.

O'Neill of the Maine, L.

Wynne-Jones, L.

Gardiner, L.

Rankeillour, L.

NOT-CONTENTS

Elton, L. [Teller.]

Milford, L.

Trefgarne, L. [Teller.]

Glenkinglas, L.

Strabolgi, L.

Winterbottom, L.

Kirkhill, L.

Swinton, E.

Resolved in the affirmative, and Motion agreed to accordingly.

KC135 TANKER AIRCRAFT AND FAIRFORD
9.5 p.m.
The Earl of KIMBERLEY The Earl of KIMBERLEY rose to ask Her Majesty's Government what is the strategic concept which determines the possible locating of the American KC135 tanker aircraft at Fairford. The noble Earl said: My Lords, it is perhaps appropriate that this Question should be raised today, on Independence Day. Although America and England may have parted company a long time ago, perhaps they are closer today than they have ever been. The other aspect that gives me pleasure is that my noble friend—I like to call him my noble friend—Lord Jeffreys is about to make his maiden speech; we were old Grenadiers together. Therefore, it is with somewhat mixed feelings that I raise this Question tonight in your Lordships' House.
All concerned with the defence of our country and with NATO realise that we need to have these KC135 aircraft, as they will, supposedly, make a vital contribution to NATO. When the noble Lord, Lord Winterbottom, answers for the Government, I should be very grateful if he would confirm that they are strategically vital to NATO.
So we have the problem of where these aircraft should go. The inhabitants of the Cotswolds are quite justifiably con
962
cerned—as the Ministry of Defence will know only too well from the spirited action that the Fairford Action Committee has already taken—about the environmental pollution which these aircraft cause, as well as the hazard of a possible disaster if one should crash. It is no good saying that their safety record is very high. The possibility of a disaster must be taken fully into account, however unlikely it may be.
Many of the inhabitants around Fair-ford are ex-employees of BAC or are still employed by British Aerospace, and as such know a thing or two about aeroplanes. I think that it will be of interest to your Lordships to note that at one stage during Concorde's flight-testing, one of the overseas venues where the Concorde was tested was the old American SAC base at Torrejon in Spain. I believe that KC135s still operate from there. While Concorde was there there was a stock joke among the employees of BAC who used to say that the KC135 relied on the curvature of the earth to lift off and climb out. At the same time the crash-barriers at the end of the runway were removed to avoid the undercarriage hitting them and there was a considerable delay between take-offs in order to allow the smoke to clear from the engine pollution of the previous aircraft. I would also add that the noise generated was considerably higher than that made by the prototype Concorde.
So this is why the people of the Cotswolds are worried and concerned. Your Lordships must bear in mind though that they are pro-British and pro-NATO.

