Lords Sitting of 20 June 1978

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

TORTOISES IMPORTED FROM TURKEY
Lord JANNER: 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 their attention has been called to the cruelty involved in recent imports into this country of live tortoises from Turkey; whether they are satisfied with the powers existing to deal with such imports under the Transit of Animals (General) Order 1973 and, if not, what steps they propose to take to improve the situation.
Lord STRABOLGI: My Lords, the Government are aware of the condition in which recent consignments of tortoises from Turkey and Yugoslavia have reached this country. The condition of the tortoises in six of the consignments was satisfactory. Of the 14,000 tortoises in the seventh consignment, five were found to be dead and seven had to be destroyed. The powers available in the Transit of Animals (General) Order 1973 enable local authority or State veterinary inspectors to unload and remove animals which the inspectors have reason to believe are likely to be caused injury or unnecessary suffering.
Lord JANNER: My Lords, may I ask my noble friend whether he is aware that the order does not cover the situation at all effectively? Recently there was a consignment brought here in which some of the animals died. Kent County Council have refused to take action, saying that because the person who was driving the vehicle was the only person who was there, and that Customs had sealed the particular box, they could not take pro-
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ceedings. Is my noble friend aware that there is very considerable agitation about the importation of tortoises when only one in 10, according to the estimates that have been received, survive the winter? Is it not time that this was stopped?
Lord STRABOLGI: My Lords, before I reply to that question, I am sure that the House would wish me to congratulate my noble friend Lord Janner on his 86th birthday.
Several noble Lords: Hear, hear!
Lord STRABOLGI: My Lords, with regard to the question, as I have said, there were various consignments in May and June. The policy is at present only to permit importations of tortoises during those months when the climatic conditions are right when they arrive. Of the May and June consignments, all were inspected and only one consignment had some broken crates containing tortoises. A number of tortoises—about 40 of them—were loose in the vehicle. As I said in my Answer, of the 14,000 tortoises, five were dead and seven were injured, and these were destroyed.
Lord JANNER: My Lords, is my noble friend aware that in 1975 the then Government spokesman for the Department of the Environment stated, in reply to a question from me, that he personally agreed that the carriage of exotic species to this country was likely to cause suffering? If it is likely to cause suffering, why on earth do we not stop it?
Lord STRAGOLGI: My Lords, we all have our views on these questions; and I have mine. At present, there is not sufficient evidence to ban importation.
Baroness SHARPLES: My Lords, can the noble Lord tell us when tortoises hibernate, please?
Lord STRABOLGI: In the winter, my Lords. I should explain a little more. Tortoises travel in refrigerated vans so that they hibernate on the long journey from Turkey or Yugoslavia. Then they wake up here in the summer months to be become acclimatised to the British weather.
Lord ELTON: My Lords, if the tortoises were hibernating, how did 40 of them seize

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the opportunity of making a dash for freedom?
Lord STRABOLGI: My Lords, because the packing was inadequate, as I said earlier.

GUARD DOGS ACT 1975: IMPLEMENTATION
2.41 p.m.
Lord DE CLIFFORD: My Lords, I beg leave to ask the first Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will now implement the remaining sections of the Guard Dogs Act 1975.
Lord WELLS-PESTELL: My Lords, the Government are not currently planning to bring those sections into force, but will keep the matter under review.
Lord DE CLIFFORD: My Lords, in thanking the noble Lord for that reply, may I ask him this question: Is he aware that there have been more than 300 complaints about the way in which these guard dogs are kept? Is he also aware that when we passed this Act, one of the reasons for doing so was to try to stop people who were running one-man jobs from doing this? These sections were put in the Act for that precise purpose. Is the noble Lord further aware that we shall continue to get complaints about this matter until these sections are brought into effect?
Lord WELLS-PESTELL: My Lords, I accept everything that the noble Lord has said. I handled this particular Act when it was a Bill before your Lordships' House. The Government made it clear during the passage of the Bill that the licensing provisions would not be brought into effect for some time because of their implication for local authorities on whom the burden of administering the system would fall. The noble Lord will be aware that to implement Sections 2, 3 and 4 would impose a very considerable burden on the local authority.
Lord GORDON-WALKER: My Lords, is my noble friend aware that we are all very grateful for the way that he facilitated the passage of the Act smoothly and quickly? Is he also aware that we hope that he is not implying that this section is in effect never going to be introduced, or is not going to be introduced for a long time, because the problems of the local authorities will remain more or less for ever? They are always overburdened. Is he aware that his reply sounded a little alarming and might suggest that this section may never be brought into force at all?
Lord WELLS-PESTELL: My Lords, I did not mean to imply that nothing would be done. It is mainly a question of the imposition of further duties on staff and it always means the expenditure of money, which is rather tight at the moment. We do not expect that situation to remain with us for ever. I should like to say to the noble Lord who raised the Question that I remember his saying on a previous occasion he was afraid that this matter would "sink into limbo". It is not the Government's intention that that should happen and we will certainly keep the matter under review.
Lord JANNER: My Lords, will you forgive me for intervening on a personal note for a moment. I am sorry that I forgot to thank my noble friend for the generous way in which he referred to my age, and I thank the House for the manner in which it received the remarks.

EXPORTED ANIMALS DESTINATION OF SHIPMENTS
2.44 p.m.
Lord DE CLIFFORD: My Lords, I beg leave to ask the second Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government when they intend to make an order under Section 8 of the Agriculture (Miscellaneous Provisions) Act 1976 requiring the destination of shipments of exported animals to be declared.
Lord STRAGOLBI: My Lords, exporters are already asked, in connection with their application for a

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certificate to the effect that the animals are fit to travel, to declare the final destination abroad. The effect of this part of Section 8 of the 1976 Act is to enable Ministers to require both this and other information to be provided.
Lord DE CLIFFORD: My Lords, while thanking the noble Lord for that reply, is he aware that in 1976, when this Bill was going through another place, the Minister gave an undertaking that he would produce an order within one year? That year has been slightly extended, and perhaps we could be told why.
Lord STRABOLGI: My Lords, as the noble Lord probably knows, there has been a very full departmental inquiry which was published in March, and the Government hope to make a Statement when all the representations have been considered and when they have formed their views on this important subject.

THIRD WORLD MINERALS: INVESTMENTS
2.45 p.m.
Lord LEE of NEWTON: 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 propose to take to increase investment in Third World mineral resources, such as copper and nickel, without which the industrial production of the manufacturing nations is endangered, while the economies of those Third World countries which depend on exports of such minerals encounter serious difficulties.
Lord WINTERBOTTOM: My Lords, the Government are very aware of the need for adequate mineral investment if supplies for industrial users in all countries are to be safeguarded, and they recognise the contribution which such investments can make to the economies of Third World producers of minerals. For these reasons, they are playing a full part in the international and EEC discussions which have as one of their aims the establishment of more favourable conditions for mining investment.
Lord LEE of NEWTON: My Lords, I thank my noble friend for that Answer. But is he aware that a number of Third World countries have economies which are now in a critical position? That arises, I believe, because it would appear that not only are the costs of their imports rising astronomically but the amounts they can get for their exports are way down. Secondly, it would seem there is now a policy among certain industrial nations not to purchase from Third World countries but rather to get their supplies from comparatively wealthy countries such as Canada and the United States. If that goes on, only Government interference can stop the collapse of some of t hose countries.
Lord WINTERBOTTOM: My Lords, I think my noble friend's analysis is probably correct. However, we are acting in conjunction with other major industrial Powers. As I said, we are playing a full part in the international and EEC discussions which are aimed at solving this particular problem.
Lord ELTON: My Lords, would the noble Lord accept that the multinational company, which has of late been the subject of a great deal of criticism from his friends on the Left, is an institution which can be used or abused just like any other institution? Does he agree that we should do what we can to see that conditions make it possible for these companies, which are the most suitable instruments for large capital investments in developing countries, to do so with security? Finally, do the noble Lord and his friends not accept that where the host country has a programme which requires national participation by the host country in the investment to a specified percentage, the companies' interests are protected, so that we ought to facilitate this movement?
Lord WINTERBOTTOM: My Lords, the role of the multinational companies is an extremely interesting one but it is not one for analysis or solution at Question Time.
Lord ELTON: My Lords, may I ask the noble Lord whether that is his final word on the subject?—because the multinational company is in fact the principal instrument by which the investments

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referred to by the noble Lord opposite are at present made, and it is crucial to this question.
Lord SHINWELL: My Lords, did my noble friend state in his original reply that the EEC or some department of the EEC was likely to inquire into this matter to try to reach some solution? Can he say how many of the EEC countries are involved? Also, can he give us any guarantee that the United Kingdom will get a fair and square deal?
Lord WINTERBOTTOM: My Lords, of course, all the EEC countries are concerned, and I am certain that our negotiating members at the various conferences on this subject will defend the interests of this country.
Lord HATCH of LUSBY: My Lords, would my noble friend agree that it is quite impossible in present circumstances for a country like Zambia, to take one example, to plan its economy when the price of copper can vary from below £700 a ton to £1,400 a ton within one year? Would he further agree that, as the copper mines in Zambia are nationalised, it would be appropriate for Her Majesty's Government, quite separately from membership of the EEC, to give some assistance to this ailing industry in a very friendly country?
Lord WINTERBOTTOM: My Lords, this is a problem that cannot be solved by one industrial nation alone; namely, ourselves. It must be done in conjunction with the major industrial powers of the world; to wit the United States, Japan and the EEC.
Lord ELTON: My Lords, does the noble Lord not accept that, in order to do that, it is necessary to have a policy, and that this country, in conjunction with others, should have a policy on buffer stocks, on commodity agreements and on international companies?
Lord WINTERBOTTOM: My Lords, this is splendid stuff, but the point is that it needs a major debate and cannot be solved at Question Time.
Lord BROCKWAY: My Lords, cannot the Government devote as much energy
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to constructive projects in the Third World as they now devote to selling arms to them? Why not have a development exhibition, similar to today's Army equipment exhibition, largely devoted to the Third World? Could this idea be put to the Minister for Overseas Development?
Lord WINTERBOTTOM: My Lords, exhibitions will not solve this problem.
Lord PARRY: My Lords, on the rôle of the multinational company, which is of course central to this debate and is not a matter of left or right in politics, will my noble friend agree that there is real and adequate cause for concern in any situation where a company responsible only to its shareholders can wield more power within a small nation than the Government of that nation or its people?
Lord WINTERBOTTOM: My Lords, I can reply to my noble friend only what I have replied to other noble Lords. It is a fascinating subject, but it is not a subject for Question Time.
Lord LEE of NEWTON: My Lords, is my noble friend aware that some of us would like to see his suggestion acted upon?—in other words, we should like a debate on this subject. Is he further aware that those of your Lordships who have served on the Select Committee on Commodity Prices were, for instance, told by Sir Mark Turner that after 1980 our supplies of copper will be in a very dangerous situation indeed? So merely from our own point of view—never mind the EEC—it is very important that we should move.
Lord WINTERBOTTOM: My Lords, I am certain that my noble friend's remarks will be noted by the appropriate authorities.
Lord DRUMALBYN: My Lords, may I ask the noble Lord, in view of the fact that the Question is
"what steps they"—
the Government—
"propose to take to increase investment in Third World mineral resources",
why this cannot be a subject of bilateral arrangements in some cases? Why must

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we always have to work with other countries? I am not against that, but why cannot there be bilateral arrangements?
Lord WINTERBOTTOM: My Lords, I am not an expert on this matter—I am sure that your Lordships' House has an expert on it—but I understand that most of these commodities, six of which are under major discussion, are subject to an international price policy.

ELECTRICITY (SCOTLAND) BILL [H.L.]
2.52 p.m.
The LORD CHANCELLOR (Lord Elwyn-Jones): My Lords, I beg to move that this Bill be now read a second time. It is a consolidation measure, which incorporates amendments to give effect to recommendations of the Scottish Law Commission. It consolidates a number of enactments relating to electricity in Scotland, and, apart from the amendments which are intended to remove certain minor anomalies in existing law, the Bill makes no change in the existing law. If your Lordships approve, the Bill will be referred to the Joint Committee on Consolidation Bills, which will consider it and make its report to the House in due course. My Lords, I beg to move.
Moved, That the Bill be now read 2a.—(The Lord Chancellor).
On Question, Bill read 2a, and referred to the Joint Committee on Consolidation Bills.

NATIONAL HEALTH SERVICE (SCOTLAND) BILL [H.L.]
The LORD CHANCELLOR: My Lords, I beg to move that this Bill be now read a second time. It is a consolidation measure, and it consolidates a number of enactments relating to the National Health Service in Scotland. It is pure consolidation and makes no change in the existing law. If your Lordships approve, it will be referred to the Joint Committee on Consolidation Bills, which will consider it and make its report to the House in due course. My Lords, I beg to move.
Moved, That the Bill be now read 2a.—(The Lord Chancellor).
On Question, Bill read 2a, and referred to the Joint Committee on Consolidation Bills.

SCOTLAND BILL
2.55 p.m.
Further considered on Report.
Schedule 14 [Intervention by Secretary of State in planning matters]:
Viscount COLVILLE of CULROSS: My Lords, I have given notice to the House that, in lieu of Amendment No. 187, I wish to move a manuscript Amendment in the following terms:
"Page 81, line 43, at end insert—
('section 93
section 96')".
And if I have your Lordships' leave to move it, I will explain what it is that I am seeking to do by way of speaking to listed buildings. I do not know whether the noble and learned Lord the Lord Chancellor will allow me to move that Amendment, instead of the one on the Marshalled List.
The LORD CHANCELLOR: My Lords, in so far as it is within my privilege to do so, most certainly, yes.
Viscount COLVILLE of CULROSS: My Lords, I wish to address the House on the question of the reserved powers of the United Kingdom Government to deal with important listed buildings in Scotland under the provisions of this Bill. I regret to say that, on account of the fact that the noble Lord, Lord Kirkhill, and I were, until very recently, in discussion about this, I had not reached finality about the Amendments that were required to go on the Marshalled List properly to cover this until quite late. I shall be seeking to add two other provisions by way of manuscript Amendments, if your Lordships will allow me, so as to make a complete coverage of the powers of the Secretary of State, under the Town and Country Planning (Scotland) Act, to make decisions on certain matters relating to listed buildings. I will give the noble and learned Lord and the Table a list of these manuscript Amendments.

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They do not, in fact, in any way add to the breadth of the subject matter; they merely more accurately describe it.
The problem is this: Under Clause 37 of the Bill as it now is there is the power of the United Kingdom Secretary of State to override by political means, and subject to a debate in Parliament—and only a debate in Parliament—certain executive actions taken by Scottish Secretaries. It has been thought fit by the Government to make a certain exception for a number of topics which fall under the town planning legislation. This now appears in Clause 69 of the Bill, and with that goes Schedule 14 which we have now reached.
The rationale, as I understand it—and the noble Lord, Lord Kirkhill, spelled this out very clearly in Committee—is that when you are dealing with something like a planning appeal, where you have, for the sake of argument, being sought to be built a power station, you do not necessarily find that all issues that arise belong exclusively to the sphere of influence of Scotland. The difficulty then is that as the whole of the town and country planning legislation has been devolved, it is necessary to see how the non-Scottish part of the debate which should take place can properly be handled.
The solution that has been put forward in the Bill is that, instead of the whole matter being dealt with in Scotland, if necessary at a public inquiry, and decided by the Scottish Secretary, perhaps without any, or any full, knowledge of the United Kingdom implications of the material that is before him, so that he then has to be overridden politically under Clause 37, an entirely different system should be developed; that is, that the Secretary of State in London will call in the planning application before it ever gets very far along the road of being decided by the Scottish Secretary, and he will then proceed to deal with it by way of his own public inquiry, at the end of which he will decide.
The advantage of this is that, instead of the matter being the subject of one comparatively short political debate in Parliament, all the planning issues, both local and national, may be properly argued out in public at a public inquiry and then
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reported upon by the rapporteur, or perhaps it will be the inspector, to the Secretary of State for him to decide. I hope that I have done justice, in very brief terms, to the argument. The Government have set out in Schedule 14 a comparatively limited number of occasions when the jurisdiction will be transferred or transferable in this way. They relate to all the ordinary planning procedures and enforcement notices but they do not relate to listed buildings, and it is to these that I wish to draw your Lordships' attention.
I think that it is common around between those of us on this side of the House and the Government that the use of the powers of intervention, whether under Clause 37 or under the special provisions in Schedule 14, would be rare, and I am not expecting any very great use of these powers to occur. However, the way in which the matter has been put is that there will be occasions under the general planning procedures when, as the noble Lord, Lord Kirkhill, put it, the constituency that is being considered is the United Kingdom and not merely Scotland.
I have no doubt that it will be accepted on all sides of the House that in Scotland there are buildings other than those belonging to the Crown which are, of course, important in Scotland but which are important outside Scotland as well. In other words, they form part of the national heritage, not only the Scottish heritage. From time to time in the course of the planning procedures there are occasions when, for one reason or another, applications are made to demolish or to alter out of all recognition buildings such as these.
The procedures are fairly complicated, but they can involve applications to demolish, or listed building enforcement notices. In the ultimate, they can involve listed building purchase notices whereby, having failed in every other respect, the person who owns the building seeks to make the local authority—which has denied him the opportunity to do anything else—buy it and take it off him. In the course of all these procedures there are opportunities for public inquiries and decisions by the Secretary of State.
As the Bill stands at the moment, all these decisions will be taken by the Scottish Secretary and by the Scottish Secretary alone. As I understand it, there will be

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no opportunity for the United Kingdom Government to interfere. Even if it appears to be likely that the Scottish Secretary will sanction the total demolition of some architectural treasure North of the Border, I do not think that the United Kingdom Secretary of State will be able to intervene under Clause 37; and it is quite certain that he will not be able to do so under Schedule 14.
Suppose, however, for the sake of argument, that the United Kingdom Secretary of State were able to intervene under Clause 37—in other words, by way of the political override, with a debate in Parliament. I do not believe that that is the right way to do it. The whole purpose of Clause 69 and Schedule 14 is to give an opportunity to those people who are concerned with issues which go wider than Scotland alone to give voice to their anxieties or ambitions at a public inquiry and to have the matter properly argued out in public in the kind of forum where evidence will be given which can be cross-examined and where the matter will be properly discussed, assessed by an expert and finally reported upon to the deciding Minister. It is not just the parties who can come to these public inquiries. In the case of architectural issues of the kind of which I am speaking, many voluntary organisations—the Georgian Society, the Victorian Society and many other most reputable and learned bodies of this kind—also come and contribute their piece; and very often it is a most important element of the decision that is ultimately made.
The Government are denying to the United Kingdom Secretary of State the opportunity, in the rare case, to call in any of these listed building matters and to hold a public inquiry where the United Kingdom interests can be assessed, discussed and decided upon. They insist that there shall be no intervention of this-form from South of the Border.
I am not trying to suggest that the United Kingdom Secretary of State will often want to intervene in this way. Very rarely, I think, would he wish to do so. Indeed, I would go further. It may be that if the United Kingdom Secretary of State is given the power to intervene, which he does not have under the Bill as it stands, this in itself will be enough to ensure that he never has to do so. But
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at the moment he has nothing, and I think that that is wrong. Like the rest of these complicated planning issues which are covered or are enabled to be covered by Clause 69 and Schedule 14, listed buildings should be included, too. The list of Amendments which I now wish to move ensures that this would be so.
There is, I think, just one other difficulty—namely, the way in which Schedule 14 is drawn. It makes it difficult initially to see how, in an issue like this, the Secretary of State, even if my Amendments were inserted into Schedule 14, would have the interest whereby he could intervene. Paragraph 3(b) of the Schedule states that if:
"it appears to the Secretary of State that any action"—
which is action by the Scottish Secretary—
"so taken would or might affect, directly or indirectly, any matter concerning Scotland with respect to which a Scottish Secretary has no power to act and that it is desirable in the public interest that he should intervene",
then he may intervene.
It seems to me that to achieve what I require in this particular case means that an Amendment will have to be made to that paragraph, too, because, as it stands at the moment, even if one put the sections of the Town and Country Planning (Scotland) Act into the Bill—the sections which I have put down in my Amendments—I still think that the matter would not fall to be decided outside Scotland. Therefore, there would be difficulty in the United Kingdom Secretary of State intervening. That is the reason why the last Amendment on the Marshalled List has been put down.
I am not trying in this speech to make difficulties for the Government. Indeed, I was most graciously and amicably received this morning by the noble Lord, Lord Kirkhill, and I pay my tribute to him and to his officials for their kindness in listening to me. I do not believe that there is much between us regarding our aims, although it may be that there are differences about the means. I want to make quite sure that in the Bill as it stands there will be no doubt at all that in that very rare case the Secretary of State may indeed intervene in order to protect something which is part of the national heritage and stands outside purely Scottish interests.

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With that explanation, I hope that I may invite the noble Lord, Lord Kirkhill, to reply. I beg to move the manuscript Amendment which states, in lieu of Amendment No. 187:
"Page 81, line 43, at end insert—
section 93, section 96".
I make no reference to the last three sections which were included in the original Amendment.
3.9 p.m.
Lord MACKIE of BENSHIE: My Lords, I hope that I fully understand the Amendment which has been moved. It appears to me that this is another simple case of somebody wanting to insert a safeguard in case the Scots are not sufficiently civilised to preserve a listed building which is of interest outside Scotland. There is no evidence that the Scots are not sufficiently civilised to do this. This is part and parcel of the attitude which has been shown throughout by certain Members that, in the case of matters of some importance which the uncivilised Assembly may not understand, it is necessary to reserve powers to the Secretary of State.
If there is something which a Scottish Secretary and a Scottish Assembly, with all the influence of the people of Scotland and the electors behind them, wish to destroy but which somebody outside Scotland wants to keep, I think that the usual procedures and representations will be sufficient. It is making a mockery of the Assembly to suggest that there may be matters of taste on which it is not entitled to judge or is incapable of judging, and that therefore power should be reserved to the Secretary of State. There is little doubt that the Government will resist this Amendment. Indeed I hope that they will do so.
The MINISTER of STATE, SCOTTISH OFFICE (Lord Kirkhill): My Lords, as the noble Viscount, Lord Colville of Culross, has just said, he and I were talking until a comparatively recent time about the noble Viscount's position. Of course, I could affirm, along with him, that our discussions were of a very amicable nature and character. But I am afraid that the legal advice which I have had since we met in an informal way is that the intervention powers in
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Schedule 14—or for that matter in Clause 37—are not available because there is no matter involved with respect to which a Scottish Secretary has no power to act.
I undertook in discussion with the noble Viscount to consider whether the fact that the Secretary of State can purchase an historic building—just as a Scottish Secretary can do—and that he can receive a grant from the National Land Fund towards the cost, which a Scottish Secretary cannot do, could constitute a basis for intervention. My legal advice is that the fact that the Secretary of State alone can receive a grant from that source does not, and cannot, constitute a matter with respect to which a Scottish Secretary has no power to act. So much for the prospects of invoking the Schedule 14 powers in the case of listed building proceedings.
What I must point out to the noble Viscount, however, is that the main protection he is seeking lies in the power of the Secretary of State to acquire a property which requires protection; and that power lies within Sections 4 to 6 of the Historic Buildings and Ancient Monuments Act 1953, which is mentioned in Schedule 5 to the Bill. That power, and not the power to conduct planning proceedings, is the means of ensuring that a building is not knocked down or does not fall down while planning proceedings go on. The noble Viscount sets store on the holding of a local inquiry. But of course the Secretary of State could, in any such case, arrange an informal inquiry under general powers, if he thought this desirable. This would ensure that all the issues were explored.
The noble Viscount proposes to substitute, as he has been saying, different section references as insertions in the list in Part I of the Schedule. I have to advise the noble Viscount that because of the wording of paragraph 3(b) of Schedule 14, taken with the comprehensive devolution earlier in the Bill of matters affecting historic buildings, there is no basis on which the Secretary of State could invoke the Schedule 14 procedures in a listed building case. Accordingly, even if we were to add the section and Schedule references which the noble Viscount has proposed, the Secretary of State could take no effective action in relation to the matters concerned.

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I am further advised that we cannot do what the noble Viscount is seeking by amendment of Schedule 14. The safeguard that counts is the one I have already mentioned—the power of the Secretary of State to acquire a threatened building if he considers it justified. Of course it would be remiss of me were I to resume my seat and did not say, as a general emphasis and as the tenor of Government policy, that I accept the position which the noble Lord, Lord Mackie of Benshie, has just enunciated to your Lordships' House.
The Duke of ATHOLL: My Lords, before the noble Lord resumes his seat, did I mishear him or did he say that the Scottish Secretary could never acquire an historic building? I appreciate that he will not be able to get anything from the Land Fund towards doing so, but surely there must be occasions when the Scottish Secretary would have the power to acquire an historic building, possibly for other purposes?
Lord KIRKHILL: My Lords, the matter of listed buildings is a devolved matter. The Scottish Secretary will have appropriate powers within the devolved situation.
3.15 p.m.
Lord HARMAR-NICHOLLS: My Lords, did I understand the noble Lord to mean that what my noble friend has in mind with his Amendment cannot be done under Schedule 14 but could be done under another provision somewhere else in the Bill? Is there a "somewhere else"? I gather not.
I must say that I react rather sadly to the contribution of the noble Lord, Lord Mackie of Benshie, on this. Why is he so touchy when somebody is trying to make this a Bill that will work? This is a sign of an inferiority complex which I have never before noticed in the noble Lord. What is he saying? He is resisting the Secretary of State for Scotland having these extra powers. There is no question of some Sassenach stepping into the matter. It is the Secretary of State. I believe that the noble Lord should be leading the band in wanting to preserve some of the powers of the Secretary of State, because he is an ex-Whitehall man. I feel that his reaction is almost patholo-
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gical. It is a pity that he is not prepared to use his local knowledge to examine in constructive detail the matters that my noble friend has in mind.
The Earl of PERTH: My Lords, I have listened to the speeches so far, and is it quite clear that we all have in mind the same purpose, which is the preservation of the heritage of Scotland. One thing said by the noble Lord, Lord Kirkhill, worries me a great deal. He said that the Scots would have no access, as I understand it, to the National Land Fund. I do not know what form the National Land Fund will take. It is in the melting pot at present, after a report which many of your Lordships will have seen. The fact is that they will be cut out of the National Land Fund. However, I understood in the original form of the Bill that we were going to be allowed access for musuems, galleries and libraries. That is frankly something that I do not understand. I hope very much that if at the present time that is the case, some step will be taken to ensure that we could have access to the National Land Fund for Scottish heritage purposes.
Lord KIRKHILL: My Lords, by leave of the House, the position is that the Scottish Secretary and the Secretary of State are in a concurrent position so far as the approach to the National Land Fund is concerned.
The Earl of PERTH: My Lords, may I ask in relation to that—I misunderstood the noble Lord, Lord Kirkhill, earlier—whether the Scottish Secretary has access, in conjunction with the Secretary of State for Scotland, to the National Land Fund? Am I right? Perhaps the noble Lord would like to check while I go on to deal with other points. I think that it is of the greatest importance that we should not be cut out.
In a more general way, I understand the purpose of the noble Viscount, Lord Colville of Culross. I think that we in Scotland are more jealous, probably, of our heritage, perhaps because we have fewer buildings of great importance than there are in the South. We have our Georgian Society, a Victorian Society, the Saltire Society, and we have the National Trust of Scotland, which plays an extremely active part in all preservation operations. I do not feel that we

965
have to rely on a long stop, however well-intentioned, from Scotland—whatever the noble Lord, Lord Harmar-Nicholls may say—because I think we can do our own job. Not only do I say that with considerable confidence, but I see it in all the young. The young are very active in Scotland in ensuring that things are preserved. So I do not feel that we have to worry. I do not believe, with all the best intentions, that such a move as is proposed would have been supportable even if it had been correct, but I understand from the noble Lord, Lord Kirkhill, that it does not work in any case. I should like him to confirm to us that the National Land Fund will be available for the Scottish heritage.
The Earl of SELKIRK: My Lords, I should like to support what the noble Earl, Lord Perth, has said. This is extremely important and I do not think we have been told up to now that this fund is not available. This is a clearcut point which has arisen several times on the question of the arts. I do not want to raise the whole issue, but it seems a little complicated. The ancient monuments and Scottish buildings are devolved. Historic buildings and ancient monuments—Sections 4 to 6 are exercisable concurrently; and historic buildings and ancient monuments, Section 7, are not included. I have had a little experience of this, purely on the political side. It is a very difficult question, when it arises, as to w hat is worthwhile keeping and what is not. I happen to know that the noble Lord, Lord Kirkhill, has a personal grudge against me on a certain issue, and I accept his accusations readily, but leaving that entirely aside, what the Committee has to do is not necessarily to make its own choice but to decide what other people who are knowledgable and understand these things really attach value to.
We cannot preserve everything; a selection must be made and I think it would do no harm if these matters could be raised in this House from time to time, as they are, because then they are better ventilated so that everybody knows the issues involved. Sometimes a row is made about things which are not worthwhile, and sometimes a decision has to be made. It is a difficult situation.
966
It is no good saying that one body of people, whether they be Scots or Welsh, are terribly clever about this. Very few people are terribly clever about it. The easiest way is to ventilate it fully and then try to make what, in the circumstances of the finance available, is the most sensible arrangement. I hope that I shall receive an answer about the National Land Fund.
Lord KIRKHILL: My Lords, with the leave of your Lordships' House, the noble Earl, Lord Perth, asked me a direct question, and I can advise him that the Scots will have access through the Secretary of State to the National Land Fund so far as concerns grants for the acquisition of historic buildings.
The Earl of LAUDERDALE: My Lords, it would be a pity to allow this matter to be settled on the basis of who is less or more civilised, the English or the Scots. I have much sympathy with the noble Lord, Lord Mackie of Benshie, when he protests that aesthetic and environmental illiteracy are not confined to the English. The evidence of that is the new St. Andrew's House in Edinburgh, the appalling precinct opposite and the fantastically silly light mobile in front of it. The Scots are perfectly capable of the most appalling aesthetic nonsense despite the Georgian Society, despite the Victorian Society, despite the Saltire Society and despite the youth. Therefore, let us not try to be above ourselves on this matter. In my opinion there is the most appalling environmental illiteracy on both sides of the Border which we must resist. Therefore, surely, we want the maximum safeguards and not the minimum, despite what the noble Lord, Lord Mackie of Benshie, and others say about the Scottish superiority in these matters. I am afraid the Scottish superiority is not always as well demonstrated as we Scots might wish.
Viscount COLVILLE of CULROSS: My Lords, I, too, would first take issue with the noble Lord, Lord Mackie of Benshie, because having made the speech that he did it is quite evident that he cannot understand Schedule 14 at all since in a great number of situations where all the criticisms to which he gave voice would apply directly to the Scottish Secretary, that is so already. Therefore, if I may say so, it is a wholly bad point

967
because all I am doing is to bring into line with what is already in this Bill the subject of listed buildings.
Also, however well-intentioned and well advised and aesthetically fine one's views may be, one very often cannot do anything about these buildings unless one has the money. The noble Lord, Lord Kirkhill, has just said that the National Land Fund will be available to protect the Scottish heritage through the Secretary of State. As I understand it, the situation is that only the Secretary of State will have access to the National Land Fund for the purpose of spending it in Scotland; the Scottish Secretaries will have no access to it at all. The concurrent powers under the 1953 Act do not include the one that deals with the Land Fund—I think that is the accurate situation—so that any occasion to use the Land Fund in relation to a building in Scotland can only be carried out by the Secretary of State himself. It is really against that background that I seek to pursue this matter.
I entirely agree with the noble Lord, Lord Kirkhill, that if you take the Amendments which add additional bits of the Town and Country Planning Act to Schedule 14, and you do no more, you probably achieve nothing. I think I said that to start with. But I have Amendment No. 188A on the Marshalled List and I should be prepared to argue that the addition of that, if you add listed buildings to the subject matter of intervention, makes it possible for the Secretary of State in a proper case to intervene. Therefore, I think my Amendments should be looked at as a whole; and I do not think it is a waste of time, or fruitless, as I believe the noble Earl, Lord Perth, was suggesting, and we should actually achieve something.
In the end the noble Lord, Lord Kirkhill, sought to persuade me that this should be left upon the basis that the Secretary of State can intervene under his powers, first to buy (which we have discussed), and secondly, to use some general powers to hold inquiries. I am bound to say that, without a reference,
I do not know what general powers he would have to hold inquiries, because if the whole of listed building legislation is being devolved with no reserve powers to the Secretary of State at all then it would no longer be one of his functions under the Town and Country Planning Act (Scotland) 1972, and therefore I do not think he would be empowered to hold an inquiry under that measure. If there are other measures, it may be so, but I do not know about them. If my noble friend Lord Selkirk is right, that these are issues which should be discussed in what is essentially a public inquiry type of forum rather than in another place—and I gather that cannot be done at all—or in your Lordships' House, then we need the sort of intervention powers that I have mentioned.
We have now been told that, contrary to what I had hoped, Whitehall, the Scottish Secretary and Parliament itself will be in no way able to intervene at all under the Bill as it is drafted, neither under Clause 37 nor under Schedule 14, if the Scottish Secretary, perhaps simply for lack of money, decides that he will have to consent to the knocking down of a valuable listed building in Scotland—part of the United Kingdom heritage—and there would be nothing that we could do about it. I am sorry, my Lords, but I cannot accept this. I think there is bound to be some occasion on which this would cause so much of a scandal that we would insist on intervention in order to save that building, and intervention on the reasoned, well-advised basis mentioned by my noble friend Lord Selkirk. In order to achieve that, with the greatest respect to the noble Lord, Lord Kirkhill, and with many thanks for the trouble he has taken, I shall have to test your Lordships' opinion on this matter.
3.29 p.m.
On Question, Whether the said Amendment (No. 187) shall be agreed to?
Their Lordships divided: Contents, 91; Not-Contents, 85.

CONTENTS

Allerton, L.

Balfour, E.

Brooke of Ystradfellte, B.

Alport, L.

Barnby, L.

Campbell of Croy, L.

Amherst of Hackney, L.

Belstead, L.

Cathcart, E.

Atholl, D.

Boyd-Carpenter, L.

Cawley, L.

Balerno, L.

Brock, L.

Clitheroe, L.

Clwyd, L.

Gray, L.

Rochdale, V.

Cockfield, L.

Grindley, L.

Ruthven of Freeland, Ly.

Colville of Culross, V.

Harmar-Nicholls, L.

St. Helens, L.

Cork and Orrery, E.

Henley, L.

Sandys, L.

Cottesloe, L.

Ilchester, E.

Selkirk, E.

Croft, L.

Inglewood, L.

Sempill, Ly.

Cromartie, E.

Ironside, L.

Sharples, B.

Cullen of Ashbourne, L.

Kinross, L.

Skelmersdale, L.

Daventry, V.

Lauderdale, E.

Soames, L.

de Clifford, L.

Lyell, L.

Stamp, L.

De Freyne, L.

Massereene and Ferrard, V.

Strathclyde, L.

Denham, L. [Teller.]

Merrivale, L.

Strathcona and Mount Royal, L.

Drumalbyn, L.

Middleton, L.

Strathspey, L.

Duncan-Sandys, L.

Monck, V.

Swansea, L.

Dundee, E.

Monson, L.

Swinfen, L.

Ebbisham, L.

Mottistone, L.

Tenby, V.

Eccles, V.

Mowbray and Stourton, L. [Teller.]

Thomas, L.

Effingham, E.

Torphichen, L.

Elton, L.

Northchurch, B.

Trenchard, V.

Emmet of Amberley, B.

Nugent of Guildford, L.

Tweeddale, M.

Exeter, M.

Nunburnholme, L.

Vernon, L.

Faithfull, B.

O'Hagan, L.

Vickers, B.

Ferrers, E.

Onslow, E.

Vivian, L.

Fortescue, E.

Orr-Ewing, L.

Ward of North Tyndeside, B.

Geoffrey-Lloyd, L.

Porritt, L.

Wilson of Langside, L.

Glenkinglas, L.

Robbins, L.

NOT-CONTENTS

Airedale, L.

Gordon-Walker, L.

Pargiter, L.

Ampthill, L.

Greenwood of Rossendale, L.

Parry, L.

Amulree, L.

Grey, E.

Peart, L. (L. Privy Seal.)

Aylestone, L.

Hale, L.

Perth, E.

Bacon, B.

Halsbury, E.

Phillips, B.

Baker, L.

Hamnett, L.

Rochester, L.

Banks, L.

Hampton, L.

Sainsbury, L.

Birk, B.

Hankey, L.

Samuel, V.

Blyton, L.

Harris of Greenwich, L.

Segal, L.

Boston of Faversham, L.

Hatch of Lusby, L.

Shepherd, L.

Brockway, L.

Henderson, L.

Shinwell, L.

Buckinghamshire, E.

Heycock, L.

Sligo, M.

Byers, L.

Hunt, L.

Soper, L.

Champion, L.

Hylton-Foster, B.

Stedman, B. [Teller.]

Chitnis, L.

Jacques, L.

Stewart of Alvechurch, B.

Crook, L.

Janner, L.

Stone, L.

David, B.

Kilmarnock, L.

Strabolgi, L.

Davies of Leek, L.

Kinloss, Ly.

Tanlaw, L.

Davies of Penrhys, L.

Kirkhill, L.

Taylor of Blackburn, L.

Donaldson of Kingsbridge, L.

Leatherland, L.

Taylor of Gryfe, L.

Dowding, L.

Lee of Newton, L.

Taylor of Mansfield, L.

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

Leonard, L.

Thurso, V.

Essex, E.

Llewelyn-Davies of Hastoe, B.

Wallace of Coslany, L.

Evans of Claughton, L.

McCarthy, L.

Wedderburn of Charlton, L.

Evans of Hungershall, L.

McCluskey, L.

Wells-Pestell, L. [Teller.]

Foot, L.

Mackie of Benshie, L.

Wigoder, L.

Fulton, L.

Maclor, L.

Williamson, L.

Gaitskell, B.

Paget of Northampton, L.

Wilson of Radcliffe, L.

Gardiner, L.

Pannell, L.

On Question, Amendment agreed to.

Resolved in the affirmative, and Amendment agreed to accordingly.
3.38 p.m.
Viscount COLVILLE of CULROSS: My Lords, in order to be consistent now that your Lordships have so decided, it is necessary, if I may do so, to make a further manuscript Amendment as follows:
Page 81, line 44, leave out "and 87" and insert "87 and 92".
Again this is a power where the Secretary of State may intervene and therefore where
970
he ought to be given the powers to hold an inquiry under Section 260. It is purely consequential and technical. I beg to move.
Viscount COLVILLE of CULROSS Viscount COLVILLE of CULROSS moved Amendment No. 188:
Page 81, line 44, at end insert—
("Schedule 10").
The noble Viscount said: My Lords, this is the main provision in the Town and

971
Country Planning (Scotland) Act which deals with the application for listed building consent. Therefore it is part of this scheme. I beg to move.
Viscount COLVILLE of CULROSS: My Lords, after the Amendment that has just been agreed there should also be inserted a reference to Schedule 17 to the Act, because under the section the Secretary of State has the power to determine applications for confirmation of a listed building purchase notice. Therefore he has a further function in the field which your Lordships have decided should be left to him. I beg to move a manuscript Amendment as follows:
Page 81, line 44, after "Schedule 10" insert "Schedule 17".
The insertion of Schedule 10 was the subject of Amendment No. 188. I beg to move.
Viscount COLVILLE of CULROSS Viscount COLVILLE of CULROSS moved Amendment No. 188A:
Page 82, line 10, leave out ("concerning Scotland").
The noble Viscount said: My Lords, this is the Amendment that seeks to make all those provisions effective. As the noble Lord, Lord Kirkhill, said a few moments ago, notwithstanding putting all these references to the listed building measures in the 1972 Act into this Schedule, we still have to provide for the legislative framework in which the Secretary of State has the right to intervene. I have thought carefully about this, and I agree that, where the Bill at present in paragraph 3(b) sets out the wording that I read out a little while ago, we would have difficulty in providing for powers of the Secretary of State to intervene. At present he can do so only if it were arranged so that the matter did not concern Scotland; that is, he would have to be able to intervene on the grounds that the national heritage, and not something solely concerning Scotland, was involved in the decision.
I am not saying that the only way in which one can do this, or indeed necessarily the right way to do this, is to leave out the words "concerning Scotland" in line 10 on page 82, but I think that arguably at least it would have the effect
972
that your Lordships evidently desire, to judge by the decision which has just been taken. All I can say to the Government is this. I am very humble about my drafting; I do not usually get it right. But we need, if possible, to keep down to the very minimum the number of matters to which we have to return at the next stage of the Bill; if my drafting has the effect required, without necessarily being the most elegant way of doing it, I would suggest that we insert this Amendment now rather than require a technical Amendment on Third Reading, which is not on the whole a very popular or well-precedented thing to do in your Lordships' House. I hope I have drafted at least a passable attempt to achieve the legal effect that I desire. I beg to move.
Lord KIRKHILL: My Lords, the effect of the noble Viscount's last Amendment would be to enable the intervention of the Secretary of State under Schedule 14 even where the reserved interest affected by the proposal was a purely English consideration—for example, housing—and not one for which the Government was responsible throughout the United Kingdom, for example, energy. This is inappropriate, because it would mean that the Schedule 14 intervention procedures would be more widely available than the general intervention procedures under Clause 37, whereas the Government's intention is that the grounds for intervention under Schedule 14 should be precisely the same as the grounds for intervention under Clause 37. If the noble Viscount's Amendment were pressed, the effect would be immediate change in the structure of Schedule 14. I have explained the Government's position, and of course the Government resist this Amendment.
Viscount COLVILLE of CULROSS: My Lords, this is very awkward. The last thing I wish to do is to make a major shift in the way in which this is going to work. The Government have resisted the adoption of the listed building provisions. I do not see how I can expect them to put down Amendments on Third Reading to put right the technicalities. Therefore, all I can suggest to your Lordships is that we should seek to insert these words in the Bill and then let those wiser than myself, like Parliamentary counsel, see how they can cut them down so that they do not do more than I intend. Therefore, I seek

973
to press this Amendment to be inserted in the Bill now, although I should not in the least mind if the Government came along at a later stage with an alternative version which was not so sweeping and which after all achieved the very narrow purpose I have explained. I would, therefore, ask your Lordships to accept this Amendment
so that the Government would have a real incentive to get the matter right.
3.43 p.m.
On Question, Whether the said Amendment (No. 188A) shall be agreed to?
Their Lordships divided: Contents, 91; Not-Contents, 86.

CONTENTS

Ailsa, M.

Ebbisham, L.

Onslow, E.

Allerton, L.

Eccles, V.

Orr-Ewing, L.

Alport, L.

Effingham, E.

Robbins, L.

Atholl, D.

Elton, L.

Rochdale, V.

Balerno, L.

Emmet of Amberley, B.

Ruthven of Freeland, Ly.

Balfour, E.

Exeter, M.

St. Helens, L.

Balfour of Inchrye, L.

Faithfull, B.

Sandford, L.

Barnby, L.

Ferrers, E.

Sandys, L.

Belstead, L.

Fortescue, E.

Selkirk, E.

Boyd-Carpenter, L.

Geoffrey-Lloyd, L.

Sempill, Ly.

Brock, L.

Glenkinglas, L.

Sharples, B.

Brooke of Ystradfellte, B.

Gray, L.

Skelmersdale, L.

Campbell of Croy, L.

Gridley, L.

Sligo, M.

Cathcart, E.

Henley, L.

Soames, L.

Cawley, L.

Inglewood, L.

Somers, L.

Clitheroe, L.

Keith of Kinkel, L.

Stamp, L.

Clwyd, L.

Kinross, L.

Strathclyde, L.

Cockfield, L.

Lauderdale, E.

Strathcona and Mount Royal, L.

Colville of Culross, V.

Lyell, L.

Strathspey, L.

Cork and Orrery, E.

Massereene and Ferrard, V.

Swansea, L.

Crathorne, L.

Merrivale, L.

Tenby, V.

Croft, L.

Middleton, L.

Torphichen, L.

Cromartie, E.

Monck, V.

Trefgarne, L.

Cullen of Ashbourne, L.

Monson, L.

Trenchard, V.

Daventry, V.

Mottistone, L.

Tweeddale, M.

de Clifford, L.

Mowbray and Stourton, L. [Teller.]

Vernon, L.

De Freyne, L.

Vickers, B.

Denham, L. [Teller.]

Northchurch, B.

Vivian, L.

Derwent, L.

Nugent of Guildford, L.

Ward of North Tyneside, B.

Drumalbyn, L.

Nunburnholme, L.

Wilson of Langside, L.

Dundee, E.

O'Hagan, L.

NOT-CONTENTS

Ampthill, L.

Hampton, L.

Peart, L. (L. Privy Seal.)

Amulree, L.

Harris of Greenwich, L.

Perth, E.

Aylestone, L.

Hatch of Lusby, L.

Phillips, B.

Bacon, B.

Henderson, L.

Porritt, L.

Banks, L.

Heycock, L.

Pritchard, L.

Birk, B.

Houghton of Sowerby, L.

Rochester, L.

Blyton, L.

Hunt, L.

Sainsbury, L.

Boston of Faversham, L.

Hylton-Foster, B.

Samuel, V.

Brockway, L.

Ilchester, E.

Sefton of Garston, L.

Buckinghamshire, E.

Jacques, L.

Segal, L.

Byers, L.

Janner, L.

Shepherd, L.

Champion, L.

Kilmarnock, L.

Shinwell, L.

Chitnis, L.

Kinloss, Ly.

Soper, L.

Crook, L.

Kirkhill, L.

Stedman, B. [Teller.]

David, B.

Leatherland, L.

Stewart of Alvechurch, B.

Davies of Penrhys, L.

Lee of Newton, L.

Stone, L.

Donaldson of Kingsbridge, L.

Leonard, L.

Stabolgi, L.

Dowding, L.

Llewelyn-Davies of Hastoe, B.

Tanlaw, L.

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

McCarthy, L.

Taylor of Blackburn, L.

Evans of Claughton, L.

McCluskey, L.

Taylor of Gryfe, L.

Evans of Hungershall, L.

Mackie of Benshie, L.

Taylor of Mansfield, L.

Foot, L.

Maelor, L.

Thurso, V.

Gaitskell, B.

Mais, L.

Wallace of Coslany, L.

Gardiner, L.

Maybray-King, L.

Wedderburn of Charlton, L.

Gordon-Walker, L.

Morris of Borth-y-Gest, L.

Wells-Pestell, L. [Teller.]

Greenwood of Rossendale, L.

Paget of Northampton, L.

Wigoder, L.

Grey, E.

Pannell, L.

Williamson, L.

Hale, L.

Pargiter, L.

Wilson of Radcliffe, L.

Hamnett, L.

Parry, L.

Resolved in the affirmative, and Amendment agreed to accordingly.
Clause 70 [Transfer of property]:
3.54 p.m.
The SOLICITOR-GENERAL for SCOTLAND (Lord McCluskey)The SOLICITOR-GENERAL for SCOTLAND (Lord McCluskey) moved Amendment No. 189:
Page 34, line 34, leave out subsection (4).
The noble and learned Lord said: My Lords, I beg to move Amendment No. 189, which is purely consequential upon the deletion, during the Committee stage, of forestry. I beg to move.
On Question, Amendment agreed to.
Clause 74 [Complaints of maladministration]:
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 190:
Page 36, line 14, leave out ("additions").
The noble and learned Lord said: My Lords, this Amendment fulfills an undertaking which we gave to the noble Viscount, Lord Colville of Culross, during the Committee stage. The Government will not, in applying the Parliamentary Commissioner Act 1967 to the investigation of maladministration by the bodies listed in Clause 74, require a power to make additions to that Act. They are therefore prepared to accept the suggestion which the noble Viscount made that "additions" should be deleted and that is what the Amendment does. I beg to move.
Viscount COLVILLE of CULROSS: My Lords, all I need say is thank you very much.
On Question, Amendment agreed to.
Lord KIRKHILL Lord KIRKHILL moved Amendment No. 190A:
After Clause 74, insert the following new clause—
Protection of special interests of Orkneys and Shetlands
(". Where it appears to the Secretary of State that—

(a) any provision of a Bill passed by the Assembly; or

(b) any action proposed to be taken by or on behalf of a Scottish Secretary; or

(c) any instrument made by a Scottish Secretary under any Act of Parliament or Scottish Assembly Act;

976
would or might cause substantial detriment to the special social or economic needs and interests of the Orkney Islands or the Shetland Islands or any of their inhabitants or to the status of their councils, sections 36, 37 and 38 of this Act shall apply respectively as they would apply if that provision, action or instrument were such as is mentioned in subsection (1)(a) of section 36 or, as the case may be, 37 or 38.")
The noble Lord said: My Lords, with the leave of your Lordships' House I shall address my remarks not only to Amendment No. 190A, but to Amendments Nos. 196A and 196B.
Lord CAMPBELL of CROY: My Lords, I should like to intervene on that point. I quite agree that it is necessary to refer to the other two Amendments, but I hope that they can be taken separately so that other Members of your Lordships' House will be able to speak more than once on the subject. This is the first time that we have really been able to talk about Orkney and Shetland.
Lord KIRKHILL: My Lords, I was assuming that that was indeed what we would do, but I cannot talk about this package without talking to and linking these Amendments and there are indeed particular reasons for doing so. I welcome the opportunity to introduce this package of Amendments which has the full hacking of the Government and of the Islands Councils of both Orkney and Shetland, and which also has the support of the right honourable Member for the constituency of Orkney and Shetland. I trust that the package of Amendments will also be welcomed wholeheartedly by your Lordships' House.
May I stress at the outset that the proposals now before your Lordships are regarded by the Government and by the Islands Councils as a package, to be taken as a single and complete whole. The three separate Amendments are linked and interwoven. In one sense they stand together, although I fully take the point made by the noble Lord, Lord Campbell of Croy, in his earlier intervention.
It became clear in the course of the consultations of my right honourable friend the Secretary of State for Scotland with the Islands Councils that they were anxious to secure two main provisions in the Bill. First, they wished to ensure that in the event of devolution going ahead a Commission would be established to

977
consider arrangements for the future of the Islands. Secondly, they wish the Secretary of State to have powers—along the lines of the Amendments tabled by Mr. Grimond in another place—to intervene if their special needs and interests were threatened by proposals of the Assembly. The Amendments before your Lordships meet both those wishes.
It is not my intention to embark, and I am sure it would not he your Lordships' wish that I should so embark, on a detailed history of events leading up to today's consideration of these Amendments. The broad story is well known and the endeavours of the Islands Councils have been well documented. I suggest that we can now look forward, knowing that a solution has been found which crowns these endeavours and is satisfactory to, and welcomed, by all the parties who have been directly involved in the negotiations.
The effect of the solution now proposed is threefold. First, following devolution and within three months of the first commencement order under what will then be the Scotland Act 1978, the Secretary of State will set up a commission to consider and make recommendations about any desirable changes in the government of the Orkney Islands and the Shetland Islands, having regard to the special social and economic needs and interests of the Islands. This means that, when the Scotland Act comes into effect, the Islands are guaranteed a commission. That is the effect of Amendment No. 196A.
Secondly, the override powers in Clauses 36, 37 and 38 of the Scotland Bill, which relate respectively to Assembly legislation, executive action by a Scottish Secretary and subordinate legislation by a Scottish Secretary, will be available to the Secretary of State where he considers that the special needs and interests of the Islands, their inhabitants and the status of their councils are substantially at risk. That is the effect of Amendment No. 190A, the Amendment that we are currently considering.
Finally, Clause 82(3)—which would have set up the commission and would have exluded either or both of the Islands areas if a majority in the Islands had voted against devolution in the referendum—is now superfluous and will be dropped. That is the effect of the later Amendment,
978
No. 196B. These provisions represent substantial safeguards for the Islands. Taken together, they are considered by the Islands Councils and by my right honourable friend the Secretary of State for Scotland—who has been personally involved in the negotiations with the Councils at all their stages—adequately to meet the wishes of the Islanders. I commend them to your Lordships, confident that noble Lords will give them their support. I have spoken on the other Amendments because, as I explained at the outset, the Government's view is that this is a package which stands together. I am, of course, perfectly willing to adopt the course of action which the noble Lord, Lord Campbell of Croy, earlier suggested. I beg to move.
Lord CAMPBELL of CROY: My Lords, I am grateful to the noble Lord, Lord Kirkhill. My suggestion was merely a procedural one for a Report stage in your Lordships' House. It will enable us to consider each Amendment and to speak once on each should we wish to do so. But I entirely agree with the noble Lord that these three Amendments must be regarded as a package and must be considered together. I shall return to that in a moment or two.
I, personally, am exceedingly glad that agreement has been reached between the Government and the two Councils, but I must point out to your Lordships that it has been at the last moment—literally just before the last day of the Report stage in the second Chamber. It has been agreed by the two Councils in session but it was not unanimous; in each case, it was by a majority. But I am glad that it has been accepted by the two Councils and it is, therefore, an agreement with the Government.
However, I must say that in the last two and a half weeks the Councils have been able to get a great deal changed. Indeed, the Government's proposals of a new clause—and it was only a single new clause at that time—to protect the special needs and interests of Orkney and Shetland was received by the two Councils only on 29th May; that is, a day over three weeks ago; it was after we had completed the Committee stage in your Lordships' House. I know that because I was in Orkney myself on that day. At the invitation of the two Councils—Orkney and

979
Shetland—I had gone to discuss their future; I was able to go during three days in the Whitsun Recess. They invited me as a former Secretary of State for Scotland who believed in a single most-purpose Council for each Island group, contrary to the recommendations of the Wheatley Royal Commission, which, of course, was set up under the Local Government Act. Another reason was that I had been involved in decisions over oil terminals at Flotta in Orkney and at Sullom Voe in Shetland, and, as Secretary of State, was able to assist the Shetland Islands Council, or county council as it then was, with advice when it was putting forward its private legislation which eventually became the 1974 County of Shetland Private Act.
With subsequent Orkney legislation both Island groups have reserve funds financed by offshore oil and those funds are needed to minimise the disturbance and upheaval to the Islands which the great activity from offshore oil has caused. It is also needed to prepare for the time ahead when the oilfields in that area are exhausted and when reserve funds may be needed for the rehabilitation of industry and services.
Finally, I was invited to those Islands because it was only in this House that any amendment on this subject could he made to the Bill. I am sure that it was no fault of any noble Lords or the noble Baroness sitting on the Front Bench opposite, but I am afraid that I must criticise the Government for leaving the negotiation of these Amendments so late. They have now become two clauses. During a period of two weeks the pressure on the two Island Councils was very great. They were almost under duress in these negotiations. I think that it is greatly to their credit that they reacted quickly and in so short a time were able to strengthen, from the Orkney and Shetland point of view, what the Government were proposing.
I understand that the discussions on the Government's first devolution proposals between the Government and the Shetland Islands were started a year and a half ago. It is over four months since what was known as the "Grimond Amendment" was passed in another place. During that time Orkney and Shetland have been making clear what
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they felt were necessary safeguards. The Shetland Islands Council has sent a deputation to London at least twice in the last four months. Briefly, the safeguards which they wanted were these: first, to retain their local government status as Islands Councils, each responsible for almost all the services of local government; secondly, with that, the protection of the reserve funds, which I have mentioned and which they receive as part of the offshore oil coming in. A reorganisation of local government could have threatened the use of those funds by making them available on the mainland of Scotland for other purposes.
Another point to which they attached importance was consideration of their special needs and interests, particularly where transport costs have effect upon the economic life of the two Island groups. This they wanted to see recognised in the system of rate support grants and other areas within the block grant. Without security in these matters the Islands Councils were—I believe rightly—apprehensive of being part of a new system with an Assembly and a Scottish Executive.
The reorganisation of local government is completely within the devolved matters under this Bill. That we have been told by noble Lords opposite. Therefore, the status of the Islands Councils could be changed in the future and the reserve funds redirected. Again, block grant allocations are completely within the competence of the Assembly. For example, it might be that the Assembly and the new Executive were completely absorbed in solving housing problems in Glasgow to the exclusion of serious repercussions over transport costs upon Shetland. That is the kind of situation which the Islands foresaw.
An Amendment was made in another place which brought in subsection (3) of Clause 82. As the Bill stands, a Commission would be set up if there was a simple majority of "Noes" in either Orkney or Shetland in the referendum. That Amendment was passed without discussion because of the timetable of the guillotine. The guillotine fell; at that point one Amendment was voted upon and succeeded; the related Amendments were killed by the descent of that chopper. As a result the Bill as it now stands is not completely satisfactory. A Commission

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would be set up if there were a "No" vote by an ordinary majority in Shetland or Orkney in the referendum, even if Scotland as a whole had voted not to have an Assembly or an Executive.
The Councils made it clear before our Committee stage that they hoped that your Lordships would leave Clause 82(3) in the Bill unless and until they could reach agreement with the Government on something which they considered to be better. This has now happened. The Shetland Council wrote to interested Peers on 11th March, and that letter has now been superseded by their letter of 16th June which was received by some of us yesterday. This makes it clear that they regard these three Amendments as a better solution than the Amendment which was passed in another place.
The second new clause would arrange for a Commission to be set up anyway if a referendum supports this Bill and the Act leads to the establishment of an Assembly and an Executive, regardless of the voting results by Orkney or Shetland. So the islanders can now be voting "yes" or "no" on the Scotland Act, without having to think whether or not their votes would directly lead to a Commission. That, to my view, puts the proposed Commission more suitably into the Bill. If there is to be an Assembly, then Shetland and Orkney are assured that there will also be a Commission. That was not in the proposal of the 29th May. That is something that the two Island Councils have managed to get into the Bill.
This Bill, if it receives the necessary support at a referendum, would lead to constitutional changes greater than any in our country for 270 years. It is only reasonable that these two island groups should, in those circumstances, have the opportunity to review the form of their association with other parts of the United Kingdom. They do not want to break away from the United Kingdom. There is no question of secession. It is a question of where they would fit in in our system of government in the future if major changes are to be made in the government of Scotland.
In deciding to agree to this package, the two Councils know that they are taking
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a risk, and I must draw the attention of the House to this. The reorganisation of local government is a completely devolved matter. Ministers have said over and over again in another place, and also here, particularly in our debates of 25th April, that Clause 36 would very rarely be used. They foresee a Minister, the Secretary of State, intervening in a matter which was completely within the devolved area as a very rare occasion. In general, we on this Bench have felt the same; that this was a reserve power which one hoped would be used rarely. However, in this first clause—the one that has been moved—a Minister will have the power to intervene in such a situation if the special needs and interests of Orkney and Shetland are apparently in danger. How much importance might a Secretary of State, perhaps in ten years' time, attach to this new clause? That is what matters. That is where both Island Councils are taking a certain risk.
Then again, if one considers the other two clauses, Clauses 37 and 38, with Clause 36, in all three the Secretary of State has to be satisfied also that it is in the public interest before he steps in and stops what the Assembly, or the Executive, are proposing to do. So that is the risk which the two Councils know they are taking: that what we feel are safeguards now might not be so effective in ten or twenty years' time, because the Secretary of State, perhaps never having intervened in devolved matters in the intervening period and then finding that Orkney or Shetland are appealing, and then having to consider whether it is in the public interest, might be very reluctant to intervene.
Here again, the Shetland Islands Council of the future might think that it was in the public interest that the Secretary of State should stop what was being proposed; but the Secretary of State, and others, might think that it was not in the public interest. So it is a matter which would still be open to argument at the time. But I am glad that the two Island Councils have managed to negotiate into this clause the words, "the status of their councils". That was not in the original draft proposed by the Secretary of State. It is now included, and it underlines the importance which they attach to their status as most-purpose single authorities.

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The three Amendments we regard as a package. I was glad that the noble Lord Lord Kirkhill, said that they should stand or fall together. I should like him to go further than that. I should like him to give an assurance on behalf of the Government that if, as I hope they will be, they are accepted in your Lordships' House, then they will be accepted together, or that none of them will be accepted. Further, I hope that when those Amendments, as they will be, go to another place, the Government will ask for support for all three of them, and will not propose, or acquiesce in, changes or indeed in dropping one of the new clauses. Certainly we on this side reserve our position if there were to be changes in another place and the Amendments come hack to us in a different form.
As for the Government, I must ask them this general question: where would they be today if no second Chamber existed? It is the last day of our current deliberations. We have had two days of Second Reading, thirteen days of Committee, and this is the fifth day on Report; and here on the last day we have these Amendments which give shape to an agreement reached just within the last two weeks. I think your Lordships will be doing a service to the two island groups if we accept these Amendments; but if your Lordships' Chamber did not exist the Government would not have been able to mend the fences which they are trying to repair today.
4.17 p.m.
Lord MACKIE of BENSHIE: My Lords, I rise to welcome the Government's putting down these Amendments, and the efforts made by my right honourable friend Mr. Grimond and by the noble Lord, Lord Campbell of Croy. I am glad that they have come to a happy conclusion. Unlike the noble Lord, Lord Campbell, I know the parable about the eleventh hour, and I am inclined to give the Government credit for having, even on their deathbed, so to speak, repented and put in the clauses, because it does not matter to me how the package arrives if it does arrive.
The whole of the feeling in this House, as expressed in the Amendments passed, implies a distrust of change. Whereas many of the Amendments passed in this House are totally unnecessary, unneeded,
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quite wrong and implying distrust, I think that the safeguards sought by the Orkney Council and by the Shetland Council are all part and parcel of the same thing as the Bill as a whole, because the need for this Bill is really because Scotland feels that things are too centralised in London; that all power, political, social and economic, has passed to London, and that there is no control of their own affairs.
I felt this for a long time, and I understand how the Shetland and Orkney Islands, placed away out on the periphery even of Scotland, feel the same sort of thing about Edinburgh. I think they were absolutely right—through their Member, greatly assisted by the noble Lord, Lord Campbell—to fight for special provisions. It is a new situation and one in which they feel insecure, and the history of the periphery backs them up. Therefore, all that I want to say is that I welcome the Government's acceptance of this feeling. It shows an understanding which they do not always feel for these centralised matters. Perhaps they have been forced into it, but nevertheless their acceptance is greatly welcomed, and we on these Benches will support the Amendment.
Lord DRUMALBYN: My Lords, noble Lords on the Opposition Front Bench and the Secretary of State for Scotland may have achieved rather more than has been suggested in the debate so far. Had Clause 83 remained as it was, I think there is little doubt—this was supported by a kind of pre-run plebiscite in Shetland; I am not sure whether the same occurred in Orkney—that a substantial majority would have voted against Orkney and Shetland being included in the Bill. Had that been the position, that would have exercised a considerable influence on the vote in Scotland as a whole; had they realised that the measure, if endorsed by the referendum, would cost Scotland the Orkneys and Shetlands, they might have taken a very different view of it. Therefore the Government have been particularly astute in the solution they have arrived at here.
I am delighted they have succeeded in retaining in Scotland the Orkneys and Shetlands; I was very anxious that should be so and I am sure a great many others were, too. They have devised words

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which will enable that to be done, and the remainder of the provisions they have succeeded in negotiating are also helpful. I have a question about Amendment No. 196A, which states:
"In making its recommendations the commission"—
that is, the Commission which is to be set up—
"shall have regard, among other things, to the special social and economic needs and interests of the Islands …".
The Amendment says in its previous subsection that
"… the commission … shall … recommend such changes in the government of the Orkney Islands and the Shetland Islands as may be desirable".
Does that mean that the two islands are to be treated together in this respect, or will they be treated separately? This is a matter of importance because the circumstances in the two islands are different, to some extent the traditions are different and the economies in some respects are different. I wonder whether the words mean what they appear to mean or whether it will be possible for the Commission to make separate and different recommendations for the Shetlands and Orkneys. The Minister may not have considered this matter. If not, I hope the Government will consider it carefully before the next stage of the Bill.
Lord KTRKHILL: My Lords, at the outset I should say that I detect—indeed, I more than detect; I confirm from this side of the House—that there has been on the part of the noble Lords, Lord Campbell of Croy, Lord Mackie of Benshie and Lord Drumalbyn, a general and generous welcome to the new clause. I have long admired the noble Lord, Lord Campbell, and have always freely acknowledged his intimate and very real concern for Scottish affairs and his close and deep knowledge of matters brought to his attention. I am aware of his visit to the islands and I am confident that the visit was purposeful. However, when he proceeds to tell your Lordships' House that the Government can be criticised for unwarranted delay, I must reject that criticism and tell him that the negotiations could not be pursued to a conclusion until the new Islands Councils had been elected in May and given time to settle in, and that
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was a constraining influence on my right honourable friend the Secretary of State for Scotland.
I would also tell Lord Campbell, if the islanders think there is an element of risk, that the new clause requires the Secretary of State to take into account the public interest in deciding whether or not to act, and in my view that is indeed assurance itself. A further point following Lord Campbell's remarks is that the Islands Councils agreed this by a majority vote, that they discussed the matter clearly and reached firm conclusions. We must accept that as the democratic will expressed by the islands. Although Lord Campbell made much play of what he saw as Government procrastination, I should have thought that, in contra-distinction, in a matter of such complexity, to reflect and move slowly has been wise and has been justified by events.
The noble Lord, Lord Campbell, then asked me for assurances about the package. I do not feel I need reiterate my earlier remarks; it was implied in all I said then that the Government view this as a package. The Government ask your Lordships to accept it in those terms and the Government will certainly ask the other place to accept it in those terms and there can be no equivocation on that point.
The noble Lord, Lord Drumalbyn, asked whether the islands might be treated by the Commission on a separate basis. I am unable to give him a firm answer at this time because the Commission will certainly discuss with the island authorities areas which will be of mutual interest to them. However, I am advised as I speak that under the new clause that matter will be for the Commission, which is substantially what I have been saying; the Bill allows different solutions to be recommended. For once, therefore, I am almost at one with the team dealing with the Bill, and I think that is real confirmation of the point Lord Drumalbyn raised. I rest on the proposition that this has been a carefully worked out solution, one with which the Secretary of State for Scotland has been closely involved, as have the island communities themselves, and it is surely a solution which provides the almost perfect happy ending.
Lord GLENKINGLAS: My Lords, before we part with this provision, which