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But we must also bear in mind that these aircraft were developed 25 years ago, and since then we have had engine development, take-off performance improvement, noise abatement techniques improved. But alas none of these things has happened with this particular aeroplane. So perhaps a very brief comparison would not go amiss. A Super VC 10 maximum take-off weight of about 335,000 lb., on four engines, will achieve a 6·7 degree rate of climb. AKC 135, fully laden with 26,000 gallons of kerosene, all-up weight round about 300,000 lb., on four engines achieves a three degree climb out—less than half.
I could go into atmospheric conditions and everything else but we would get too technical, and time is pressing. When these aircraft have theoretically reached Cirencester, the VC 10 would be at a height of 3,900 ft., and the KC 135 would be at 2,000 ft. If either of these should lose an engine the story is radically different. The VC 10 climbs out on three engines at 1·8 degrees, and the 135 at half a degree. This means that the VC 10 will have reached 2,000 ft. on three engines, which is what the KC 135 does on full power, but the KC 135 will be approximately 300 ft. up. The highest church spire in Cirencester is 162 ft. high, so all things being equal the American aeroplane would clear the spire by 138 ft. Your Lordships' House from the Prince's Chamber to the Peers' Lobby is about 138 ft., which is not very much for an aeroplane with 26,000 gallons of fuel on board to miss a church spire by. These figures have been checked by a qualified aerodynamacist.
So, I should like to ask the Government the following questions. First, will the United States Air Force operate these aircraft to the same standard as the RAF does in peacetime; that is, to British Civil Airworthiness Requirements, which specify a 3 per cent. rate of climb for one engine out on the WAT limit? WAT meaning weight, altitude, and temperature. In this instance 3 per cent. is about 1·8 degrees, which is what I have already said the VC 10 can do. Secondly, what noise abatement techniques will be used, if any? Thirdly, if the United States Air Force does not operate to BCAR, then to what standards will they operate? Fourthly, will the Minister confirm my figures for the 135s rate of
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climb on three engines? Fifthly, what is the distance to unstick on three engines with a failure marginally after VI (the safety take off speed)? Sixthly, what does the United States Air Force intend to do to improve the jet efflux from the dirty engines? Seventhly, should fuel have to be jettisoned, at what height could this be done, and what effects would this have on farmland, homesteads, towns and villages in the surrounding countryside?
It has been stated on several occasions that these 135s will only be used for training. But in peacetime surely training is the main function of all military aircraft. It has been stated that among the reasons for not chosing Greenham Common is the proximity of Aldermaston, the poor performance of the 135 making the probability or possibility of an accident to the Atomic Weapons Research Establishment an unacceptable hazard. Why then, when Greenham was originally considered in April 1977, was it not immediately ruled out by the Ministry of Defence? This statement regarding the possibility of a disaster at Aldermarston does not make the inhabitants of the Cotswolds feel any happier or more secure. If anything, it does the reverse. The other reason that was given for rejecting Greenham Common was environmental. To be fair, therefore, a similar consideration must be given to the people in the Cotswolds. If cost is to come into the consideration, the Ministry of Defence must take account of the cost of the disruption of life in the Cotswolds, not only domestically but also with tourists.
I end up by asking: will Her Majesty's Government, if they have not already made up their minds, issue a clear statement regarding consultation with planning authorities relative to the area finally chosen? Will there be a public inquiry? In what circumstances could objections from the planning authority concerned lead to the abandonment of a base chosen by the Ministry of Defence? The KC135s we must have, but I hope that my few words this evening will help in some small way to persuade the Ministry of Defence that Fairford is not the place for these aircraft, and that there are other bases which have equally good, if not better, strategic criteria.
9.14 p.m.
Lord JEFFREYS: My Lords, in venturing to address the House for the first time, I can assure your Lordships that I shall be brief, certainly bearing in mind the hour at night to which the House has been made to sit, and I trust that I shall be non-controversial, albeit that we are discussing a subject which has caused considerable controversy in North Wiltshire and South Gloucestershire. At the outset I should say that I fully support and accept our national commitment to NATO and recognise the essential role that air-to-air refuelling plays in the strategic air defence of the Western World. That this capability is to be stepped up is something I fully support and for which we should all be very grateful. However, I find a certain irony that we should be discussing the imposition of additional, and locally unwelcome, forces from another country on this date of all; that is, 4th July. It is, however, important to question the Government to ensure that any decision as to the siting of the new base for the KC135 is in the best interests of as many of the interested parties as possible; in the best interests of safety, of the local community adjacent to the base, of the United States Service personnel who will have to man the base and in the best interests of this nation and NATO.
I shall not attempt to get involved in the technical aspects of this or any alternative aircraft, as was so ably done by the noble Earl, Lord Kimberley. This aircraft has a reputation, which I am not personally capable of judging, of being extremely noisy and dirty, and potentially lethal. I think your Lordships would agree that any chance of an accident over land involving one of these aircraft when fully laden with fuel is one that is totally unacceptable. Should that accident take place over a remote rural area, the resulting destruction and pollution would be appalling; should it take place over a built-up area, the potential destruction and danger to life defies description.
Thus, if the Government are considering Fairford as a potential base, I would ask them in the interests of safety to consider certain matters. First, are they satisfied that the risks of an accident in the vicinity of the neighbouring towns of Swindon, Highworth, Lechlade, Cirencester and the Stroud Valley are so
966
negligible as to be not worth considering? Secondly, are they satisfied that the air traffic control arrangements involving the already quite busy air base at nearby Lineham are sufficiently foolproof to preclude any chance of any such accident taking place; and if they are in any doubt, what would be the cost of either improving the air traffic control system or of reducing the amount of use made of Lineham and of the consequent disruption of Service life at that base? Thirdly, are they satisfied that the activities of the Red Arrow squadron of the RAF currently stationed at Kemble, nine or 10 miles from Fairford and directly on the flight path of the KC135, would not constitute a hazard to aviation? I remind your Lordships that the activities of this squadron are acrobatic to an extreme. I cannot believe their presence would really be considered safe; and if it were not, and if the Government should consider that a hazard does exist, what would be the cost and the disturbance involved in removing this squadron to another base?
I turn to what I call the local emotional feeling against any decision to base these aircraft at Fairford. The feeling could not be described as either political or anti-NATO, although there may be some people, of vastly differing views, who would object either because they were opposed to the Government or because they were opposed to NATO. In general, however, local objections are based on fear; fear of noise, fear of pollution, fear of an accident and fear of the effect on the community of fairly large numbers of additional personnel, both temporarily during the conversion of the site to NATO requirements, and subsequently by the permanent garrison needed to man and maintain the base. These objections based on fear would doubtless be raised to a greater or lesser extent according to whatever site the Government and NATO eventually decide on.
However, in the case of Fairford, there is a reason, which your Lordships may or may not consider to be valid, and which—if the decision to base these aircraft on Fairford were taken—might locally be considered to be somewhat wanting in tact. Fairford was, and to a limited extent still is—but it may not be for very much longer—the home of Concorde during all its proving flights in this