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I welcome, I would simply comment that from my experience of Shetland and Orkney and of the skill with which they carry out any negotiations of this sort with any Secretary of State, whoever he may be, if at the end of the day they say they are satisfied, then I am satisfied too, because they take a great deal of care and trouble to ensure that Secretaries of State do not give them half truths and half promises that mean very little.
I do not think it really matters whether the Government feel they have been speedy or some of us feel they have been tardy. Personally, I do not think the elections in May had anything whatever to do with it because the Government were negotiating long before then, and they would not have been doing that had they known they would have to wait until May. Let us not try to make rather prudish excuses for mistakes we may occasionally make; let us just be glad that the right solution has been found and that Shetland and Orkney are pleased with it. We, too, should be pleased.
Lord BALERNO: My Lords, I support the remarks of my noble friend Lord Glenkinglas and would only add that with the Shetland Council we are dealing with a very able body of men, and I believe the same applies to Orkney. While I have not visited Shetland in recent years, though I still maintain a certain contact, I think we can be sure of that. I had the honour to command some 220 officers and men from Shetland at the outbreak of the last war. I do not intend now to go into all their virtues, but in proof of the ability of the Shetlanders I should like to inform your Lordships that the Intelligence section, which was devoid of Shetlanders at the beginning of the war, ended up by being, I think, composed entirely of them at the end of the campaign.
On Question, Amendment agreed to.
Clause 79 [Interpretation]:
4.30 p.m.
Lord DRUMALBYN Lord DRUMALBYN moved Amendment No. 192:
Page 37, line 9, at end insert (""election" includes any election other than a by-election and "ordinary election" means any election held in accordance with the provisions of section 2 of this Act;").
The noble Lord said: My Lords, I beg to move this Amendment, which I think
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may be described as an optional Amendment. It merely reinforces the difference between an ordinary election—which is an election carried out in accordance with the provisions of Clause 2, on the basis of four-yearly elections—and another type of election, which might be termed as an extraordinary election, although I suppose the Government do not wish to call it that. However, this type of election is expected to be rare. It. is the kind of election which may take place in mid-term. Apart from that point, there are the hazards of drafting, and I do not know whether the Government think that the Amendment is an improvement to the Bill, but if they do, I shall be delighted. I commend the Amendment to the House.
Lord McCLUSKEY: My Lords, we give the Amendment six out of ten, and on that basis the Government are prepared to accept it.
Lord DRUMALBYN: My Lords, that sounds like majority government. I am much obliged to the noble and learned Lord.
On Question, Amendment agreed to.
Lord KIRKHILL Lord KIRKHILL moved Amendment No. 193:
Page 37, line 19, leave out from ("persons") to ("carry") in line 21 and insert ("(other than the Scottish Transport Group and such other authority, body and undertakers as the Secretary of State may by order specify) authorised by any enactment to").
The noble Lord said: My Lords, this is a technical Amendment, which relates to the definition of "excepted" (that is to say, "non-devolved") statutory undertakers, and it has two purposes. First, it excludes from the definition bodies which are authorised merely to "construct" or "work", but not to "carry on" any road transport, dock, harbour et cetera. This prevents any accidental inclusion in the definition of local authorities acting in a devolved capacity. Secondly, it gives the Secretary of State the ability to make further exclusions by order, if necessary. For example, if a body is listed in Part II of Schedule 13, it might be necessary to exclude that body from the definition of excepted statutory undertakers in the event of an order being made under Clause 67, as such an order would have the effect of

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devolving other matters in respect of that body. I beg to move.
On Question, Amendment agreed to.
4.35 p.m.
The Earl of SELKIRK The Earl of SELKIRK moved Amendment No. 193B:
Page 37, line 37, after ("Crown") insert ("in the context of this Act means a Minister in charge of a public Department of Her Majesty's Government in the United Kingdom and").
The noble Earl said: My Lords, in moving this Amendment I wish to refer again to a matter which I raised at the Committee stage. Under the Bill we are transferring powers to an Assembly in Scotland. We are also transferring matters which are included in Schedule 10, and which are regarded as rather complicated. This is being done in two ways: first, by Assembly Acts, and, secondly, by the transfer of departmental powers by persons called "Ministers of the Crown". These Ministers will be able to transfer powers of considerable importance, yet there is no clear picture as to who is a Minister of the Crown. A Prime Minister in appointing his Government compiles a list of distinguished ladies and gentlemen. They form the Government, and they are all Ministers of the Crown. Here I should like to quote from Wade. I am not certain whether he is the same Professor Wade whom the noble Baroness quoted to me on a previous occasion—but he is the Master of Caius College, Cambridge. He states:
"The Secretary of State is assisted by non-Cabinet Ministers, but none are invested with legal power".
That means that 80 per cent. of these Ministers of the Crown—who are dotted through the Bill like primroses in the spring—have no power at all, and they are quite irrelevant in terms of what is in the Bill. I am not sure whether this situation is very fair. How will the Scottish Executive know who is entitled to use the powers to which I have referred? They are very big powers, and I should like to remind your Lordships of some of them. Those who are to use the powers can specify and authorise classes of people who are to be put into certain categories. They can be paid sums of money. They can exercise interim power. They can transfer property. They can
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even amend Acts of Parliament—though I agree that this is subject to certain procedure.
How is the Scottish Executive to know whether the person concerned has the necessary power to carry out these functions? There is nothing in the Bill which gives the slightest indication about this. Let us suppose that he pays money to the wrong person; indeed, I think he is fully entitled to do so. The money can be paid, and a receipt given; a contract is then completed, and is supported by statute. I think that the definition in question should go further. I regard it as absurd that it is not more accurately stated who is entitled to exercise the very considerable powers in the Bill.
The noble Baroness has spoken to me about this matter, and I have received two letters from her. When I asked her previously about the definition she said that one could go to a reference library, and she gave a quotation. She also said that one could use the telephone in order to find out—and I quite agree on that—or eventually one could go to the law courts. We ought to be a little clearer about what we are trying to do. This is a matter which is in the interests of the Scottish Executive. Mistakes may arise. Ministers of the Crown may say that they can do this or that, when in fact they cannot. It is only fair and proper that the Scottish Executive should have a clear picture of the person from whom it gets its powers.
In arguments previously put forward it was said that what is proposed could lead to repercussions. "Repercussions" is regarded as a terrible word; it is the bogey of every draftsman in the world. They are all terrified of "repercussions". I have said that the Amendment would apply only in the context of the Bill, and so I hope that I have dealt with the question of repercussions. I earlier left out the Treasury. The Treasury has a kind of mediaeval organisation in which Commissioners of the Treasury are allowed to undertake special functions, and they are included in the word "Treasury". Now I have included both these points, and so I think I have wording which can be agreed. I wish to refer to an Amendment tabled in the name of the Lord Chancellor, which mentions:
"the Minister in charge of any Government department".

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That relates to the Local Employment Act 1972. Therefore, I submit that the words I propose are not very extraordinary.
There is a real and substantial defect here. In this situation we are not dealing with a Whitehall Department, but with a quite different organisation—a devolved Assembly. It cannot be said that what I may term as the rather loose, and possibly foolish, conventions in Whitehall will necessarily have the same application in relation to the Assembly. When one uses the term "Minister of the Crown" it is deemed to be understood. There is a tradition to that effect. In Whitehall that term is probably moderately well understood. Furthermore, Government Departments in Whitehall guard very jealously the areas of their responsibility. These Departments always seem to know what is being done, and what is not being done. I do not think that there is any difficulty about preventing the crossing of Departmental frontiers. However, there is a far more important sanction, in the person of the Prime Minister. If one does something one is not entitled to do, one is out on one's neck in the street. The Prime Minister can do that at any time; he can do it in five minutes, without any difficulty.
However, the Secretaries referred to in the Bill do not come under the Prime Minister; they cannot be dismissed by him. They are entitled to a more accurate indication of their responsibilities, and it should be made clearer from whom they receive their responsibilities. The sanctions of Whitehall do not apply here. The Scottish Executive is a separate organisation, and it should be dealt with in a quite different way. I believe that what is presently proposed is wrong. The powers involved here are very considerable. I have met all the objections which have been raised so far to what I propose, and I think that we should be much clearer on how we handle this matter.
There seem to be times when the Government are tied by an unseen web, which narrows the scope of rational government. I have here a letter from the noble Baroness. I do not want to "pull a fast one" on her, because this is not a matter of Party politics; this is a matter of trying to help the Bill. If I may, I should like to quote from this letter. We have been given a couple of other objections. Not
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the original objections she had: apparently I have met those, so they are not raised this time. There is a different set of objections brought forward, and perhaps we can look at them. Perhaps I should first read my Amendment. The Amendment, referring to the only people who can give orders, simply says—and I had better quote the words I use, to get it right—
"in the context of this Act means a Minister in charge of a public Department of Her Majesty's Government in the United Kingdom and"
the Treasury.
What they say is that it is not necessary; there is ample precedent. My Lords, there is no precedent at all for a devolution Bill for Scotland. We are dealing with an entirely separate organisation, and one must be very careful when blithely transferring questions which are not well-established and clear in the Act.
The second objection is that, without definition, "a public Department" could itself lead to confusion. The words I use are, "a public Department of Her Majesty's Government in the United Kingdom". Is there really the slightest doubt or the possibility of confusion in those words? Are these not complete excuses which are being put forward by the Government because they do not like one word of the sacred script of this Bill being changed? I really think that this Amendment is something which improves the Bill, which makes it easier to understand and which would help the Government in Scotland. I would add another thing. To my mind it adds dignity to the Scottish Secretariat. They are dealing with major Government Departments in Whitehall, not some Minister of the Crown. I do not wish to despise them, but, in fairness, they are not people endowed with those high powers which senior Ministers, Ministers who are Heads of Department, have. They are the people that the Secretariat deal with, and I think it should be spelt out in this Bill. That is why I ask the Government to think again on this. I beg to move.
4.42 p.m.
Baroness STEDMAN: My Lords, as the noble Earl has said, we have already had a couple of attempts during the passage of this Bill at trying to reconcile our differences; we have considered the

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worries of the noble Earl, and have given a lot of thought to the matter. As he has said, I wrote to thim earlier today to say that, yet again, despite all our consideration, we still did not feel that this Amendment helped. Our first point is that a definition is unnecessary. The term "Minister of the Crown" appears all over the Statute Book, and the practice has been to define it only where it has some special meaning. I could give the House a whole string of examples of Acts which contain references to "Minister of the Crown" without definition. Previous Governments have never hesitated to use this phrase, and the Government do not want to depart from past practice unless there is a very good cause which can be shown.
My Lords, throughout the passage of this Bill much play has been made of the consideration that the Bill is a constitutional document. But does it follow that, because it is a constitutional document, we should adopt special rules of drafting? Should not a constitutional document, in general, be drafted flexibly; or, at any rate, so as to avoid the rigidity which may in real life present problems? I would suggest that the right working assumption is that we are considering in the usual way legislation which will fall to be interpreted in the usual way. Some of the remarks passed by the noble Earl suggest that we are legislating for a rather distant people with no knowledge of constitutional practice and administrative structures within Her Majesty's Government. It is all taking place within the United Kingdom, about whose unity we are all concerned; and to suggest that we need to adopt different drafting techniques for the purpose of particular people within the United Kingdom is surely as devisive as anything can be. That is our objection of principle.
Now let us look at the objections based on what the noble Earl's Amendment would do to the Bill. We have on previous occasions touched on the definition given in the Ministerial and Other Salaries Act 1975. The noble Earl has adopted wording which appears in paragraph 2 of Part II of Schedule 1 to that Act. There, it serves a very precise purpose: it specifies the salary for a Minister who is in charge of a public Department but who is not in the Cabinet.
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The Act is, as it were, grading the categories of Ministers in terms of their status and their functions. This shows what is wrong with the Amendment, because nothing is more dangerous than to pick up concepts from one Bill and to graft them on to another without being sure that they are compatible. The Scotland Bill is in fact immensely precise. Before its introduction we checked carefully that every reference to Ministers achieved the result that we intended.
Before illustrating, let me emphasise this. Ordinarily, it will be the Secretary of State who is the Government agent for dealing with the Scottish Executive and the Scottish Assembly. If noble Lords look at Clause 34 in particular, they will see that if a Minister wants information from a Scottish Secretary he must get it through the Secretary of State.
So the fear that Scottish Secretaries will constantly be receiving requests from Ministers unknown to them is therefore quite unfounded. We have had this point urged on us many times, but it does not bear close examination.
Now let me look at some of the main provisions of the Bill and show why they are right. The main reference to Ministers of the Crown, as the noble Earl has said, is in Clause 21 and its associated clauses. The object of the exercise is to transfer each and every ministerial power exercisable in relation to devolved matters. We therefore want the term to bear its wide and natural meaning. The noble Earl's Amendment would reduce it. Odd as it may seem, the Minister for the Civil Service (that is, the Prime Minister) is not a Minister in charge of a public Department; but certain of his functions in this capacity are to devolve. So the noble Earl's Amendment has fallen at that hurdle. In Part II of the Bill we have a number of provisions which are in terms of the Secretary of State, until we come to Clause 40. The associated Schedule 8 shows what this is all about. It is about the terms of service of persons working in the Health Service. Responsibilities in this particular area reside in the Secretary of State, in the Treasury and, again, in the Minister for the Civil Service. Therefore, the Amendment falls again.
Then, further down the Bill there are order-making powers, as we see if we look at Clauses 67 and 80(3). These are

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important powers, and perhaps it might be thought appropriate for them to be exercisable only by senior Ministers. The previous Adminstration used a very similar formula for this purpose in Section 270 (1) of the Local Government Act 1972. But if the noble Earl is going to complain of difficulty in understanding what is meant by the concept of a Minister of the Crown, will he not find double difficulty in ascribing meaning to a definition which has two components; namely, a Minister and a public Department of which that person is in charge? All the definitions does, as we see it, is to open up the need for yet another definition. Indeed, I would say that it is easier to appreciate what a Minister is than to appreciate what a public Department is. As for the concept of a Public Department which is in the charge of a Minister, this opens up questions of immense complexity about ministerial responsibility for bodies—and I am deliberately using a loose term—under his wing.
My Lords, I have taken rather a long time about this, as I did on the previous occasion we were discussing it, because I still find it so difficult to tie down the noble Earl's real point of concern. If it were possible to have given him a single sentence answer, then I would have done so. Instead, I have done him the credit of trying once again to answer the points that he has raised, or his points of criticism. This Bill is not a sacred text which cannot be altered; we have made many drafting Amendments to the text in its passage through both Houses. I regret that even now, at his third attempt, I cannot accept this Amendment on behalf of the Government.
Lord CLITHEROE: My Lords, may I add another point? I cannot myself see how the expression "Minister of the Crown" includes the Treasury. The Treasury is a Department of State. There are several Treasury Ministers. There is the First Lord of the Treasury, who is the Prime Minister; there is the Chancellor of the Exchequer and, when I was at the Treasury, there was a Financial Secretary. There are now, I think, three other Ministers doing that work. If "Minister of the Crown" includes the Treasury, that is a Department. If you were to say "includes Ministers of the Treasury" or something like that, that might make sense; but I cannot see that it makes sense
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to say that "Minister of the Crown" includes the Treasury. I should like the noble Baroness to consider that point.
4.51 p.m.
Lord SHINWELL: My Lords, I should like to go along with the noble Baroness because of the clarity with which she expressed herself from the brief which she had before her. There is nothing wrong with the brief. Most Ministers from time to time are unable to speak off the cuff and they have to he advised by the civil servants. There is nothing wrong with that. I have that experience myself and therefore I can speak accordingly. But I have some difficulty in connecting the position of a Minister of the Crown with the exercise of authority; because, after all, a Minister of the Crown is not of much value at all unless he is vested with the right to exercise the authority associated with his Department, or a Minister who is not associated with the Department may be in a similar position.
I take an illustration from your Lordships' House. We have Ministers of the Crown sitting before us. At least, there is one in particular and he will not mind if I make reference to him. It will not be an offensive reference because he is a very industrious Minister but, as it happens, he does not exercise any authority. If he would like to correct me later, either himself, personally, or through the medium of the noble and learned Lord, the Solicitor-General for Scotland, or the noble Baroness, I shall be glad to hear what the correction is. That is the situation in this House. There are Ministers of the Crown on the Front Bench exercising no authority at all. From time to time, when Questions are submitted by Members of this House, these Ministers of the Crown speak from a brief in reply to the Question submitted to them. But they have to admit—and I have heard this time and again—"I do not happen to be too well informed on this subject because I am not associated with the particular Department concerned." That is the situation.
I am not quite sure whether this is related to the Scotland Bill. Perhaps that is the trouble. It may not be related. If we are considering the matter simply, it is the exercise by a Minister of the Crown of some function—something which has been vested in that person, for

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some reason or another, either by his superior, the Cabinet Minister, or by a Cabinet decision. Alternatively, there may be something in an Act of Parliament, as the noble Baroness seemed to indicate, because she referred to several other pieces of legislation which have become enactments.
Therefore, I think there might be a little more clarity on the subject. Are we thinking in terms of a Minister of the Crown exercising authority? If we are, there ought to be more specification of how that person is vested with authority, by whom and how that authority is exercised. I may he all wrong about this. It seems to me that a little more clarity is required.
Lord WILSON of LANGSIDE: My Lords, I listened with great interest to the noble Baroness replying to this Amendment. I pass over the diverting proposition, as I noted it, that differing drafting techniques are somehow divisive. I doubt whether in the whole history of human endeavour this has ever been thought of before. But, as I undertood it, the gravamen of the noble Baroness's reply was that established drafting techniques should not be departed from unless there are special circumstances and special cases made out. I am sure that your Lordships listened as carefully as I did to what the noble Earl, Lord Selkirk, said in support of his Amendment. I should have thought that, if anything made out a special case and special circumstances, what he said did. I would support the Amendment.
Baroness STEDMAN: My Lords, with the leave of the House, may I clear up one point? We get into deep water every time we discuss what is the Treasury and how the Treasury comes to be a Minister of the Crown. There are dozens of examples throughout our statutes defining the Minister as including the Treasury, which seems to be the point which is worrying us at the moment. Perhaps it is not the best way of describing it; but it is the accepted way. The Treasury powers are vested in Lords Commissioners and not in the Chancellor of the Exchequer or the First Lord. They are invested in Commissioners of the Treasury and not in a Treasury Minister
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as such. That is one of the reasons why we get into deep water when we talk about a Minister of the Crown including the Treasury. We have the Prime Minister, as has been said, and he is the First Lord of the Treasury. He is the Minister for the Civil Service. But it is, perhaps, a little uncertain whether we could say that he is also a Minister in charge of a Department although certain responsibilities come within his power.
As I said earlier, this is a form of wording used by noble Lords opposite in the Local Government Act 1972. It was accepted then. It has been accepted in all kinds of statutes; and I think that we have got ourselves worrying over this quite unnecessarily. I am sorry, but the noble Earl has not convinced me and I cannot advise the House to accept his Amendment.
Lord CLITHEROE: My Lords, with the leave of the House, on the point of the Treasury, may I say to the noble Baroness that if the words were: "includes the Lords Commissioners of the Treasury", it would be quite satisfactory.
The Earl of SELKIRK: My Lords, the noble Baroness has said that it is a mistake to pick up concepts and graft them where they are not compatible. This is quite a different thing from the various examples that she has quoted. I think that this is incompatible for the reason given by the noble Lord, Lord Shinwell. He asked, "Where is the authority?" You have drafted a Bill here and you say that you could give money to a Minister of the Crown. You get a receipt. That is complete and has statutory backing. The noble Baroness cannot deny that. It does not give any description of who can do this and who cannot do it.
Now you reach the stage where once a thing has appeared as drafted and has not been objected to by Parliament—and this is the burden upon Parliament: to object to anything that we do not think right—you can quote it again and say that it is a hallowed tradition. When the noble Baroness gets to the stage of saying that the First Lord of the Treasury is not a head of a Department, that is a form of enigma which I cease to understand. If this is the world in which the Government are living—the unreal world of some ghastly drafting picture which is unrelated

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to the way things happen—I am not going to press the Amendment further. But I am not going to withdraw it. Your Lordships can negative it if you like.
On Question, Amendment disagreed to.
5.1 p.m.
Lord CAMPBELL of CROY Lord CAMPBELL of CROY moved Amendment No. 193A:
Page 37, line 43, leave out ("reserved") and insert ("scheduled").
The noble Lord said: My Lords, this is one of the Amendments which has been discussed and is acceptable to the Government, so I do not need to dilate upon it now. I beg to move.
On Question, Amendment agreed to.
Schedule 15 [Reserved functions of local authorities and other bodies]:
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 194:
Page 83, line 44, column 2, at end insert ("Aerodromes.").
The noble and learned Lord said: My Lords, I think I can deal with this briefly. This is another of the consequential Amendments relating to aerodromes. I beg to move.
On Question, Amendment agreed to.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 195:
Page 83, line 44, column 2, at end insert ("Inland waterways").
The noble and learned Lord said: My Lords, I can deal with this Amendment equally briefly. This Amendment is consequential on the deletion of "inland waterways" from Group 15 in Part I of Schedule 10. This Amendment is brought forward without prejudice to the Government's ultimate decision about what to suggest may be done in another place. I beg to move.
On Question, Amendment agreed to.
5.3 p.m.
Lord KIRKHILL Lord KIRKHILL moved Amendment No. 196A:
After Clause 81, insert the following new clause—
Special provisions as to Orkneys and Shetlands
(" .—(1) The Secretary of State shall, within three months of making the first order under section 81 of this Act, establish a commission to recommend such changes in the government of the Orkney Islands and the Sheltand Islands as may be desirable.
(2) In making its recommendations the commission shall have regard, among other things, to the special social and economic needs and interests of the Islands; and the recommendations may include recommendations for making changes in this Act, including changes in the constitution and powers of the Assembly.").
The noble Lord said: My Lords, this Amendment forms part of the package which we have been discussing in relation to the Orkney and Shetland "solution", if I may call it that. I beg formally to move.
Lord CAMPBELL of CROY: My Lords, I should not like this second new clause to pass us without making comment upon it. It is particularly important to the Orkney and Shetland Islands, and it was not proposed by the Government. It has come as a result of the negotiation which was started simply by the first draft of the first new clause. The two Island Councils clearly attach great importance to the establishment of a Commission to look into their constitutional position if an Assembly and a Scottish Executive are set up because the Scotland Act 1978 receives sufficient support in a referendum.
Under subsection (1) of this new clause, the Secretary of State will he obliged to establish this Commission within three months of the order which will start the action under this Bill being made. That is something to which both island groups and the islanders themselves attach great importance. Subsection (2) makes particular reference to the special needs and interests of the Island groups again. I should like to make it clear to your Lordships that one of the factors which runs right the way through the economics of the two Island groups are transport costs and particularly the costs of freight. Almost every aspect of the islanders' livelihoods are affected by those freight costs for goods that have to be transported over the sea, even if it is in lorries on the roll-on/roll-off system or, if they are not heavy goods, transported by air. This new clause is exceedingly important to the island groups and I am glad that it is being included as part of the package in the Bill.

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I take this opportunity to return the compliment to the noble Lord, Lord Kirkhill, as I was able to speak only once to the first new clause. He made some kind remarks about me; but the House knows my great admiration and high regard for the noble Lord, Lord Kirkhill, both as a former Lord Provost of Aberdeen, and, more recently, as Minister of State at the Scottish Office. When I made some criticism of the way in which the Government had handled the timing of this matter, I specifically excluded him from any blame at all.
However, I must register again that my criticism of the Government producing their first suggested Amendment to the Bill only three weeks ago regarding Orkney and Shetland was that it placed the two Island Councils under great pressure. I was in Orkney at the time and this draft clause arrived by telex. There was no Minister or official to explain it, it just arrived from the Scottish Office by telex. The two Councils had to go into action immediately. The negotiations continued up to last week. That was two weeks absolutely flat out. Therefore I must register again that it was a great inconvenience and pressure to which the two Island Councils were subjected that prompted me to criticise the way in which this had been left until the last moment.
The noble Lord pointed out—this has been given as a reason—that the local elections took place at the beginning of May and that they wanted to deal with the Council as newly composed; but the elections were on 2nd May and this Amendment did not arrive until 29th May. That was almost four weeks later, and is only three weeks ago. It was four months after what was known as the "Grimond Amendment" was made in another place. I should like to add to this—I did not want to make my earlier statement too long—that the right honourable gentleman, Mr. Grimond, the Member for Orkney and Shetland, has been most industrious and most concerned over a period of months recently to get the Government to put forward some tangible Amendments which could be discussed. He has been exceedingly active all the time trying to get the Government not just to talk and go on continuing somewhat dilatory talks but to put forward some proposal. That was my criticism. I am
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glad to say that agreement was reached. The two Councils were under great pressure in trying to reach a satisfactory conclusion.
Lord DAVIES of LEEK: My Lords, it is important to get this valuable clause through. It shows that the House of Lords at least knows what is going on. I think that it is better for us to get it through than to have a long discussion about it.
Lord SHINWELL: My Lords, I think that the Government deserve congratulation on having, if I may use the term, yielded to pressure exercised by the islanders. Some of us have received several communications from them, much of which I failed to understand, except that I noted the principle involved: namely, that they desired to be independent. In fact, they are much more independently minded than the rest of Scotland. Apart from congratulating the Government on their wisdom in accepting the proposed change, I should be grateful for an answer to the following question. The final sentence of subsection (2) refers to the Commission making recommendations. Among the recommendations includes changes in the constitution and powers of the Assembly. Do these changes, based on recommendations—if any—apply only to the Islanders or would they affect the general functions and procedure of the Assembly itself? It appears as if changes could occur which could make such fundamental effects as to require further consideration of this legislation.
Lord KIRKHILL: My Lords, my noble friend has asked me a specific question and in response to it I can tell him that the Committee could make a recommendation. Such a recommendation would be further considered. That is the interpretation of the part of the Bill to which he has referred.
On Question, Amendment agreed to.
Clause 82 [Referendum];
Lord KIRKHILL Lord KIRKHILL moved Amendment No. 196B:
Page 39, line 31, leave out subsection (3).
On Question, Amendment agreed to.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 197:
Page 40, line 5, at end insert ("by both Houses").
The noble and learned Lord said: My Lords, this is an Amendment designed to tidy up the procedure in subsection (5) of Clause 82, which was inserted into the Bill during the Committee stage, as your Lordships will recall, against the Government's advice. As the subsection stands, it is not clear whether the duty to lay a draft Order in Council repealing the Act arises if one House approves the first commencement order when the other House does not. As was made clear in the Committee debate, the Government regard it as unthinkable that Parliament would vote against the first commencement order if 40 per cent. of Scottish votes were "Yes" and there was a majority of "Yes" votes. Nevertheless, the House saw fit to insert subsection (5), apparently on the basis that the unthinkable might happen. This Amendment is merely a technical one designed to remove any possible confusion.
Subsection (5) relates back to subsection (4) of Clause 81, which requires that the Resolution should be passed by both Houses. The Amendment therefore follows this logic through by providing that if a Resolution under Clause 81(4) has not been passed by both Houses, the Act should be repealed. I beg to move.
Lord DRUMALBYN: My Lords, has the noble and learned Lord any specification of time within which that has to be done?
Lord McCLUSKEY: My Lords, this is all related to Clause 81 as well as to Clause 82. I think one would expect that immediately the referendum has taken place Parliament would have to address its mind to this matter. I do not think I can point to any provision which lays down a specific time. I think the answer is that there is no specific time.
On Question, Amendment agreed to.
Viscount MASSEREENE and FERRARD Viscount MASSEREENE and FERRARD had given Notice of his intention to move Amendment No. 197A.
Page 40, line 8, leave out from beginning to ("and") in line 12 and insert ("No referendum shall be held pursuant to section 82 above until
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three months have elapsed from the dissolution of the Parliament in which this Act is passed").
The noble Viscount said: My Lords, I shall not move this Amendment but I will reserve my ammunition for the Amendment to be moved by the noble and learned Lord, Lord Wilson of Lang-side, No. 198B. In any case, my Amendment, owing to a printing error, is not shown under Clause 83 as it should be.
Schedule 17 [Referendum]:
5.16 p.m.
Lord WILSON of LANGSIDE Lord WILSON of LANGSIDE moved Amendment No. 198A:
Page 95, line 11, at beginning insert ("Subject to paragraph 1A below").
The noble and learned Lord said: My Lords, it may be for the convenience of your Lordships' House that I should also speak now to Amendments Nos. 198B and 198C. These three Amendments seek to achieve three things. Paragraph 1 of Schedule 17 provides that the referendum
"shall be held on such day as Her Majesty may by Order in Council appoint".
The first and second Amendments in my name seek to secure that the date of the referendum shall be not earlier than 12 weeks from the date on which the order shall be laid before Parliament, in accordance with paragraph 11 of the Schedule. The second thing which the third of my three Amendments seeks to achieve is that the date of the referendum under the Bill shall be the same day as that on which the referendum under the Bill applying to Wales is to be held.
If I may direct myself briefly first of all to the first of the matters which the Amendment seek to achieve, namely the delay of 12 weeks, perhaps I ought to declare an interest in this connection since I am a joint chairman of an organisation known as the "Scotland is British Campaign", which will be concerned, in the event of this Bill becoming law, to conduct a campaign in favour of a "No" answer to the referendum question. We contend, as I have no doubt will those who are campaigning for a contrary point of view, that we should have time to mount our campaign and organise our resources to that end. The organisation is one of all Parties, with the exception of the Scottish National Party and the Liberal

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Party. It is an organisation which has had support from both sides of industry and, being a voluntary organisation, it will need time to get going. It is with that in mind, among other things, that it is suggested there should be an interval between the laying of the Order and the holding of the referendum.
Your Lordships, in considering whether or not this is a reasonable and appropriate suggestion, will have in mind what has been said repeatedly during these deliberations over the last several months that this is the most important constitutional measure affecting Scotland since 1707. Surely, then, it is right that those who will be concerned—especially on the "No" side, because your Lordships will remember that we shall have the Government against us, and Ministers have declared in the other place that they will campaign actively in favour of a "Yes" vote—to put the contrary point of view should have the time, as I say, to organise their resources and gather their forces for the campaign.
The concurrence of the referendum under this Bill and that under the Wales Bill was discussed by your Lordships during the course of the Committee stage of the Bill, and of course it was agreed on all hands that it would be reasonable, proper and sensible that the two referenda should be held on the same day. The Government accepted that view and they have expressed a similar view in the other place. My recollection is that in the course of the discussion, the noble and learned Lord, Lord McCluskey, indicated that the Government would do everything that was reasonably possible to achieve the concurrence of the referenda. But there was also the unforeseen and the contingent, and he did not feel prepared to go further than that. I noted in the Official Report that the noble Earl, Lord Ferrers, suggested that the Government had "gone as far as anyone could to meet this point" that the two referenda should take place on the same day; and, of course, I am not surprised that he expressed that view, because the noble Earl is an altogether reasonable man.
However, I wonder whether this is the right way of looking at this point that the referenda should be held on the same day, the reasons for which I am sure all your Lordships appreciate. Is this really the right approach to this fundamental ques-
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tion of whether the Government should commit themselves further than they have done? Should Parliament adjust its views to meet the convenience of the Government, because it seems to me that this is what we are being asked to do. Is it not for the Government to arrange the disposal of their business in such a way as to meet the wishes of Parliament? I should have thought that that was the position in this kind of context.
If it is conceded that it is right and proper and altogether appropriate and that there is really no argument against having the referenda on the same day, then should we not say to the Government, "On the same day we shall have them, and it is up to you so to organise and manage the disposal of your business in Parliament to achieve that end"? On the other hand, this Amendment to some extent compromises with the situation which the Government put to us, because there is the proviso suggested that this concurrence should have effect only if the two measures are passed in the same Session of Parliament; otherwise, this provision will not apply. In these circumstances, I suggest to your Lordships that, as regards the second of the two objectives which these Amendments seek to achieve—the first is a quite innocuous one—there is no answer, if your Lordships feel it is right that the referenda should take place on the same day. My Lords, I beg to move.
5.23 p.m.
Lord CAMPBELL of CROY: My Lords, we have two or three points being discussed at the same time, as a result of the noble and learned Lord, Lord Wilson of Langside, considering three of his Amendments, and my noble friend Lord Massereene and Ferrard not moving his Amendment but wanting his point to be borne in mind in this discussion. As it is before us at present, the Bill stipulates that there should be a three-month interval between an election and a referendum. If an election has taken place, then three months must elapse before a referendum. But there is nothing in the other direction that is, there is nothing which says that there must be an interval between a referendum and an election. Nor is there in the Bill anything which sets down guidelines about the length of the referendum campaign.

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The Amendments of the noble and learned Lord, Lord Wilson, now raise this question for discussion. His Amendment, No. 198B, seeks a minimum period of 12 weeks from the laying of an order before Parliament to the polling date for the referendum. That period includes the unpredictable period while the order is before Parliament. I am told that it would probably have to go for two weeks to the Statutory Instruments Committee; that is about the normal period. There are questions of how Parliamentary business may allow time for consideration of the order. So that we do not know how long the Parliamentary period may be from when the order is laid to its approval by both Houses.
Then the Amendment of the noble and learned Lord, Lord Wilson, covers the following period, which would be the campaign period before the referendum date. My noble friend Lord Drumalbyn and I have sought to put something into the Bill on this subject by our Amendment No. 197B. But we are dealing only with the period after the order is made—that is, after it has been approved by both Houses—and we are saying that there should be at least six weeks between the order being made, giving the date of the referendum, and the date when the voting takes place. So the two Amendments of the noble and learned Lord, Lord Wilson, and ourselves seek to set minima for different periods, but the Amendment of the noble and learned Lord, Lord Wilson, overlaps those, because it covers the period to which we are seeking to set a minimum.
So far as I know, the Government have not given, at any rate in your Lordships' House, any indication of what they think is a reasonable time for the referendum campaign, the period between the announcement of the date and the date of voting. We have been thinking about this, and we believe that at least six weeks is a reasonable time for that period. We should like to hear what the Government have to say on this subject.
1 must say that, of the two Amendments, I prefer Amendment No. 197B, in the name of my noble friend Lord Drumalbyn and myself, because it is more definite in that it seeks to lay down a minimum period for what one can call the referendum campaign; whereas the period which the noble and learned Lord,
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Lord Wilson, seeks to cover is a much longer one and includes the Parliamentary period, which may be subject to all kinds of Parliamentary hazards concerning Sitting days, other business and so on.
Then there is his Amendment about the date of the referendum for Wales, and I am sure it is right—and, so far as I know, there is no difference in any part of your Lordships' House on this point—that the referendum for Scotland should be held on the same day as the referendum for Wales. The Government have said that it is their intention to do anything possible to ensure that that happens. But whether it should be put in the Bill is another matter. I do not know whether it would be correct to place in the Bill a condition concerning another Bill, which may not even get through Parliament and may not reach the Statute Book. But I should like to hear the Government give their position on this again, because we need an absolute assurance that it is the Government's firm intention that the referendum date for Scotland shall be on the same date as the referendum for Wales, if there is to be a referendum for Wales.
I now come to Amendment No. 197A, in the name of my noble friend Lord Massereene and Ferrard. This would remove that part of the Bill covering the three-month period after a General Election when a referendum cannot be held, and put in its place other wording which would require a three-month interval after the end of this Parliament. If that were adopted it would mean, in theory, that this Parliament could continue till October 1979. It is very unlikely that that will happen, but it could certainly continue till the spring of 1979 and, in theory, it could go on till October 1979. That means, again in theory, that the referendum might not be held until January 1980. If this Bill goes through Parliament by early August, which is the Government's timetable, I think that it would be wrong to leave it in suspense for an indefinite period which could be as long as that. Therefore, I am very glad that my noble friend did not move his Amendment. I think that the Bill ought to remain as it is drafted at present in Clause 83.
When we come to my Amendment No. 197B, I hope to move it and to explain

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it in more detail. However, I thought that I should refer to it as it seeks to lay down, in the same way as the Amendment moved by the noble and learned Lord, Lord Wilson of Langside, a minimum period of time, although it seeks to do it for a different period before the referendum campaign. I shall listen, as I am sure that the noble and learned Lord, Lord Wilson of Langside, will also listen, with great interest to what the Government have to say about this matter. However, I repeat that my preference is for our Amendment, because I believe that it seeks, with more precision, to indicate what the minimum period for the referendum campaign should be. Nevertheless, I accept what the noble and learned Lord has said about the difficulties involved for the organisations which may be taking part in the referendum in seeking to influence public opinion in Scotland for a Yes or a No vote. They will need to know what kind of notice they are likely to get for their organisational purposes, for the collection of funds, and so on.
5.31 p.m.
Lord DAVIES of LEEK: My Lords, while I should like to endorse the remarks of the noble Lord who has just spoken about the inclusion in this Bill of a reference to Wales, I do not know whether or not that would make the position anomalous. In the minute or so that I wish to speak I want to refer to the referendum. In whichever country it is held, in either Scotland or Wales, we shall be subject to boredom if there is to be a long campaign and if we have a brou ha ha or a furore about it. In the case of the EEC referendum—we knew the facts only a year or so after the referendum had been held—the expenditure of money by the "pros" and "contras" was something of an eye-opener to the public. Consequently, although I do not want to accuse either the Welsh or the Scottish that there might be a vested interest in favour of or against an Assembly, nevertheless, I believe that some safeguards are necessary and that we should ensure that if money is spent by organisations which are either in favour or against the Assembly, that money should come from interests which are not particularly concerned with either one objective or the other.
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To expand my point, having made it, would only bore the House. However, I believe that at this point that a caveat should be introduced.
Viscount MASSEREENE and FERRARD: My Lords, when I put down my Amendment I was bargaining on the fact that we might have an election in October. Hope, of course, springs eternal! However, I agree that if the Government were to run their full term, my Amendment would mean that too long a period is involved. My worry is that if the referendum is held too close to a General Election, either before or after it, but particularly before, the electorate would regard it as a preliminary contest between Labour and Conservatives. That would be a great pity. This is a question of such great constitutional importance that, so far as we can arrange it, it ought to be decided upon a non-Party basis.
However, I quite agree that it is not very practical to hope for that. Nevertheless, that was my desire in putting down my Amendment. If the referendum were to be held a few weeks after the General Election, the same point would apply. There are many Labour voters who may not be in favour of devolution, but the present Government have become so closely linked with this issue that the average, loyal Labour supporter—and there is no better virtue than loyalty—would feel bound to vote for devolution, because of a muddle-headed idea that by doing so they were being consistent because they voted Labour at the General Election. As I read the Amendments moved by the noble and learned Lord, Lord Wilson of Langside, they do not apply to a period after the General Election. If the referendum is to be a true expression of Scottish opinion, I feel that it is essential that it must be unfettered by too much loyalty to those aspects of Party dogma which have no bearing on the constitutional issues involved.
May I deal for a moment with the Hamilton by-election. I imagine that the Labour Party regard the result of that by-election as a great victory for Labour. The Government regard it as confirmation of their policies over the last few years. However, I am not so sure about that. The result was more of a protest against the disintegration of the United Kingdom,

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against the Assembly and against devolution by the only means available to dyed-in-the-wool Labour supporters who may be anti-devolution. Certainly they would not vote Tory; that would be too much to expect of them, and I should hardly expect them to do so. Many Labour voters who are against devolution voted in the Hamilton by-election out of a sense of loyalty to the Labour Party, but I do not believe that the evidence shows that the Hamilton by-election gave the go-ahead to Her Majesty's Government to implement their devolution policy. I would say that the evidence is rather the reverse, because the swing to the Conservatives was just as great as the swing to Labour.
I hope that the noble and learned Lord, Lord Wilson of Langside, will press his Amendment to a Divisoin, because I certainly support his three Amendments. I like all of his Amendments, and I can see no argument against the third relating to Wales. When we reach the Referendum there is no doubt that we must try to ensure, although I fear that there is little hope of it, that the Scottish electorate concentrate upon the big constitutional issues which are involved and that they do not vote according to Party labels. I am afraid, however, that a great many of them will not understand the constitutional issues which are involved. I have a great interest in Scotland. I love Scotland and have many connections there through my family. When I go to Scotland—and I go there often—and speak to many people, they seem to be very indifferent as to devolution. This may not be so in Glasgow and Edinburgh. But very few of them appear to understand the meaning of devolution. I fear that they will regret it. I say no more than that.
I take this opportunity of saying this: I regard devolution—if it does come to pass—as one of the last nails hammered into a coffin, leading to the decline and the eclipse of Great Britain. I really do think that it will lead to disintegration. Unfortunately during my life I have seen, the whole time, these nails being hammered in. I think that we are now coming to the end and will find all the nails hammered in. I hope I am wrong. I should like to end by saying that I heartily support the Amendments of the noble and learned Lord, Lord Wilson of Langside.
5.42p.m.
Lord SHINWELL: My Lords, it does not seem to have occurred to the noble Viscount to think what will happen in the interregnum between the Dissolution of Parliament and the referendum. There could be a General Election. It is confusion worse confounded. I am afraid that we shall have to dismiss the noble Viscount's proposition. He seems to have dismissed it himself. Although he spoke at some length—not undue length, of course—there seemed to be a lack of enthusiasm in his observations.
Some very interesting points were raised in the debate on the suggestion made by the noble Lord, Lord Campbell of Croy, about Amendment No. 197B. He has deferred making a submission to your Lordships' House until we have disposed of the propositions by the noble and learned Lord, Lord Wilson of Langside. I think that is a mistake, because there is a very close connection. The fact is that the only difference is one of language. In the case of the proposition made, or about to be made, or promised to be made, by the noble Lord, Lord Campbell of Croy, there is reference to the making of art order, whereas in the case of proposition I97B Lord Wilson of Langside refers to the laying of an order. My interpretation of making an order is that it is presented to Parliament and dealt with at once.
Lord CAMPBELL of CROY: My Lords, I am grateful to the noble Lord for giving way because I had hoped to reserve this until I moved my Amendment. In this case there is a special procedure in Schedule 17, paragraph 11 of which refers to the order being made in Council by Her Majesty. That is not the normal procedure.
Lord SHINWELL: My Lords, in that case I stand not corrected, but I was not aware of what the noble Lord, Lord Campbell of Croy, was driving at.
I want to deal with two points. The first is a general point. We have had a great deal of discussion and argument about this piece of legislation. There are fundamental differences of opinion. There are many Members of your Lordships' House who want this legislation to be implemented as speedily as possible. On the other hand, there are some Members

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of your Lordships' House who are reluctant, hesitant, apprehensive of the consequences.
My view is this. In the circumstances, if this is the best piece of legislation that can be advanced, and if the people of Scotland, in a referendum, decide by a substantial number of votes, or the requisite number of votes, that they want some measure of autonomy, the sooner we proceed with the implementation the better. Otherwise there will be a great deal of confusion, chaos and dissension. I do not think that that would be to the advantage of the people of Scotland or the United Kingdom. So far as that is concerned, if I may put it this way: make the best of a bad job. So much for that.
On the question of when the referenda should be taken, and whether they should be taken on different days, I disagree. I think it advisable that there should be two referendums—I am not quite sure which is the plural, but I think that Members of your Lordships' House will undertand what is meant. I think that the referenda should be taken simultaneously so that we get them over with. I enter this caveat. There is no need to have this matter injected into a Bill. This is a matter where surely it can be left to the discretion of the Government to consider the circumstances. It may be undesirable to hold them on the same day. It may be more suitable that the referendum in Wales should be held on a day different from that in Scotland. I suggest that it should be left to the discretion of the Government. I noticed that one noble Lord (I forget who it was) remarked—and there was some slight applause when he said it—that we could not leave these matters in the hands of the Government. Leave them in the hands of Parliament. Let Parliament decide. On the whole I agree that Parliament should decide on most issues. But there are occasions when a Government that has been elected, even if it is an unpopular Government, should be allowed to use their discretion. This is one of the instances where I think that we could allow the Government to have their head.
Therefore, it would seem to me that the proposition when advanced by Lord Campbell of Croy, is one that should be accepted. The proposition made by the
1014
noble and learned Lord, Lord Wilson of Langside, goes too far. It leaves a measure of uncertainty in the atmosphere. That is undesirable. I think that in the circumstances if we hear what the noble Lord, Lord Campbell of Croy, has to say about his proposition, that might be the best one to accept.
Lord KIRKHILL: My Lords, with the exception of the very last point which my noble friend Lord Shinwell has just made, may I say how much I agree with the tenor of his sentiments otherwise. Might I also say to my noble friend Lord Davies of Leek that I have noted the caveat which he entered. It would he churlish of me not to acknowledge the noble Viscount, Lord Massereene and Ferrard, in the hope that expectation may well be linked to October. But which October? That is one of the questions that will be entertaining us all over the next few months.
The Government's position on the Amendment of the noble and learned Lord, Lord Wilson of Langside, has already been made perfectly clear. When I say Amendment, I think it is convenient to talk in the singular although it really does take in Amendment No. 198C, as one speaks.
During the debate on a similar Amendment by the noble and learned Lord in Committee on 17th May, my noble and learned friend Lord McCluskey gave a firm assurance that it was the Government's intention to have the referendums on the Scotland Bill and the Wales Bill on the same day. That assurance was given. There has been no change of policy. As my noble and learned friend Lord McCluskey mentioned on that occasion, similar assurances have been given by my right honourable friend the Minister of State (Mr. John Smith) in another place on 21st November 1977, and by my right honourable friend the Prime Minister in an interview with the political editor of the Western Mail in December 1977. In passing, I might just mention that the noble Earl, Lord Ferrers, was good enough to say in our earlier debate that he thought the Government's assurances could be accepted.
Lord DRUMALBYN: My Lords, if the noble Lord will be kind enough to give way, of course that implies that both Bills

1015
are passed this Session and that is the whole point of the third Amendment tabled by the noble and learned Lord, Lord Wilson of Langside. They cannot be held on the same day unless it is the Government's intention that if the Wales Bill is not passed then the Scotland Bill will be postponed until the Wales Bill is passed.
5.51 p.m.
Lord KIRKHILL: My Lords, if the noble Lord, Lord Drumalbyn, will bear with me I shall proceed and a number of other points will be led. In the view of the Government, it is preferable not to have any statutory provision requiring the referenda to be held on the same day because there can be no complete certainty that both the Scotland Bill and the Wales Bill will reach the Statute Book at the same time. It is unlikely that there will be any significant interval between the passing of the Bills, but the Government think it is necessary to retain some flexibility against the remote possibility that something unforeseen will occur.
The Amendment tabled by the noble and learned Lord, Lord Wilson of Langside, differs from his Committee stage Amendment in two ways: the noble and learned Lord mentioned these ways but I want briefly to mention them again because I think they are important distinctions. First, he ties his same day provision to the position where both Bills become Acts in the same Session. This requirement has two possible effects: it means that if the Wales Bill is not passed during this Session—and of course the Government are confident that it will be passed during this session—the Scottish referendum will go ahead. It also means that if both Bills are passed this Session the two referenda must be held on the same day. The first of these effects is assured, in the view of the Government, without the noble and learned Lord's Amendment; the second is subject to the assurance that I have just given. Further, I have already said that in the Government's view it would be wrong to write a completely inflexible requirement into the Bill. I recognise that it may be difficult to postulate a set of circumstances which would produce the need for referenda on different dates but in the Government's view it would be imprudent to suggest that such circumstances could never arise. The Government have given absolutely firm assurances on this matter
1016
and these assurances are being reiterated by me this evening.
With regard to Amendment No 198B, the noble and learned Lord is seeking to introduce a 12-week interval between the laying of the referendum order and the referendum itself. The Government are convinced that such a provision is both unnecessary and undesirable. We are of the opinion that there is no case for a mandatory 12 week interval. For example, can it seriously be suggested that 11 weeks and six days would be too short a period when the interval where a General Election is concerned is generally of the order of three weeks or so? The referendum order will include the date for the referendum and the Government have given no one any reason to suppose that there will be an unreasonably short period between the laying of the order and the date of the referendum. Moreover—and I leave this point for your Lordships' consideration—it needs to be remembered that the orders naming the day are subject to the Affirmative Resolution procedure.
Earl FERRERS: My Lords, I wish to make only one intervention and that is because the noble and learned Lord, Lord Wilson of Langside, and the noble Lord, Lord Kirkhill, happened to refer to something which I said at the Committee stage. When the noble Lord, Lord Kirkhill, used my support in aid I thought it was very flattering and I wondered whether it was the arm of the octopus extending itself. I said then that the Government had gone about as far as they reasonably could in the undertaking they had given relating to the noble and learned Lord's Amendment which then stood on the Marshalled List, which if I remember correctly said that the referendum should take place on the same day as the referendum relating to the Wales Bill. Of course the argument against that was that if for some reason or other the Wales Bill was not passed then this would have been put into the Act. This Amendment is slightly different because it says that the referendum shall take place on the same day as that for the Wales Bill if the Wales Bill is passed in the same session. I quite accept the argument of the noble Lord, Lord Kirkhill, that it is the Government's intention to take the two referenda on the same day but he then indicated that there might be some curious set of circumstances which might require it to be taken

1017
on a different day. I think it is precisely that point that worries the noble and learned Lord, Lord Wilson, because if in fact the referenda were taken on different days, whatever the reason, the likelihood is that the result of the one referendum will affect the result of the other. I think that is the reason why the noble and learned Lord, Lord Wilson, would like them to take place on the same day. If it is the Government's intention so to do I cannot see why they cannot put it in the Bill. If they are worried about there being some exceptional curious circumstances which might come about which would require them to take the two referenda on different days, it is precisely that sort of circumstance that would worry those of us who feel that they ought to be taken on the same day.
The Earl of LAUDERDALE: My Lords, there is one point which was made by the noble Lord, Lord Kirkhill, which ought not to pass unremarked. He used as an argument against the 12-week period, to quote the Amendment tabled by the noble and learned Lord, Lord Wilson of Langside, or the six weeks plus in the case of our own Front Bench Amendment, the argument that we have only three weeks' notice, or at the most four, of a General Election. The two things are by no means comparable. The whole point is that in a General Election people have been working up for it for months, the two Parties have their machines geared up, hopefully funds are piling up and everybody is geared. But with regard to the referenda, as the noble and learned Lord, Lord Wilson, said, the organisation Keep Scotland British or whatever its title is, which proposes to campaign for a "No" vote and will have my support, that campaign is not organised and is not even funded at this time, and in the name of equity they need a fair start. Therefore I think the analogy used by the noble Lord, Lord Kirkhill, was not quite correct.
Lord CAMPBELL of CROY: My Lords, will my noble friend give way? I agree with what he is saying that there is a great difference between a referendum period and a General Election period, a referendum only having happened once in our country, but I do not think the noble Lord, Lord Kirkhill, has yet given
1018
any reply to the six week period which I have asked for, though I am going to move that Amendment later.
The Earl of LAUDERDALE: My Lords, another point to which I feel bound to refer is the question of Government assurances. May I say that I come to this House today chastened and penitent, because I have been accused of introducing politics into our debates and on one occasion I was told by my own Front Bench—by my own Whip—that I had managed to persuade the Government to resist an Amendment when they were on the point of accepting it because I was so brutally political. In what I want to say now, I am not trying to be political in a narrow sense and I certainly do not wish in the slightest degree to impugn the integrity or the sincerity of intention of any Member of the Government. But any Member of the Government who speaks for the Government may pledge his personal view and his conviction that such-and-such a thing will happen and give an assurance that is, in his view, the most complete assurance that he can possibly give. Yet unless he is actually a member of the Cabinet he may find later that events caused that to be somewhat modified.
Lord KIRKHILL: My Lords, I am grateful to the noble Earl for giving way. The pledge stems from the Prime Minister downwards, and I think the noble Earl must keep that in mind when he is developing his point.
The Earl of LAUDERDALE: My Lords, I appreciate that the pledge is strengthened by coming from a newspaper interview given by the Prime Minister. Without wishing to spoil the harmony of our debate and introduce nasty political suspicions, I must remind the House that this Parliament has passed two Acts, one the Shipbuilding and Aircraft Industries Act and the other the Submarine Oil and Pipelines Act, and in both cases assurances were sought and were given which in the interpretation of some of us have come to be curiously alloyed by the passage of time. I am not going to put it more strongly than that. In each case we asked for assurances and we were told, "No, no, you can trust us; we are the Government; we are honourable

1019
men, there is no need to put it into the Bill", and on those assurances Amendments were not pressed.
As I said, I do not want to spoil the harmony of the occasion; I do not want to anger my own Chief Whip, of whom I am absolutely terrified, and who has rebuked me for being too political before; I do not want to irritate my friends on the Government Benches—I count them as friends personally—but I must draw attention to the fact that an assurance given even by Prime Ministers can be alloyed by the passage of time by the contamination of circumstances without any ill intention on the part of the Government or the Executive. Because we have had experience of that, or we think we have, I feel myself that if the noble Lord, Lord Wilson of Langside, presses his Amendment on this point I shall reluctantly, with my head down and in a penitential fashion, walk into the Lobby behind him.
Lord WILSON of LANGSIDE: My Lords, I have listened to the discussion on these Amendments with the greatest of interest and I am grateful to all your Lordships who have taken part. Your Lordships will perhaps understand me when I say that I am particularly grateful to the noble Earl, Lord Lauderdale, for what he said. Faced with the persuasive eloquence of the noble Lords, Lord Shinwell and Lord Campbell of Croy, who speak from a vast range of experience and wisdom, any weakening that there might have been in the resolve with which I set out was restored by what the noble Earl said, and I am grateful to him. The noble Lord, Lord Shinwell, persisted that
we should make the best of a bad job, that the Government should be left with discretion. There is much common sense and prudence in this approach and one would not readily reject it.
It may be that this is the best legislation that this Government can produce on this subject, but, nevertheless, I am inclined to feel that both the points which these Amendments seek to make should stand. I am impressed by what the noble Lord, Lord Davies of Leek, said about the need for avoiding boredom and the 12-week period—and of course I take the point which the noble Lord, Lord Campbell of Croy, made about it against his own choice in his Amendment. This must just be a matter of broad judgment which one must reach on a balance of all the competing arguments. Of course, having my own share of human perversity, I confess that the weight which I was at first inclined to attach to what the noble Lord, Lord Shinwell, said was slightly reduced when I heard the noble Lord, Lord Kirkhill, whom we all hold in great affection and esteem but who represents the Government, agree with him. He said that there could he no complete certainty that the Wales Bill would get through. There it is. The Government were not prepared to give an unqualified undertaking in this matter. I think it is important for Wales, for Scotland and for the United Kingdom, and I propose to let the Amendment stand.
6.6 p.m.
On Question, Whether the said Amendment (No. 198A) shall be agreed to?
Their Lordships divided: Contents, 29; Not-Contents, 66.

CONTENTS

Ailsa, M.

Gray, L.

Onslow, E.

Allerton, L.

Ilchester, E.

Selkirk, E.

Ampthill, L.

Inglewood, L.

Somers, L. [Teller. ]

Balfour of Inchrye, L.

Killearn, L.

Spens, L.

Cathcart, E.

Kilmarnock, L.

Strathclyde, L.

Clitheroe, L.

Kimberley, E.

Torphichen, L.

Craigavon, V.

Lauderdale, E.

Tweeddale, M.

Craigmyle, L.

Massereene and Ferrard, V.

Ward of North Tyneside, B.

de Clifford, L.

Monson, L.

Wilson of Langside, L. [Teller.]

Evans of Hungershall, L.

Northchurch, B.

NOT-CONTENTS

Aylestone, L.

Boston of Faversham, L.

Davies of Leek, L.

Bacon, B.

Brockway, L.

Donaldson of Kingsbridge, L.

Baker, L.

Champion, L.

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

Balerno, L.

Chitnis, L.

Gaitskell, B.

Birk, B.

Crook, L.

Gardiner, L.

Blyton, L.

David, B.

Glenamara, L.

Gordon-Walker, L.

Lloyd of Kilgerran, L.

Simon, V.

Hale, L.

Lovell-Davis, L.

Stanley of Alderley, L. [Teller.]

Hamnett, L.

McGregor of Durris, L.

Stewart of Alvechurch, B.

Hampton, L.

Mackie of Benshie, L.

Stone, L.

Hanworth, V.

Maelor, L.

Stow Hill, L.

Harris of Greenwich, L.

Morris of Borth-y-Gest, L.

Strabolgi, L. [Teller.]

Hatch of Lusby, L.

Murray of Gravesend, L.

Tanlaw, L.

Henderson, L.

Paget of Northampton, L.

Taylor of Blackburn, L.

Hood, V.

Peart, L. (L. Privy Seal. )

Taylor of Gryfe, L.

Houghton of Sowerby, L.

Phillips, B.

Taylor of Mansfield, L.

Hylton-Foster, B.

Plant, L.

Thurso, V.

Jacques, L.

Porritt, L.

Walston, L.

Janner, L,

Rochester, L.

Wedderburn of Charlton, L.

Kirkhill, L.

Sefton of Garston, L.

Wells-Pestell, L.

Lee of Newton, L.

Segal, L.

Wilson of Radcliffe, L.

Llewelyn-Davies of Hastoe, B.

Shackleton, L.

Lloyd of Hampstead, L.

Shinwell, L.

Resolved in the negative, and Amendment disagreed to accordingly.

6.14 p.m.
Lord CAMPBELL of CROY Lord CAMPBELL of CROY moved Amendment No. 197B:
Page 95, line 11, after ("day") insert (",not less than six weeks after the making of the Order,").
The noble Lord said: My Lords, because of the way in which the list of Amendments has been marshalled we now have to turn back a page and find this Amendment at the bottom of page 3 of the Marshalled List. I think it is appropriate that I should now speak in more detail on this Amendment, having made reference to it in the previous debate. First I must refer to paragraph 11 in Schedule 17, the one to which I drew the attention of the noble Lord, Lord Shinwell, while he was speaking. It is clear that there is a procedure in this Schedule 17 whereby a recommendation is to be made to Her Majesty to make an Order in Council. The draft of the Order has to be approved by both Houses of Parliament before that recommendation is made. We believe that there should be a minimum period set out in the Bill for the referendum capaign time; that is, between the announcement of the referendum date and the referendum date itself; polling day. At the moment there is nothing in the Bill on this and we have very little indication of the Government's views.
Your Lordships were reminded in the last debate that there is a minimum period for a General Election, a certain number of days, which means about three weeks' notice at a minimum has to be given. I agree with my noble friend Lord Lauderdale that a referendum, which we have only held once in this country, is different from
1022
a General Election. It is something strange that the organisations are not familiar with; Party organisations who have been preparing for a General Election are familiar with the procedure. We therefore think that a period of six weeks should be the least amount of time for the campaign. I would hope the Government would now give us their views on this. In reply to the last debate the noble Lord dismissed 12 weeks as too much, but I heard him say nothing about a six weeks period, which is what is proposed in this Amendment.
I must ask some other questions, too, about Schedule 17, because this is the first opportunity. How many Orders in Council are intended? As the Schedule is drafted at present there could be simply one Order in Council, which is the one mentioned in paragraph 1 and paragraph 11, and it could be the same, order governing the conduct of the referendum in paragraph 4 and the following paragraphs. On the other hand, there could be more than one order under this Schedule. It seems to have been drafted in order to leave that open. I should like to ask the Government whether they intend that there should be a single order or more than one. This is important to the organisations involved in the referendum because they will want to know the circumstances in which the referendum is to be held, the answers to some of the points under the heading "Conduct of referendum" which are to be given in an order under this Schedule. They will also want to know what the referendum date is going to be and they will want to have reasonable notice of that date. We on these Benches are prepared to consider the pros and cons of shorter or longer periods, but, so far as I know, the Government have given very little indication of

1023
what they regard as a minimum period for the campaign.
I would also take this opportunity to ask the Government to tell us what their views are on the financial arrangements of the referendum. During the previous referendum, on whether Britain should remain a member of the EEC, or not, the Government provided funds to both sides on an equal basis. They were ad hoc organisations which had been brought into existence for the referendum.
What are the Government's intentions as regards this referendum? Is there still the idea that the Government will provide a grant to both sides in order to help them with organisation and getting their views put forward through the media? Again, so far as I know, nothing has been said—certainly not in your Lordships' House.
I indicated when speaking on this matter as regards the Amendment of the noble and learned Lord, Lord Wilson of Langside, that we prefer this Amendment. It has much the same aim as that of the noble and learned Lord, Lord Wilson, but we think that this Amendment would be more precise in giving a minimum period for the referendum campaign itself. The Amendment of the noble and learned Lord, Lord Wilson, gave a longer period which was twice as much—12 weeks—but which covered also the indefinite Parliamentary period while the order was lying before Parliament. That, therefore, was a variable and one could not be certain how much of the 12 weeks would be allowed for the actual campaign. If, for example, due to various Parliamentary activities or accidents the order were to remain before Parliament for nine weeks, the referendum campaign would have only three weeks. Therefore, we prefer this Amendment and I hope that the Government will take the opportunity to tell us more about their views as regards how the referendum should be held.
6.22 p.m.
Lord KIRKHILL: My Lords, I can at the outset confirm at least part of the hope expressed by the noble Lord, Lord Campbell of Croy, because I certainly hope that I shall explain clearly to him the Government's position. We have just been discussing the Amendment of the noble and learned Lord, Lord Wilson
1024
of Langside, and during that discussion I made the Government's position perfectly clear. We consider that it is unnecessary and undesirable to write into the Bill any mandatory period either between the laying or, as this Amendment has it, the making of the referendum Order in Council and the date of the referendum. There could well be circumstances—and this applies alike to a six-week period and to a 12 week period—when this would create an undesirable and quite unnecessary lack of flexibility. I can give an assurance that the period between the laying or making of the order and the date of the referendum will be long enough, by reasonable judgment, to allow an appropriate development of referendum campaigns. I give that assurance unequivocally. As I have already mentioned, the date of the referendum will be included in the draft Order in Council which will be laid before both Houses of Parliament.
The noble Lord, Lord Campbell of Croy, in relation to Schedule 17, asked, whether there would be a single order or a number of orders. I can reply that it is the intention that there will be a single order. As regards the financial arrangements, the Government have no plans to make funds available for any referendum campaign. That would, of course, require statutory provision and, as I am sure the noble Lord is aware, no Amendment has been put down on this matter either in your Lordships' House or in the other place.
Lord DRUMALBYN: My Lords, I am sorry that the noble Lord has not been able to tell us his plans for a minimum period. If I may say so, it is a little high-handed simply to say that the Government will give a period which, in their view, is long enough "by reasonable judgment". It is a question of what they think is reasonable judgment and what they think is long enough. We do not regard that as good enough. We are laying down a minimum period which really is a minimum period.
The real difference between a General Election and this kind of referendum is that until the Bill becomes an Act nobody knows what is in the Bill. It is impossible to go campaigning or to prepare any campaign on the Bill until we know what

1025
it contains. We shall not know that until the Bill is passed. It would be quite possible for the Government to lay an order the following day. All that we seek to lay down is that the absolute minimum period in that case would be six weeks. It must be remembered that first there is the administrative side to organise. Secondly, there is the whole business of documentation; the preparation of propaganda, if we can call it that; the preparation of pamphlets, the briefing of the Press, and so on. A great deal of printing is certain to be involved. Then there is the campaign itself.
As regards a matter of this importance, surely six weeks must be a minimum. The country is only very sketchily aware of what is in the Bill at present. Goodness knows! it has taken long enough to inform your Lordships of what is in the Bill. Is the country going to be given less time than that? Certainly it cannot be given less than six weeks. Surely that is not unreasonable? I hope that the noble Lord will think again about this matter. The least we can do is to give the other place an opportunity to say something about it and to form its view. I commend the Amendment to your Lordships. No one can say that it is in any way an unreasonable Amendment. Therefore, I very much hope that the House will support it in the Division Lobbies.
Lord SHINWELL: My Lords, there are all sorts of reasons why a proposition of this kind is made. However, obviously when it is advanced by the Opposition one can assume—I would not put it higher than that—that it is because they do not trust the Government. We had an example of that in the earlier speech of the noble Earl, Lord Lauderdale. As he had some difficulty in finding an argument related to the Bill he brought in the assurances that were given some time ago in connection with another piece of legislation to do with shipbuilding. It was quite irrelevant and he knew it. He is no fool in these matters. After all, he has had some experience in the other place. It may be that there are some fools still left there, but most of the wise men have come here. Am I to understand that the noble Earl wishes to intervene?
The Earl of LAUDERDALE: My Lords, I am grateful to the noble Lord, Lord Shinwell. I want to take this opportunity to pay tribute to him, because I learned so much from him in the other place about distrusting all Governments of whatever Party.
Lord SHINWELL: My Lords, the noble Earl knows as much as I do about what happens in another place. When I reflect (not that one needs to reflect unduly about the matter because it is not so important) on the many occasions when Governments gave assurances and forgot all about them afterwards—and this can be placed in the Guiness Book of Records—I recall that very often it was Conservative Governments that gave the assurances, and is it strange to relate that very often they forgot all about them? Of course they did. So what is the use of bringing that up?
During the previous discussion I was inclined to support the proposition put forward in the name of the noble Lord, Lord Campbell of Croy, and the noble Lord, Lord Drumalbyn, because it seemed to be more reasonable. However, I ventured to make the observation that, in a matter of this kind when there is so much uncertainty and one never knows what is likely to happen because all sorts of problems and difficulties emerge, it is far better to leave it to the discretion of the Government.
As regards this matter, trust the Government. After all, the Government want to get rid of the problem just as much as Members of your Lordships' House want to do so. For political reasons they do not want this hanging over their heads all the time. This is political expediency emerging again. The whole thing began because of political expediency and at the end of the day we shall, politically speaking, probably urge the Government to get rid of this business, tell them to let the Scots decide and then everybody will be happy, or so we hope.
In this matter I am bound to say that I support the Government. I was about to say that I always trust them, but since the beginning of the century—since I entered politics—there has never been a Government which I have completely trusted. I have made all sorts of discoveries about Governments, but let us

1027
not go into that. This is a matter where we should use a bit of common sense. Some interim period must exist between the making of the order in both Houses of Parliament, the implementation and the reference of the matter to the people of Scotland and of Wales for their decisions. Some period must elapse. The Government will be wise enough to keep it as narrow as possible.
Quite frankly, I do not see the need for the proposition that is made by the noble Lord, Lord Campbell of Croy. No, I am satisfied that if I were a member of a Government and were faced with this problem, which has been before us for such a long period of time and which has resulted in so much argument and confusion of thought and expression, I would think that the sooner we get rid of it, the better. That is what I think the Government will do.
Earl FERRERS: My Lords, the noble Lord, Lord Shinwell, says, "Let us trust the Government and let us get it over as quickly as possible". But that is precisely what is worrying us. If one follows the noble Lord down that path, the assumption is that, because he does not want to accept this Amendment, he is in favour of the referendum being held in less than six weeks, which is why we think that this Amendment should be included.
My noble friend Lord Drumalbyn said that this was the minimum time. Indeed it is, because the question is:
"Do you want the provisions of the Scotland Act 1978 to he put into effect?"
Nobody knows what the Scotland Bill contains because we have made many Amendments which will go to another place, where they may or may not be accepted; but at the moment Parliament does not know what the Scotland Bill will contain. How on earth can the people who are to vote for it know what it will contain in less than six weeks? That is why we believe that six weeks should be a minimum period.
I should like to ask the noble Lord, Lord Kirkhill, one or two questions because as we have had only one referendum before, we want to know the Government's intention with regard to this referendum. I am sure that the Government will want to act consistently with what they did then. As your
1028
Lordships will remember, there were many people in favour of the Common Market and many against it. It was the Government's intention that the referendum should be held and that we should remain in the Common Market. But at that time Cabinet Ministers and Government Ministers were given a free hand to vote as they wished in the referendum. I ask the noble Lord directly, will that apply this time? Certainly Cabinet Ministers always have different views; they are not a mass of zombies—that is the whole point of a Cabinet. Then they reach a Cabinet view. This time the Cabinet's view is that the Scotland Bill should go ahead. However, will Cabinet Ministers and, indeed, other Ministers be released from their collective responsibility and be allowed to vote on the referendum in the way in which they wish? Indeed, will they be allowed to campaign in the way in which they wish?
Secondly, the noble Lord said that no financial provisions will be made. That being so, do the Government, as a Government, intend to keep out of the referendum? If they are not going to make financial provisions for a "Yes" vote and equally for a "No" vote, then obviously it is unfair that the Government should use their authority and weight, and therefore by inference their financial resources, to persuade people to vote either one way or the other. That is the other question to which I should be grateful if the noble Lord would reply.
Lord KIRKHILL: My Lords, with the leave of the House I have been asked two direct questions by the noble Earl, Lord Ferrer.
Earl FERRERS: My Lords, "Ferrers".
Lord KIRKHILL: My Lords, it is 6.35—that must be what it is, too near dinner and wine! As to the first of the noble Earl's questions, Ministers will be campaigning for the implementation of the Bill because, of course, it is a Manifesto commitment of my Party. As to the overall position of the Government, they will be campaigning for a "Yes" vote. However, at this stage we have made no proposals for the issue of special explanatory material. There can, of course, be no doubt that in the run up to the referendum the media will give