967
country. It was a daily spectacle. Whether or not local people were personally involved in its future—were not we all to a greater or lesser extent?—nearly everyone admired it as the ultimate in grace and beauty that had yet been produced by Anglo-French aeronautical engineering.
Although it was an international project, local people in South Gloucestershire and North Wiltshire felt it to be particularly theirs. They were proud of it. And pride in national achievement is not a sentiment which is totally dead in that part of the world. They wished it well. They therefore felt, perhaps more strongly than others in the country, a sense of frustration and anger at the campaign of delay, some would say a pernicious campaign, waged against their Concorde by certain sections—I assure your Lordships that I mean certain very limited sections—of American opinion which, in the end, resulted in the end of the Concorde programme.
What are they offered now? Should those same people who admired that aircraft so much be offered, in its place, the KC135? Should they welcome this vast, obsolete, noisy, dirty and potentially dangerous piece of machinery as a welcome guest in their own neighbourhood, where once they had a child of their own, a child of grace and beauty and of their own breeding? I fear that they will not accept any decision to make Fairford a base for the KC135 with a good grace; I fear, too, that the traditional friendship and hospitality with which we like to treat everyone, and perhaps especially our guests from the United States who visit that part of England in large numbers, will not be forthcoming, and that the two communities might exist in a state of less friendship than we should like. I should therefore like to ask the Government to consider very carefully whether there is no suitable alternative site to Fairford which will both satisfy our obligations to the NATO Alliance and meet with the approval of the local community.
9.24 p.m.
Lord MILFORD: My Lords, it gives me great pleasure to be able to congratulate the noble Lord, Lord Jeffreys, on his maiden speech, which was terrifically fluid. and strong. We look forward, I am sure, to hearing him speak many times in the future.
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I wish to state emphatically that I share the consternation of all the people living in or near Fairford and in the Cotswolds. It was with great regret and frustration that I found myself unable to take part in their demonstrations and deputations to Ministers in the House of Commons. Many of us remember how, not so many years ago, at the height of the cold war, American bomber aircraft were flying day and night high over our heads, and we were told that they were loaded with H-bombs. Thus it was with a great sigh of relief that most of us living with our families in the neighbourhood learnt that the American Air Force had decided that it could evacuate Fairford aerodrome. Now it may be coming back with heavier, dirtier, and noisier planes. Life is going to be grim, and I would join any campaign to stop this. But I will take no part in any campaign which attempts to impose this nightmare on any other community elsewhere so that we around Fairford can go free. I think that it is absolutely immoral to try to put it on to other people when we thoroughly disagree with it ourselves.
If the arms race continues and more and more bombers, tankers, and missiles have to be placed in Britain, more and more English communities will be engulfed; and even if Fairford escapes now, it will be a full blast American base before long if the cold war continues. In fact England will become an expendable American aircraft carrier. If that happens, Fairford, along with many other English communities, will be priority missile targets for the enemy. We and our Government must face up to that when the increase in the number of military air bases takes place.
Your Lordships may accuse me of talking off course, away from the Question of the noble Earl, Lord Kimberley. However, it is difficult to discuss location, pollution, and noise without saying something about more basic questions leading up to them. First, I want to refer to the absolute madness of the armaments race for both sides—East and West. When, and where, are any of us going to stop this crazy race? Being unable to take part in the delegations and deputations, it was arranged for me, as a Member of this House, to meet a Member of Her Majesty's Government to discuss the issue contained in the Question. To my amazement this