1029
full publicity to the issues involved and will give coverage to both sides of the argument. It is the Government's view that the Scottish electorate will be well informed of these issues before voting in the referendum. As to the more specific question which the noble Earl asked me, on the financial arrangements, these are matters which are not at a point where I can say more than I said earlier, when I referred to the previous debate.
Lord MACKIE of BENSHIE: My Lords, I cannot see the validity of the requirement for a long period of preparation because Governments can spring, and have sprung, a General Election in three weeks on sometimes quite complex questions. This Bill has certainly been discussed in Scotland for some years; much longer than the specific points on which General Elections are called. Any Government which want to win a referendum on an Act which they have passed must give reasonable time. I cannot agree that the laying down of a minimum period of six weeks is necessary. Together with the noble Lord, Lord Shinwell, I think that we might leave this, if not to the common sense and honesty, at least to the self-interest, of the Government.
6.36 p.m.
The Earl of LAUDERDALE: My Lords, possibly the noble Lord, Lord Mackie of Benshie, was thinking—
Several noble Lords: Order, order!
The Earl of LAUDERDALE: My Lords, I have not spoken on this Amendment. The noble Lord, Lord Mackie of of Benshie, was possibly thinking of higher matters when the analogy between the General Election campaign and the referendum campaign was demolished earlier by myself. That he was asleep does not surprise me, because he has slept through more of my speeches than most Members of your Lordships' House.
However, the serious and alarming point about the assurance given by the noble Lord, Lord Kirkhill, is this. First, if there is one person in this House who is a great favourite, I think we can say without exaggerating that it is the noble Lord, Lord Kirkhill, and we trust him when he says something. But, my goodness! he was
1030
jolly careful when giving this assurance. The assurance that he gave, with magnificent intonations of sincerity, was that the period allowed would be long enough by "reasonable judgment". All right, he is a reasonable man and no doubt he belongs to a reasonable Government. But now he has confirmed that the Government will campaign in this referendum. In other words, the Government are now declared to be an interested party in the result and want that result to be "Yes". It is with that interest at stake that they will use what they call their "reasonable judgment". That is what is rather alarming.
As my noble friend Lord Drumalbyn said, the term "reasonable judgment" is not applicable to the case in point. In the circumstances of the Government's commitment to the campaign itself, the period of time cannot be allowed to rest upon the Government's own reasonable judgment. That reasonable judgment must be affected by the Government's own reasonable judgment of their own interests. It cannot be impartial. Although I know that the noble Lord personally would wish to be impartial on this, as on all matters, I am afraid that I reluctantly find the assurance he gave to be quite defective.
Lord GRAY: My Lords, I support my noble friends Lord Campbell of Croy and Lord Drumalbyn in this matter. Surely on something as important as this indubitably is, it is inappropriate for the Bill to remain silent. Whatever views we may have on what length of campaign there should be to lead up to the referendum day, as my noble friend Lord Drumalbyn pointed out, were this Amendment to be written into the Bill it would perhaps be an invitation to another place to air their views on this subject. If I heard the noble Lord, Lord Kirkhill, aright, I thought his main objection to the words of this Amendment were that they created too inflexible a situation. I do not see how the noble Lord can read real inflexibility into the words, "not less than six weeks".
The Earl of ONSLOW: My Lords, I thought it was an interesting remark made by the noble Lord, Lord Mackie of Benshie. He said that this Bill had been discussed for several years. This Bill was published only last November. They

1031
had had several shots at it before, which had not worked. I want to take up Lord Kirkhill's point that no money is going to be provided, but the Government are going to campaign. I presume that this means that Government Ministers will be driven around in Government cars at the expense of the British taxpayer. Is that not money? Government Ministers will be lodged in hotels. They could stay at the expense of the British taxpayer. Is that not money?
It seems that the money will be there, and it will be provided by the British taxpayer at the expense of the big battalions, and the people who are trying to pursuade the Scots to vote against this constitutional abortion will be starved of funds. There will be no possible equity in this arrangement at all. The noble Lord said that there will be no funds available: if the Government are going to campaign, I am certain that it will not come out of Ministers' pockets.
The Earl of SELKIRK: My Lords, may I ask the Government one question? Will it be regarded as a public duty to take part in the referendum, or will it be regarded as Party politics? It is not purely Party politics; it cuts right through Parties on both sides. Therefore, is it going to be at Government expense? Will they use public cars, or will they be regarded on the same basis as any General Election?
Lord KIRKHILL: My Lords, I have already made it clear that Ministers and others will be able to campaign at the time of the referendum. It is a commitment of my Party's Manifesto. Members of your Lordships' House, as I have listened to the debates here over many weeks, will, I am sure, be campaigning themselves. I am quite certain that many will be quite involved in the campaign.
The Earl of SELKIRK: My Lords, I was asking whether or not public cars would be used.
Lord KIRKHILL: My Lords, I could not give a specific answer to that off the cuff.
Lord SWINFEN: My Lords, could the noble Lord, Lord Kirkhill, assure the House that, as it is in his Party's Manifesto
1032
to campaign for devolution for Scotland, any funds spent by his Party's Ministers will come out of the Party funds?
Lord KIRKHILL: My Lords, the policy of devolution is Government policy.
6.45 p.m.
Lord CAMPBELL of CROY: My Lords, we may get a further opportunity on other Amendments connected with the referendum to pursue that particular point. I should like to come back to the Amendment which I moved, I am glad that it has given the opportunity to the Government to tell us at least three things; first, that they intend to have one order only under Schedule 17 rather than two or more. Secondly, that it is not the intention of the Government to provide funds to both sides in the referendum, as was done with the EEC referendum. Thirdly, that they are not prepared to give any minimum number of weeks, and to simply say that a reasonable period will be allowed between the order being made and the referendum date. It is clear that we on this side are not satisfied with that last answer.
It is clear, as the noble Lord, Lord Shinwell, pointed out, that the Government may well want to get the referendum over as soon as possible, and that is exactly what we fear. They may allow what, to those who are compaigning in the referendum, would be regarded as far too short a time to have a campaign. We think that there should be a minimum number of weeks written in, in the same way as there is for a General Election; not necessarily the same number, three. We have put in six because we thought that that was reasonable.
The result of this debate is that it is perfectly clear to us that the Government are contemplating a campaign period of less than six weeks, otherwise they could have accepted this Amendment, or given us some indication of another period. They will persumably have an opportunity if we pass this Amendment to convince another place that four weeks is reasonable, but we think that some period should be put in.
I would only refer to the point that came up at the end about the terms on which Ministers would campaign. It is well understood how Ministers take part in a

1033
General Election campaign; that is, that they cannot use Government cars, and when they go and stay in places to speak they stay at their Party's or their own, expense. This is well understood. There may be occasions when the journey is combined with an official duty, but the principles are perfectly clear in Whitehall and understood. I would hope that they would be observed by Ministers in this referendum campaign, particularly as we have been told that there will be no financial assistance to either side. I wanted information on that. I do not dissent from it. But, now we know that, it will be important that Ministers follow the normal rules during this campaign that are understood and followed at General Elections.
I think that the other place should have an opportunity to consider this matter, and to consider whether there should be a minimum period, and, if necessary, to put in another period of less than six weeks. If we send them this Amendment,
they can consider the subject and send us back a different Amendment if they wish to. If we do not pass this Amendment, we will not give another place the opportunity to discuss this matter at all.
As I said earlier, we prefer this Amendment—I shall not repeat the reasons again—to the one already spoken to by the noble and learned Lord, Lord Wilson of Langside. His object is similar to ours, but we think that our Amendment is more precise and certainly is less vulnerable to the criticism of the noble Lord, Lord Kirkhill, that it is much too long, because he has 12 weeks written into his Amendment. I would ask your Lordships to support the Amendment in the names of my noble friend Lord Drumalbyn and myself.
6.48 p.m.
On Question, Whether the said Amendment (No. 197B) shall be agreed to?
Their Lordships divided: Contents, 81; Not-Contents, 63.

CONTENTS

Abinger, L.

Drumalbyn, L.

Orr-Ewing, L.

Alexander of Tunis, E.

Dundee, E.

Porritt, L.

Allerton, L.

Eccles, V.

Rankeillour, L.

Amory, V.

Elton, L.

Reading, M.

Ampthill, L.

Emmet of Amberley, B.

Redesdale, L.

Auckland, L.

Faithfull, B.

Rochdale, V.

Avon, E.

Ferrers, E.

Ruthven of Freeland, Ly.

Balerno, L.

Fortescue, E.

Sandys, L.

Balfour, E.

Gainford, L.

Selkirk, E.

Belstead, L.

Glendevon, L.

Sharples, B.

Brooke of Ystradfellte, B.

Gray, L.

Skelmersdale, L.

Campbell of Croy, L.

Hailsham of Saint Marylebone, L.

Somers, L.

Carrington, L.

Strathclyde, L.

Clitheroe, L.

Halsbury, E.

Strathcona and Mount Royal, L.

Cockfield, L.

Hanworth, V.

Strathspey, L.

Collison, L.

Kilmarnock, L.

Sudeley, L.

Colwyn, L.

Kinross, L.

Swinfen, L.

Cork and Orrery, E.

Lauderdale, E.

Tenby, V.

Cottesloe, L.

Long, V.

Torphichen, L.

Craigavon, V.

Lyell, L.

Tranmire, L.

Craigmyle, L.

Mancroft, L.

Trefgarne, L.

Crathorne, L.

Massereene and Ferrard, V.

Tweeddale, M.

Crawshaw, L.

Monson, L.

Tweedsmuir, L.

Cromartie, E.

Mowbray and Stourton, L. [Teller.]

Vernon, L.

Cullen of Ashbourne, L.

Vivian, L.

Daventry, V.

Newall, L.

Ward of North Tyneside, B.

de Clifford, L.

Northchurch, B.

Wilson of Langside, L.

Denham, L. [Teller.]

Onslow, E.

NOT-CONTENTS

Ardwick, L.

Chitnis, L.

Gaitskell, B.

Aylestone, L.

Collison, L.

Gardiner, L.

Bacon, B.

Crook, L.

Glenamara, L.

Beaumont of Whitley, L.

Davies of Leek, L.

Gordon-Walker, L.

Boston of Faversham, L.

Donaldson of Kingsbridge, L.

Hale, L.

Brockway, L.

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

Hamnett, L.

Champion, L.

Evans of Hungershall, L.

Hampton, L.

Harris of Greenwich, L.

Mackie of Benshie, L.

Shinwell, L.

Hatch of Lusby, L.

Maelor, L.

Stedman, B.

Henderson, L.

Murray of Grevesend, L.

Stewart of Alvechurch, B.

Hood, V.

Norwich, V.

Stone, L.

Houghton of Sowerby, L.

Paget of Northampton, L.

Strabolgi, L.

Jacques, L.

Parry, L.

Tanlaw, L.

Janner, L.

Peart, L. (L. Privy Seal.)

Taylor of Blackburn, L.

Kirkhill, L.

Phillips, B.

Taylor of Mansfield, L.

Lee of Newton, L.

Plant, L.

Walston, L.

Llewelyn-Davies of Hastoe, B. [Teller.]

Rhodes, L.

Wedderburn of Charlton, L.

Rochester, L.

Wells-Pestell, L. [Teller.]

Lloyd of Kilgerran, L.

Seear, B.

White, B.

Longford, E.

Sefton of Garston, L.

Wigoder, L.

McGregor of Durris, L.

Segal, L.

Winterbottom, L.

On Question, Amendment agreed to.

Resolved in the affirmative, and Amendment agreed to accordingly.
[Amendments Nos. 198B and 198C not moved.]
6.57 p.m.
Lord WILSON of LANGSIDE Lord WILSON of LANGSIDE moved Amendment No. 198D:
Page 95, line 17, leave out ("and")
The noble and learned Lord said: My Lords, I think it will be for the convenience of the House to discuss at the same time Amendment No. 199, and I can be brief in dealing with this matter. Noble Lords who heard the discussion in Committee will know that the object of Amendment No. 199 is to give a vote in the referendum to Scots whose domicile is in Scotland but who are resident elsewhere in the United Kingdom. As matters stand, the many Irish and the considerable number of English people in Scotland will have a vote on this matter, but the many domiciled Scots resident outside Scotland will be denied a vote in this, the most important constitutional measure Scotland has had to consider since 1907.
The choice of domicile, not unexpectedly, was subjected to some criticism in Committee: The alteration I have made to the Amendment, which I hope might meet part of that criticism, is to give a vote to persons of voting age whose domicile is Scottish and who have furnished such proof of domicile as should be required by order and have registered their names with the Secretary of State.
It seems to me that it would not be beyond the wit of the Secretary of State to make a simple order which would provide for an easy means of proof as to the domicile of the claimant to a vote. However, if this view is not expressed by your Lordships, I would hope that the Government might show more interest in
1036
this disfranchisement which is a serious injustice, and which is felt to be an injustice by large numbers of Scots.
I have tried to find some other way to test the matter, but with my limited resources I have been unable to do so. I wish that I could have been aware of some consciousness in the Government that this was a real injustice, on which people felt strongly, and to which some thought should be given. At the Committee stage the noble Lord, Lord Mackie of Benshie, made jokes about this question, and they were very good jokes, as his jokes always are. However, this is a serious matter, and I should like to be assured from the Government—even if the Amendment is not pressed to a conclusion—that they will at least look at the matter and consider whether something can be done. I beg to move.
Lord TANLAW: My Lords, this question of domicile was raised at the Committee stage, but it is necessary to return to it again. The noble and learned Lord, Lord Wilson of Langside, says that he considers it should be quite simple to have a proof of domicile. The matter of domicile is used in the Inland Revenue for various tax affairs. Domicile is almost impossible to prove or define for tax purposes which, after all, affect us directly through our pockets, and thus every effort is made, on the one hand by taxpayers to try to reduce their tax, and on the other hand by the Inland Revenue to try to increase the amount of tax. Many tax cases fall down on the question of the definition of "domicile", which I understand is not a proper legal term.
It may be interesting to note that in considering domicile various questions are asked. A person may be asked in which country he intends to be buried. He may also be asked in which country he was born. I can see many problems

1037
arising over the question of domicile, and I do not believe—as the noble and learned Lord, Lord Wilson of Langside, seems to believe—that there can be an easy method of proof in order to check quickly whether or not a person is domiciled in Scotland.
For instance, there are, I understand, a number of noble Lords who rent shooting lodges or stretches of the excellent salmon rivers in Scotland during part of the year, and they may well claim that they are part domiciled in Scotland—or indeed they may like to be. There is another problem which the noble and learned Lord, Lord Wilson, has not touched upon. This involves those persons of English domicile who are resident in Scotland. Are they to be denied a vote? Are they to have any relevance in the Assembly? There is no mention made of them. If we go one way with the Amendment, we must go the other way, too.
Matters may be complicated a little further when one asks, what is the position of the clansmen? They are the most fervent Scots throughout the world, and I understand that a number of them are encouraged to purchase small parcels of land in Scotland so as to retain a link with the homeland. If there is to be this simple proof of domicile, as described by the noble and learned Lord, Lord Wilson, I believe that ownership of land in Scotland may entitle people such as clansmen to have a vote, regardless of where they live. Indeed, it may be asked, why should they not have a vote? If the argument of the noble and learned Lord, Lord Wilson, is taken a little further, it may be considered that these clansmen are linked by blood to the heritage of Scotland and that, regardless of where they live, they should have an interest in the Assembly, especially if they own a small parcel of land in Scotland, as some of them do.
This is an interesting Amendment, but I do not consider that it should be included in the Bill at all. The Bill is already complicated enough, and I would go so far as to say that the Amendment, if passed, could be very damaging to the Bill. I think that the noble and learned Lord, Lord Wilson, knows in his heart of hearts that the question of domicile, if taken to the ultimate conclusion of definition which he requires, could well destroy the Bill.
Lord KINROSS: My Lords, as I said at the Committee stage when speaking on a similar Amendment proposed by the noble and learned Lord, Lord Wilson of Langside, I have great sympathy with the intention of what is proposed here. Only a week ago I received a letter from an old friend who is a true Scot, and a son of a late Lord Provost of the City of Edinburgh. He asked whether he could get a vote in the referendum on what he described as "this disastrous devolution Bill". He lives in South Africa, and the Amendment is not designed to help him; but the question which he raises is being asked by many expatriate Scots living in the United Kingdom.
Establishing a domicile is not always easy, but it may be possible, under the proposed Amendment, to provide for statutory declarations to be made on a prescribed form in order to give all the answers required to decide a person's domicile. On the other hand, the difficulties involved in this are enormous. There would be, for instance, the question of how the expatriate Scot will be informed of his rights; from where he will obtain a form in order to make a statutory declaration; before whom he must take the form; and, more importantly, who will adjudicate upon the declaration. I doubt whether this would be a practical proposition.
As I have suggested to my friend in South Africa, all expatriate Scots who wish to influence the decision of the referendum should communicate with friends who are on the voters roll in Scotland, whatever their nationality or domicile—they may be English, Irish, Welsh, Australian, Indian, Canadian, West African, or any other nationality—and encourage them to exercise their vote in the referendum against the Bill when it becomes an Act. In this way they would no doubt influence people to vote who might not otherwise do so.
The Earl of ONSLOW: My Lords, the Amendment shows up yet again some of the faults in the Bill. As Government Ministers have said, the Bill is for devolution for those who live in Scotland, not for Scots. This seems to be slightly odd. If you are a Sikh living in Glasgow you can say what is to happen in Scotland, but if you are a Scot living in Hartlepool you cannot. I can see the difficulties regarding

1039
domicile, but I do not know how to get round them. This question goes to show that there are even more difficulties and idiocies in the Bill.
The LORD CHANCELLOR: My Lords, this matter was discussed in Committee, and what has been said by some noble Lords this evening—certainly by two noble Lords in most specific terms—has underlined what became clear in the last discussion; namely, that the difficulties in the way of meeting the undoubted, and proper, desire that those with Scottish connections should have the right to vote by building upon the doctrine of domicile are, frankly, insoluble.
The noble and learned Lord, Lord Wilson of Langside, has hoped, by the terms of his Amendment, that a magic wand could have been wielded, and some machinery could have been provided which could have been embodied in a order so as to have eliminated, or at any rate substantially reduced, some of the difficulties involved in relying upon the law of domicile. We have looked at the various possibilities. There could be an artificial limitation which could probably cause more sense of grievance than if the matter remained as it is, and I regret to say that we have found no means of meeting the difficulties which are presented by building upon the law of domicile. We take comfort from the fact that the test of residence means that at any rate those most affected by this legislation—namely, those living in Scotland—will have the right to vote. I am sorry that I cannot take the matter further. We are not lacking in sympathy for the problem which arises, but the difficulties in the way have proved insurmountable.
Lord WILSON of LANGSIDE: My Lords, I am grateful to the noble Lords who have spoken on the Amendment, and I am particularly grateful for what the noble and learned Lord on the Woolsack has said. In the circumstances, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
[Amendment No. 199 not moved]
7.10 p.m.
Lord CAMPBELL of CROY Lord CAMPBELL of CROY moved Amendment No. 199A:
Page 95, line 25, at end insert—
("3A. Every person entitled to vote in the referendum shall, on request made in person or by post at least seven days before the referendum date, be supplied with one free copy of the Scotland Act 1978.").
The noble Lord said: My Lords, I beg to move Amendment No. 199A, which is seeking to discover what the Government intend to do in order to inform the public in Scotland what the referendum is about. The question on which they will have to take a decision, as the Bill stands at present, is:
"Do you want the provisions of the Scotland Act 1978 to be put into effect?"
When the campaign starts, many will say, "What are the provisions of that Act?", and I now ask the Government what their intentions are with a view to enabling the public in Scotland to be informed of those provisions. Do they expect to leave it simply to the media—to the Press, the television and other forms of public communication? If so, then the different organs of the Press are likely to pick out what they think are important points, or concentrate on particular items in the Bill if they happen to be in favour of them or against them.
Another possibility would be for the Government themselves to produce some small readable summary of the Bill; but, then, one would have to be sure that there was a referee to judge whether it was a summary, and was not slanted favourably or unfavourably. There has been only one previous referendum in Britain, and that was not upon a single document and its provisions. In that case, the Government assisted each side in the campaign to produce its views, which were circulated. The Government provided the money and, I think, printing assistance for that. So these are all possibilities, and we ask the Government what is in their minds.
Behind this Amendment is the basic right of a citizen to know what he is being asked to vote upon. Most of the population may well be content to accept the reports they see in the Press or elsewhere, or to attend meetings; but there will undoubtedly be many citizens who may insist upon seeing what they are being asked to vote upon. After all, it is rather like reading a document before you sign it. They may be only a handful of people in Scotland compared with the 5 million population and the perhaps 3½ million or so entitled

1041
to vote. None the less, there may well be a group of people who will insist that they should have access to the Bill, and not have to go to a library to see it. What I am suggesting in this Amendment—which, of course, as I say, has been put down as a probing Amendment—is that one free copy of the Act should be available on request. That would not be universal distribution, which would be expensive, but at least it would meet the right of the citizen to know what he is voting about. I beg to move.
Lord WIGG: My Lords, I can stand the citizens of Scotland being given a copy of the Act, and I do not mind very much if the Government intend to indulge in propaganda, as has been made clear to us tonight, in order to get the referendum going the way they want it to go. But there is one thing I cannot do without protest, and that is to accept any suggestion that it is going to be left to the media, by means of the BBC, to be impartial. We had an opportunity to judge the BBC's impartiality in the referendum on the Common Market—a once-in-a-lifetime experience. What the BBC will do, of course, as loyal undercover members of the Tory Party, is endeavour to form a judgment of what is in the interests of the Conservative Party at any particular moment. Knowing Mr. Trethowan and his Lobby days, that is only what you would expect; that is what I anticipate happening, and that is what I protest against. The "impartiality" of the BBC, except on a few what I would call shop-window issues, is something I cannot stand. I would much prefer to let the Government have propaganda and to supply funds to the Conservative Party for propaganda, and to any other groups that want to do this. But let us have it open, frank and honest: do not let us have it behind a cloak, a smoke-screen, of impartiality which is nothing of the kind.
This Bill, from beginning to end, is a political measure introduced by the Government to meet their political convenience at a given point in time and, if I may say, without much forethought of what the possible consequences may be. It is not a bad Bill; it is an unworkable Bill, and sooner or later the full consequences of what this Bill can do will become evident, not only to the people of Scotland but to the people of the
1042
British Isles. That in itself is bad enough, but for it to be wrapped up in a veneer of, if I may say so, sugary propaganda disguised as impartiality—that I cannot stand, and I am taking this opportunity to protest against it.
Lord KIRKHILL: My Lords, we are nearing the end of the Report stage, and I was pleased to hear the noble Lord, Lord Campbell of Croy, make plain that his was a probing Amendment, because I could not think that he was being as serious as he usually is. Let me point to some of the difficulties which appear to me to suggest themselves as a result of the noble Lord's Amendment. First, the Bill costs £1·75, and the Act might cost more if all your Lordships' Amendments are accepted by the other place. If 50 per cent. of those entitled to vote ask for a copy, the cost will be about £⅓ million, plus the postage and the packing. No account of this was taken in the costing of the referendum. It is, of course, unlikely that anything like 50 per cent. of voters would ask for a copy. Those who really wanted to obtain a copy and thought that it would be of value would probably pay the £1·75 for the Bill. Others might, as the noble Lord, Lord Campbell of Croy, himself suggested, seek one free on loan from the public library. Secondly, the Amendment is less than helpful about who is to receive and respond to the requests for copies of the Bill, Thirdly, a request is to be met only if it is made by someone who is entitled to vote. This entitlement would need to be checked against every request; and, of course, the question then arises as to who would be given the task. Certainly electoral registration officers would not welcome it, and I do not think could reasonably be asked to undertake it.
Despite the protest of the noble Lord, Lord Wigg, the Government believe that the media will give more than adequate coverage to the referendum campaigns in the newspapers, on radio and on television, and that this coverage will enable the electorate to grasp the issues involved in devolution, and to reach a view on them. The easiest way to do this is not, as I am sure your Lordships will agree, to read a copy of the Bill. As I said in the last debate, the Government will, of course, be campaigning for a "Yes" vote, but we have made no proposals for the issue of special explanatory material. As I said then,

1043
there can be no doubt that in the run-up to the referendum the media will give publicity to the issues involved, and, again despite the protest which the noble Lord, Lord Wigg, has just been making, will give coverage to both sides of the argument. The Government's view is that the Scottish electorate will be well informed of the issues before voting in the referendum.
The Earl of SELKIRK: My Lords, there would be no difficulty, surely, about circulating copies. All the Government have to say is that there will be a free issue of copies of the Scotland Act. They need not worry about people asking for it from Cornwall or North Wales, because that will not happen. What will happen is that people will ask for them from Scotland. All that is required is a free issue; and those who are interested (mark you, very few people would understand it if they did read it) could get it.
The Earl of ONSLOW: My Lords, there is one point that the noble Lord, Lord Kirkhill, has overlooked. He has said that a copy of the Bill costs £1·75. Perhaps that is because only a comparatively few copies have been printed. If he goes into the economies of scale, I would suspect that the cost of the Bill would come down to fairly near that of a Penguin book, though admittedly not quite so readable.
Lord CAMPBELL of CROY: My Lords, this was an opportunity to hear what the Government's intentions were. I am sorry the noble Lord has told us so little. We realised that the cost of each Bill would be a lot, but because of the cost and the difficulties we felt we should know what the Government intended to do to inform the public. If, as the noble Lord has said, it is simply to be left to the media, the media may be taking their own particular view of the Bill. There is also the point, which the noble Lord has himself made, that if the Government are themselves campaigning strongly on one side in the referendum campaign, they cannot he neutral, or he regarded as neutral; they cannot themselves be the means of communication of the information in an impartial, non-partisan way. I can only say that what the noble Lord has said so far is unsatisfactory, but it has enabled us to get a glimpse of what the Government
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have in mind. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
7.21 p.m.
Lord CAMPBELL of CROY Lord CAMPBELL of CROY moved Amendment No. 200:
Page 96, line 12, at end insert—
("8A. The result of the referendum in each region and islands area shall be published as soon as is practicable after certification by the Chief Counting Officer.").
The noble Lord said: I beg to move Amendment No. 200. This would require the result of the referendum in each region and islands area to be published as soon as practicable after certification by the Chief Counting Officer. The Bill makes arrangements in Schedule 17 for counting by region and island groups. Separate figures will be available for each; but there is nothing in the Bill to indicate that anything but the total figure for the whole of Scotland should be made public. We must get an assurance from the Government that it is the intention to publish the figures separately. Separate figures were published for the 1975 referendum on the EEC.
We ought to be certain what has happened in the different areas. I think that it would be intolerable in Scotland for the figures to be known to be available (because counting is done by regions and island areas) but then to be withheld. The people in Scotland will want to know how the different areas have voted.
Lord KIRKHILL: My Lords, the Government have made it clear on a number of occasions that the result of the referendum will be announced by region and islands areas. The results of the EEC referendum were announced and published by region and islands areas, without need for any specific provision in the Referendum Act. I give a categorical assurance that the Government undertake to publish the result of the referendum by region and islands areas as soon as practicable after certification by the Chief Counting Officer. There it is, clearly on the record.
Lord CAMPBELL of CROY: My Lords, I am satisfied with that categorical statement. I do not think it is necessary, therefore, for me to do anything more than beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
7.24 p.m.
Lord MONSON Lord MONSON moved Amendment No. 200A:
Page 96, line 34, at end insert (" , BEARING IN MIND THAT ONE LIKELY CONSEQUENCE IS A REDUCTION IN THE NUMBER OF MEMBERS OF PARLIAMENT REPRESENTING SCOTTISH PARLIAMENTARY CONSTITUENCIES IN THE HOUSE OF COMMONS?").
The noble Lord said: My Lords, first, I think it is important to make it quite clear what this Amendment does not set out to do. It is in no sense a sly or underhand attempt to reverse or to challenge the verdict of your Lordships' House on our Amendment of June 7th which sought to reduce the number of Scottish seats to between 57 and 60 in the event of a Scottish Assembly coming into being. An overwhelming majority of noble Lords agreed with us—both in Committee and in the Report stage debate earlier this month—that a reduction in Scottish representation at Westminster in the event of devolution was either morally right, or inevitable, or both. Only the Government Front Bench dissented from this view. Even they have not always done so, as I hope to demonstrate in a moment.
Nevertheless, despite this strong consensus that a reduction in Scottish representation is both right and inevitable, many noble Lords felt that it was perhaps unwise to try to codify the reduction in the precise way that our Amendment sought to do in advance of the Speaker's Conference, supposing that the latter ever takes place. Accordingly, the House rejected our Amendment, as modified by that of the noble Lord, Lord Harmar-Nicholls, and the noble Lord, Lord Ellenborough, by a ratio of 5 to 3. Of course, we accept that verdict, which the present Amendment does not seek to challenge. What it does is to seek to put before the Scottish electorate the absolute inevitability of a reduction in the present representation as Westminster in the event of an Assembly being set up, as noble Lords on all sides of the House have shown themselves to be well aware; so that the Scottish electors will know the truth, the whole truth and the options that face them before rather than after they decide how to cast their votes in the referendum.
My Lords, before going on to exactly why a reduction is inevitable in the event
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of the Assembly being formed, I must dispose of one anticipated objection to this Amendment which I suspect will be on these lines: that one ought not to complicate the referendum question by explaining in précis or condensed form the main points of the Bill (or the Act, as it then will be) within the format of the question. This was the objection to certain Amendments which were moved in another place, and also to that of the noble Earl, Lord Perth, which was moved in Committee.
I believe those objections to be valid. If you start to explain the Act itself, where do you draw the line? Which aspects do you emphasise or highlight, and which do you play down or neglect? In contrast, the virtual certainty of a reduction in the Scottish representation at Westminster (which is what this Amendment is about) is not written into the Bill at any point. Nevertheless, it is an inevitable consequence of the formation of the Assembly, and it would be utterly immoral to pull the wool over the eyes of the Scottish people by pretending otherwise and to fail to make clear in the referendum question the consequences of a "Yes" vote.
The word "inevitable" is the key word here. The noble Marquess, Lord Tweeddale, sought in Committee to preface the referendum question with the words: "Appreciating that it may lead to the break-up of the United Kingdom". Sympathetic though I was to the noble Marquess's point, the break-up of the United Kingdom, while a possible consequence of the Act, is not a probable one. By contrast, a reduction in the Westminster representation is not so much a probable consequence as an absolute certainty, whether in the short term or in the long term. In fact, it is by far the most certain consequence or side-effect of the setting up of the Assembly.
Most noble Lords are well aware why this is so; but perhaps it is worth repeating. Apart from the fact that fair-minded Scots—and they form the majority of the Scottish people—agree that equal representation with England is a fair price to pay for devolution, as has been evidenced by speeches here, leading articles in the responsible Scottish Press and so on, the main reason is that the English people, who form 83 per cent. of the

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population of these islands, simply are not going to stand for the status quo in the event of devolution; and, unless this country becomes a dictatorship, which is highly improbable, their will is bound to prevail in the long run, even if not in the short run.
My Lords, the Government perhaps are relying overmuch on what has been described as the chronic and obsessive English middle-class guilt to bail them out. Luckily, this is a minority neurosis which is not shared by the more robust elements in English life. The Government simply cannot rely on these vague and all-pervading guilt feelings to keep the English supine and acquiescent. We all know and subscribe to the maxim: "No taxation without representation!" The corollary of that is, "Less taxation with inadequate representation!" That is what the English will start justly to demand if fair representation for all parts of the United Kingdom is not going to be produced after devolution becomes a reality.
The Government in their unguarded moments fully recognise this. Thirteen days ago the noble Lord, Lord Ellen-borough, described to the House how Mr. John Smith two or three years ago and the noble Lord, Lord Wells-Pestell, about 15 months ago, had both conceded that a reduction in Scottish representation would have to come about if devolution occurred. As for the Liberals, who favour Kilbrandon yet are chained by the "Lib-Lab" pact, their professed view is that a reduction in Scottish representation must come about, but not until devolution is seen to be working successfully. I hope that I have fairly summarised their view. Obviously, the Liberals expect it to work successfully and, therefore, one can take it that while they are happy to allow their English constituents—particularly those in Devon and Cornwall—to remain heavily under-represented as compared with similar, with comparable, Liberal constitutencies in Scotland during the rest of 1978 and 1979, they will vote to put things right at some time in the early 1980s.
As for the Conservatives, the overwhelming majority of Back-Benchers undoubtedly accept the necessity and desirability of fair representation for the English, as was made clear in this House by so many admirable speeches from the
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noble Lords, Lord Strathclyde, Lord Forbes, Lord Ellenborough, the noble Earl, Lord Lauderdale, and a great many others; and an even greater proportion maintain strongly that the full facts should be put in front of the Scottish people before they make their choice.
The Conservative Front-Benchers, both here and in the other place, are a little more cagey, which is a pity; because boldness often pays dividends. However, I believe that tacitly they subscribe to the same beliefs as we do in this matter. They would hardly have initiated the Speaker's Conference Amendment and pressed it to a successful Division if they had not thought that it was likely to lead, at any rate, to some reduction in Scottish representation at Westminster. Otherwise it would simply be a pure waste of everybody's time. As it happens, our Amendment ties in neatly with, and complements, the Speaker's Conference Amendment. Furthermore, I understand that the Conservatives are strongly opposed to what used to be called "gerrymandering" but which since mid-1969 has been known in Conservative circles, I believe, as "Callamandering". If Scottish representation were to remain unchanged after devolution, we should effectively have "Callamandering", "gerrymandering", or whatever one cares to call it.
As to the details of this Amendment. the wording is rather long but necessarily so in order to make the message quite clear and unambiguous to even the least politically inclined. Although we contend that a reduction in the representation is a certain consequence of the formation of an Assembly, we have used the word "likely" rather than the word "certain" so as to obviate any charge of bias, or of loading the question emotively. In the same way, we have tried to make our rider to the referendum question as calm, as neutral and unemotive as possible by ensuring that it appears as a suffix rather than a prefix to the main question.
In the event of your Lordships accepting this Amendment, I need hardly say that there is no question whatsoever of our insisting upon it, should the other place decide to reject it. It is not the kind of Amendment on which we wish to take a stand. However, it will give the other place an opportunity 10 discuss this issue which they have not had a chance to do

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before. Those Members representing English constituencies can make their feelings known; while, on the other hand, those who believe in all sincerity that the right thing to do is to keep the matter swept under the carpet will have the chance to put their arguments which, for all I know, may be far better and more soundly based than we have given them credit for. It seems unfair not to let them have this opportunity. It will also give the English Press—national and provincial—a chance to take up the cudgels on behalf of their readership.
We contend, to quote the words of the noble and learned Lord, Lord Hailsham of Saint Marylebone, speaking in Committee on 11th April, that the Scots "must know what they are buying", before they cast their referendum vote. I know that the vast majority of your Lordships agree with the noble and learned Lord in this matter, and I trust therefore that you will lend your full support to this Amendment. I beg to move.
Lord WIGG: My Lords, I will detain your Lordships for a very brief time. I support this Amendment because I believe, as the noble Lord, Lord Monson, has said, repeating Lord Halisham's words, that it is essential that the Scottish people should know what they are buying. If they wake up to find that they have been beguiled into the acceptance of a proposition, the consequences of which only become known to them post-facto, there will be the most violent reaction. This will be not only in Scotland, but there will be reaction, I fear, in England when the full consequences of the redistribution of power are appreciated. That is inevitable if one devolves power to Scotland; ultimately there must be readjustments in other parts of the Kingdom, and those parts which at the moment feel that they are under-represented, The noble Lord, Lord Monson, mentioned Cornwall and Devon. That kind of movement will add to my major fear that this Bill—even if one accepts that it was introduced for the most noble reasons, and was most carefully thought out—is going to produce strains and stresses which will affect the unity of the people of these islands. That is a price that I am not prepared to pay, and it is the reason why I have maintained
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my opposition to the Bill from the Second Reading onwards.
I do not suppose many of your Lordships will accept these words as perfect. I will not advocate that they are perfection; but I do say that it is absolutely essential that some method should be found whereby the simple truth of what this Bill is about, and what its consequences are likely to be, must be made available to the Scottish people.
I was not enthusiastic about the Amendment of the noble Lord, Lord Campbell of Croy, when he suggested that the Scottish people should have a free copy of the Act, on application. If they had a free copy of the Act, even if it was personally delivered by the Prime Minister, it would not add much to their knowledge because I am not absolutely sure that the Government have thought devolution out even to the present stage. I am quite certain, as I have indicated at other stages of the Bill, that it is obvious that considerable parts of the Bill have been printed without much serious thought behind them.
If the Opposition Front Bench can put down an Amendment which requires the issue of a free copy of the Act and accepts the Amendment's rejection, not necessarily with enthusiasm but without protest, I should have thought that it was not asking them very much to support the happy thought behind this Amendment. This Amendment is an effort—and has been put down solely for this reason—to bring the simple truth home to those who vote in a referendum that if one votes for the acceptance of the Bill, inevitably it must lead to the reduction in the voices which can be raised on behalf of Scotland at Westminster. That is the simple truth and that fact ought to be brought home. This Amendment is designed to do just that and no more.
7.35 p.m.
The Earl of ONSLOW: My Lords, I have added my name to this Amendment for exactly the same reason as the noble Lords, Lord Monson and Lord Wigg, have said. The terrible sadness throughout this Bill is that Her Majesty's present advisors do not understand that the English people will get angry. They do not understand, and have made no effort to understand, that if England and Wales

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are governed by a Scots minority, there will be an explosion of discontent and disharmony.
This Amendment is about as mild a protest as can possibly be put in. It is not great law; it is not the law of the Medes and the Persians; but at least it goes some way. The Government have not understood, but I have a feeling that at least the Scottish Press have understood. The Scotsman had an extremely knowledgeable and fair leading article on this one issue. The Government have not understood, but it must be hammered home that the English will react enormously strongly if they feel that it is an unfair preponderant power given to a small minority of 15 per cent. of the population of the United Kingdom. That is why I support this Amendment.
Lord WILSON of LANGSIDE: My Lords, because I think it is important that a Scottish voice should be heard in support of this Amendment, I should like to add mine and say only that.
Earl FERRERS: My Lords, whatever our views on devolution may be, many of us have a great deal of sympathy with those who have expressed, as has the noble Lord, Lord Wigg, concerned about the unity of the United Kingdom. There may be many people who share the sentiment behind the particular Amendment; that is, that if there is devolution there should be a smaller representation of Scottish Members of Parliament at Westminster. When the noble Lord, Lord Monson, said about the Conservative Front Bench that he was not certain what they thought, and that boldness pays dividends, perhaps I could be bold and say that with the greatest of respect I think that this Amendment is a nonstarter.
The one essential about any referendum is that it must be simple. The question is simple. Before, when it was originally in another place and as published, the question was complicated. At least it has now become simple. The other point about any question is that it must not be loaded. This one is charged with dynamite and starts off by saying: "…one likely consequence…" is such and such. That is a mere figment of the imagination. It may be some people's opinion, but it is not everybody's opinion. One may share
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it, but to put this in a question and to say that this is what people have to vote on is a figment of many people's imagination and, in my modest judgment it would be wholly incorrect for such a loaded question to be put in the referendum.
The LORD CHANCELLOR: My Lords, I do not think that I need add a great deal to the words which have just fallen from the lips of the noble Earl, Lord Ferrers. We have thought it vitally important that the question put in the referendum should he neutrally expressed, whatever one's views, either for or against devolution, might be. There is a consensus developed about the need for that. This question, if I may say so—and I agree with what has just been said—is both complicated and loaded. It wants a "No" answer. I do not blame those who have passionately opposed devolution for trying it on, but it is quite the contrary to what a referendum question ought to be; namely, to put the issue neutrally and fairly to the people for them to decide.
Lord MONSON: The noble Earl, Lord Ferrers, extolled the virtues of simplicity. I agree with him, but the virtue of truth is even more important. I do not agree that the question is loaded. It is a factual question, and I am surprised that I and all those associated with this Amendment have not managed to convince the noble Earl, and indeed the Government, of the absolute certainty that sooner or later English public opinion will see to it that there is a reduction in Scottish representation if devolution comes about and an Assembly is formed. That is as certain as anything is in this world.
The Labour Party have talked a lot recently about liberalising the Official Secrets Act, though there has been far more talk than action in this sphere. So have the Liberals: indeed, the noble Lord, Lord Winstanley, has an Unstarred Question down for next Monday on this very subject. In other words, both tile Liberal and Labour Parties claim to oppose keeping the public in the dark without good reason. The Conservatives also say they believe in "telling people the truth". That was a phrase frequently used, I think, by Mr. Heath during 1973 and 1974. That makes it all the more inexplicable that the three Front Benches—we have not heard from the Liberals, but I assume they

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oppose it—should oppose this Amendment. I think that those of us who believe, if you like, in open government, have a duty to stand up and be counted. Therefore, I do not intend to withdraw this Amendment.
On Question, Amendment negatived.
Schedule 16 [Amendments of enactments]:
Lord KIRKHILL Lord KIRKHILL moved Amendment No. 201:
Page 84, line 8, after ("which") insert ("Group 23 in").
The noble Lord said: My Lords, this Amendment is a technical Amendment involving no change in policy. It is entirely consequential to the earlier technical Amendment, No. 115, to Schedule 10, which your Lordships have already approved. I beg to move.
Lord KIRKHILL Lord KIRKHILL moved Amendment No. 202:
Page 90, line 21, at end insert—
("THE NEW TOWNS (SCOTLAND) ACT 1968
26A. Section 47(4) of the New Towns (Scotland) Act 1968 shall have effect as if it provided for the appropriate Minister alone to determine the question whether land in Scotland of excepted statutory undertakers is operational land.")
The noble Lord said: My Lords, again, very simply, this Amendment is consequential upon Amendment No. 136 to Schedule 10, which we discussed and approved earlier. I beg to move.
Lord KIRKHILL Lord KIRKHILL moved Amendment No. 203:
Page 90, line 21, at end insert—
("THE TRANSPORT ACT 1968
26A. In the Transport Act 1968 the following shall be omitted:—

(a) in sections 7(2) and (7) and 8(2) and (5) the words from "and in" to the end;

(b) in sections 8(2) (where they first occur) and 29(5)(b), the words "and the Secretary of State acting jointly"; and

(c) in section 135, subsection (7).").

The noble Lord said: My Lords, this is an entirely technical and minor Amendment which is the last of a long series dealing with Sections 7, 8, 29 and 135 of the Transport Act 1968. I beg to move.
Lord KIRKHILL Lord KIRKHILL moved Amendment No. 204:
Page 90, line 23, leave out paragraph 27 and insert—
("27.—(1) In section 1 of the Development of Tourism Act 1969, in paragraph (a) of subsection (2), for the word "five" there shall be substituted the word "two" and the word "and", where it last occurs, shall be omitted.
(2) After paragraph (b) of that subsection there shall be inserted the following para-graphs:—

"(c) a member of the English Tourist Board, appointed by the Secretary of State;

(d) a member of the Scottish Tourist Board, appointed by a Scottish Secretary: and

(e) a member of the Wales Tourist Board, appointed by the person who, at the time of the appointment, is responsible for appointing members of that Board.".").

The noble Lord said: When your Lordships debated the Amendment tabled by the noble Lords, Lord Montagu of Beaulieu, Lord Ponsonby and Lord Amherst during Committee stage, I gave notice that the Government would lay an Amendment at Report stage about the membership of the board of the British Tourist Authority. The Amendment now before your Lordships is the Amendment to which I referred on that occasion.
I do not want to detain the House while I reiterate the Government's view on the role of the British Tourist Authority after devolution, nor the reasons for the present proposals in the Bill for a board of five members. This ground was well covered in Committee. Instead, I shall concentrate on the terms of the Amendment before the House. Having listened to the representations made by those concerned, and by noble Lords in this chamber, I would like to say that the Government are now convinced by the arguments in favour of a board of more than five members. In particular, we recognise the need for a larger board if the committee structure of the Authority is to he maintained. Nevertheless, the Government remain of the view that the national tourist boards should have an increased voice on the board of the BTA in line with their wider responsibilities after devolution. We do not therefore agree with the suggestion that the board should comprise 11 members: that is, a chairman, two members from each of the national tourist boards and four other members. This Amendment therefore proposes a membership of nine, comprising a chairman, two members from each of the national tourist boards and two other members.
In the Government's view, a board of this size will enable the BTA to discharge its functions effectively and man its subcommittees adequately, whilst at the same time recognising the increased role of the national tourist boards. I understand this Amendment is acceptable to the British Tourist Authority. It would be appropriate for me to give certain assurances about the continued use of the BTA for overseas promotion and about the additional national board members. Your Lordships will appreciate that I cannot give any undertakings about the arrangements which will be made by the Scottish and Welsh Assemblies with regard to tourist promotion. That would not be in line with the devolution of tourism, but I know that the chairmen of the Scottish and Welsh Tourist Boards recognise the value of the BTA's marketing activities through its network of overseas offices and its expertise in this field. I believe that the Scottish and Welsh Boards will wish to make greater use of the BTA's services after devolution, bearing in mind that the BTA will continue to receive its funds from the Government.
As regards the additional representatives of the National Tourist Boards I am sure they will, by virtue of the fact that they are members of those boards, have a strong interest in tourist matters. I am also sure that those responsible for the additional National Tourist Board appointees will take into account the importance of appointing persons with appropriate expertise and knowledge. I beg to move.
Lord KIRKHILL Lord KIRKHILL moved Amendment No. 204A:
Page 91, line 23, at end insert—
("THE LOCAL EMPLOYMENT ACT 1972
32A.—(1) In relation to a development area or intermediate area in Scotland, subsection (1) of section 7 of the Local Employment Act 1972 shall have effect as if—

(a) for the words "the Minister in charge of any Government department" there were substituted the words "a Minister of the Crown"; and

(b) the words "for which the department is responsible" were omitted.

(2) After that subsection there shall be inserted—
"(B) Where it appears to a Scottish Secretary that adequate provision has not been made for the needs of any development area or intermediate area in Scotland in
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respect of a basic service for which he is responsible, and that it is expedient with a view to contributing to the development of industry in that area that the service should be improved, he may make grants or loans towards the cost of improving it to such persons and in such manner as appear to him appropriate."
(3) In subsection (3) of that section before the words "to make" there shall be inserted the words "or of a Scottish Secretary".").
The noble Lord said: My Lords, this is a technical Amendment in respect of Section 7 of the Local Employment Act 1972. I have already described its purposes when introducing an earlier paving Amendment, No. 74A, to Schedule 5. There was also a paving Amendment to Schedule 11, No. 159A. I beg to move.
In the Title:
7.47 p.m.
Earl FERRERS Earl FERRERS moved Amendment No. 206A:
Line 2, after ("Scotland") insert ("and in the procedure of Parliament").
The noble Earl said: My Lords, there is a local expression which we have in Norfolk which says: "This is the one that we have been looking for". Indeed, it is the last Amendment and I would hope that therefore it would not be unduly controversial. It is really consequential upon an Amendment which your Lordships passed a little earlier in the Report stage. We passed an Amendment which suggested a method of procedure which another place might consider in order to overcome what is known as the "West Lothian question". As that was passed, it seemed appropriate that the Long Title should be amended accordingly. I therefore beg leave to move this Amendment.
In the interests of brevity, I would merely say that we are most grateful for the parts of the Bill which the Government, so far during the Report stage, have seen fit to amend. We are even grateful for those parts which the Government have not seen fit to amend, because of the courtesy which has been shown to our arguments.
The LORD CHANCELLOR: My Lords, I am most happy to say that the Government accept this Amendment, the final Amendment in this long and much fought-over Report stage of the Bill.

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We do so as consequential on the new clause which the House carried on a Division about the voting of Scottish Members of Parliament, as the noble Earl has just indicated. I should add, however, that no wider implications should be read into the acceptance of the new clause; but I am happy indeed that it falls to me, at the drawing of the curtain upon our deliberations on the Report stage, to say that we are in agreement.
Before I return to the Woolsack I should like to say this: I am nominally in charge of the Bill. Never has delegation been so substantial or, if I may say so, so successful as it has been shown to be through my four noble friends who have so gallantly borne the heat and burden of the day as the proceedings have gone on. There will, I hope, be further opportunities for paying tribute to them. I should also like to pay tribute to noble Lords on all sides of the House who have worked enormously hard in this Bill. It has been a most difficult Bill. The problems have tumbled down continually during its progress. While, speaking for the Government, I must express disappointment at some of the Divisions that were carried against the wishes of the Government, nevertheless I think a debt is owed to noble Lords in all parts of the House for the enormous assiduity and conscientiousness which they have applied to doing their best to improve the Bill during its progress on the Report stage in this House.
Earl FERRERS: My Lords, I am most grateful to the noble and learned Lord the Lord Chancellor for agreeing to this, the last Amendment. I was thinking what a pity it is that he performed such delegation as he has done, because, if this were to be his wont, then if he had not delegated so much we might have got even further. Who knows? But I am very grateful to the noble and learned Lord for accepting this Amendment, which is the last one on the Report stage.

PROTECTION OF CHILDREN BILL
7.50 p.m.
Report received.
Clause 1 [Indecent photographs of children]:
Lord HOUGHTON of SOWERBY Lord HOUGHTON of SOWERBY moved Amendment No 1:
Page 1, line 17, leave out subsection (2).
The noble Lord said: My Lords, when the Committee stage of this Bill was before your Lordships' House, I was in America looking, among other things, for that load of child pornography that, we were told, would swamp this country if we did not have this Bill to stop it. From the many inquiries that I made, it appears that some people here have a very exaggerated notion of the wickedness of the United States. Many of those to whom I spoke were incredulous that people here should believe some of the stories that seem to come across the Atlantic without foundation, but which stir up a feeling of emotion and fear which together account for this Bill.
I am moving this Amendment to delete subsection (2) of Clause 1. That subsection reads:
"For purposes of this Act, a person is to be regarded as distributing an indecent photograph if he parts with possession of it to, or exposes or offers it for acquisition by, another person".
What does the word "distribution" mean? I suggest that it is worth while looking it up in a dictionary, because, in my submission, the interpretation of the word "distribution" in this subsection is an affront to the use of the English language.
In a certain context, "distribution" can mean dividing for dispersal a number of portions of a commodity; or, in this context, the action of spreading abroad or dispersing to or over every part of a space or area. That, I think, comes closer to what we are talking about; that you distribute something, you cast it abroad and you spread it over an area. Usually, when you distribute something, you give it to more than one person. But this subsection proposes to make the handing of a photograph to another person "distribution" within the meaning of this clause. I think that that is quite wrong.
I have here in my possession some photographs which were the subject of a criminal conviction under the common law of Scotland. The Scottish common law is, presumably, adequate for Scotland and this is perhaps the main reason for excluding Scotland from the provisions of this Bill. In Scotland, the test is whether a photograph is lewd or libidinous and it

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may be, for all I know, that that description would amount to indecency in this country under the terms of this Bill. I cannot, of course, be sure, because nobody really knows until a case goes to court what will be regarded as an indecent photograph. All I am saying is that these photographs have been the subject of a conviction, and therefore one could work on a reasonable presumption that photographs, which were the subject of a conviction in Scotland might possibly—even probably—be regarded as indecent in this country.
I have been handing these photographs to some of my friends, to ask whether they think that they are indecent. I presume that if this Bill becomes law, and this subsection stays in the Bill, I can be open to prosecution for distributing these photographs. So that you cannot even offer them to a person whom you trust, for him to offer an opinion. I really do not think that the Promoters of this Bill know what they are doing. They do not know what they are saving up for some innocent people. I have been wondering whether to make myself the first guinea-pig under this Bill, if it becomes law, and to distribute something and see what happens.
I come to other parts of the Bill which relate to what kind of defence I could put forward, if charged with possessing or distributing an indecent photograph. But what I am suggesting in proposing to delete subsection (2) is to leave it to the courts to decide, in the normal use of the English language, what is "distribution" and what is not. I think that the reason why it is proposed to construe the word "distribution" as meaning handing to any other person is that the Promoters of the Bill are fairly sure that no court would construe that word to mean the same. It is to restrict the power of discretion of the courts to interpret the English language and to decide, in the light of all the circumstances, whether or not something amounts to distribution.
In my opinion, this subsection—and this applies to many other parts of the Bill—is full of the possibility of blackmail and corruption. Pornography in this country has corrupted far more policemen than it has children or adults. The corruption of the protection racket has been a scandal in London for years, and we have seen the prosecutions that have taken place in the
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last 12 months among the Porn Squad. Then we have that unspeakable chief constable of the Greater Manchester area, who puts out information about the proportion of child pornography in the raids which have been conducted by his Porn Squad officers, which he could not sustain when asked by the Minister of State to produce the evidence. That is all on the record of the debate on the Second Reading of this Bill in another place.
This Bill is surrounded by unhealthy attitudes and by vicious determination that, come what may, some evils in society must be put down, even though they create greater ones in the process. I feel, with all my strength and heart, that this is a bad Bill. I said during the Second Reading that Parliament has been subjected to a campaign of hysteria, emotion and pressure unexampled in my experience of nearly 30 years in Parliament.
During the course of the Second Reading debate—this is on the record, too—I showed your Lordships a cutting from the Catholic Herald which said: Women, your child is in danger. Bombard your MP. Don't write to him; don't approach him. Bombard your MP". And bombarded they have been. I regret to say that in my opinion this Bill was conceived in hysteria and came to a Parliament which was smitten by a degree of political cowardice.
What I regret is that Members of both Houses who have criticised this Bill as a nonsense and as a danger have not got up to say so. I was the only noble Lord during the Second Reading debate who expressed himself to be forcibly and implacably against this Bill. I do so again. When one reads the speech of the Minister of State in another place during the Second Reading of the Bill there and the speech of my noble friend the Minister of State at the Home Office during the Second Reading debate here, one wonders how on earth this Bill comes before either House of Parliament as a rational instrument for dealing with this small problem.
I hope that I can get some support for taking some of the nonsense out of the Bill. When lawyer friends of mine looked at the original Bill they said, "This Bill is a nonsense". The Bill is, of course, very different from its original state; it has been almost rewritten; certainly it has

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been substantially amended. But it is still a nonsense and, what is more, people in authority know it to be a nonsense. I want to take out of the Bill some of those things which, in my opinion, will be a disgrace to Parliament if they are left in. This is one of them.
Therefore I hope that this subsection can come out of the Bill so that the courts may be left to decide what is "distribution", within the usual construction of the word, having regard to the circumstances of any particular case. I do not think that that is an unreasonable thing to do, unless Parliament decides that it will tie people up in such a way that there is no escape.
Amendments to the Bill have been put down to leave out the proposal contained in the Bill that an accused person might enter a defence of legitimate reason for possessing a photograph. They want to take that out, or to confine it to showing that the photograph was not taken or possessed for the purpose of gain. Therefore this clause, and my Amendment of it, is related to other parts of the Bill which, taken together, constitute a form of tyranny and take us, in my judgment, one step nearer to a police State.
I shall come to this point later when I deal with who shall give a warrant for search and other matters relating to the conduct of searches: the right of entry—by force, if necessary—and the scrambling together of anything that the police like to lay their hands on. "Ah", but the Bill says, "with reasonable cause". Oh, yes; and off it goes. And if the stuff is not returned voluntarily to you by them, then you will have to go to the court to get it back. All this is part and parcel of the fabric of this Bill.
I shall conclude my speech on this Amendment with something that I read while I was in the United States. It appeared in The Times newspaper, and it excited a certain amount of interest in the United States. The Times newspaper of 30th May this year said:
"Girl aged eight named on American sex list".
There was a long column containing a speech made by a certain Mr. Thomas Price at a meeting of the National Association of Head Teachers in Brighton.
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He said that he was horrified to hear through a colleague that the name of a girl aged eight appeared on the list of a man arrested in Los Angeles for trafficking in porn. This girl lived in Manchester and was on the list as available for sexual activities. There was great consternation in Britain. A great whiff of hysteria spread across the land. The Americans could not believe it; and apparently nobody else believed it a few days afterwards, because a little paragraph appeared in The Times newspaper of 1st June—I was still in the United States when this happened—which said:
"Greater Manchester police said last night that the identity of the seven year old Manchester schoolgirl whose name and address was said to have been on an American list of juveniles available for unlawful sexual activities had been traced".
With what result?
"There is no evidence of the child's involvement in any illegal activity",
they said.
"Name probably came to be on the list after her mother had answered an advertisement in a British magazine for American penfriends".
So that was the end of that, and nobody produced any evidence to the contrary after The Times newspaper published its second instalment on 1st June. This is the kind of thing which is preventing the rational consideration of a Bill which involves some of the first principles of British jurisprudence, the behaviour of the police and the right of the citizen to protection from coercion, blackmail, harassment and other features of our system which, when imposed upon individuals, not only can be absolutely unjust but can cause a great deal of misery and humiliation.
That is by way of introduction to a number of Amendments which stand in my name on the Marshalled List, and I am content to leave it there for the moment. The immediate question, however, is the deletion of subsection (2) from Clause 1. I beg to move.
8.9 p.m.
Baroness FAITHFULL: My Lords, I wonder whether I might ask the noble Lord, Lord Houghton of Sowerby, one or two questions. First may I ask him whether he asked any Congressmen or members of the Senate when he was in the United States why they passed a Bill in February of this year as an Amendment to

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the Child Protection Bill in the United States? If this was not known to the people in the United States to whom the noble Lord spoke, may I ask him whether he spoke to Congressmen or to members of the Senate and asked them why they passed an amendment to the Child Protection Bill in the United States? Secondly, did the noble Lord contact the Odyssey Institute in New York which produced the figures and the statistics upon which the Bill, subsequently the Act, in the United States was passed? Thirdly, may I comment on the report of the Brighton meeting which the noble Lord mentioned. This has got nothing at all to do with the Bill. This Bill concerns the taking and passing round of photographs.
Lord SOMERS: My Lords, I sincerely hope that the House will not accept the noble Lord's Amendment. We all know of the zeal with which he seeks to protect animals from mistreatment. Apparently he does not hold the same feelings about children. He rather doubts whether this kind of activity, which this Bill seeks to prevent, actually goes on at all. I can only tell him that if he had really consulted those who know about such things he would have soon found that they do go on.
As to making us a police State, it is no more so than if he were to introduce and pass a Bill on hare coursing or some other such subject. Incidentally, I am not saying that I do not have a great deal of sympathy—your Lordships all know that I have—on that subject. But it is not my only subject. I think that children are even more important. I sincerely hope that your Lordships will not listen to him and take this as a kind of fancy Bill coming from someone's imagination, but will consider it as one based on absolute, solid fact which we can produce to anybody who wants to see it.
8.12 p.m.
Baroness GAITSKELL: My Lords, I have great sympathy with my noble friend Lord Houghton of Sowerby. I think that I shall support his Amendment. There is no comparison, I think. I am not a great expert on child pornography in this country. I dislike this Bill because it is based on the word "indecency", which seems to me a completely non-legal word—a ridiculous word. If I may say so, when Lady Faithfull showed me some of the pictures which she had that she thought
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were indecent, they were not very attractive. No, but they did not shock me. I do not think that anyone who has reached my age and lived a long life, and knows a little bit about life, will be shocked very much.
I wish only to add this. There is one thing I should like to say about this Bill in mitigation. It is possible that this Bill may frighten some of the pornographers or make them think again, and might stop the explicit pornography that people apparently see in newspaper shops. My son-in-law, who is a probation officer and keeps an eye on these things, says that he has noticed a slight falling off; that there is not so much of this kind of material today—we must give Lady Faithfull her due on this—maybe because of this Bill and perhaps because other Bills may come along. Personally I have no use for any of it. It do not know a great deal about it. But there is no doubt that to compare the pornographic trade here with that in America is really unfair. The trade is much worse in America. It seems to me that the people in this Chamber are very thin-skinned. They do not know what is happening in the world. They do not know what is going on in the world, and they are very shocked if they find out some of the facts of life.
Lord DE CLIFFORD: My Lords, the noble Lord, Lord Houghton of Sowerby, takes objection to the word "distribute" and says that it is a difficult word to interpret. I may have a very simple mind, but I should have thought that the word "distribute", with its normal meaning, was quite clear. One distributes one's newspapers. One distributes pamphlets and leaflets. Personally I can find nothing wrong with the word "distribute". I am quite sure that if one asked the courts to interpret it they would do so in a very normal manner which most people would understand.
Viscount BARRINGTON: My Lords, may I add one point? I sympathise enormously with, and admire and envy the eloquence of, the noble Lord, Lord Houghton of Sowerby, in opposing what he believes to be a thoroughly bad Bill. I tried to do the same in the remote past in the opposite direction. I wish I could do it as well as he. As we are talking about this particular Amendment,

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I should like to underline what was said about the word "distribute". If on a rainy day I were distributing, or trying to distribute, a pamphlet attacking hare coursing, which I should be perfectly prepared to do, I do not think it would make much difference if I managed to distribute 60 copies or if I distributed only one, because nobody would take them. The fact is that the poison, if it were poison, or the good, if it were good, would have got in. Surely, on the law of libel, or publishing libels, that is the essence of the matter. If one sends it to someone else it may go on. If it is a bad thing, it is bad. If it is a good thing, it is good. I cannot see that any better word than "distribute" could be used in this particular paragraph. I am not a lawyer, but I should be very glad to know if there is a better word.
8.16 p.m.
The MINISTER of STATE, HOME OFFICE (Lord Harris of Greenwich): My Lords, I shall, if I may, begin by agreeing with my noble friend Lord Houghton of Sowerby before coming to the point why we do not in fact recommend the House to accept this particular Amendment. The point on which I agree with my noble friend is this—the episode of the eight-year-old girl. I am bound to say, having looked at some of the Press cuttings, and then at a Press release issued by the Greater Manchester police, that I do think some very wild stuff appeared in the newspapers about this particular case. When the evidence was published it was quite clear that there was no truth in this particular story whatever.
I think it only right to refer to this particular Press release, because it was issued by the Force, by the Chief Constable of Greater Manchester, to whom my noble friend referred rather critically in his speech. There is no doubt that the Greater Manchester police, when this matter came to their attention—nd indeed it could hardly have failed to do so, given the size of the headlines in the newspapers—did carry out a most careful investigation. It is only right to recognise that, as I am sure my noble friend will agree. I shall quote what the Manchester police said in this public statement:
"Reports have recently appeared in the media about an eight-year-old girl, whose name was
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found on a list in the possession of a man arrested in Los Angeles, United States of America, for offences in connection with children. It was said that the circumstances were such as to suggest that the child might be available for unlawful sexual activities. The Greater Manchester Police have made enquiries and officers have interviewed the child and her mother. The mother is a respectable lady and her children are well cared for. There is no evidence whatsoever of the involvement of the child, who, in fact, is just approaching seven years of age, in any unlawful activity, sexual or otherwise".
The statement goes on to make a number of other points. Nevertheless, as my noble friend raised that, and in particular as he has referred to the Chief Constable of Greater Manchester, I think it only right to record the fact that this matter was most carefully investigated by the police. That is part of the statement which they issued at the conclusion of their inquiries.
On that particular point, as I indicated, I agree with my noble friend that some of the stuff which was published at that time did not bear a great deal of examination, when the truth was eventually disclosed. However, I am bound to say that I do not in fact find myself in agreement with my noble friend so far as this particular Amendment is concerned. In speaking to it, I should first like to say something about the kinds of actions which this Bill is designed to penalise. The Bill as introduced in its initial form contained the concept of production, which was defined in terms of:
"sale, agreement for sale, letting on hire, exposing, offering for sale, advertising, causing to be seen, display and dissemination".
The word "production" hardly seemed appropriate for these wider forms of dissemination and when, in Committee, the Government introduced a revised form of these provisions, we concluded that the general concept of "distribute" more closely described the kind of actions which the Bill was intended to cover, so long as it was defined in such a way as to embrace the same actions. There is nothing unusual about the law being framed to cover the kinds of act covered by subsection (2) of the Bill. The Obscene Publications Acts have a similar application, since the word "publish" is there defined in terms of circulating, giving and lending as well as selling and letting on hire. If we use the word "distribute" without giving the courts any clearer idea of what the Legislature meant to cover, the