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important person asked me which would I prefer, to be fried or polluted? Are we, in this debate on this vital question, for which we are seeking a solution, to discuss the matter on such a low, infantile level?
Is not the whole of humanity—at least outside those in the arms industry—crying out for this madness to stop; for the arms race to be halted, reversed? Enough arms and bases already exist to blow mankind to smithereens. It seems to me that we are adding to this madness by introducing these American tanker planes around our village communities in our unique countryside; and at a time when there may be just a glimmer of hope—a small spark—which on no account should be ignored or stamped upon. I am referring to recent events in the world.
First, there has been Brezhnev's speech in West Germany—which the Germans thought very important indeed—in which he said that both sides were crazily heading for self-destruction; that neither side can negotiate from superiority of arms; that both sides must get around the table and discuss, discuss, discuss how to stop this madness.
Secondly, another very important event has been the getting together of so many nations at the United Nations to seek a way out of this madness. I remember talking, on the day it was assembling, to one or two Members of the Government Front Bench in this House. They had the excited air of optimism, hinting that Britain was going to play a leading part in discussing how to halt this crazy arms race. We have not yet heard fully what happened at the United Nations. A third hopeful event is that the Soviet Union has agreed that the forces of both sides could be reduced in Europe. Surely these three very important recent events constitute a chink of light in the dark curtain. I hope that Her Majesty's Government—all Governments, of whatever ideology—will push and push to make that chink wider and wider. The world has been treading down a very dangerous road, but I believe we can still turn back. Is this not a more realistic approach to take away the threat to Fairford, or any other English community, of being essential as a war base, torn by noise, smeared with pollution and perhaps faced with extinction?
9.31 p.m.
Lord MANCROFT: My Lords, may I, with respect, bring your Lordships' House back from the chink of the noble Lord, Lord Milford, to Fairford? I live two miles from the end of the Fairford runway and four miles from the end of the Brize Norton runway, which is also a candidate for the KC135. I therefore clearly have an interest to declare. It is not upon this interest that I wish to speak in any way this evening; nor I think, my Lords, would all my neighbours in the Cotswolds area. We all of us realise that defence has to be a major priority; we are all of us aware of those people who say that we have not paid enough money for defence or done enough for defence but who then, when somebody suggests that our airfield should become the home of the KC135, say, "Any airfield except ours".
This is the old story that we have heard so often in politics. People say, "Government expenditure must be cut to the bone, but not my bone". How often have we heard Members of Parliament say, "Government expenditure must be greatly reduced, but not in my constituency"? So we all say that we want these extra KCl35s to help us, but not if they are anywhere near our back yard. Of course, this is natural. All aircraft are dangerous, smelly, beastly things, as the noble Earl, Lord Kimberley, has emphasised, and all airfields contain potential danger. We know this; so what we are asking the noble Lord, Lord Winterbottom, to do tonight is to say that he accepts that but, on behalf of Her Majesty's Government, also to say that there is an overriding strategic reason why this airfield rather than any others should be chosen for this particular aircraft. We understand completely the need for these aircraft—those of us, particularly, who are interested in defence—but we want to know why this particular airfield is better, more suitable, strategically more acceptable, than any other.
My Lords, our local newspaper, the Wiltshire and Gloucestershire Standard, in which is incorporated the Swindon Express and Echo and the Malmesbury Mercury, has recently conducted a ballot. For what it is worth, 183 voted in favour and 356 against. All the usual arguments were paraded, and they are all good ones:

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jobs that were lost when the Concorde was taken away and might well come back if the KC135 comes back, noise, pollution, traffic troubles—all these are rightly exercised. But there are two arguments to which I should like to draw your Lordships' attention, which I think are a little less obvious. One is obviously that a newspaper ballot is not the ideal way of settling a nation's higher defence structure. The second is that our planning procedure, out of which all this arises, is still unsatisfactorily chaotic.
Your Lordships have heard it all often before—over Maplin, over the fourth terminal at Heathrow, over the A3 road past Winchester, and over the Archway. This will go on interminably as it is today over this Fairford row, unless we try to get our planning procedure into slightly more civilised and practical methods. Within bicycling distance of Fairford are three Roman roads: Fosse Way, Akerman Street and Ermine Street. They were built 2,000 years ago and you can see them plainly both from the air and from the ground. If the Romans had to follow the planning procedure that we have to follow nowadays those roads would never have been built let alone lasted 2.000 years. Can you imagine what would happen if we had from this House formed a deputation, an "aggro" to go off to the headquarters of the 20th Roman Legion in Cirencester? Do you think that the noble Earl, Lord Kimberley, would be allowed to put down an Unstarred Question to Julius Ceasar and to the Senate at Rome? No, not at all! This has been the trouble.
With all respect to the noble Lord, Lord Milford, I should like to quote to him one remark in a letter in our local paper. It reads:
"Personally I would rather have the Americans fuelling their planes here than the Russians. After all, one would not be able to protest at all if the nationalities were reversed".
Therefore I come back to endorse the Unstarred Question of the noble Earl, Lord Kimberley, and ask the noble Lord, Lord Winterbottom, on behalf of the Government this. We all know about the pollution and the noise, particularly if we are a baby or an invalid. Any aircraft on any airfield is bound to be a nuisance and a potential danger. All that the noble Lord, on behalf of the Government, has to convince us is that
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this is the only place strategically where these aircraft can be placed; and we, believing in the necessity of defence, will put up with and accept the noise, the nuisance and the potential danger. We shall certainly accept the Americans if we are going to have these aircraft here; and I shall be the first person to give them a very warm welcome, provided I can be heard above the din.
9.37 p.m.
Lord TREFGARNE: My Lords, we are doubly fortunate this evening, first, that the noble Earl, Lord Kimberley, has seen fit to raise this important matter; and, secondly, that the noble Lord, Lord Jeffreys, has chosen this occasion to make his maiden speech. What a pleasure it was to listen to him. The noble Lord's command and style are very much in line with the highest standards of your Lordships' House, and I hope that he will intervene in our proceedings regularly in the future.
The noble Earl's Unstarred Question refers to the strategic concept governing the use of these tankers. The noble Lord, Lord Winterbottom, when he replies, may not be in a position to reveal this to us precisely. I have no doubt that this is a classified matter which may not even be revealed to the Government at all. But it is very difficult, if not impossible, to determine the burning issue of where to base these aircraft without at least some knowledge of the location and scale of their proposed operations. Of course there have been some leaks. Having said that, the United Kingdom is by American standards a small place, so that if the area of operations was, for example, the North Atlantic, the different locations of possible sites in England, Wales or even Scotland is of no particular consequence.
That being so, I wonder if I can put to the noble Lord the possibility that these aircraft could be based in Northern Ireland. That Province is, for the most part, much less densely populated, and the extra 200 or so jobs which would result would be even more welcome there, I fancy, than here. There are a number of now derelict aerodromes in Northern Ireland. These could be restored and adapted for this purpose, again providing some very welcome short-term employment while the work is in progress.