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result may be a great deal of confusion about our intentions and the meaning of the Bill, and a great deal of wholly unnecessary litigation. Subsection (2) makes clear what "distribute" is to be taken as meaning and in our view is necessary to the Bill.
8.22 p.m.
Lord REDESDALE: My Lords, I hope your Lordships will forgive me for coming in late and rising at this stage. Unfortunately I was detained elsewhere. I am afraid I slightly take issue in absence and therefore I ask to be forgiven for coming in late on the debate. I am sure that the noble Lord, Lord Houghton of Sowerby, believes most sincerely in what he says. I know that he is very much more interested in animals than he is in children, and I think it would be a pity if he were to use the case of the eight-year-old child and other matters to try to show that this Bill was not as worthwhile as it really is. I felt that the way the noble Lord, Lord Harris of Greenwich, covered the point showed that it is necessary to define this matter. The point was extremely well made and from these Benches we entirely support the noble Lord's view.
Lord HOUGHTON of SOWERBY: My Lords, I believe that I have the permission of the House to make a brief reply, if that is conventional. The noble Baroness, Lady Faithfull, asked me whether I had done three things in the United States—whether I knew about the first, and whether I had seen institutional people and others who might be able to give information from some point of central knowledge. The answer to those questions is that I went there to talk to people in order to see whether they thought that their children were in danger in the United States, and whether they feared that they were going to swamp this country with child pornography. That was what I went to investigate; and to ask whether they had ever seen any themselves, and whether they knew where it could be found. One found there, as I am sure one would find here, that talking to a wide range of people there was little or no information whatsoever about what is supposed to be this pending danger and the swamping of this country in pornography.
Baroness FAITHFULL: My Lords—
Lord WELLS-PESTELL: My Lords, will the noble Baroness give way? I am afraid that on Report stage one can only speak once, other than the mover. I am sorry, but as the Whip on duty I am required to see that Standing Orders are obeyed.
The Earl of LONGFORD: My Lords, may I intervene to ask whether that ruling is to be regarded as authoritative? I do not imagine that the noble Baroness was going to make a speech. Surely the noble Lord is not saying that she is not even allowed to ask a question or rise to put a point in regard to the Amendment? I would defer to the noble Lord in the ordinary way, but surely upon reflection he will feel that he has been too severe on the noble Baroness.
Lord WELLS-PESTELL: My Lords, my understanding of Standing Orders is quite clear. I am in the hands of your Lordships.
The Earl of LONGFORD: My Lords, I must reiterate the point. Looking round, I see one noble Lord who has been here very much longer than I have, but I have been here longer than most and I have never heard it ruled that a Member could not even rise to his feet and ask a question. I must emphasise the point that it is nothing to do with speaking again, and it would be a very strange precedent if that were laid down.
Lord HALE: My Lords, I was howled down last time I tried to do it.
Lord GARDINER: My Lords, let us get the words of the Standing Order quite clear. If necessary we can appeal to the noble Viscount on the Woolsack to refresh our recollection, but the Standing Order is quite clear.
The Earl of LONGFORD: Can we have it read then?
The Earl of KINNOULL: My Lords, could not the matter be overcome—
Lord WELLS-PESTELL: My Lords, I think it is probably my responsibility as the Whip on duty. It is laid down that on Report no Lord may speak more than once to an Amendment except the mover of the Amendment in reply.
The Earl of LONGFORD: My Lords, that does not answer my point at all. Everyone knows what is meant by "speaking": it means getting up and making a speech. It has never been intended to apply to the asking of a question. It is quite ludicrous, if I may say so.
Lord WELLS-PESTELL: My Lords, I think it would be equally ludicrous if a Member of your Lordships' House were to get up a dozen times on Report simply because he or she wanted to ask a question.
The Earl of KINNOULL: My Lords, could the noble Lord not accept that if my noble friend used the words "with the leave of the House" that would overcome this small point?
The Earl of LONGFORD: My Lords, I do not think that is necessary in order to ask a question.
Lord HARRIS of GREENWICH: My Lords, clearly this matter will have to be gone into at some time in the future. I think it is within the recollection of the House that my noble friend Lord Hale is quite right that objections were taken when he intervened on a second occasion. Certainly now that my noble friend has raised this matter I think it is only appropriate that it should be gone into, and with my noble friend Lord Wells-Pestell I will arrange for that to be done.
Lord DE CLIFFORD: My Lords, I have been in your Lordships' House for some considerable time and there is a technicality which overcomes this difficulty. If the noble Baroness had waited until the noble Lord, Lord Houghton of Sowerby, had finished his speech, and then said: "Before the noble Lord sits down would he please …" she would then have been perfectly in order. I am not at all sure that she is at present.
Baroness FAITHFULL: My Lords, I think perhaps it is important that we get on with the main business of the Bill. Therefore I apologise to the House if I have contravened a Standing Order, and I will not speak again on this matter.
Lord HOUGHTON of SOWERBY: My Lords, I feel very embarrassed. I was in the middle of a brief reply on the
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Amendment. The Standing Order that has just been referred to puts me in order in that respect; but I must not trespass on the goodwill and patience of the House in these circumstances, so I will content myself by concluding with one further point. I was interested to read another piece in The Times which made a reply to the questions put by the noble Baroness when it said: "Britain said to be a big exporter" — exporter! — "of pornography"; and Commander Daphne Skillern, the head of Scotland Yard's Obscene Publications Squad, in making her first report after her appointment last year, referred to the likely export of quantities of pornography from this country. In regard to the imports of pornography she said that there was some very nasty stuff coming in from Europe, but it is interesting to note that throughout her report she did not once mention the United States of America. In my reference to the United States I was merely dealing with the threat which it was said was an imminent and a dangerous one, that we were going to have a lot of pornography from the United States; and I said that there was no evidence of it there and nobody gives any evidence of it here.
On Question, Amendment negatived.
[Amendment No. 2 not moved.]
8.30 p.m.
Lord HOUGHTON of SOWERBY Lord HOUGHTON of SOWERBY moved Amendment No. 3:
Page 1, line 22, at end insert—
("( ) Proceedings taken more than six weeks after a matter has been submitted to the Director of Public Prosecutions shall be ultra vires.").
The noble Lord said: My Lords, my Amendment requires the Director of Public Prosecutions to take proceedings, if he is going to, within six weeks of the matter being referred to him. Any proceedings taken after six weeks of the matter being submitted to the Director of Public Prosecutions would be ultra vires. That is my Amendment. Your Lordships may wonder why I want to hurry up the Director of Public Prosecutions. Many people not only seem to feel that the Director of Public Prosecutions is a great oracle, almost a Solomon, who sits in judgment on matters where doubts may exist as to whether or not proceedings may be taken, but also believe that he can

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deal with matters with reasonable dispatch. Experience shows that the Director of Public Prosecutions is as much subject to a load of work and pressure of cases as any other authority. He cannot determine the inflow of cases coming to his Department, and he is given only a limited number of staff and may be under the Government's guidelines, or indeed directions, as to expenditure on staff.
I do not want to make any criticism of the Director of Public Prosecutions in this debate, and will content myself by saying that anyone who served on the Royal Commission on Standards of Conduct in Public Life, where the Director of Public Prosecutions was closely concerned, was bound to be rather anxious as to the speed with which the Director of Public Prosecutions can dispose of cases. In many cases the matter will go to the Director of Public Prosecutions and he may take quite a long time to consider what should be done. Meantime, no action has been taken against the person to be charged and no publicity has been given to his position as a person under suspicion.
In these cases, however, usually preceded by a raid which is a matter of publicity within hours of being made, the police may go in, they have a warrant to search, they can make an arrest, the magistrate may remand a person without blame, and still leave the Director of Public Prosecutions to decide months ahead as to whether proceedings should be taken against him. Anyone with legal experience will know how this can happen. First, you are raided and stuff is removed; then consideration is given by the police or by magistrates as to whether a summons shall be issued to show cause why the material should be returned or be forfeited. Consideration may be given to whether a criminal charge shall be made.
All this takes time, and in the meantime any person in business as a bookseller, as a photographer, in commercial activities of one kind or another can be held in suspense. His business may be ruined, his shop may be cleared of stock, his camera may be seized, his films may go. Your Lordships have no idea what this can be like. It is all very well for the noble Lord on the Bench opposite to be smiling, but I wonder whether he realises what a traumatic experience this is for individuals
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who feel themselves to be innocent, and in many cases are.
I am saying that if the Director of Public Prosecutions is going to make a charge he should have a limited time in which to do it. Where conditions are such as I have described, as they are almost certain to be under this Bill, I do not think that is unreasonable. Make it eight weeks, if your Lordships wish, but I think that some limit of time should be included. We have put up with legal delays for far too long in this country. Our judicial system in some respects has become almost a scandal; for example, in the way in which people are remanded and not brought to trial for months on end and where in some cases no charge is made. I come later to who is going to give the warrant for a search, which is another important matter. I think we should put a limit on the time that the Director of Public Prosecutions should take to consider what he is going to do. I would accept any length of time which seems reasonable, but I do not think it is satisfactory to leave it absolutely open to the Director of Public Prosecutions to take weeks and months, and to my knowledge in some cases many months, before deciding whether to prosecute or not. That is not good enough especially, as I stressed earlier, as a great deal of publicity will have been given to the initial stages.
In this country now in a number of respects our Customs and Excise laws, our income tax laws, our obscenity laws, and this Bill if it becomes law, enables conviction in the public mind sometimes by being raided. It is long after the raid before anybody knows whether or not the person concerned has been guilty of any indictable offence. I think it is absolutely wrong that if people are going to be raided, if their shop or business is to be ruined by what the police may take away and which may be held for a long time and got back only by proceedings in court, when again the magistrate may order the retention by the police of the alleged offending material, the Director of Public Prosecutions may consider the matter for a long time and at the end of the day no charge may be made, or if a charge is made it is a long time after the initial suspicion of the guilt of the person. Therefore my proposal is to put a limit on the time in which the DPP can consider what he is going to do on a matter submitted to him under this Bill.
Viscount HANWORTH: My Lords, many of us think that the time it takes to bring the simplest case to trial is an absolute scandal. For example, even a case of exceeding the speed limit normally takes something like four months. Therefore I have some sympathy in principle with the Amendment moved. Nevertheless, I think many of us would feel less sympathy with people who are purveying pornography. One really feels that they might try to keep well within the law. I suggest that for those reasons this is certainly not the Bill to try to tighten up on the speed at which cases should be brought. There are far more important cases which the DPP should deal with more expeditiously, cases where one really feels that if a person has offended he might well ethically have kept further outside the law.
8.40 p.m.
Lord HALE: My Lords, I am as anxious to get home as the noble Lord in front of me, but I must remind him that once the point is taken that no one can speak after him then if he rises immediately on the moving of the Amendment nobody can speak at all. I want to make two or three remarks. The first is this: I used to regard myself as avant garde in these matters, whatever the words may mean. I have never supported censorship in any form. I do not like it, and I know that historically it has nearly always worked in a very deplorable way, highly moral works being brought under censorship and so on. All this is present. Further, I agree entirely with my noble friend Lord Houghton in his speculations—I will not say criticisms—about the Director of Public Prosecutions, who occupies a position peculiarly anonymous in the State, who exercises increasing power, who handles an enormous number of cases, and handles them partly in conjunction with Board of Trade investigations of immense length, partly under the instructions of the Attorney General or under the advice of the Attorney General. If my noble friend wishes to raise a question about the powers of the Director of Public Prosecutions and to what extent this business has now become so extensive as to have a vast, and perhaps not always competent, staff, these are issues which I do not think arise directly on this Amendment.
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May I remind my noble friend that the clause which provided that a prosecution should not be brought except with the authority of the Director of Public Prosecutions was introduced as an answer, in his absence, to an almost violent speech he made on Second Reading. This was introduced to meet his objections. It was introduced in joint consultation by my noble friend on the Front Bench and the noble Baroness who moved the Bill, to provide an immense measure of protection, to provide that no proceedings would be brought without his authority. And it may be that in many cases the Director of Public Prosecutions would be able to say quite quickly "I am not going to give permission for this". It is extremely important that he may have an opportunity of considering the matter very carefully if he is thinking of giving authority; in those circumstances to meet the noble Lord's own objections, some circumspection and some thought is necessary.
I have been a solicitor for many years. I have seen a lot of pornography. While I was in Oldham I found out what was likely to happen to children who were the subject of minor indecent assaults very often. I studied the medical evidence which shows that children can be ruined and a child's future can be jeopardised. When we came to discuss the Wolfenden Report I spoke freely in favour of it. On the very last debate, when your Lordships refused to give a Second Reading to a modification introduced by the noble Earl, Lord Arran, in favour of a tiny bit more latitude, when your Lordships refused to give the Bill a Second Reading. I voted for the Second Reading. I do know of the suffering and the difficulty, and that there are genuine homosexuals, often men of some genius. But when we come to talk about paedophilia, when we come to talk about introducing a law to widen the liberty of indecency with children, then we may also think it right, at the behest of the Commons and providing what safety we can, to say that we are not going to encourage people who make a nefarious living by providing child pornography. And that it exists I have no doubt whatever, and that there is a good deal of it about. Of course, the worst is so expensive it is not available to most noble Lords, certainly not to me; if I wished to buy a sample to bring here I could not afford it.

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My Lords, my noble friend, for whom I have the greatest regard and for whose sincerity I have never had any question, is making slightly heavy weather of this. If he has read the report that has just been issued, the typewritten report on behalf of the Shepherds Market area, where a state of affairs is growing which leads to violence, which makes the work of the police almost impossible, then he is aware that we have to face the situation that indecent assaults on young children are growing, and that this literature is being distributed. I have seen some of it. If one really wanted to get something worse, one could easily get it. What has happened is that this House has provided safeguards in favour of the subject through a Bill which my noble friend said hastily passed the Commons, and I agree with him on that.
Finally, because I do not want to intervene again, perhaps he will permit me to add that this House has a peculiarly noble record on this matter. At the time of the so-called "Maiden Tribute of Modern Babylon" when the editor of the Pall Mall Gazette was being damned by all the Press, when evidence was forth-coming that young children were being exported to Belgium, partly for the use of his Royal Majesty there who was already known as having started to provide the conditions which do not help us now in Zaire, this House sent not once, but twice and three times—I think, four times—Bills to another place, where the comment was that so many of another place at that time were either engaged in this traffic or making use of the brothel facilities that it was difficult to get a Bill through on the matter, and impossible on a Friday. This House did keep on that path and did secure the passing ultimately of an admittedly compromise measure in favour of the defence of young children from indecency. I know I am swallowing words that I may have said before, but I am swallowing them in a situation in which I think some such action should be taken. It is because I make this my apologia pro sua vita that I have perhaps taken a little more time and a little more licence than I otherwise would.
8.49 p.m.
Lord REDESDALE: My Lords, I should just like to say that the noble Lord, Lord Houghton, took exception to
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my smiling when he was talking about the effects that a prosecution might have on the business of someone who has been raided. I was smiling at the irony of the idea that such a tender flower as a pornographer would have a traumatic experience comparable to the experience of a child submitted to such treatment from a pornographer. That is why I was smiling.
Coming back to the point of the Amendment, I do not see why this Bill should be unique—I am sure that the Minister will confirm this—and impose a six-week limit on the Director of Public Prosecutions. I do not see why it should he unique in any way. I cannot see how the Amendment can stand.
Lord HARRIS of GREENWICH: My Lords, I should like to begin by directing a few comments to my noble friend Lord Hale and this I hope will be the last occasion when I have to refer to the Standing Orders of the House. No one is debarred from speaking here after the Minister has spoken. It simply means that I would not be able to speak on a second occasion. Given the fact that we have spent so much time discussing this matter this evening I can assure the House that I do not have the slightest intention of trying to do so.
I agreed with my noble friend Lord Houghton of Sowerby when he referred to very substantial pressure on our whole criminal justice system. There is certainly substantial pressure on the Director of Public Prosecutions and on the courts. As regards judicial delays, I am sure that if my noble and learned friend the Lord Chancellor was here and, if a former Lord Chancellor, my noble and learned friend Lord Gardiner was here, they would agree that they are very serious indeed. I do not think that any of us would seek to minimise the problem.
My noble friend will recall that we spent a great deal of time on this matter when we had the Criminal Law Act before us in the last Session of Parliament. Therefore, on the question of the fact that there are substantial delays experienced by defendants in the courts, I in no way under-estimate the problem.
However, I would say to my noble friend—and this takes up the point just made by the noble Lord, Lord Redesdale—

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that I find it a little difficult to see how we could possibly justify writing a provision of this kind into this particular Bill when, so far as I am aware, it applies in no other area of criminal law. I certainly understand the problem. However, what my noble friend wishes to secure is that prosecutions in this area alone are instituted within a period of six weeks of the case being submitted to the Director or not at all.
When a case is referred to him the Director, of course, has to decide whether the available evidence is sufficient on which to base a prosecution and to assess, on the basis of previous court decisions, whether the material involved is of a nature which a court is likely to find to be indecent. It may be that in some cases he would wish to obtain counsel's opinion before consenting to a prosecution being instituted. The Director's decision may of course often be forthcoming within a period of six weeks. But what of the case where the Director considers that further police inquiries are necessary before a proper decision can be reached as to the institution of a prosecution? He would have an intolerable choice. He would say, "If I am to ask for more police inquiries it will mean that I shall not eventually be able to act against this man, however strong the evidence may be". I think that that is a fairly extreme proposition which it would be extremely difficult to justify.
In short, my advice to the House must be that the imposition of a time limit of this character would be undesirable and would, in my view, be extremely arbitrary. Therefore, I very much hope that my noble friend will not press his Amendment.
Lord HOUGHTON of SOWERBY: My Lords, I cannot accept the argument of the noble Lord, Lord Somers, who said, in effect, "Why put a time limit on the action of the Director of Public Prosecutions when he has much more important things to do"? If the Director of Public Prosecutions has more important things to do why has he been given this to do? In any case, I think that when a Bill is before Parliament and the question of the dispatch of justice arises, there is no reason at all why we should not strike a
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blow for speeding up the process of our judicial system.
We pride ourselves in this country on being in favour of swift justice. We do not keep people languishing in prison for two, two and a half and three years before they are brought to trial. The basis of our system is: get the person before a court the next morning if possible and get the process of justice going without delay. I think that we are falling from that standard in the delays which we are now apparently prepared to tolerate in bringing people to trial.
I think this is an occasion when we should make a stand. After all, the poison that this Bill is intended to stop is supposed to be so virulent that it should be stopped with the utmost speed lest it should spread. When people are likely to be charged with spreading this poison it is not right that they should be kept in doubt as to their position. It is not right that others should be left in doubt as to what is an indecent photograph. After all, that must be decided. It is all very well for the noble Lord, Lord Redesdale, to say that he was smiling because the people who are subject to this kind of treatment are terrible, wicked people and they really cannot complain if they are raided, kept waiting and are subject to all the other trials which they may suffer. Of course, the noble Lord cannot assume that at all. He has no idea—if I may say so with respect—what will be the subject of a charge under this Bill. It may be that some quite astonishing prosecutions will be made and that some quite strange decisions will come from the DPP.
The DPP is not an institution but a body of lawyers and we must bear in mind that it is subject to all the human frailties of lawyers, including their capacity for thinking about some matters for a very long time before they can make up their minds. Anyway, I think that this is an Amendment which should be pressed to a Division and if the period of six weeks is too short it can be put right at a later stage. However, now is the time to make a stand for limiting the period for which people may languish not knowing whether they are to be charged.
On Question, Amendment negatived.
9 p.m.
The Earl of LONGFORD The Earl of LONGFORD moved Amendment No. 4:
Page 2, leave out lines 3 to 5 and insert—
("(a) that he distributed or showed the photographs or (as the case may be) had them in his possession solely in the course of justice; or").
The noble Earl said: My Lords, we are all as one in trying to protect our children from being exploited and degraded as instruments of child pornography; at least, I hope that we are all at one. One or two doubts crept into my mind during some of the earlier speeches, but I think that that must be accepted as a general position. Whether or not my Amendment is carried, as I see it the Bill will be of real service for the purpose mentioned.
However, I submit to the House that as it now stands the Bill contains a provision which will seriously diminish the protection of our children in order to cope with a quite imaginary danger, and I repeat the words "quite imaginary danger". That is the essence of the few remarks that I shall offer. I refer to the provision which enables a defendant to argue that he has an undefined legitimate reason for distributing or showing child pornography.
I am glad that we are making it illegal for anyone to produce child pornography. The noble Lord, Lord Harris of Greenwich, was, I am glad to say, very firm on that last time, but in practice whether or not child pornography is produced depends on whether there is a market for it. In the Bill, we are setting out to eliminate the possibility of such a market.
This Bill starts with that objective, but there is this reference to legitimacy as a possible defence. I want to say a few words about the danger of that and then address some remarks to the question whether it is in any way necessary. No one who is not idiotic can say for certain—he may prophesy—what the effect of any clause in an obscenity Bill of any kind is likely to be as the years pass. The obscenity in the 1959 Act had all sorts of consequences which were certainly not intended when it was drafted.
However, with the history of the Obscene Publications Act in front of us (I hope that noble Lords will listen to this and that the noble Baroness, Lady Gaitskell, will listen to this point because she has such a very strong feeling about all this that I want to appeal to her in the name of reason) who can be sure that as time goes on clever counsel will not be able to produce adventurous psychiatrists who will argue in court that child pornography—I mean the pornography which involves the exploitation of children—is necessary for the mental health of their patients? I doubt whether anyone raised that sort of danger when the 1959 Act was introduced, but it has been used very effectively in front of juries; the judges may not care for it very much, but it has been an effective defence. If this phrase "legitimacy" comes in, it might well be argued that someone who needs "kiddie porn", or whatever we like to call it, must be allowed to have it. Although to possess it would not, as I understand, be an offence under the Bill, to show it is. If you have parties where you and people of similar tendencies enjoy this "kiddie porn", I should have thought that we would assume that to be an offence under the Bill; but it might not be an offence if counsel and the psychiatrists were sufficiently astute a combination. The danger, therefore, is that one will weaken the effectiveness of the Bill.
I think that one has to ask oneself what kind of people will actually want to distribute or show this child pornography. From listening to the eloquence of the noble Lord, Lord Houghton of Sowerby, one would not realise that we are talking about child pornography. His speech would equally well have applied to pornography in general. But here we are talking about the kind of pornography that actually involves the exploitation and degradation of children. But what type of people will show and distribute this? In the first place there will be a very large sector who will want to make money out of it. That surely we are all against; we are all condemning them. We are not saying that to make a living out of selling this would be a legitimate defence. So I suppose that that, at any rate on paper, is ruled out.
The next category are those who just enjoy it, those who get a kick out of it. In a sense, they would create the main market, because without such people no one would have anyone to whom to sell the stuff. There, again, I should have thought that we were determined to prevent people enjoying pornography in that way—certainly together in the community, so far as it lies in our power. Therefore, I do not think that we need be, so to speak, concerned with any defence of these people.
There are those who are involved in the supression of pornography—the forces of law and order in the broadest sense. The police and members of the legal profession were selected by the noble Lord, Lord Harris of Greenwich, last time as people who needed protection. In my Amendment I have included a special proviso which would protect those involved, those who distribute pornography in the course of justice. I do not personally think that they are in the slightest danger. I cannot imagine any Director of Public Prosecutions—even if he is no greater genuis that the noble Lord, Lord Houghton of Sowerby, supposes—literally permitting the launching of a prosecution against the police or lawyers who were concerned in the suppression of pornography. That is to me a totally unreal danger. But to be conciliatory and show my respect for the forces of law and order I have included a provision to protect them.
What is the remaining category? I suppose you could say it is the people concerned with the investigation of child pornography and possibly with the publication of it in the course of their studies. I suppose I have been more concerned—for good or for ill—with the investigation of pornography generally than any other Member of this House, although other noble Lords were associated with me in an inquiry. I am well aware of a certain moral difficulty that arises when you wish to bring home to the general public the horrors of pornography of any kind, because if you publish examples of the pornography you yourself can be accused of pandering to that very taste, and that is a problem. Many people would be much
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more hostile to pornography if they could see what it was like, but in many cases it is just to disgusting to publish.
When we were doing our report a few years ago, for example, the noble Lord, Lord Fletcher, objected to our being so explicit as we were. He found difficulty in signing the report on those grounds. But we did not publish any pictures, and no extreme language. In fact we were fairly reticent. Judging by my own experience, when it comes to the point I do not think there is the slightest danger of being prosecuted. It never crossed our minds that we would be. In this case you might say that the Bill is slightly tighter than the existing obscenity Act. On the other hand, there is a protection here which did not exist before; the protection of the Director of Public Prosecutions. Although it is just conceivable that without that protection pornographers themselves might set out to prosecute people who tried to suppress pornography, with that protection there is no danger at all. My honest view is that there is no danger whatsoever, but out of my respect for the forces of law and order and the noble Lord, Lord Harris of Greenwich, who cares for them, I would move the Amendment in my name.
Baroness GAITSKELL: My Lords, may I say a word to my noble friend, not so much about his Amendment but about his attitude generally to pornography, and particularly to child pornography. What I want to make clear in my mind is what we are talking about. Are we talking about the gain from distributing and photographing pornography, or are we talking about the way adults sometimes play about, and perhaps go further than that, with children?
I should like to be clear about that. Certainly psychiatrists have said, and I believe that it is prevalent, that many children have had slight contact with adults. If you think about and picture an old man with a pretty little girl on his knee, do you know where we draw the line? Is that pornography? Is he interfering with the child? Really, we can go too far on this. I am not with my noble friend at all.
9.12 p.m.
Lord SCARMAN: My Lords, I should like to address myself to the Amendment being proposed and to eschew for a moment the wider implications of the Bill. There are two safeguards for the defendant in this Bill. I would submit to your Lordships that both are valuable and one of them is indispensable. The first valuable safeguard is that proceedings for an offence shall not be instituted except by or with the consent of the Director of Public Prosecutions.
If the noble Lord will allow me to say so, I listened with amazement when I heard an opponent of this Bill saying that the Director of Public Prosecutions must make up his mind within six weeks of the offence being committed.
Lord HOUGHTON of SOWERBY: No, my Lords.
Lord SCARMAN: Within a time limit.
Lord HOUGHTON of SOWERBY: My Lords, I think my Amendment said within six weeks of the matter being submitted to him.
Lord SCARMAN: Very well, my Lords, I accept the correction. But I would warn noble Lords that when one puts a time limit upon a prosecuting authority there are real dangers to the liberty of the subject who may be prosecuted. To force the Director to rush into a decision within six weeks of a matter being referred to him might be to induce, as I think the noble Lord suggested, that he takes the quick and easy action, which is to authorise prosecution and let the court deal with it, instead of saying, No. That is the first safeguard that is in the Bill.
The second safeguard (I think the noble Earl, Lord Longford, is too apprehensive about this) is that in regard to certain charges—those under Clause 1(1)(b) and (c)—the defence is provided of a legitimate reason for distributing or showing photographs. It is not possible within the limits of justice to confine this defence to a distributing or showing for the purposes of or in the course of justice. There are many other legitimate reasons why people may have in their possession, and may
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wish to show to others, photographs which are indecent.
There is the purely academic reason, a very sound one; the subject must be studied and studied impartially and studied on the basis of the material available. There is the domestic reason; a parent may wish to consult a doctor or psychiatrist or he may wish to consult friends about certain photographs that have come into the possession of his child. That parent—and I may say, "Thank Heaven"—will not, I hope, be considering putting into motion the grinding wheels of justice; he will be seeking merely to get advice and help on a problem affecting his child or even a friend's child. Why should he be at risk if all he is doing is acting, in the face of material that has come into his hands, for the benefit and protection of the child?
The Earl of LONGFORD: My Lords, is the noble and learned Lord referring to photographs that would ordinarily be held to be indecent? If they would not be held to be indecent, the parent would not be at any risk.
Lord SCARMAN: Of course I am referring to indecent photographs, my Lords, and that is implicit in the argument. I am saying that parents may from time to time find themselves in possession—they may have them thrust upon them—of indecent photographs and want to show them to others for the purposes of seeking medical, psychiatric or just friendly advice.
Of course, if these matters come to the attention of the Director of Public Prosecutions there will be no prosecution. I agree with Lord Longford on that, but we all know that there is many a slip in the administrative process that a prosecuting authority goes through before deciding to prosecute, and he may not know all the facts. Is it really acceptable to your Lordships' House that a person in the domestic situation I have described should not have a defence, even though it slipped the attention of the Director of Public Prosecutions or indeed was not even brought to his attention? One could go on enumerating situations in which a person might find himself morally bound, having come into possession of

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indecent material of this sort, to show it to somebody else, though not for the purposes of prosecution or in the course of justice. I suggest that it would be wholly contrary to our jurisprudence to disallow a defence to such persons.
I follow Lord Longford's point that "legitimate reason" is very broad language. I go further: it is language which is incapable of legal definition or precision. But so is much of the English language, and as we are discussing English law I regret to tell your Lordships that the law must be written in English and one must accept the limitations on the English language. One of its glories is its flexibility, and the price it pays for that glory is a certain imprecision which makes Frenchmen laugh but which may cause Englishment to be thankful. Why thankful? Because, as Lord Reid once said in a judicial context, ordinary English words and phrases, when they appear in a Statute—though of course their final interpretation must remain a matter of law—are nevertheless questions of fact on which juries and others entrusted with judicial functions in our criminal process can reach a sensible opinion.
Do not forget, my Lords, the common sense of the criminal law. As Aristotle told us, it is impossible to define the good. Equally, it is impossible, in the context of the Bill, to define indecent. Again, I refer to the worth of Lord Reid, who said—and logically it is circuitous—that indecency is what decent men and women think is indecent. Of course, this does not stand up against the Oxford or Cambridge logician. It just happens to be not philosophy or logic, but common sense.
Therefore, my Lords, do not be dissuaded from granting the "legitimate reason" defence in the Bill. Do not be forced into opposition to the Bill because it deals in indefinables, such as indecency. The answer is that in the end these matters rest upon the good sense of the community, and that good sense has to be channelled through criminal judges when they are exercising jurisdiction, and through juries under their direction. It would be extraordinarily pusillanimous for your Lordships' House to accede to any of these philosophically acceptable, but in terms
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of common sense unacceptable Amendments.
9.22 p.m.
Lord HARRIS of GREENWICH: I wish to speak in moderately brief terms on the Amendment, and I believe that my cause has been considerably strengthened by the substantial speech by the noble and learned Lord, Lord Scarman, to which we have just had the pleasure of listening. The noble and learned Lord raised a point on the question of the necessity of some form of appropriate defence. When the original Bill was published it made allowance for the use of material of the kind we have been talking about this evening in the course of justice or for scientific or learned study. The latter part of that provision was highly relevant to what the noble and learned Lord said in his speech. My noble friend's Amendment would confine the exemption to us e
"solely in the course of justice".
I made it clear at the Committee stage that we considered that the original defence was in some respects inadquate and, as a result, proposed a defence in more general terms; and what I said then applies with even greater force to the even narrower defence now put forward by my noble friend Lord Longford.
It is true that the course of justice is probably the most important circumstance for which we must allow the lawful use of child pornography. Clearly, we must avoid the situation where those involved in court proceedings under the Bill—whether they be the police producing evidence on which charges are based, solicitors, counsel, or even the judge and jury handling the exhibits—are, even in theory, guilty of an offence, which would be a total absurdity. Therefore it is crucial to have some form of defence, and it is the character of that defence that we are now considering.
Were it not for the defence provision, the offence would of course be absolute. We must recognise that legal proceedings are not the only context in which the use of this material might be justified. The noble and learned Lord, Lord Scarman, touched on a number of examples in this respect, and I should like to give some others. If a member of the public comes

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into possession of indecent photographs of children and wishes to draw them to the attention of the police, we should be able to assure him that he will not commit an offence by doing so. It would raise very substantial problems were he to be denied a defence in those terms. He has found them, and he is taking them to the police. Of course, he would have a protection so far as "a legitimate reason" is concerned; but it would seem to me to be going a very substantial distance indeed were we to say that that person commits an offence—and that, of course, we would do if this Amendment were to be carried.
The police, too—and my noble friend very kindly referred to a point which I made in Committee when we discussed this matter—in accepting delivery of such photographs and in instituting an investigation, would probably not be using them "solely in the course of justice", to use the words of my noble friend's Amendment—a phrase which seems clearly linked to the judicial proceedings which may or may not follow at a later stage in the police investigation. Similarly, "the course of justice" would not be apposite to cover what happens after the conclusion of legal proceedings, when no doubt the police would wish to retain samples of the photographs for record and reference purposes.
My noble friend's answer to that would be, "There is nothing to worry about; the Director of Public Prosecutions will take care of that". I believe there are dangers in this argument. As I tried to point out during the Committee stage on the Bill, it is in my view absolutely vital that the police should carry out what they believe to be the criminal law of this country, and not involve themselves in action which they believe to be unlawful on the assumption that the Director will not agree to prosecute. I do not believe it is possible to proceed on that basis. In my view it would be a serious matter were we to say that police officers must do things which they know to be unlawful solely on the assumption that the Director of Public Prosecutions will not agree to proceedings. I am bound to say to the House that, were we to pass this Amendment, I believe the police would be put in precisely that position.
There are those with a more general interest in the law, too, who also, in my
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judgment, require some form of protection. If I may speak in self-interested terms, the Home Office, with its responsibility for advising Ministers about the effectiveness of the law, will wish to continue to collect samples to monitor the way in which the law is working. That is a duty, it seems to me, on the Home Office. It does seem to me—indeed, not only does it seem to me; it it quite clear—that they would be caught were this Amendment to be carried.
There are others, too, with a less official but no less genuine interest in the efficacy of the law. My noble friend Lord Longford in fact gave a good example of this in terms of his own activities when we was concerned with publicising the problems, as he saw them, of pornography. Let us take one obvious example. The noble Baroness, Lady Faithfull, wishes, in 12 months' time, to ascertain how the legislation she has helped to promote is working, and sets out to obtain samples of what may still be on the market. I am sure it would be wrong to suggest that she should be under any form of criminal liability. She undoubtedly would be under such criminal liability were this Amendment to be carried, and I find it very hard to believe that anybody in this House would regard that as sensible. It seems to me perfectly reasonable that the noble Baroness should try to find out whether the law is in fact working properly. She would have a defence—of course she would—with the words "legitimate reason".
My Lords, for these reasons—and I could obviously give a number of other examples of this character—it seems to me that an Amendment of the kind proposed by my noble friend Lord Longford would have a number of totally unintended effects which would, in my view, do great damage to public confidence in the criminal law. I do not believe we should put on the Statute Book a provision of this character, which could, in my view, cause the law to be brought into ridicule.
The Earl of LONGFORD: My Lords, to quote something that Sir Winston Churchill once said, "I do not feel utterly extinguished" by the arguments of the noble Lord, or of the noble and learned Lord, Lord Scarman, either. The

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noble and learned Lord, Lord Scarman, has one of the most acute, logical brains in the country so that it is ironic and amusing of him to point his hand generally in my direction and refer to me as an objective logician and he a plain man, a good common-sense fellow. All this stuff about common sense, which always gets applause for whoever is first in the field, whatever the dialecticians may say, seems to be very far from common sense here. What is this common sense in their case? It is, frankly, raising some absurd chimeras, the idea that people are going to be prosecuted, that Lady Faithfull might be prosecuted, for something. Nobody really supposes or could imagine that any of the cases raised by the noble Lord are going to lead to prosecution, let alone successful prosecution. To me, anything less like common sense than those hypotheses I cannot imagine.
The noble Lord brought in a point which rather surprised me. He said that this might slip past the Director of Public Prosecutions or even that his attention might not be drawn to it. I daresay that the poor Director himself will not see all the cases; but he has a strong team of lawyers. It is inconceivable. I cannot understand it. It cannot be common sense to suggest that a prosecution, although it is laid down that it can only be launched with the permission of the Director, somehow gets launched without the permission of the Director. Do not let us suppose that common sense is going to prevail if my Amendment does not succeed this evening. In all the circumstances, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
9.32 p.m.
Lord ROBERTSON of OAKRIDGE Lord ROBERTSON of OAKRIDGE moved Amendment No. 5:
Page 2, line 8, at end insert ("Provided that a defence under paragraph (a) of this subsection shall not be available to a person who distributed or showed the photographs or had them in his possession with a view to gain.").
The noble Lord said: My Lords, I must first apologise to the House for the short notice in respect of this Amendment. It seems to me we have reached a dilemma,
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perhaps a dilemma that some noble Lords may not agree exists. But I believe we have reached a dilemma where, on the one hand, there is the danger that the defence of legitimate reason may make the defence too wide and lead to frustration of the intention of the Bill and, on the other hand, as we have heard, there are the difficulties in specifying or identifying those who should have a defence.
The aim of my Amendment is to try a new approach, to identify in one key area those who should not have the defence of legitimate reason. I would say, in passing, in case there is any misunderstanding, that where there is no question of financial gain then the question of defence would be as strong and as weak as it already is in the Bill. The Amendment seeks to provide that the defence of legitimate reason should not apply where the distribution, showing or possession of photographs was made with a view to financial gain. It seeks to make it easier for the law to deal with the heart of the problem; namely, the commercial exploitation of children.
Just to give one example, I believe that it would inhibit the sale of magazines showing indecent photographs of children using as justification medical or social grounds which could be held to be at variance with the intention of the Bill but grounds which might otherwise, without this Amendment, be used successfully by a competent barrister as a defence, especially if he could call on sympathetic VIPs or expert witnesses. One aim I do not have is further to burden the Director of Public Prosecutions. I believe that the role that we have given him in this Bill is already on the large side and I think it would be wrong of us to alter the Bill in any way that were to create a significant amount of anomalies which would only have to be filtered out by his office. Otherwise, we would have undesirable prosecutions.
The question therefore is: Would this Amendment give rise to anomalies which would require extra work by the DPP and cause distress and unnecessary worry of the sort to which the noble Lord, Lord Houghton of Sowerby, has quite rightly drawn attention? The evidence that I can think of does not convince me that it