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The noble Earl, Lord Kimberley, dwelt at some length on the inadaquacies, as he put it, of the performance of the KC135. I do not want to follow him along that road because although I would agree that most of what he said was, so far as I know, accurate, none the less, I believe that he is a little misleading if he chooses to compare the KC135 with the VC 10 or the Super VC 10. It would be more accurate to compare the KC135 with the Victor tankers which the Royal Air Force now operate. Although I understand that there are some plans to convert VC l0s to tankers, there are no such aircraft at present. The VC 10 was a second generation jet transport, and both the KC135 and the Victor could be described as first generation transports, and therefore are more directly comparable.
Your Lordships know that I have often spoken in your Lordships' House on aviation matters. I suppose I am a wholly dedicated aviation person; and, indeed, earn my living in the industry. I believe, none the less, that aviation, whether civil or military, can no longer plant its noisy footprints with impunity—to use the modern jargon—over local communities without accepting strict controls. Of course, if war were imminent or happened, the situation would change dramatically. In peacetime I believe that there must be some regulation even on these military aircraft.
What then are we to say to our American allies who need quite justifiably to operate the somewhat elderly and noisy aircraft hereabouts? First, we must select an aerodrome which will cause the least possible annoyance to the population. Because of the technical requirements of the runway and the copious fuel supplies necessary for these operations, the choice is clearly somewhat limited. I believe that the environmental considerations so eloquently put in particular by my noble friend Lord Jeffreys are such that would rule out places like Fairford and Brize-Norton. Indeed, I believe that the people who live around Brize-Norton have enough to put up with already.
The choice is thus narrowed to an existing coastal site, of which the RAF have a number, or to redevelop an old and remote aerodrome, perhaps in Scotland or Northern Ireland. Secondly,
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we should say to our friends that we insist that the KC135s are replaced by the newer, quieter and more efficient DC10 tankers now on order just as soon as maybe. They are, I believe, expected in service in a couple of years. It might be reasonable to insist that the first place they base them is at the point decided for what I hope will be the short-term operation of the KC135s. This will no doubt require some replanning of the USAF tanker deployment; after all, they have an enormous fleet of tankers and there are nearly 1,000 KC135s still in service. I believe that our friends will realise that we have unique problems here and will he willing to do this for us.
If the Americans grow impatient at the very detailed and careful consideration which the Government must give to this matter, or if they start to read the fine-print of the NATO Treaty, they may care to ponder on the two years or more that it took—and this was mentioned also by my noble friend Lord Jeffreys—to secure the landing rights for Concorde in New York. The situations arc not perhaps exactly parallel, but the Government do have a duty to provide these new facilities only after the most careful thought.
9.45 p.m.
Lord WINTERBOTTOM: My Lords, I am grateful to the noble Earl, Lord Kimberley, for putting this Question because, first, it encouraged the noble Lord, Lord Jeffreys, to make his maiden speech, on which I congratulate him and quite sincerely say that I hope we shall hear him again soon, and possibly on matters of defence. It also enables me to explain why the requirement to base extra KC135 tanker aircraft in this country has arisen and to try to allay the fears of the more nervous brethren among us.
I think it will be generally accepted that we owe the long period of peace and stability we have enjoyed in Europe to the North Atlantic Alliance. As noble Lords will recall from the interesting debate we had on defence strategy in July last year, the North Atlantic Alliance practices a strategy of deterrence. For effective deterrence the Alliance needs to convince any potential aggressor that

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the use of force, or the threat of force for political ends, carries risks far outweighing any likely advantage.
NATO's deterrent strategy is based on forward defence and the capability of flexible response. Forward defence means that NATO is committed to defend the full territorial integrity of its members and to halt any attack at the earliest possible point. Flexible response means that NATO must have a range of military options wide enough to ensure that whatever form agression took NATO would have the ability to meet it. For the deterrence to be effective in all circumstances, sufficient forces must be stationed forward in Europe to defend Alliance territory at all times against any attack the Warsaw Pact could mount until reinforcements could arrive and to support these forces on arrival.
As part of its commitment to this NATO strategy and in response to the continuing build-up in Warsaw Pact military forces, the United States has recently increased the number of its fighter and strike/attack aircraft based in the United Kingdom and elsewhere in Europe. For that, we shall be grateful to them. As a result, the small number of KC 135 tankers currently stationed at RAF Mildenhall in Suffolk can no longer provide sufficient air-to-air refuelling capacity to get the maximum combat effectiveness out of these tactical aircraft and others which would cross the Atlantic to reinforce them in time of tension or war. The noble Lord, Lord Jeffreys, mentioned "fear". Are the inhabitants of the Cotswolds of softer tissue than the inhabitants of Suffolk? I do not believe it. If Suffolk can take KC 135 aircraft then I think the Cotswolds—if it should be the Cotswolds—might also be able to stand up to the challenge.
Tankers have been aptly described as "force multipliers": by topping up combat aircraft with fuel in the air, they enable them to fly further or carry a heavier weapon load, or both, than is possible without flight refuelling. Indeed, tankers increase significantly the operational effectiveness of the combat aircraft they support, and thereby make a major and cost effective contribution to deterrence and peace; this is why Her Majesty's Government have recently decided to purchase extra VC 10s to add to the RAF's own tanker force.
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It is important that the KC 135s, which would operate in Europe in war should train regularly in the theatre to provide practice for their own crews in a European environment and training for the tactical aircraft pilots stationed here. Only in this way can they maintain the operational readiness and effectiveness that is so essential for deterrence and the efficient defence of Europe. The United States Government has accordingly decided that it must increase the number of KC 135 tankers deployed in Europe as quickly as possible to match its increased commitment of combat aircraft. For military reasons, it is not sensible to base them in the forward area of the NATO Central Region, where they would be vulnerable to attack by tactical aircraft of the Warsaw Pact. We would not put them on the Russian border. Nor is there room for them at airfields in the central region.
NATO greatly needs the increased air refuelling capability represented by these KC135s, and Her Majesty's Government fully accept the urgent operational case presented by the United States Government, and supported by the NATO military authorities, to deploy extra tankers to Europe. We wholeheartedly welcome this addition to allied deterrent and defensive strength. We also agree that, given established NATO strategy and planning, the United Kingdom is the most suitable country in Europe for them to operate from. We are, after all, an unsinkable aircraft carrier. I believe that noble Lords will not dissent from that either.
The question of where in the United Kingdom they should be based is, however, as we have heard this evening, a much more difficult matter to resolve. There are many factors that the Government have to take into account in reaching a decision. Fortunately, strategy is not one, since almost anywhere in these islands would be within range of the tankers' operational rendezvous areas. I note the point made by the noble Lord, Lord Trefgarne, about Northern Ireland. Remembering one great airfield there which has been closed, it might be an excellent idea, but that is not for us to discuss this evening.
Lord TREFGARNE: Why not?
Lord WINTERBOTTOM: Because I have simply said that the actual placing is not determined by strategy; it is determined by other matters. I shall come to the point later. However, the pattern of our other aircraft deployments, the availability and suitability of airfields, cost and environmental considerations are all matters that have to be studied and balanced one against the other. But apart from repeating what was said in another place on 26th May about the reasons for ruling out Greenham Common, I regret that I am not able to say anything tonight about the Government's choice of airfield as the base for these tankers, or even about the list of airfields which has been considered. My right honourable friend the Secretary of State for Defence hopes to make an announcement in the very near future. I cannot anticipate this, and until then I must ask noble Lords to be patient on this point. This is, to some extent, an answer to the Question about Fairford, which was the main focus of the noble Earl's attention. But, as I said, it is not strategy; it is a complex of considerations upon which the Government must base their decision.
May I now turn to some points which, I hope, will allay the fears of noble Lords. First, the United States Government has asked Her Majesty's Government for a base in the United Kingdom for 15 extra KC135 tankers in peacetime. That answers the noble Lord, Lord Trefgarne, about the scale of the operation. The deployment of these aircraft would take place over a period of two years. When complete, the force would generate an average total of about eight sorties a day. Initially, it would be proportionately less. Flying would normally take place only in daylight hours and on weekdays, although there would be occasional exercise periods involving night and weekend flying. Reports of flying round-the-clock on seven days a week are, therefore, totally untrue. In addition, the nature of the aircraft's role means that its sorties take it away from base for several hours at a time. Many of the reports of noise and pollution levels have, therefore, been considerably overstated, and so has the degree of nuisance which the deployment of these aircraft would cause.
Local opinion has also been concerned about the quantity and type of fuel
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carried by the aircraft. The KC135 normally carries somewhat less than 26,000 US gallons of fuel. The noble Earl, Lord Kimberley, painted an awful picture of one of these 'planes flying on three engines and staggering up towards the local church tower. But it does not have to aim at the church tower; it can aim to avoid it. Furthermore, it does not have to take off with a full load. The basic point is that if you paint a black enough picture you can frighten yourself in any situation, if you really wish to do so.
The Earl of KIMBERLEY: My Lords, will the noble Lord give way for one moment? If it does not have to take off with a full load, there really is not much point in having it.
Lord WINTERBOTTOM: It is one thing to operate an aircraft in peacetime and another to operate it in war. Come hostilities, we would be just waving the boys goodbye and saying, "Take off with an extra gallon if you can fit it in". The basic point is that in peacetime you adjust to peacetime considerations. I am certain that the noble Lord, Lord Jeffreys, knows that the Red Arrows would be warned that the thing is taking off before they start doing aerobatics.
We have a pretty competent system of air traffic control in this country. When we go hack to the 26,000 US gallons of fuel—I am glad to say they are not British gallons but US gallons of fuel—that is considerably less than the amount carried by a modern jumbo-jet airliner of the kind which fly every day to and from civil airports in this country. The Cotswolds can have a jumbo jet crashing in their back garden quite easily. There is no greater risk with a KC135 than there is with a jumbo. The additional KC135s would carry fuel identical to that used by the RAF, known to NATO as F34 and similar to civil aviation JP8 fuel. The United States Air Force in this country is converting to this fuel from the more volatile F40 fuel, in accordance with a NATO decision to adopt F34 as the standard fuel for all land-based jet aircraft. Contrary to reports, the safety record of the KC135 since it entered service has been excellent, and is several times better than the average for all United States Air Force or indeed Royal Air Force aircraft.