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would. I look forward very much to hearing from the Minister and will pay considerable attention to his advice. I therefore beg to move the Amendment standing in my name and the names of other noble Lords.
Lord SOMERS: My Lords, I too should like to start by apologising to your Lordships if I have to leave the House very soon after I have spoken, otherwise I shall have to spend the night in Old Palace Yard, which would not be very pleasant. The reason of course is that we were all expecting this stage of the Bill to begin about 7 o'clock this evening; but, owing to unforeseen arrangements, it did not.
This Amendment is a necessary one. In spite of the doubts expressed by some, there is a large section of the community who exploit pornography and child pornography for financial gain. Although some may consider that pornography is a greater evil or a lesser evil and not feel that too much attention should be given to it, I do not think there can be anybody in their senses who would argue that exploiting children for pornography, for the sake of financial gain, is anything but a criminal activity. What this proviso does is simply, as my noble friend has said, to make things easier for a magistrate, or whoever the accused comes before, to make a decision. If the case is proved there are no further deliberations, the person on trial is guilty. I sincerely hope that that being the case, your Lordships will accept this Amendment.
9.37 p.m.
Viscount BARRINGTON: My Lords, I should like to say a very few words in support of this Amendment, partly to explain why I did not intervene in Lord Longford's Amendment. I will confine my remarks to two subjects. The first one is the use of words. As the noble and learned Lord, Lord Scarman, pointed out, a great deal in this Bill depends upon the interpretation in the courts of the word "legitimate". There was a slight difference of opinion between him and my noble friend Lord Wigoder the other night as to which was the best formula. I think that "legitimate" (which I believe is an unknown word in law at the moment) is a better word. I think it clarifies my
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mind if I try to think what it means. Many people seem to think that it is the same as "legal ". We know that there are things which are both legal and legitimate. For a Member of this House to speak once on Report is legal and legitimate, however tiresome. We know things which are not legal and are not legitimate, which would be to try to blow up the House with a bomb.
The whole point of this Bill is to ty to draw a line between harsh legality. For instance, I believe in Cromwell's time it was illegal to eat mince pies. To many of us now that would be legitimate. On the other hand, it was legal to nail an old woman to a tree by her ears. What we are trying to do here is make reasonably clear when it is legitimate and therefore, in this Bill, legal to circulate photographs which may be thought to be indecent at some future period. We cannot tell what will be thought indecent at any particular period, and I sympathise very much with the noble Earl, Lord Longford, who points out how quickly some of these climates of opinion change. We all know, I think, the couplet by Sir John Harington:
"Treason doth never prosper: what's the reason?
For if it prosper, none dare call it treason".
I suppose on this subject one might make a similar point that pornographers cannot profit from photography because if they profit it is not pornography. That is something which can only be decided later on by courts as to what is proper and what is not. It seems to me that the point which was made by the noble Lord, Lord Robertson, to limit in one small field the word "legitimate", is a good one, and the right way to do it is be reference to financial gain.
I do not want to take your Lordships back into history and this is the last thing I shall say; but there was a Bill a good many years ago now against which I felt as strongly as the noble Lord, Lord Houghton, feels against this one. That was the Abortion Bill. I felt that what were called foetuses or embryos were having a hard deal in that they were not treated as animals, vegetables or minerals and had no rights at all. The last Amendment produced before the Bill went through its final stages was unsuccessful. I took the trouble to write it down and it was along these lines:

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"A registered medical practitioner should be guilty of an offence if he performs, assists or advises on the termination of a pregnancy under this Act in consideration of the receipt of a fee in excess of £100 or such sum as may be decided by the Minister later on".
That was, of course, refused. At any rate it did not pass; and it was said of me by a noble Lord that the only reason for which I could possibly have introduced it was that I was so illogically opposed to the Bill that I wanted to make an absurd restriction on money.
Ten years later there is still considerable argument about how many fortunes have been made from abortions, and there might be the same kind of thing again if we did not plug this leak, however small it is now, in the way that has been suggested by saying that, whether or not I have obscene photographs and am trading them for art's sake, for the sake of my family and that sort of thing, is for the courts to decide; but if I am showing them in order to make money out of them, that is prima facie evidence that I am a pornographer of the kind that I think everyone who supports this Bill wants to prosecute. My Lords, that is all I have to say, but I just wanted to support this Amendment.
Baroness GAITSKELL: My Lords, may I add one sentence to this discussion. The noble Lord, Lord Somers, said, I think, that a large portion of the population was engaged in child pornography. I challenge that. I do not believe it for one moment.
Lord HOUGHTON of SOWERBY: My Lords, I really think that some noble Lords are losing their senses of justice. I always thought this House was the last bastion in the defence of the liberty of the subject. Yet it is now proposed to whittle down to almost nothing the right of an accused person to have a defence. Moreover, I think that this Amendment implies lack of confidence in the normal course of justice; that is, the discretion of a judge or, in certain circumstances, of a jury. If there is to be a legitimate reason for holding or distributing an alleged indecent photograph, then let it be a legitimate reason and do not circumscribe it in the way that this Amendment proposes to do, because the next thing we
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shall have to do is to define what is "gain" If it is payment of expenses or reimbursement of costs, is that gain? Is the receipt of any money for the distribution, or for the transfer of a photograph, gain? We enter into another realm of possible disputation.
We ought, if we are to allow a legitimate reason as a defence, to leave it at that; and, surely, we can have enough confidence in the courts to interpret that, as the noble and learned Lord, Lord Scarman, said, in a common-sense way. Otherwise, we are at risk of becoming a House of obsession about this question of sex and pornography, and all matters associated with it. There are a great many more evils in the world to be obsessional about, and in this country to be obsessional about. Let us preserve some sense of proportion, even on a subject of this kind, and let justice be done in the normal way on a reasonable interpretation of the words "legitimate reason".
9.47 p.m.
Lord HARRIS of GREENWICH: My Lords, I would say at the outset, on behalf of the Government, that we certainly understand the view of the noble Lords who have put their names down to this Amendment, that we should not pass this measure in a form which lends itself to circumvention. I have already made clear that the Government do not regard the present defence provision as carrying the dangers which some people have perceived, but I will deal in a little more detail, if I may, with the merits of the additional restriction which has been put forward in this Amendment.
I acknowledge, at once, that there are attractions in seeking to distinguish between what is, or is not, permissible, according to whether gain is involved. It appears more than plausible, notwithstanding what my noble friend Lord Houghton has said. Indeed, we ourselves, looked at it at one time but we came to the conclusion, having considered the matter very carefully, that, with some reluctance, we should have to abandon it and I shall explain why.
I do not think it is too difficult to envisage circumstances where a person, who is required quite legitimately to handle material which offends the provisions of

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this Bill, does so for financial reward. This might be a case where the gain is linked fairly directly to the particular act of distributing or showing indecent photographs; or one where the use of the materials is, in perhaps a rather more general way, undertaken in the course of a person's earning his living. An example of the first category might be the film projectionist, who is paid a fee in respect of his showing an indecent film in connection with one of the legitimate categories of use—perhaps, indeed, in the course of legal proceedings.
Let me take an example. The film projectionist working for the police does it for financial gain. There is no doubt about it. He gets a fee for doing it. I am quite sure that it is not the intention of the noble Lords, who put their names down to this Amendment, that a person of that kind commits a criminal offence. The extent to which people in the second category run the risk of being deprived of the defence of legitimate reason, if the Amendment were to be approved, may vary according to the way in which they use the material and the way in which they are paid. The salaried police officer would probably be all right. He earns a salary. If, by chance, one is paid a fee, then a very different sitution indeed arises. The person concerned could well be committing a criminal offence.
What about the people involved in the preparation of a criminal defence? What of the solicitor? What of counsel? How are they paid? They are paid by fees. It seems to me that it would be a remarkable doctrine to say, "You are, in some sense, committing a criminal offence, but it's all right, chaps, because the Director of Public Prosecutions won't prosecute you if you happen to be a member of the legal profession". That seems to me to be a significant difficulty so far as this Amendment is concerned.
Viscount BARRINGTON: My Lords, the words are, "with a view to gain". I am not sure whether that makes any difference to the noble Lord's argument?
Lord HARRIS of GREENWICH: No, my Lords. With the greatest respect to the noble Viscount, I fear that it does not. As I have already said, we saw the attractions of this argument when we looked at the Bill with a view to making
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Amendments, and we went into the matter with some care. I am not producing arguments which have been dreamed up, as it were, on the back of an envelope during the course of this debate. When we came to discuss the question, these were serious problems which faced us in recommending a particular form of words to the House.
All I would say in conclusion is that I agree with the noble Viscount, Lord Barrington. I think that he was quoting my noble friend Lord Longford when he spoke about the climate of opinion changing very rapidly. If I may say so, I agree very strongly with him. However, what I fear is the climate of opinion changing very radically indeed if some ill-judged or, indeed, possibly even nonsensical prosecutions—or prosecutions which turn out to be nonsensical—are brought under the Bill. I do not believe that it will do the cause of those who have produced the Bill a great deal of good. They will be subjected to a great deal of ridicule, and so will Parliament itself. Therefore it is extremely important that we should look with great care at this form of words in order to make sure that we do not create something which will cause such very disagreeable consequences.
I do not want to spend time upon giving further and further examples, but again it would not be far-fetched to repeat the point that I made on the earlier Amendment: that if a Member of this House, trying to monitor this legislation, acquired the material and then wrote an article for payment—perfectly properly, in my view—drawing attention to the fact that the Bill either was or was not working, he would commit a criminal offence. It seems to me to be placing too much of a burden upon the Director of Public Prosecutions to put him in the situation of saying, "No, as it happens in that case to be a Member of the House of Commons or a Member of the House of Lords I shall not prosecute, because he is a Member of Parliament". It seems to me to be quite indefensible to put the Director of Public Prosecutions in such a situation.
In the course of presenting this argument I may have appeared to be wholly dismissive of this Amendment. However, I have tried to point out why the Home Office, for many of the reasons which were

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advanced by the noble and learned Lord, Lord Scarman, in his extremely powerful intervention, came reluctantly to the conclusion that although there were, apparently, significant advantages to be derived from a form of words similar to what is now before us, it would be a mistake to adopt it.
Lord ROBERTSON of OAKRIDGE: My Lords, I am very grateful to the noble Lords who have spoken in this debate on the Amendment and to the noble Lord the Minister for his reply. In the light of his advice, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 2 [Evidence]:
9.54 p.m.
Lord HARRIS of GREENWICH Lord HARRIS of GREENWICH moved Amendment No. 6:
Page 3, leave out subsection (3) and insert—
(" (3) In proceedings under this Act a person is to be taken as having been a child at any material time if it appears, from the evidence as a whole, that he was then under the age of 16.")
The noble Lord said: My Lords, I beg to move. This revised form of words is designed to meet criticism of this subsection made by the noble Lord, Lord Wigoder, during the Committee stage. The changes, except in one respect, are purely drafting, and the words in the Amendment manage to convey in a rather simpler fashion the same concept: that it is for the court to reach its own conclusion about whether a person is under the age of 16 in the light of whatever evidence is available, even if it is the evidence of a photograph alone.
There is therefore very little change in the effect of the subsection as we propose it should be amended. The one material difference is that the present subsection applies only in proceedings for an offence under Clause 1(1)(a), (b) or (c), and this raises the question of how the question of age is to be determined in proceedings for the forfeiture of indecent photographs of children under Clause 5(2) of the Bill. It seems right that the same rule should apply in any proceedings under the Bill, and the Amendment is therefore framed in these terms. I beg to move.
Clause 3 [Offences by corporations]:
Lord HARRIS of GREENWICH Lord HARRIS of GREENWICH moved Amendment No. 7:
Page 3, line 23, leave out ("or") and insert ("of").
Clause 4 [Entry, search and seizure]:
Lord HOUGHTON of SOWERBY Lord HOUGHTON of SOWERBY moved Amendment No. 8:
Page 3, line 25, leave out ("justice of the peace") and insert ("Circuit Judge of the High Court").
The noble Lord said: My Lords, the material Amendment here is Amendment
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No. 8. The succeeding Amendments are consequential, to the best of my ability, in carrying out the intention of my Amendment, which is simply to substitute the words "Circuit Judge of the High Court" for a magistrate who shall be authorised to issue a warrant for search and removal of offending material.
I draw attention to the fact that under Clause 4 of the Bill reference is made to a justice of the peace being satisfied,
"… by information on oath, laid by or on behalf of the Director of Public Prosecutions or by a constable, that there is reasonable ground for suspecting that, in any premises in the petty sessions area for which he acts, there are indecent photographs of children"
et cetera. This is a warrant for search which may be granted by a magistrate on information given on oath by a constable, alongside, in other circumstances, the Director of Public Prosecutions.
There is some contrast between what the Director of Public Prosecutions may lay before a magistrate on oath and what a constable may lay before a magistrate on oath. I say that without being disrespectful to constables. I think that we must he careful here of authorising a new area of search and entry on the warrant of a justice of the peace. I know that under the Exchange Control Act 1947 a magistrate may grant a warrant for search. I know that under various Customs and Excise Acts, including VAT, a magistrate may give a warrant for search. But when in 1976 the Government proposed that a similar provision should apply to the Inland Revenue Department, members of another place revolted against giving the power to issue a warrant for search to a justice of the peace. To meet opposition in another place the Government substituted, in the case of the Inland Revenue, a circuit judge. To that extent there is a difference in the authority which is needed to give a warrant for search in the case of the Inland Revenue by comparison with the Customs and Excise, and similar rights of search and entry. This seemed to suggest that in another place there was a desire to tighten up the conditions under which a warrant for search and forcible entry could he granted.
I do not wish to say anything against magistrates. When I was Chancellor of the Duchy of Lancaster I appointed a great many of them. I am not entirely

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certain that the basis upon which magistrates are appointed is satisfactory; that is another and wider question. However, it does not deepen my confidence in magistrates being authorised to give a warrant which is for the entry of the house, or private premises, or business premises of the citizen for the purposes specified.
I also draw attention to the fact that when the warrant to enter is granted under Clause 4 by a magistrate to a constable, then—and I now quote from subsection (3) of Clause 4:
"Articles seized under the authority of the warrant, and not returned to the occupier of the premises, shall be brought before a justice of the peace acting for the same petty sessions area as the justice who issued the warrant"
The point I am making here is that there is no time limit on the period that shall elapse between the seizure of the articles and bringing them before a justice of the peace if they are not returned to the occupier. Similarly one finds in Clause 5, which we shall come to shortly, the right of a magistrate to issue a summons to the accused person or to the occupier of the premises—because at that stage he is not accused—calling upon him to appear to show cause why the articles should not be forfeited. I mention this because of the important consequences of issuing a warrant for search. These things follow from the issue of the initial warrant, so that the moment the right of entry is granted then Clauses 4 and 5 come into operation, which can keep that occupier of premises waiting for a very long time. Therefore, I believe the granting of a search warrant is one of the most important acts in our system and I think henceforth it should be reserved to a higher granting authority than a justice of the peace.
That is my case and there is a precedent for this in regard to the granting of new powers to the Inland Revenue Department in 1976. The fact is that no power has since been granted to a justice of the peace to issue a warrant for entry since the Inland Revenue case of 1976, when it was a circuit judge, and that at the moment is where it rests. So far as I am aware in no subsequent Act of Parliament since 1976 has a justice of the peace been given a right to grant a warrant for entry. That is why I am relying on the precedent of the Inland Revenue case to ask that a circuit judge should operate under this
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Bill, and I sincerely hope that that case will appeal to noble Lords. I beg to move.
10.3 p.m.
Lord HARRIS of GREENWICH: My Lords, my noble friend has raised a number of interesting questions in the course of his speech. He referred to the basis of the selection of magistrates and he indicated that he had some doubt whether the basis was a correct one. I am sure he will understand that, not wishing to cause any displeasure to my noble and learned friend the Lord Chancellor, who is responsible, I do not think I shall become involved in a debate about the merits of this particular question because, even though my noble and learned friend, as we all know, is an extremely agreeable man, I think that both he and my right honourable friend the Chancellor of the Duchy of Lancaster would not welcome the opinion of a mere Home Office Minister on the basis of their choice of magistrates. It is a matter about which there has been a great deal of debate in the past. It raises far wider issues than can possibly be dealt with in this Bill, and I think we must look at the narrower questions of what would be the consequences were we to make these particular Amendments to the Bill.
My noble friend Lord Houghton of Sowerby has made it absolutely clear that these Amendments would have the effect, of considerable consequence, of depriving magistrates of the power to issue warrants authorising the police to search premises in connection with a suspected offence under this Bill. These are powers which in many fields commonly belong to magistrates. In particular the drafting of Clauses Nos. 4 and 5 is closely modelled on the equivalent provisions of the Obscene Publications Act. It seems to me that it would be extremely difficult to say that magistrates can do this in the case of the Obscene Publications Act but not in the case of this particular measure.
I do not begin to understand how one could possibly meet a question of that character. I think in fact we require arguments of very substantial substance before taking the view in relation to this Bill that a warrant should be issued only by a circuit judge when a warrant to search the same premises for obscene publications would be issued by a justice

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of the peace. If there are reasons of doubt as to whether it is right to allow magistrates to issue search warrants—as seems to be the case from the Amendment moved by my noble friend Lord Houghton—whether they should do this or continue to do this in the area of obscenity and indecency at all are matters which would appear to me to be more appropriate to be discussed as part of the review of the law in this field which is currently being undertaken by the Williams Committee on Obscenity and Film Censorship.
In the meantime I do not believe that the case has been made out for this particular Amendment. I very much hope that, in the light of what I have said, and in particular in relation to the comparison which would inevitably be made with the powers obtaining in the Obscene Publications Act, my noble friend will decide not to press this Amendment.
On Question, Amendment negatived.
[Amendments Nos. 9, 10 and 11 not moved.]
Clause 5 [Forfeiture]:
10.8 p.m.
Lord HOUGHTON of SOWERBY Lord HOUGHTON of SOWERBY moved Amendment No. 12:
Page 4, line 6, after ("summons") insert ("not later than fourteen days afterwards").
The noble Lord said: My Lords, I apologise for being persistent in some of these matters, but I must remind the House that this Bill had no Committee stage and no Report stage in another place. I believe that there has been nothing more disgraceful in Parliamentary procedure than the way in which this Bill was put through and left another place. These matters would have been dealt with in a Committee upstairs and could have been gone over carefully in ample time, without the appearance of pressure or of individual Members occupying too much time on the Committee stage. But here we are with a Bill which came to us in this unconsidered condition. Your Lordships will remember the row in another place over this Bill when a Member, Mr. Mikardo, raised the word "Object" when it was proposed that this Bill should pass through its Committee stage without amendment and without debate.
All the Government Amendments had been withdrawn, so the Bill left another place in its naked condition with everything in the Bill regarding punishments, except capital punishment, and with proposals which would have extinguished completely the rights of any citizen. I am trying to speed up the process of justice. One of the arguments already used against me is that if you cannot speed up the process of justice generally you cannot speed up the process of justice particularly in relation to this Bill, that proceedings under this Bill must take their place alongside other matters engaging the attention of the prosecuting authorities and the courts. But just consider what is involved when once the warrant for entry has been granted: any constable holding the warrant can enter the premises within 14 days afterwards, by force if necessary, and can remove all articles. I am quoting from Clause 4(2):
"… any articles which he believes (with reasonable cause) …".
Whether that is ever tested in the courts I do not know. I have never heard of a constable who broadens the sweep of his search and confiscation being hauled over the coals for not having reasonable cause. He can take them away, he can clear the shop, he can confiscate the cameras, he can stop a person from continuing in business or trade. And then the articles seized "shall be brought before a justice of the peace" at any time if they are not returned to the occupier of the premises. The police can hang on to them for weeks after weeks; nobody can compel them to do anything with them.
If they are not returned then they have to bring the matter before a magistrate, who, under Clause 5(1) "may issue a summons to the occupier of the premises to appear on a day specified", et cetera. When all the processes have been gone through—the search, the removal of articles, the custody of those articles by the police, the non-return of the articles to the occupier of the premises, the submission of the articles to a magistrate—and when the magistrate receives the submission of the articles, Clause 5(1) provides that he may issue a summons for the occupier of the premises to appear. What I am saying is that he should do that within 14 days from having had the matter brought to his attention by the police authorities.
We have heard from the noble and learned Lord, Lord Scarman, how lawyers must not make rushed decisions for fear of putting in peril the liberty of the subject; they must consider, they must ponder over, what they are going to do. But most people in this field presume to know almost at a glance what is indecent, they are so certain about it. Most people do not need to take photographs home and pore over them through the night to decide whether they are indecent or not. In most cases they will reach a speedy judgment about that.
I see no reason at all why a magistrate need have an indefinite time before he issues a summons to the occupier of the premises to appear to show cause why the articles should not be forfeited. It is the occupier of the premises who has to show cause, not the magistrate, not the police. Surely, when all the processes have been gone through and the magistrate has got the articles, within a fortnight he ought to be able to issue the summons for the occupier of the premises to appear. Is this unreasonable? What is the matter with them if they cannot reach these decisions? There are any number of magistrates. Any magistrate of the petty sessional area in which the goods have been seized can exercise this discretionary power under Clause 5(1).
My Lords, I am grieved that we are here at this hour of the night in this House trying to put this Bill into satisfactory order merely because it has been rushed forward under the impetus of emotion and propaganda, where rational feelings have gone out of the window, and we are not given adequate time at a reasonable hour to consider the implications of the Bill. It is an important Bill. Why then are we not giving much closer attention to it? Are we indifferent, or are we too old to consider the implications of what we are doing? Surely here we have a right—probably above all else in Parliament—to safeguard the liberty of the subject and to see that justice is done in a reasonable time. Am I being unreasonable about this?
What is the matter with me that my point of view has such little response in your Lordships' House? Have I got it all wrong, or are your Lordships so intent on dealing with this particular matter
1106
that you are willing to throw many other important considerations of liberty and of justice to the winds? I am not prepared to do that. When we consider that this Bill came to this House with the punishment of up to three years' imprisonment and a fine of £10,000 which was out of all proportion to other fines inflicted for much more serious crimes, I should have thought that we get an idea of how "crackers" some people have gone on this subject.
Therefore, I hope that we can introduce a small Amendment to ask a magistrate to decide on whether he issues a summons, when all the processes have been gone through up to him, within 14 days. That might give some people a little better chance of dealing with a situation which, in some cases, might involve innocent people. After all, one can never be sure what will be seized. Your Lordships have much more confidence in police seizure in this particular area than I have.
Prejudices are so strong in people's minds, including the police. I have here evidence of w hat police have said when they have been raiding premises. They have not observed the canons of impartiality of justice on those occasions. They have had a personal point of view and they have, quite improperly in my view, expressed it. It is the nature of the subject which is making for the great difficulty in getting a rational solution to some of the judicial problems that arise under the Bill. I beg to move.
Lord HARRIS of GREENWICH: My Lords, my noble friend Lord Houghton of Sowerby said that he might conceivably be accused of being rather persistent. I certainly make no such charge against him. As he pointed out, this Bill did not have a Committee stage in another place and it is perfectly reasonable that we should discuss this matter with some care, which he is ensuring that we do. So far as I am concerned there is certainly no complaint. I only wish that I was able to say that I recommend the House to accept the Amendment. However, I am afraid that I cannot do so for the reasons which I shall now endeavour to put forward.
First—and this inevitably harks back to the debate we had on another Amendment a few minutes ago—it is a most unusual course to impose this kind of

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time limit on the action to be taken by a justice of the peace. As a matter of principle, I think that it would be better for the Legislature not to seek to fetter the magistracy in that particular way. Certainly I should like to emphasise that I do not argue against the Amendment on the grounds of its impracticability, since it would impose a time limit that I do not believe would be necessary: in fact, the practical argument against the Amendment is that it is superfluous.
As your Lordships know, the procedure adopted in this clause is based on—indeed, it is exactly the same as—that in the Obscene Publications Acts. It is the common experience under those Acts that the police place seized material before a justice of the peace and that the justice decides there and then whether it is an appropriate case for the issue of a summons. Cases might arise where the justice needs time to study a large quantity of seized material or where arrangements have to be made for the viewing of films, and clearly there would be an obligation on him so far as that was concerned. However, for all practical purposes there does not appear to be a need for, or indeed any point in, a provision requiring this to be done within 14 days. That being so, I hope that my noble friend will not press the Amendment, because again it would be extremely difficult to put forward a coherent explanation as to why action under the Obscene Publications Acts would be handled in one particular way while action under this particular Bill would be dealt with in a different way. I cannot see any logic as far as Parliament is concerned in agreeing to such a change in our position. Therefore, I hope that, on reflection, my noble friend will agree not to press this Amendment.
On Question, Amendment negatived.
Lord HARRIS of GREENWICH Lord HARRIS of GREENWICH moved Amendment No. 13:
Page 4, line 37, leave out ("4") and insert ("2").
The noble Lord said: My Lords, I beg to move. This Amendment merely corrects an error in the Bill.
Clause 6 [Punishments]:
10.22 p.m.
Lord HOUGHTON of SOWERBY Lord HOUGHTON of SOWERBY moved Amendment No. 14:
Page 5, line 10, leave out ("three") and insert ("two").
The noble Lord said: My Lords, this is the last of my Amendments tonight. In subsection (2) of Clause 6 I am seeking to replace three years by two years. My noble friend Lord Longford is not in his place at the moment, but he once wrote a book which had considerable influence on Mr. Wilson's first Government in 1964. It was entitled, Crime, a Challenge to us All. We based a Bill upon some of the recommendations of that book, the purpose being to try to keep people out of prison. Indeed, at the present time there is very considerable concern about the number of people being sent for custodial sentences, and what it does to them if they suffer a loss of liberty and all that goes with being in gaol.
Clause 6 provides a fairly wide discretion of financial penalty. I should have thought that that, which could be substantial, together with a period of not more than two years, adequately dealt with those who might transgress this law. Is that not enough? Cannot I even make a plea now for leniency to the extent of a period in prison shorter by 12 months than the Bill provides for? Why three years? What particular virtue is there in three years? After all, in many cases of this kind where conviction is made, the penalties outside prison will be far greater; there will be loss of business and reputation and probably the person will be made bankrupt. I wonder that there are any bookshops in Manchester, in view of the way they are being raided there. These are grievous things for those who are trying to make a living, even though they may be thought by some authorities to be getting very near to a breach of the law.
Therefore, I plead for two years instead of three, or a fine, or both as provided in Clause 6. I hope that at the end of the day my noble friend will make this small concession which I think is on the side of leniency. However, when we deal with prison sentences we must be careful that we are not doing far more harm than good by sending some people to prison. After all, the train robbers are out and doing pretty well out of being out, just as they did pretty well out of being in. I do not

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think that a society which makes heroes of its train robbers need make too heavy weather over punishing wretches who indulge in this particular form of activity. There are other ways of hitting them. That is by money penalties, especially as most of them will be in business for money. However, that is what I ask your Lordships to do. I beg to move.
Lord HARRIS of GREENWICH: My Lords, I would join with my noble friend in hoping that we can take any action that is appropriate to limit the size of the prison population, and therefore one starts off with some predisposition to favour the particular course of action which he has urged upon us. Nevertheless there are significant difficulties about what he has suggested and I should like briefly to deploy them. The first problem is that we must try to maintain some proper sense of balance so far as sentencing is concerned, so far as maximum sentences are concerned.
It is essential, when one is looking at a new piece of legislation, as we now are, to look at the penalties in comparable legislation. We have done that, and that is why the Bill is as drafted at the moment. The penalties provided in the Bill are based on those in the Obscene Publications Acts, so that a person convicted under the Bill of an offence of trading in child pornography will be liable to the same punishment as if he were convicted of offences of trading in obscene publications generally. On that basis a maximum of three years seems more appropriate than one of two years.
It seems to us inappropriate for persons dealing in the kind of child pornography which, although not obscene, is illegal under the Bill to be liable to lesser penalties than for dealing in other forms of pornography. For that reason, I doubt whether it would be the wish of the House to reduce the penalties at present provided. If subsequently, as a result of the deliberations of the Williams Committee or elsewhere, it is necessary to look at this whole question of penalties, that might be the time to do so. But for the moment it seems difficult to fix one level of penalties so far as the Obscene Publications Acts are concerned and a lower set of penalties for people dealing in child pornography.
On Question, Amendment negatived.
Clause 7 [Interpretation]:
Lord HARRIS of GREENWICH Lord HARRIS of GREENWICH moved Amendment No. 15:
Page 5, line 30, leave out ("video-tape") and insert ("any form of video-recording").
The noble Lord said: My Lords, this Amendment seeks to remedy what may be an unnecessarily limited definition of "film in Clause 7(5) of the Bill. In our judgment it would be unfortunate if the reference to video-tape were held to exclude from the Bill other means by which what most of us in common speech would call films could be sold or shown. It is clearly right, for example, that the Bill should cover a video-recording made in disc form which may come to be more widely available than at present. The effect of this Amendment is therefore to widen the definition to cover all forms of video-recording. I beg to move.
Lord HARRIS of GREENWICH Lord HARRIS of GREENWICH moved Amendment No. 16:
After Clause 7, insert the following new clause:
Similar provision for Northern Ireland
(" . An Order in Council under paragraph 1(1)(b) of Schedule 1 to the Northern Ireland Act 1974 (legislation for Northern Ireland in the interim period) which contains a statement that it operates only so as to make for Northern Ireland provision corresponding to this Act—

(a) shall not be subject to paragraph 1(4) and (5) of that Schedule (affirmative resolution of both Houses of Parliament); but

(b) shall be subject to annulment by a resolution of either House.").

The noble Lord said: My Lords, I beg to move. The Government intend that the law in Northern Ireland should provide equal protection for the children of Northern Ireland and should provide no less assistance to the police than does the law in England and Wales. This new clause accordingly provides the means of applying to Northern Ireland provisions which correspond closely to those in the Bill, and by doing so with the least possible delay. I think that this point was raised by the noble Baroness, Lady Elliot, during our last discussion of the Bill when she raised the question first of all in relation to the situation in Scotland, on which I think I managed to satisfy

1111
her, and secondly in relation to the situation in Northern Ireland, which is dealt with in this particular new clause.
It may be useful if I briefly outline just how legislation will be applied to Northern Ireland. As soon as possible after Royal Assent we shall bring forward an Order in Council containing provisions for Northern Ireland corresponding to those in this Bill. This Order in Council will be made under the Northern Ireland Act 1974, the usual means of enacting primary legislation for Northern Ireland during direct rule. However, rather than requiring the normal Affirmative Resolution procedure of both Houses, that Order in Council will, by virtue of the Protection of Children Bill, be subject only to annulment. There is no need for a further debate on the Order in Council since it can contain only provisions corresponding to those of this Bill, and those provisions will have been fully approved by Parliament during the Bill's Parliamentary passage.
Lord LYELL: My Lords, as the Minister referred to my noble friend Lady Elliot, and as she is not here to hear his remarks, I wish, on her behalf, to thank the noble Lord for the point he has covered. I will assure her that the point she made in Committee has been met and I am sure she will read in Hansard what the noble Lord has said.
Lord HOUGHTON of SOWERBY: My Lords, what is ruining the children of Northern Ireland is religious bigotry and civil war.
Clause 8 [Short title, extent and commencement]:
Lord HARRIS of GREENWICH Lord HARRIS of GREENWICH moved Amendment No. 17:
Page 5, line 35, leave out ("or") and insert ("and except for that subsection, and subject also to section (Similar provision for Northern Ireland) shall not extend to").
The noble Lord said: My Lords, this Amendment is consequential on new Clause 7A which we have just inserted in the Bill. It simply amends the existing provision about territorial extent to take account of the new provision enabling the Bill to be extended to Northern Ireland.

LONDON TRANSPORT BILL
Examiners Certificate that no further Standing Order is applicable: Ordered to lie on the Table.
CO-OPERATIVE DEVELOPMENT AGENCY BILL
Returned from the Commons with the Amendment agreed to.
DOMESTIC PROCEEDINGS AND MAGISTRATES' COURTS BILL [H.L.]
Returned from the Commons with the Amendment to the Commons Amendment agreed to.
CHRIST CHURCH WOBURN SQUARE AND SAINT MATTHEW OAKLEY SQUARE BILL [H.L.]
Returned from the Commons with Amendments, the said Amendments considered, and agreed to.