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I hope that will steady people's nerves. I want to make one more point. I have read my brief with a few amendments and am now going to speak my own mind. I want to know where noble Lords stand. We know where the noble Lord, Lord Milford, stands. He wants us to lower our guard and take whatever risks are likely to come as a result of lowering our guard.
Lord MILFORD: My Lords, I want to get rid of this madness of the arms race so that we can get down to a sensible, decent peacetime again.
Lord WINTERBOTTOM: My Lords, will the noble Lord please tell his Russian friends about that. It would be very helpful perhaps. The other point is that I have stood here for the last 3½ years—in fact, many years before that—and have been told that the Party which I represent is betraying this country, cutting defence, and so on; yet noble Lords opposite who claim to be the defenders of the Realm have the effrontery to say that because some rather noisy and smoky aircraft which we need desperately for the defence of NATO are going to land somewhere near them—not even in their back garden, but somewhere within 20 or 30 miles—they must go somewhere, anywhere else, but "not in God's name in my back garden". The noble Lord, Lord Mancroft, made the point. I have a long memory and when noble Lords get up to speak on defence in the future, if they are going to take this line, I shall have to remind them of it. My Lords, that is my attempt to answer the noble Earl, Lord Kimberley.

SHEFFIELD GENERAL CEMETERY BILL
Brought from the Commons, read 1a, and referred to the Examiners.
THEFT BILL [H.L.]
Returned from the Commons agreed to with Amendments; the said Amendments to be printed.